WASHINGTON -- Same-sex marriage continued its march to the Supreme Court on Tuesday as a federal appeals court in San Francisco struck down California's gay marriage ban as a violation of the U.S. Constitution's guarantee of equal protection.
By a 2-1 vote, a panel of the U.S. Court of Appeals for the 9th Circuit found that California voters were motivated by disapproval of gays and lesbians when they voted in favor of Proposition 8, a 2008 ballot measure that stripped same-sex couples of the right to marry. And not approving of a group of people is not, constitutionally speaking, a good enough reason to pass a law against them.
"It will not do to say that Proposition 8 was intended only to disapprove of same-sex marriage, rather than to pass judgment on same-sex couples as people," wrote Judge Stephen Reinhardt on behalf of himself and Judge Michael Daly Hawkins, both Democratic appointees to the federal bench. "[T]he elimination of the right to use the official designation of 'marriage' for the relationships of committed same-sex couples," continued Reinhardt, "send[s] a message that gays and lesbians are of lesser worth as a class -- that they enjoy lesser societal status."
Such a singling out, the court concluded, violated the 14th Amendment, which states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."
The appeals court on Tuesday sidestepped the issue of federalizing the right to same-sex marriage, instead focusing on the fact that Prop 8 took away from gays and lesbians specific rights already recognized by the California Supreme Court earlier in 2008. In so ruling, the 9th Circuit significantly narrowed the August 2010 decision by U.S. District Judge Vaughn Walker, which placed same-sex marriage firmly within the federal right to marry previously recognized by the U.S. Supreme Court.
The 9th Circuit's narrow decision is likely designed to appeal to Justice Anthony Kennedy, considered the crucial swing vote on a Supreme Court widely expected to divide along ideological lines should it ultimately take the case. Not only does Reinhardt's opinion give the instinctually conservative Kennedy a blueprint to vote for same-sex marriage without finding that it's specifically covered by the Constitution; the lower-court opinion also rests entirely upon a landmark gay rights decision by Kennedy himself. That 15-year-old case, Romer v. Evans, struck down a sweeping Colorado voter initiative that would have barred the state from enforcing any ordinance, current or future, prohibiting discrimination based on sexual orientation. Laws like the Colorado initiative, Kennedy wrote, "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of person affected."
Prop 8, Reinhardt wrote, "is remarkably similar" to the unconstitutional Colorado law. That Prop 8 left intact the panoply of privileges still available to same-sex couples -- including parental rights, property rights, joint tax-filing, spousal insurance access and hospital visitation rights -- made the ban on same-sex marriage even more suspect for the 9th Circuit. "A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not," wrote Reinhardt.
Quoting from the Romer decision, Reinhardt wrote that a "law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more 'unprecedented' and 'unusual' than a law that imposes broader changes, and raises an even stronger inference" that mere animosity or disapproval drove the passage of Prop 8.
To overcome that inference, Prop 8's proponents had to show some legitimate reason for keeping the same-sex marriage ban in the state's constitution. (Prop 8 was defended by its sponsors, ProtectMarriage.com and other private citizens, after California's governor and attorney general refused to do so.) The appeals court rejected every justification they offered. Dispatching the proponents' primary rationale that the ban advanced the state's interest in responsible procreation and child-rearing, the majority wrote that Prop 8 "had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California."
Judge N. Randy Smith, a Republican appointee, wrote in dissent to find this reasoning unpersuasive. Arguing that it was not the court's duty to second-guess the proponents' rationale, Smith wrote that "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage" would further the state's interest in responsible procreation and "optimal parenting."
Conventional wisdom expects the Supreme Court to hear this case, yet intense public interest alone is rarely a reason for the justices to grant review. The 9th Circuit majority may have even given the justices good reason to deny the case and let the ruling stand. By keeping its decision limited to California law and refusing to recognize a federal constitutional right to same-sex marriage, the 9th Circuit wrote an opinion that could satisfy Kennedy, not trigger the conservative justices' ire and deter the liberal justices from pressing their luck.
Still, Smith's dissent contends that the majority's opinion creates a split with another appeals court, the 8th Circuit, which accepted the same procreation and child-rearing rationales. And circuit splits, more than political salience, are irresistible catnip for the Court.
The 9th Circuit's judgment on Tuesday remains stayed -- meaning there will be no same-sex weddings in California -- until the case reaches the end of the line. The proponents need not go directly to the Supreme Court. They first could ask the full 9th Circuit to review the case. But because of the 9th Circuit's reputation as the nation's most liberal appellate bench -- a court that the conservative Supreme Court loves to reverse -- Prop 8 proponents might rather press straight ahead to the justices.