'Narrow' ruling? Court strikes down Prop 8

Baptist Press
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Posted: Feb 08, 2012 5:52 PM
'Narrow' ruling? Court strikes down Prop 8
Originally posted Feb. 7, 2012

Updated Feb. 7, 5:35 p.m. Eastern

SAN FRANCISCO (BP) -- A federal appeals court Tuesday struck down California's Proposition 8, handing gay groups a big win while avoiding the larger question of whether the U.S. Constitution guarantees gays nationwide the right to "marry."

The outcome by the Ninth Circuit Court of Appeals was not a huge surprise, as the three-judge panel seemed inclined during oral arguments to overturn Prop 8, which defines marriage as between one man and one woman and was passed at the ballot in 2008. But it was a landmark decision and marked the first time an appeals court in the U.S. has ruled that same-sex couples in a state have a right to "marry." The ruling will be appealed and could end up before the U.S. Supreme Court.

The 2-1 decision affirmed a 2010 lower court ruling by Judge Vaughn Walker, now retired.

"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," Judge Stephen Reinhardt wrote for the majority. "... By using their initiative power to target a minority group and withdraw a right that is possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause."

But the ruling was not the home run gay groups had hoped it would be, and its impact could be limited to California, meaning it might not affect the 28 other states with constitutional amendments defining marriage in the traditional sense. Reinhardt -- a nominee of President Carter -- called the decision "narrow" and said it was not answering the broader question of whether states ever can define marriage as between a man and a woman. Walker, in 2010, had said there was a federal constitutional right for such unions.

"Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question," Reinhardt wrote before adding, "we need not and do not answer the broader question in this case."

Reinhardt was joined in the opinion by Michael Daly Hawkins, a nominee of President Clinton. Judge N. Randy Smith, a nominee of President George W. Bush, dissented.

Alliance Defense Fund attorney Dale Schowengerdt said that while the decision's outcome was more narrow than Walker's, its reasoning in striking down Prop 8 was broad.

"It's not a narrow ruling in many regards," Schowengerdt told Baptist Press. "The court basically said there's no legitimate reason to define marriage as the union between a man and a woman. The court said Proposition 8 was supported by nothing but animus."

All of the majority's arguments, he added, could be used to strike down the traditional marriage laws in the 44 states that don't recognize gay "marriage."

The ruling "could impact marriage in many, many states," Schowengerdt said.

Already, supporters of proposed constitutional marriage amendments in North Carolina and Minnesota are using the ruling as evidence that their states need to adopt such an amendment. North Carolinians will vote on an amendment in May, Minnesotans in November.

"The proposed amendment protects North Carolina from being in the same position as California by not granting any legal recognition of same-sex relationships, which could be overturned by an equal protection argument," Tami Fitzgerald, chairwoman of Vote for Marriage NC (VoteforMarriageNC.com), said in a statement. "Every day that goes by is another day when a judge can decide to substitute his values for those of North Carolinians. We need the marriage protection amendment to prevent that."

Gay groups applauded the ruling.

"Today's decision affirms what we all know to be true -- our Constitution protects the basic civil rights of all Americans, including lesbian, gay, bisexual and transgender people," said Joe Solmonese, president of the Human Rights Campaign, the nation's largest gay group. "We must all continue our work -- in courthouses and statehouses, in church pews and living rooms -- until equality is reality for LGBT people and our families everywhere."

The majority opinion seemed to suggest that California's amendment was unconstitutional because it removed a state right that already existed; Prop 8 reversed a California Supreme Court ruling that had legalized gay "marriage." Conservatives were quick to note that in 2008, before the California court even had issued its ruling, Prop 8 supporters already had submitted their signatures to the state to qualify the amendment for the ballot. The idea for an amendment, they said, preceded the court's action. They even asked the California Supreme Court to delay the impact of its ruling until after voters had their say, but the court declined.

The majority further said that California was wrong to set up a system whereby gay couples were eligible for domestic partnerships benefits but not marriage. In California, gay couples can get all the benefits of marriage under domestic partnerships.

California and other states, conservative groups said, have a valid interest in defining marriage as between one man and one woman.

"The biggest interest a state has is steering procreation into a stable environment," Schowengerdt said. "Second, children do by far better with a married mother and father. Both mothers and fathers bring something unique to parenting, and that's confirmed overwhelmingly by social science. The state has an interest in promoting the relationship of a mother and a father, giving it special recognition. Every culture and society throughout history -- regardless of religion or time or geography -- has recognized that."

Other courts have upheld a state's interest in defining marriage in the traditional sense.

In 2006, New York's highest court declined to legalize gay "marriage," ruling that "intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like." Similarly that same year, Washington state's highest court said the state "was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents." Maryland's highest court issued a similar ruling, too.

Traditionalists warn the legalization of gay "marriage" would have a widespread negative impact on society, affecting the tax-exempt status of religious organizations, the religious liberty of private businesses and curriculum in elementary schools.

The case is Perry v. Brown

Michael Foust is associate editor of Baptist Press.

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