Federal Court Refuses To Review Prop 8 Setting Stage for Potential Supreme Court Battle

The Ninth Circuit Court of Appeals has declined to review California’s Gay Marriage Ban passed by the voters in 2008.

Judge Diarmuid O’Scannlain, a Reagan nominee in 1986, wrote in dissent, “A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter.”

“Drawing less attention,” he wrote, “were his comments that the Constitution left this matter to the States and that ‘one of the things that [he]’d like to see is – that [the] conversation continue in a respectful way.’ “

He argued, “Today our court has silenced any such respectful conversation.”

Instead, he argues that, based on the court’s misapplication of the Romer decision, “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”

Even worse, he argues, the court has overruled the will of seven million Californians who voted for Proposition 8.

He argues, “We should not have so rounded, trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”

Back in February, Judge Stephen Reinhardt, writing for the 2-1 majority, therefore argues that “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.  The Constitution simply does not allow for ‘laws of this sort.’

Legal scholars argued that the narrow grounds of the ruling, which focused almost exclusively on California law and ignored the broader federal questions, may make it more difficult for the Supreme Court to rule on this matter.

Courtney Joslin, a UC Davis professor of law who co-authored an amicus brief, filed on behalf of 28 California family law professors in the litigation challenging Proposition 8, said on Tuesday, “One possible reaction to this opinion is that it is limited to the unique California history and because of that the court might feel that there’s less of a need to grant review.”

Despite the narrow ruling, most believe and have believed that it is inevitable that the Supreme Court will ultimately weigh in on the issue.

As currently comprised, it looks like one man, Judge Anthony Kennedy, will determine whether Proposition 8 is reinstated or whether the Supreme Court for the first time will recognize some right of same-sex couples to marry.

But the same-sex playing field continues to shift and evolve.  Less than a month ago, North Carolina became the 13^th state to ban gay marriage as 58% of the voters approved a constitutional amendment.

Currently, six states – Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont plus Washington DC – grant marriage licenses to same-sex couples.

President Obama moved the same-sex marriage ball forward as he became the first President to publicly support such marriage rights when he told Robin Roberts, “I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married,” it was one of those few electric moments in our lifetime.

The New York Times called it “a wrenching personal transformation on the issue.”

The issue has huge generational components, as younger voters strongly support the marriage rights while older voters continue to oppose it.

Wrote the New York Times last month, “Public support for same-sex marriage is growing at a pace that surprises even pollsters as older generations of voters who tend to be strongly opposed are supplanted by younger ones who are just as strongly in favor.”

The polling here is interesting.  A USA Today/Gallup Poll shows that the public is split almost down the middle with 51% approving and 45% disapproving.

60% of the public indicates that this shift will have no bearing on their vote, but for the 40% that do think it will impact their vote, the poll shows by a 2-1 margin (26-13) voters say it will make them less likely to vote.

As we have stated numerous times, we believe in the short term the issue of same-sex marriage will end up in the courts, in the long run demographic changes will likely make this a non-issue within 20 years, if not sooner.

—David M. Greenwald reporting