A glimmer of politics showed through Tuesday ( June 5 ) when the full Ninth Circuit U.S. Court of Appeals declined a request from supporters of California's ban on same-sex marriage to review a circuit panel's decision that Proposition 8 is unconstitutional.
In a dissent from the order refusing to have the full Ninth Circuit hear the landmark Perry v. Brown case, three judges signed onto a dissent, noting that just a few weeks ago, President Obama had "ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter." The three said the refusal to review the circuit panel's decision "silenced" President Obama's suggestion that the nation continue its "conversation" about same-sex marriage "in a respectful way."
All three dissenters were appointees of Republican presidents.
But politics or not, the refusal to give Perry v. Brown full circuit court review is a major victory for supporters of marriage equality and means almost certainly that the "final chapter" in the historic litigation can now begin, says Chad Griffin, co-founder of the American Foundation for Equal Rights which organized and funded the lawsuit.
Attorneys for Proposition 8 supporters said they will now file a petition to the U.S. Supreme Court to review the Ninth Circuit decisions. Ted Olson, a lead attorney for the gay couples in Perry, said that, even if the Supreme Court refuses to hear that appeal, the litigation would be a "complete victory" for the plaintiff couples.
One looming question for the Perry case is whether the Supreme Court, if it accepts the case, would review the Ninth Circuit panel's very narrow reasoning to strike down Proposition 8 or the federal district court's more sweeping reasoning concerning equal protection, due process, and the fundamental right to marry. While Olson said upholding a narrow reasoning might still affect same-sex marriage in some states beyond California, upholding the broader reasoning could affect every state.
With last week's First Circuit decision striking a core section of the Defense of Marriage Act ( DOMA ) also heading to the nation's highest court, it is now likely the Supreme Court will have two major same-sex marriage cases on its docket in October.
The Ninth Circuit case, if accepted, could ask whether states can take away the right to marry from same-sex couples or whether same-sex couples have a fundamental right to marriage and to be treated equally under marriage laws. The First Circuit case, if accepted, would ask whether the federal government can refuse to recognize marriages licensed by states to same-sex couples.
David Boies, the other lead attorney for the Perry couples, said that, while the questions in each case are very "distinct," the issues are closely related and could —if both are accepted— be heard very close together.
The three-paragraph order June 5 stated that the request for a full court review "failed to receive a majority of the votes" of active judges. It also noted that the order would be stayed for 90 days to enable proponents of Proposition 8 to file an appeal to the U.S. Supreme Court.
The dissenting judges did not mince words in their three-paragraph dissent. They said the circuit panel's 2 to 1 decision striking Proposition 8 was a "gross misapplication" of the U.S. Supreme Court's decision in Romer v. Evans. In that 1996 case, the Supreme Court said states could not pass laws that excluded gays from protection based on animus against the group.
The dissenters said refusing to give full Ninth Circuit review to Perry v. Brown means the Ninth Circuit judges "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."
Proponents of Proposition 8, known as Yes on 8, filed the Ninth Circuit full court appeal, asking it to overturn a decision by the panel last February. That panel decision found that California's ban on same-sex marriage violates the federal constitution by stripping from same-sex couples a right they had ( to marry ) prior to passage of Proposition 8. In order for a limited full court review to have been granted, at least 14 of the circuit's 26 active judges would have had to say another review is warranted.
The Perry v. Brown lawsuit is led by famed conservative attorney Ted Olson and preeminent liberal attorney David Boies and organized and funded by the American Foundation for Equal Rights.
In the case, two same-sex couples sued the state after being denied marriage licenses after the voter-approved constitutional ban on same-sex marriage went into effect in November 2008.
U.S. District Court Judge Vaughn Walker ruled, in August 2010, that banning same-sex couples from obtaining marriage licenses violates the federal constitution's guarantees of equal protection and due process. He agreed to delay enforcement of the decision, pending an appeal by Yes on 8 attorneys to the Ninth Circuit.
In February 2012, a three-judge panel of the Ninth Circuit, in a 2 to 1 vote, upheld Walker's decision but on much more narrow grounds. The panel majority —Judges Stephen Reinhardt and Michael Hawkins—said Proposition 8 improperly removed from a group of citizens ( gays ) a right they already enjoyed ( marriage ) without sufficient justification.
Reinhardt and Hawkins submitted a paragraph with the June 5 refusal order, saying they were "puzzled" by their dissenting colleagues' "unusual reliance on the President's views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion."
"We," said Reinhardt and Hawkins, "held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question," they said, "may be decided in the near future, but if so, it should be in some other case, at some other time."
The "particular circumstances" they referred to were that the California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. Thousands of couples did begin obtaining marriage licenses, but, in November of that year, voters approved Proposition 8, amending the state constitution to explicitly ban the recognition of same-sex marriage.
While attorneys and activists uniformly called the February 7 panel decision a major victory, they acknowledged that the decision did stop short of saying that same-sex partners, like straight partners, have a "fundamental right to marry." Instead, it said Proposition 8 deprived same-sex partners only of the "right to use the designation of 'marriage.'" If it had ruled same-sex couples had a fundamental right to marry, said Lambda Legal Defense's legal director Jon Davidson, "the marriage laws of 44 states would have been cast into doubt…." And by rendering such a relatively narrow ruling, said Davidson and others, the panel reduced the likelihood the U.S. Supreme Court would take the case.
"The fundamental right to marry, as protected by the US Constitution," said Williams Institute legal scholar Jenny Pizer, "has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose."
- 2012 by Keen News Service. All rights reserved.
American Foundation for Equal Rights: Landmark decision striking down Prop 8 will stand
San Francisco, CA — Today, the United States Court of Appeals for the Ninth Circuit denied a request from anti-marriage forces to reconsider its landmark ruling in Perry v. Brown that found California's Proposition 8 unconstitutional. Proposition 8 stripped gay and lesbian Californians of the fundamental freedom to marry.
The American Foundation for Equal Rights ( AFER ) is the sole sponsor of Perry v. Brown, the federal constitutional challenge to California's Proposition 8. AFER will hold a national media conference call at 10:30 a.m. PDT to discuss the significance and impact of today's order. Speaking on the call will be Plaintiffs' lead co-counsel Theodore B. Olson and David Boies; and AFER co-founder Chad Griffin.
"Today's order is yet another federal court victory for loving, committed gay and lesbian couples in California and around the nation," said AFER co-founder Chad Griffin. "The final chapter of the Proposition 8 case has now begun. Should the United States Supreme Court decide to review the Ninth Circuit's decision in our case, I am confident that the Justices will stand on the side of fairness and equality."
On February 7, 2012, a three-judge panel of the Ninth Circuit concluded that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Ninth Circuit panel majority held:
"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."
The request for a larger eleven-judge panel of the Ninth Circuit to reconsider the case, known as rehearing en banc, is only granted upon a majority vote of the Ninth Circuit's 25 judges in regular active service at the time Proponents' petition was filed.
The Ninth Circuit also rejected Proponents' renewed attempt to impugn the reputation of the United States District Chief Judge who struck down Proposition 8. Unable to defend Proposition 8 on its merits, Proponents claim that the now-retired Chief Judge Vaughn R. Walker was disqualified from ruling on Proposition 8 and that his historic decision should be vacated because he is gay and in a committed relationship. The Ninth Circuit unanimously rejected Proponents' offensive argument, stating: "To do otherwise would demonstrate a lack of respect for the integrity of our federal courts."
READ THE NINTH CIRCUIT'S ORDER GRANTING REHEARING EN BANC HERE: www.afer.org/legal-filings/ninth-circuit-en-banc-order/
READ THE NINTH CIRCUIT'S PANEL DECISION HERE: www.afer.org/wp-content/uploads/2012/02/2012-02-07-Decision-on-Merits.pdf
HRC: A turning point for marriage equality
WASHINGTON — In an announcement that could either lead to a return to marriage equality in California or a historic case before the U.S. Supreme Court, today the full U.S. Court of Appeals for the Ninth Circuit declined to review a February decision of that court ruling that California's constitutional amendment stripping loving, committed gay and lesbian couples of marriage violates the U.S. Constitution. With today's announcement, the proponents of Prop 8 are now likely to seek review by the U.S. Supreme Court and the Ninth Circuit is likely to continue the stay of its decision until that process is complete. In the event that the Supreme Court decides not to hear the case, the lower court ruling would stand and gay and lesbian couples would again be able to marry in California.
Human Rights Campaign President Joe Solmonese released the following statement in response to today's announcement:
"Once again, a federal court has affirmed that the cherished guarantees of our Constitution are there to protect all Americans — including lesbian, gay, bisexual and transgender people. For over three years, the plaintiffs, the American Foundation for Equal Rights, and attorneys Ted Olson and David Boies have shown tremendous fortitude and perseverance in their fight for marriage equality. With today's announcement, we are one step closer to ensuring that gay and lesbian Californians — and, one day, our entire community nationwide — are able to join the institution of marriage and have their love and commitment respected equally.
"Today's announcement is another significant step on a path that we all know leads to equality. While the U.S. Supreme Court may ultimately decide the outcome of this case, we must all continue to walk that path — in this case and other courtrooms, in legislatures, at ballot boxes and at kitchen table — until all LGBT people are fully and equally part of the American community."
In response to a 2008 decision by the California Supreme Court ending marriage discrimination in the state, anti-equality forces succeeded in placing a constitutional amendment on the November ballot. Despite over 18,000 same-sex couples having married, California voters adopted the amendment, known as Proposition 8. After the California Supreme Court determined in 2009 that the adoption of Prop 8 did not itself violate the California Constitution, two plaintiff couples -- Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo — filed suit against the State of California in federal court, represented by attorneys Ted Olson and David Boies and supported by the American Foundation for Equal Rights, an organization co-founded by incoming HRC President Chad Griffin The proponents of Prop 8 intervened in the case to defend the constitutionality of the amendment.
Judge Vaughn Walker, then-chief judge of the U.S. District Court for the Northern District of California, held a historic trial in January 2010, in which the plaintiffs presented substantial testimony and evidence to show that Prop 8's only purpose is to discriminate against same-sex couples. In August 2010, in a historic decision, he concluded Prop 8 is unconstitutional. That ruling was appealed to a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which affirmed Walker's conclusion that Prop 8 in unconstitutional in February 2012, but stayed its decision as the proponents sought a rehearing.
NCLR Applauds Denial of En Banc Review of Ninth Circuit decision striking down Proposition 8
Statement by NCLR Executive Director Kate Kendell
( San Francisco, CA, June 5, 2012 ) —Today, the Ninth Circuit Court of Appeals denied review by a larger panel of judges of that Court's February 7, 2012 decision striking down Proposition 8 as unconstitutional. Proposition 8 is the 2008 measure that stripped same-sex couples of the right to marry in California. The Ninth Circuit's February decision held that Proposition 8 violates the Fourteenth Amendment to the Constitution because it "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."
Today's denial means that Prop 8 supporters have 90 days to ask the United States Supreme Court to review the case.
Statement by NCLR Executive Director Kate Kendell, Esq.:
"Today's refusal by the Ninth Circuit to grant further review is a testament to the meticulous and well-reasoned opinion originally issued by the Court. While the supporters of Proposition 8 will now seek review by the U.S. Supreme Court, there is no doubt that they are on the wrong side of history. Excluding same-sex couples from the right to marry runs counter to our highest ideals of equality and fairness."
ACLU reacts to Proposition 8 announcement:
The U.S. Court of Appeals for the 9th Circuit announced today that it will not reconsider the ruling striking down California's Proposition 8 banning marriage between same-sex couples,
"While we're pleased that the court's initial ruling against this discriminatory policy will stand for now, we know this fight may not be over yet," said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project. "Hopefully, all families in California will have the freedom to provide and care for each other with the dignity and protection that only marriage can provide."
The American Civil Liberties Union -- together with Paul, Weiss, Rifkind, Wharton & Garrison LLP -- currently has a case challenging the Defense of Marriage Act on behalf of Edith "Edie" Windsor. More about that case can be found here: www.aclu.org/edie
