SAN FRANCISCO – A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.
It was unclear when gay marriages might resume in California. Lawyers for Proposition 8 sponsors and for the two couples who successfully sued to overturn the ban have repeatedly said they would consider appealing to a larger panel of the court and then the U.S. Supreme Court if they did not receive a favorable ruling from the 9th Circuit.
"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted," the ruling states.
The panel also said there was no evidence that former Chief U.S. Judge Vaughn Walker was biased and should have disclosed before he issued his decision that he was gay and in a long-term relationship with another man.
The ruling came more than a year after the appeals court heard arguments in the case.
Proposition 8 backers had asked the 9th Circuit to set aside Walker's ruling on both constitutional grounds and because of the thorny issue of the judge's personal life. It was the first instance of an American jurist's sexual orientation being cited as grounds for overturning a court decision.
Walker publicly revealed he was gay after he retired. However, supporters of the gay marriage ban argued that he had been obliged to previously reveal if he wanted to marry his partner -- like the gay couples who sued to overturn the ban.
Walker's successor as the chief federal judge in Northern California, James Ware, rejected those claims, and the 9th Circuit held a hearing on the conflict-of-interest question in December.
California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.
The ballot measure inserted the one man-one woman provision into the California Constitution, thereby overruling the court's decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them and its passage followed the most expensive campaign on a social issue in the nation's history.
The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages, but ruled that voters had properly enacted the law.
With same-sex marriages unlikely to resume in California any time soon, Love Honor Cherish, a gay rights group based in Los Angeles, plans to start gathering signatures for a November ballot initiative asking voters to repeal Proposition 8.
Supporters and opponents of California's ban on same-sex marriages were anxiously awaiting a federal appeals court decision Tuesday on whether the voter-approved measure violates the civil rights of gay men and lesbians.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco considering the question plans to issue its long-awaited opinion a year-and-a-half after a federal trial judge struck down the ban, known as Proposition 8. The 9th Circuit does not typically give notice of its forthcoming rulings, and its decision to do so Monday reflects the intense interest in the case.
Even if the panel upholds the lower court ruling, it could be a while before same-sex couples can resume marrying in the state. Proposition 8's backers plan to appeal to a bigger 9th Circuit panel and then the U.S. Supreme Court if they lose in the intermediate court, which would likely put its ruling on hold while that process plays out.
The three-judge panel, consisting of judges appointed by presidents Jimmy Carter, Bill Clinton and George W. Bush, heard oral arguments on the ban's constitutional implications more than a year ago. But it put off a decision so it could seek guidance from the California Supreme Court on whether Proposition 8's sponsors had legal authority to challenge the lower court ruling once California's attorney general and governor decided not to appeal it.
The California court ruled in November that the state's vigorous citizens' initiative process grants the official proponents of ballot measures the right to defend their measures in court if state officials refuse to do so. While its reading is not binding on the federal court, the 9th Circuit's written heads-up suggests the panel accepted the Supreme Court's interpretation, legal observers said.
Further complicating the 9th Circuit's consideration of the case was a move in April by lawyers for the coalition of religious conservative groups that put Proposition 8 on the ballot seeking to have the lower federal court decision striking down the measure vacated because the now-retired judge who issued it was in a long-term relationship with another man.
Former Chief U.S. District Judge Vaughn Walker disclosed he was gay and had a partner of 10 years after he retired from the bench last year. Proposition 8's backers have argued that Walker's relationship posed a potential conflict-of-interest and that he should have revealed it before he declared the measure unconstitutional in August 2010.
Walker's successor as the chief federal judge in Northern California, James Ware, rejected their claims that Walker was unqualified to preside over the 13-day trial that preceded his ruling -- the first in a federal court to examine if same-sex couples have a constitutional right to get married -- because he stood to personally benefit from declaring Proposition 8 unconstitutional.
The 9th Circuit held a hearing on that question in December.
California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.
The ballot measure inserted the one man-one woman provision into the state Constitution, thereby overruling the court's decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them.
The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages, but ruled that voters had properly enacted the law.
California Supreme Court rules for democracy.
by Steven E. Masone 2009 Article Herald Newspaper
The California Supreme Court ruling that proposition 8 was and is constitutional, was not a surprise to the legal community at all. It is what a democracy is all about. The voters decide what their constitution contains and it also is the right of the citizens to change it if the majority deems it necessary to do so.
The highest court in the state understands this and to have decided against the proposition would have caused the possibility of a constitutional convention which also would open up the voters rights to impose sanctions and restrictions against judicial activism.
So whether or not the gay lobby likes it, as long as the majority of California's electorate say no, that's the end of it.This issue will be very divisive in the future if the vote goes the other way because many who oppose gay marriage on their religious moral convictions may pick up and move to a state they can feel will be more conducive and supportive of their faith and family values. This of course would be financially catastrophic if there was a mass exodus from the state. The rights of gay couples as to their actual benefits and domestic partnership would not improve one whit if they ever win the popular vote and overturn prop 8.
Most opponents see that they want more then the actual equality as to their legal rights they now have, which is a sort of "slapping our religious face" by encroaching on our holy institution given by our God of the bible, that teaches us their lifestyle is wrong. This is the perception of many, including the perception that they want our schools to teach our children contrary to these same beliefs. It seems they will shoot themselves in the proverbial foot if they push any further for bible believing America will not live in a state like they want.
It is likely that Roe vs Wade will one day be back in the hands of state rights and jurisdiction, and when that happens, along with all of the other issues conservative believers of all faiths that oppose the homosexual lifestyle as being against God and his nature will band together in political alliances in states they will be the majority in.
America will become polarized because the gay movement went to far.They have equal rights now,but they want to throw our faith into the streets of Sodom and Gomorrah and we say no.We will pick up our financial marbles and find another home, leaving them to socialistic and hedonistic decay.
Ironic that the Gay Flag is Rainbow ...God's sign he would not destroy a sinful world by water again.
2 Peter 3:10 But the day of the Lord will come like a thief. It will be by FIRE!
"The heavens will disappear with a roar; the elements will be destroyed by fire, ... and the elements will melt with fervent heat, the earth also and the works that are ... And the elements shall melt with fervent heat"
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