Feburary 9, 2012

Feburary 9, 2012
Court Strikes Down Ban on Gay Marriage in California


Welcome to another day in my life. Today is Thursday and I hope you have had a safe and great week so far. It has been another busy one for Dab the AIDS Bear and me.

We did get some great new about Proposition 8 in California that I would like to blog about today.

A federal appeals court panel on Tuesday threw out a voter-approved ban on same sex marriage passed in 2008, upholding a lower court’s ruling that the ban, known as Proposition 8, violated the constitutional rights of gay men and lesbians in California.

The threevjudge panel issued its ruling in San Francisco, upholding a 2010 decision by Judge Vaughn R. Walker, who had been the chief judge of the Federal District Court of the Northern District of California but has since retired. The panel found that Proposition 8 — passed by a vote of 52 percent to 48 percent — violated the equal protection rights of two same sex couples who brought the suit. The proposition placed a specific prohibition in the State Constitution against marriage between two people of the same sex.

But Tuesday’s 2 to 1 decision was much more narrowly framed than the sweeping ruling of Judge Walker, who asserted that barring same sex couples from marrying was a violation of the equal protection and due process clauses of the Constitution.

The two judges on Tuesday stated explicitly that they were not deciding whether there was a constitutional right for same sex couples to marry, instead ruling that the disparate treatment of married couples and domestic partners since the passage of Proposition 8 violated the Constitution’s Equal Protection Clause.

“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 ‘marriage,’ ” the judge wrote, adding, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

In his dissenting opinion, Judge N. Randy Smith wrote that the court was overreaching in nullifying a voter initiative.

Unlike the 2008 State Supreme Court decision here overturning an earlier ban on same-sex marriage, this decision is not about to set off a race to the chapel by same-sex couples. A stay imposed on Judge Walker’s original decision will remain in place, at least for two weeks. Theodore B. Olson, one of the lawyers who challenged the ban, said he would seek to get the stay lifted; backers of Proposition 8 said they would oppose that.

Both sides in the case made clear that they intended to take the case before the Supreme Court in hopes of prompting it to settle once and for all an issue that has been fought out in courts, legislatures and ballot boxes since at least a 1971 case in Minnesota. That said, there is no guarantee the court will take it. The narrow parameters of the ruling’s reasoning — and the fact that it was written to apply only to California — may prompt the court to wait for a clearer dispute before weighing in.

Whatever the legal nuances of the decision — and lawyers were battling about how far reaching it would prove to be — the decision reverberated throughout political circles, from the presidential campaign to state legislatures.

Mitt Romney denounced the decision as an attack by unelected judges on traditional marriage and predicted that the Supreme Court would decide the issue. “That prospect underscores the vital importance of this election and the movement to preserve our values,” he said.

Still, the decision by the United States Court of Appeals for the Ninth Circuit, coming at a time when Washington State seems poised to become the seventh state to legalize same-sex marriages, seems likely to add to what members of both parties said was a sense of momentum. Chad Griffin, the president of the American Foundation for Equal Rights, which challenged Proposition 8, noted that polls in the past year had shown public support for same-sex marriage steadily increasing, a significant change from just a decade ago.

In New Jersey, State Senator Stephen M. Sweeney, a Democrat and president of the Senate, who abstained in a vote on a same sex marriage bill two years ago, is now championing one that is to come up for a vote next Tuesday. “Today’s court ruling simply reaffirmed what we already knew: Marriage equality is right, and its time is now,” he said.

Proponents of Proposition 8 expressed disappointment, but said they were not surprised, given the nature of the Ninth Circuit, which they view as liberal, and predicted the ruling would fail before the Supreme Court. Several said the decision was narrow enough that it was more unlikely now that the Supreme Court, if it accepted the case, would use it to establish a constitutional right to same-sex marriage.

“Since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court,” said Andrew P. Pugno, general counsel for the ProtectMarriage.com coalition, which was behind Proposition 8. “We will immediately appeal this misguided decision that disregards the will of more than seven million Californians who voted to restore marriage as the unique union of only a man and woman.”

Mr. Pugno said he had not decided whether he would appeal to the Supreme Court or ask a larger panel of the Ninth Circuit Court to review this decision.

Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles, said the narrowness of the decision could influence the Supreme Court to take a road it often favored: issuing narrow and incremental decisions, not sweeping ones. “It is striking that the court — or at least the two judges — went out of their way to define the judgment as narrowly as they could,” he said.

Mr. Olson hailed the decision, saying it was a “huge day,” and noted that the judges had, in the course of their 89-page majority decision, systematically rebutted most of the arguments that had been made against gay marriage.

“I’m not at all surprised that the court did not go further than it needed to go,” he said. “If it had, it might have been criticized for reaching more than it should.”

The emotional repercussions were on display as Spencer Stier, 17, the son of one of the couples who initiated the case, turned out to praise it. “With this ruling, in the eyes of the government, my family is finally normal,” he said as his mother looked on.

Until we meet again; here's wishing you health, hope, happiness and just enough.

big bear hug,



Daddy Dab