By Cliff Dunn

SAN?FRANCISCO, CA – On Tuesday, a federal appeals panel of the 9th U.S. Circuit in San Francisco ruled that California’s law that bans same-sex marriage is unconstitutional. The decision is likely to be appealed to the full U.S. Court of Appeals for the 9th Circuit by opponents of marriage equality, or make its way to the U.S. Supreme Court.

Proposition 8 was approved in 2008 by 52 percent of California voters. It amended the state’s Constitution to limit marriage to a man and a woman. A majority of states have similar constitutional amendments that ban same-sex marriage. Six states– Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and New York—as well as the District of Columbia permit marriage equality.

In the decision, U.S. Circuit Judge Stephen Reinhardt wrote, “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,” adding that “the Constitution simply does not allow for laws of this sort.”

The 2-to-1 panel vote that overturned Prop 8 included Reinhardt, an appointee of President Jimmy Carter and considered one of the nation’s most liberal appellate judges, and Judge Michael Daly Hawkins, who was appointed to the court by President Bill Clinton. The dissenter, Judge N. Randy Smith, is a conservative appointed by President George W. Bush.

The panel did not address whether the Constitution protects the rights of same-sex couples to marry. Instead, it took a narrow position, focusing on the fact that gay couples had possessed the right to marry in the Golden State, for however brief a time, until that right was nullified by Proposition 8. During the five-months between the state Supreme Court’s ruling that such a right existed and the passage of Prop 8, approximately 18,000 same-sex couples were wed in California.

“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the [U.S. Constitution’s] Equal Protection Clause,” Reinhardt wrote in the decision. “We hold Proposition 8 to be unconstitutional on this ground.”

The decision of the panel was based upon the U.S. Supreme Court’s 1996 ruling in Romer v. Evans. That decision invalidated a Colorado constitutional amendment that prohibited the state or any other governmental body from enacting measures that protect homosexuals from discrimination.

The case was brought by two same-sex couples, Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo. Theodore Olson, the former U.S. Solicitor General under George W. Bush who represented the couples, said that “today, we are more American because of this decision.”

“This case is about equality and freedom and dignity and fairness and decency,” said Olson. “It’s about whether we’re going to eliminate government discrimination.”

Olson and his co-counsel, David Boies, had previously stood on opposing sides of another historic case, 2000’s Bush v. Gore.

From a practical position, full recognition of marriage equality is not likely in California until the appeals process is completed. Supporters of Proposition 8 could ask the full U.S. Court of Appeals for the 9th Circuit to review the panel’s ruling, or they may take it directly to the U.S. Supreme Court.

The appeals panel’s 2-to-1 decision upheld the 2010 ruling by former U.S. District Judge R. Vaughn Walker. The panel rejected a motion made by Prop 8 backers that Walker, who was appointed in 1989 by President George H.W. Bush and retired last year, should have recused himself because he disclosed after the trial that he is gay.

In his lone dissenting opinion, Judge Smith said the Supreme Court’s Romer ruling should not have decided the outcome of the Proposition 8 case, and that the judiciary’s proper role is to defer to the
view that the law advanced “legitimate state interests.”