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Court: Calif. gay marriage ban is unconstitutional

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LISA LEFF
February 7, 2012
— A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.


The passage of the ban followed the most expensive campaign on a social issue in U.S. history.


"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," states the opinion written by Judge Stephen Reinhardt, one of the court's most liberal judges.


The appeals court said gay marriages cannot resume in the state until the deadline passes for Proposition 8 sponsors to appeal to a larger panel of the 9th Circuit. If such an appeal is filed, gay marriages will remain on hold until it's resolved.


Backers of the ban said they would ask the Supreme Court to overturn the 9th Circuit ruling.


"We are not surprised that this Hollywood-orchestrated attack on marriage — tried in San Francisco — turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court," said Brian Raum, senior counsel for the Alliance Defense Fund, a Christian legal aid group that helped defend the ban.


Supporters of gay marriage hailed the ruling. American Foundation for Equal Rights President Chad Griffin, who formed the group along with director Rob Reiner to fight the ban, called the panel's ruling "a historic victory."


"The message it sends to young LGBT people, not only here in California but across the country, (is) that you can't strip away a fundamental right, and gay marriage is a fundamental right that no one can strip away," Griffin said.


The court crafted a narrow decision that applies only to California, even though the court has jurisdiction in nine western states.


"Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question," the court said. "We need not and do not answer the broader question in this case."


The panel also said there was no evidence that former Chief U.S. Judge Vaughn Walker was biased and should have disclosed before he issued his lower-court decision that he was gay and in a long-term relationship with another man. Walker publicly revealed he was gay after he retired, and Proposition 8 backers had asked the 9th Circuit to set aside Walker's ruling in part because of the judge's personal life.


It was the first instance of an American jurist's sexual orientation being cited as grounds for overturning a court decision.


The appeals panel said it was unreasonable to presume a judge cannot apply the law impartially just because he is a member of the minority group at issue in a case: "To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts."


California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.


The ballot measure inserted the one man-one woman provision into the California Constitution, thereby overruling the court's decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them.


More than 50 people gathered outside the federal courthouse in San Francisco greeted the ruling with cheers and rainbow flags.


"Today's ruling is a victory for fairness, a victory for equality and a victory for justice," said California Attorney General Kamala Harris.


The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples married during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages but ruled that voters had properly enacted the law.


With same-sex marriages unlikely to resume in California any time soon, Love Honor Cherish, a gay rights group based in Los Angeles, plans to start gathering signatures for a November ballot initiative asking voters to repeal Proposition 8.



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