- Dissenting Judge Smith is a Mormon
- The church spokesman says it has always had the view that "marriage should be recognized as only between a man and a woman," omitting the church's practice and belief in plural marriage
A three-judge panel of the 9th Circuit Court of Appeals ruled that California's Proposition 8 is unconstitutional, but a stay remains in place preventing same-sex marriages from resuming in the state and the case of Perry v. Brown is likely headed to the U.S. Supreme Court.
The 2-1 decision affirmed Judge Vaughn R. Walker's decision in the Federal District Court — but narrowed the scope to only apply to California.
Judge Stephen Reinhardt wrote the opinion and was joined by Judge Michael Hawkins. "Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California," Reinhardt wrote.
Judge N.R. "Randy" Smith concurred with the majority that the appellants had standing to appeal, and that the motion to vacate the judgment should be denied. However, Smith voted against the appeal and wrote a dissent. "Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate government interest. I must therefore respectfully dissent."
Reaction on both sides was swift.
The Church of Jesus Christ of Latter-day Saints, which had actively worked to pass Prop. 8, issued a statement that regretted the court's decision. "California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman," LDS Church spokesman Scott Trotter said in the statement. "We have always had that view. Courts should not alter that definition, especially when the people of California have spoken so clearly on the subject."
Republican candidate Mitt Romney said the ruling was relevant in the 2012 presidential election.
"Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage," he said. "This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices."
Duncan said the next step is likely to be another appeal. It is likely to be an appeal for the 9th Circuit to consider the case "en banc." Because of the size of the circuit, a lottery is held to select 11 judges to hear such appeals. But that would only be another stop on the way to the U.S. Supreme Court.
But the circuit court did not give a broad ruling that banning same-sex marriage is unconstitutional in all circumstances in all states. They made it much more narrow and applied it only to California's unique situation.
That situation consists of two main things that existed before the passage of Prop. 8. First, California passed a domestic partnership law that gave all the benefits of marriage to gay and lesbian couples, but reserved the term "marriage" for heterosexual couples. Second, California allowed, for a six-month period in 2008, gay and lesbian couples to be legally married.
As Judge Smith noted in his dissent, the California Supreme Court previously ruled Prop 8 valid under the California state constitution.
But in language similar to Judge Walker's in the Federal District Court, today's ruling said Prop. 8 violated the Fourteenth Amendment to the Constitution. The majority opinion stated that there needed to be at least a legitimate reason for the passage of a law that treats different classes of people differently. "There was no such reason that Proposition 8 could have been enacted," the opinion states. "Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of the marital status, all parties agree that Proposition 8 had one effect only."
That one effect, the court said, was to strip same-sex couples of something the state had already given them: The right to obtain and use the designation of "marriage" to describe their relationships.
"Nothing more, nothing less," the court said.
It was the targeting of a minority group to take away an existing right, they said.
This was the narrow ground the court decided. For the Ninth Circuit, the definition of marriage was "the name that society gives to the relationship that matters most between adults." It was a designation that carried "societal approval" and "official status." The designation "registered domestic partnership" didn't have the same effect, the court said. It wasn't "validation."
To back up their definition, the court cited the use of the word "marriage" from everyone from Frank Sinatra and Abraham Lincoln to Groucho Marx and Marilyn Monroe.
The proposition, the court said, eliminated a right — something it said the Constitution does not allow.
The court dismissed the pro-Prop. 8 position as lacking any footing in reality and said the reason it was passed was "mere disapproval" of and a "judgment about the worth and dignity of gays and lesbians as a class."
Utah Sen. Orrin Hatch tweeted, "The decision on Prop 8 is judicial activism at its worst, and I strongly oppose this decision."
By keeping the decision narrowly confined to taking away an existing right, the court avoided saying if other states should be required to allow same-sex marriages. Had they decided on that broader question, it would have been more certain the Supreme Court would hear the case. "The Supreme Court would absolutely have taken it," Duncan said. "It would have been like the Roe v. Wade of marriages."
The legal journey began with the passing of California Proposition 22 in 2000, which attempted to define marriage as between a man and a woman. The California Supreme Court declared this proposition unconstitutional under California's constitution in May 2008. This meant gays and lesbians were legally allowed to marry in California.
The May 2008 decision also led to the movement to amend California's constitution to define marriage.
Proposition 8 was approved by California voters and went into effect in November 2008, putting a legal end to any further gay marriages in California.
The challenge came quickly from same-sex-marriage proponents American Foundation for Equal Rights, which backed a legal challenge to Prop. 8. Because the proposition had changed the California constitution, it had to be challenged under the U.S. Constitution. The case, Perry v. Schwarzenegger resulted.
The first stop was the Federal District Court, where Judge Walker decided there was no rational reason to oppose same-sex marriage and so it was unconstitutional under the U.S. Constitution. From there the case went to the Ninth Circuit Court of Appeals and is now called Perry v. Brown because of the change in California's governor.
Today the 9th Circuit affirmed Judge Walker's decision, but narrowed it to only apply to California.
The Ninth Circuit panel also ruled today that Judge Walker was not obligated to recuse himself from the Prop 8 case because he was in a longstanding same-sex relationship.
For more on Prop8 as it affects the LDS church, see these articles