Marriage Equality Movement Avoids Setback with Ninth Circuit’s Action on Prop. 8

June 5, 2012

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.

“In adopting the amendment,” Reinhardt wrote, “the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it.”

The Times says today’s decision means the “U.S. Supreme Court is likely to have two major gay-rights cases on its docket in the near future.”

The other major case was issued last week by the U.S. Court of Appeals for the First Circuit, which invalidated a provision of the so-called Defense of Marriage Act (DOMA), saying it undercut values of equality and interfered with the ability of states to regulate marriage.

Evan Wolfson, head of the marriage equality group Freedom to Marry, said today’s action by the Ninth Circuit “brings committed same-sex couples in California one step closer to being able to marry. It’s now been three-and-half years since the freedom to marry was stripped from loving and committed same-sex couples. It is long past time for this ‘gay exception’ to marriage in California to come to an end.”

Though important to the LGBT equality movement, Kate Redburn in a post for Jacobin’s blog noted that some perspective is needed. Indeed, protections for LGBT persons from discrimination in the workplace are still lacking, and funding for social services for the LGBT community continues to dwindle, even in places like New York City.