Immediate Gay Marriages in California While Appeals Run Their Course

 A federal appeals court on Tuesday struck down California's voter-mandated ban on gay marriages, but stopped short of finding that other states or the federal government were required to recognize same-sex marriage.

The decision sets the stage for the U.S. Supreme Court to weigh in on gay marriage as soon as next year, and could add fuel to the issue in the presidential campaign.

In a 2-1 vote, a panel of the Ninth U.S. Circuit Court of Appeals said California's 2008 law, popularly known as Proposition 8, violated the 14th Amendment's equal-protection clause by stigmatizing a minority group without legitimate reason.

A federal appeals court panel in San Francisco ruled Tuesday that California's voter-mandated ban on gay marriages was unconstitutional. Geoffrey Fowler has details on The News Hub. Photo: Getty Images

Legal Patchwork

See where each sate stands on the same-sex marriage issue.

View Interactive

• More photos and interactive graphics

 "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," wrote Judge Stephen Reinhardt, who was appointed to the court by former President Jimmy Carter.

 

Tuesday's decision is likely just a way station en route to the Supreme Court, although Proposition 8's backers could first ask an expanded 11-judge panel of the Ninth Circuit to re-hear the case.

The two judges behind the ruling sidestepped the broader issue of whether there was a constitutional right for same-sex couples to marry. By focusing instead on specifics of how same-sex marriages were first allowed and then forbidden in California, Judge Reinhardt's opinion seemed more likely to survive any eventual Supreme Court scrutiny, said legal analysts.

The narrow ruling is "clearly meant to try, as best they can, to insulate the decision from future review," said David Masci, a senior researcher at the nonpartisan Pew Forum on Religion & Public Life.

While appeals are pending there aren't likely to be any same-sex marriages performed immediately in California, as the court's rules allow two weeks for the finding to take effect.

Andy Pugno, general counsel for the ProtectMarriage.com coalition, the official proponents of Proposition 8, said he would "immediately" appeal the ruling, though he didn't say to which court. That likely would cause the verdict to be stayed further.

"Ever since the beginning of this case, we've known that the battle to preserve traditional marriage will ultimately be won or lost not here but rather in the U.S. Supreme Court," Mr. Pugno said. "We are confident that the rights of California voters will finally win out."

Ted Olson, one of the lawyers representing couples who challenged Proposition 8, said: "This case is about equality and freedom and dignity and fairness and decency. It is about whether we are going to eliminate government-sponsored discrimination written into the constitution of the biggest state in the U.S."

Mr. Olson, a Republican stalwart, teamed up with David Boies, a Democrat and his adversary in the 2000 presidential-election case of Bush v. Gore, to bring the challenge to Proposition 8.

The issue has a history in California that stretches back to 1977, when the state legislature for the first time passed a law explicitly limiting marriage to a man and a woman. In 2008, the California Supreme Court found that the state constitution's privacy, due-process and equal-protection provisions didn't permit discrimination against same-sex couples. That allowed gay marriages to take place.

View Slideshow

Zuma Press

Partners Ellen Pontac, left, and Shelly Bailes, right, of Davis, Calif., hugged Tina Reynolds, center, as they watched the ruling at a restaurant in Sacramento Tuesday. Ms. Pontac and Ms. Bailes married on June 16, 2008.

Same-sex marriage opponents responded the same year with Proposition 8, a ballot initiative to amend the state constitution to nullify the California Supreme Court's decision, and define marriage as between "one man and one woman." Some 18,000 marriage licenses had been issued to same-sex couples before Proposition 8 passed with 52% of the vote in November 2008. Those licenses remain valid.

The Ninth Circuit ruling on Proposition 8, if upheld, would allow gay marriages to resume statewide in California.

The Proposition 8 case, known as the Perry trial after lead plaintiff Kristin M. Perry, was filed by two same-sex couples seeking to marry in California. In 2010, U.S. District Judge Vaughn Walker of San Francisco struck down the law, saying it violated the U.S. Constitution's guarantees of equal protection and due process. That decision was appealed by ProtectMarriage.com after the state of California refused to defend the law.

Related Document

Read the opinion.

View Document

The appeals panel's majority said Tuesday that Proposition 8 must be invalidated because California's existing laws related to domestic partnerships already give gay couples the same state rights as opposite-sex couples. So in effect, they said, Proposition 8 took away the significant designation of "marriage" while leaving in place all of marriage's legal rights and responsibilities.

The majority opinion said the people of California lacked a "rational basis" for passing Proposition 8, noting that the law "had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California." Writing for the majority, Judge Reinhardt based his ruling on a 1996 precedent by U.S. Supreme Court Justice Anthony Kennedy, a pivotal vote on the high court who often has broken from fellow conservatives in favor of gay rights.

In the 1996 opinion, Justice Kennedy invalidated a Colorado referendum that nullified antidiscrimination protections for gays and lesbians enacted by local governments, and forbid such measures in future. Likewise, Judge Reinhardt wrote, Proposition 8 served no purpose other than to codify disapproval of gays and lesbians.

 Federal courts have jurisdiction to review the constitutionality of state laws—even those approved by voters as a ballot initiative—and have developed specific tests to do so. For instance, because the Constitution requires states to provide "equal protection of the laws," measures that treat people differently can be found unconstitutional, as the Ninth Circuit did with Proposition 8.

In Tuesday's ruling, Judge N.R. Smith, appointed by President George W. Bush, dissented from his two colleagues regarding the law's constitutionality. He wrote that he wasn't convinced that there couldn't have been a rational basis for citizens to enact the law, such as promoting responsible procreation and optimal parenting.

Even if an appeal is immediately filed at the Supreme Court, and it is accepted, odds are slim the justices will hear the Proposition 8 case before their current term ends in June. A ruling is unlikely before spring 2013, unless the justices take extraordinary steps to expedite the case.

California's Ninth Circuit Court of Appeals has ruled that the state's ban on gay marriage is unconstitutional. WSJ's Jess Bravin visits Mean Street to discuss. Photo: Getty Images.

Once at the high court, the pivotal vote likely would be cast by Justice Kennedy, who, in addition to the 1996 Colorado case, also wrote the majority opinion in Lawrence v. Texas, which in 2003 invalidated a state sodomy law by a 6-3 vote. The Lawrence opinion overruled a 17-year precedent to hold that the constitutional guarantees of liberty and due process prohibit Texas from controlling "the most private human conduct, sexual behavior, and in the most private of places, the home."

The court's composition has changed since 2003, and neither of the two conservatives appointed by former President George W. Bush, Chief Justice John Roberts and Justice Samuel Alito, nor President Barack Obama's two liberal appointees, Justices Sonia Sotomayor and Elena Kagan, have had to rule on a significant gay-rights issue. Assuming each is consistent with the court's conservative and liberal wings, however, that would leave Justice Kennedy again to decide the outcome of a 5-4 vote.

The high court also eventually could take up challenges to the Defense of Marriage Act, a 1996 U.S. law that denies federal benefits to married same-sex couples. This year, a U.S. appeals court in Boston will hear arguments over the constitutionality of the law and its eventual ruling likely will be appealed to the Supreme Court.

Six states, plus the District of Columbia, permit same-sex marriages, and proponents of gay marriage are gearing up to press their cause during this election year, including in Maine and Washington state.

By GEOFFREY A. FOWLER and JESS BRAVIN

online.wsj.com