Stephen Reinhardt

Calling Proposition 8 “remarkably similar” to Colorado’s anti-gay Amendment 2 in 1992, a divided federal appeals court panel in San Francisco ruled Tuesday (February 7) that California’s same-sex marriage ban violates the federal constitution.

It was, noted many attorneys working on the issue of equal rights for LGBT people, the first time a federal appeals court has issued a decision in favor of marriage equality for same-sex couples. And it was, as lead attorney Ted Olson put it, “a very significant milepost on the way to equality.”

In a 2 to 1 decision in Perry v. Brown, the Ninth Circuit U.S. Court of Appeals panel noted that the rights at issue in this landmark case concerning the ability of voters to withdraw the right to marry from same-sex couples in California was essentially the same as the ability of voters in Colorado, in 1996, to withdraw from LGBT people the protection of laws prohibiting discrimination.

“Laws may be repealed and new rights taken away if they have had unintended consequences or if there is some conceivable affirmative good that revocation would produce,” noted the majority, “but new rights may not be stripped away solely because they are new.”

The California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. But in November of that year, voters approved Proposition 8, an initiative that amended the state constitution to explicitly ban the recognition of same-sex marriage.

Quoting from the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, striking down laws barring sexual relations between same-sex partners, and referring to the 1967 U.S. Supreme Court decision, Loving v. Virginia, striking down bans on interracial marriage, the appeals panel noted that the “fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”

Olson and co-lead attorney David Boies said the Ninth Circuit panel’s heavy reliance on decisions from the U.S. Supreme Court makes the panel’s ruling “extremely strong.”

“There’s a high likelihood,” said Olson, in an afternoon phone conference with reports, “that the Supreme Court will find [Perry v. Brown” very hard to ignore.”

Olson and Boies made clear that they have always considered the case to be one headed for the U.S. Supreme Court. They said the Yes on 8 coalition which successfully campaigned for Proposition 8 have 14 days in which to announce whether they are appealing the decision and to where. They could ask for appeal to the full Ninth Circuit bench or go straight to the U.S. Supreme Court. Until February 28, said Olson, a stay on the Ninth Circuit’s panel decision is in effect.

Olson said that, while he expects Yes on 8 to seek an extension of the stay beyond February 28, his legal team would oppose that extension.

The highly anticipated ruling also rejected a motion from Yes on 8 proponents to vacate the district court ruling of former Chief Judge Vaughn Walker because Walker had not disclosed, prior to presiding over Perry v. Brown (known as Perry v. Schwarzenegger at the time), that he was in a relationship with a man.

And while attorneys and activists uniformly called the February 7 decision a major victory, the appeals court panel did stop short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, it said Proposition 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’”

“We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.”

“If the Ninth Circuit had ruled that the fundamental right to marry protected by the Constitution is shared equally by same-sex couples,” said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt…” Such a broad ruling, he said, “in all likelihood would have resulted in Supreme Court review of the decision.”

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

An attorney on the Olson-Boies team said they think the Ninth Circuit majority wanted to write as narrow decision as possible and minimize the likelihood that the Supreme Court would review the decision.

And, like the U.S. Supreme Court in the Colorado case, the Ninth Circuit panel declined to examine whether it should apply the most stringent form of scrutiny —heightened scrutiny— to laws disfavoring gays and lesbians. Proposition 8, like Amendment 2, said the majority, failed to satisfy even the simplest rational level of review.

Walker, in his August 2010 decision, said Proposition 8 violated the federal Equal Protection clause because there was no rational basis for limiting the designation of marriage to straight couples. He also said it violated the federal Due Process clause because there was not compelling reason for the state to deny same-sex couples the fundamental right to marry.

The 2 to 1 majority opinion was written by Judge Stephen Reinhardt and joined by Judge Michael Hawkins. The partial dissent, by Judge Randy Smith, concerned the constitutionality of Proposition 8.

The majority said California’s Proposition 8 was more of a “surgical precision” attack than Colorado’s Amendment 2. Proposition 8, it said, attacked “one specific right: the right to use the designation of ‘marriage’ to describe a couple’s officially recognized relationship.”

The Ninth Circuit panel heard oral arguments concerning these key issues in the case in December 2010.

Yes on 8 attorneys argued during the January 2010 trial that the ban on same-sex marriage was justified because same-sex marriage would make children “prematurely preoccupied with issues of sexuality.”

Olson, arguing against Proposition 8, called that reasoning “nonsense” and said, “If believed, that would justify the banning of comic books, television, video games, and even conversations between children.” And during their 2008 campaign to pass Proposition 8, said Olson, Yes on 8 claimed the ban was justified to protect children from the idea that marriage between same-sex partners is OK.

As expected, the three-judge panel ruling agreed with a California Supreme Court ruling that Yes on 8, the coalition which successfully campaigned for the ban on same-sex marriage in 2008, did have legal standing to appeal Walker’s decision, even though state officials chose not to. The panel unanimously concluded it was “bound” by the state supreme court determination and that Yes on 8 did not “need not show that they would suffer any personal injury from the invalidation of Proposition 8” because “the State would suffer an injury….”

Kristen Perry, the lead plaintiff of the two couples challenging the law, said at a press conference today that the “dark walls of discrimination” are being dismantled. Her partner, Sandra Stier, spoke, as did one of their two sons who said, “With this ruling, in the eyes of the government, my family is finally normal.”

Plaintiff Paul Katami and his partner Jeffrey Zarrillo introduced Zarrillo’s parents, who have been married for more than 40 years.

Zarrillo’s father told the press conference that he was very proud of his son and his “soon-to-be son-in-law.”

Chad Griffin, head of American Foundation for Equal Rights (AFER), which has been funding the litigation against Proposition 8, dodged a question, asking him to comment on an effort underway, by a pro-marriage equality group, to overturn Proposition 8 through a ballot measure. But drew attention to attempts by opponents of same-sex marriage around the country who are trying such strategies as ballot measures and removing judges from office to overcome judicial rulings such as this one.

“We’re not at the end of the line yet,” said Olson, later in the press conference, “but I cannot overstate the importance of the decision today.”