by Jeremy Leaming
The movement for marriage equality, part of a much more expansive effort to advance equality for the LGBT community, avoided a setback as a federal appeals court in San Francisco refused to reconsider its ruling from earlier in the year that invalidated California’s anti-gay measure Proposition 8.
Proponents of Proposition 8, which barred same-sex marriages in the state, had urged the entire U.S. Court of Appeals for Ninth Circuit to review and reverse a three-judge panel’s February ruling. But a majority of the Circuit’s judges voted against reconsideration, the Los Angeles Times reported.
In February, the Ninth Circuit panel ruled 2-1 that Proposition 8 “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.” Writing for the majority in Perry v. Brown, Ninth Circuit Judge Stephen Reinhardt said, “Proposition 8 worked a singular and limited change to the 
California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all their other rights and responsibilities as partners – rights and responsibilities that are identical of those married spouses and form an integral part of the marriage relationship.”
Today, three of the Ninth Circuit’s judges lodged a dissent saying the full Circuit should have reviewed the panel’s opinion. The dissenters accused their colleagues of muzzling “respectful conversation” of same-sex marriage. “Even worse,” they continued, “we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”
In its February opinion, Reinhardt (pictured) cited the Supreme Court’s Romer v. Evans opinion that invalidated Colorado’s effort to use state law to marginalize a group of people, namely gay men and lesbians. Reinhardt noted that in Romer, the high court said Colorado’s constitutional amendment preventing localities from implementing laws protecting lesbians and gay men from discrimination undermined equal protection principles, saying that it was “not within our constitutional tradition to enact laws of this sort,” which targets “a certain class of citizens for disfavored legal status.”
Reinhardt also lamented the impact of Proposition 8, which yanked marriage equality rights from same-sex couples not long after the California Supreme Court ruled that the state’s constitution granted them the right to wed.
On that score, Proposition 8 could not survive, for a very simple reason. The interests that were offered in support of denying marriage status to same-sex couples were not relevant to the actual inequality that Proposition 8 created. As the court recognized, Proposition 8 affected only the status of marriage, not the legal infrastructure supporting families headed by same-sex couples. The word “only” does not at all mean that the denial of this status is unimportant to either side of this debate. But it does confine the court’s equal protection inquiry to just those state interests that could be said to justify this denial of the title of marriage. The court rightly recognized that broad assertions of state interests that might arguably be served by restricting same-sex households and families were simply not germane to Proposition 8 itself, because that proposition did not have any effect on the surviving bundle of property, parenting, and companionship rights that support those households and families. The state was called upon to offer a non-hostility-based rationale for leaving same-sex households legally intact while denying them the status of marriage. The court found none.
