As you may know, the Ninth Circuit Court of Appeals found California’s Proposition 8 unconstitutional this morning. This furthers a process that will almost certainly end in the Supreme Court, with a precedent-setting ruling on the right of same-sex couples to marry. However, the ruling today is limited to the circumstances of the California initiative, according to the Ninth Circuit.
Protect Marriage, the pro-Prop 8 group who defended the initiative in court, now has two options. They can appeal the decision to an en banc panel of the entire Ninth Circuit, or they can appeal directly to the Supreme Court. Even if they go the en banc route, it is expected that the losing party in that case would appeal to the Supremes. So that’s where this case is destined, whether it sets up for a ruling in 2013 or 2014 (if the en banc route is taken first). And the expectation is that the court will rule in a very narrow vote that could come down to the swing vote on the court, Justice Anthony Kennedy.
It’s fortuitous then, and by design, that the appeals court ruling referred specifically in several cases to Romer v. Evans, a civil rights case from the Supreme Court that Kennedy wrote. That case ruled that Amendment 2, a Colorado initiative that would have stopped any recognition of LGBT individuals as a protected class, was unconstitutional. In the ruling, Kennedy wrote, “Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” And today’s Ninth Circuit ruling says early on:
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of “marriage,” which symbolizes state legitimization and societal recognition of their committed relationships. 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. The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).
The American Foundation for Equal Rights and its legal team, which includes Bush v. Gore adversaries Ted Olson and David Boies, have been using Kennedy-in-mind written briefs as part of their argument since the beginning of this case. And the Ninth Circuit picked up on it.
The court also struck down the argument that US District Court judge Vaughn Walker, who ruled initially in the case, was diminished or compromised by virtue of being gay. That sends a strong message about LGBT equality as much as the rest of the case, that courts will not fall victim to bigotry.
Whether a Supreme Court ruling will have an impact on marriage laws across the country is unclear. The Ninth Circuit ruling sought to narrow matters and confine them only to California. So it would probably be up to another case in another state to build on the precedent of whatever comes out of the Supreme Court in the case. One would think it would apply across the states, but another step may have to be taken.
As someone who sat in Vaughn Walker’s courtroom during the original Prop 8 trial, I feel proud to see the hard work of those fighting for equality vindicated.