California’s Gay Marriage Ban Ruled Unconstitutional – Again

A federal appeals court on Tuesday upheld a federal judge's ruling that California's Proposition 8 ban on gay marriage is unconstitutional, setting the stage for a potential Supreme Court showdown that could set a national precedent on same-sex marriage.

A three-judge panel of the US Ninth Circuit Court of Appeals voted 2-1 to strike Proposition 8 down, but the court agreed that the Proposition 8 proponents have standing to continue challenging former District Judge Vaughn Walker's sweeping August 2010 ruling that the ban violated the Equal Protection clause of the Constitution.

“Proposition 8 serves no purpose, and has no effect in California, 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,” wrote Judge Reinhardt in the court's decision.” “The Constitution simply does not allow for laws of this sort.”

Judge Michael Hawkins joined Reinhardt in voting to strike down Proposition 8, and Judge N. Randy Smith voted to uphold the ban.

The Proposition 8 proponents defending the ban have vowed to seek a rehearing with a larger appeals panel or appeal directly to the Supreme Court. The case could be heard by next year if the high court takes the case.

The court also ruled 3-0 to uphold a previous ruling that refused standing to Proposition 8 proponents who wanted Walker's original ruling thrown out because he is gay.

Proposition 8 was narrowly approved by California voters in 2008, canceling the marriage plans of two couples who filed a lawsuit to challenge the ban with the help of star attorneys Ted Olson and David Boies, who argued against each other in Bush vs. Gore, the case that decided that 2000 election.

“This is a very significant milepost on the way to equality in this country,” Olson told reporters.

Gay couples in California cannot marry yet, despite the two rulings declaring they are being denied their rights under the Constitution. The appeals court placed a 14-day stay on its mandate to overturn the ban to give the proponents time to request a hearing, and the Proposition 8 defendants are expected to request an extended stay to keep the law in effect as the case is reheard or goes to the Supreme Court.

Olsen and Boies pledged to challenge a request for an extended stay.

“Individuals in California are being denied their constitutional rights every hour of ever day,” Olsen said.

Tuesday's ruling also upheld “findings of fact” established in Walker's historic ruling that the Supreme Court could refer to if it decides to hear the case. The findings cut through arguments made by Proposition 8 proponents, stating that their claims were based on “stereotypes assuming gays are inferior.”

Walker's ruling established that same-sex marriage does not endanger heterosexual marriage, and affirms the legitimacy of gay, lesbian and bisexual identities by establishing that sexual orientation is a “fundamental identity and a distinguishing characteristic that defines gays and lesbians as a distinct group.”

It also establishes that the children of gay couples can benefit from their parent's marriage, and despite pro-family arguments from Proposition 8 proponents, the ban only disadvantaged parents and children.