California commotion

“Although the Con­sti­tu­tion per­mits com­mu­ni­ties to enact most laws they believe to be desir­able, it requires that there be at least a legit­i­mate rea­son for the pas­sage of a law that treats dif­fer­ent classes of peo­ple differently.”

— Stephen Reinhardt

U.S. Cir­cuit Judge

“This might well be the last word on the case.”

— Jef­frey Toobin

Legal Ana­lyst

It has been quite an event­ful week for the issue of same-sex mar­riage. On Wednes­day the Wash­ing­ton state leg­is­la­ture approved a bill to per­mit same sex mar­riages in the state and Gov­er­nor Chris Gre­goire has said that she will sign the bill mak­ing Wash­ing­ton the sev­enth state to per­mit mar­riages between indi­vid­u­als of the same sex. In a poll taken just days before, cit­i­zens of Wash­ing­ton said that if there was a bal­lot ini­tia­tive to over­turn the law, they would vote to uphold it by a mar­gin of 55–38.

Just a day before the action in Wash­ing­ton, the 9th Cir­cuit U.S. Court of Appeals decided a case out of Cal­i­for­nia that would make such a ref­er­en­dum a moot point. The wran­gling over same sex mar­riage in Cal­i­for­nia goes back more than a decade but can be briefly summed up by not­ing that the Cal­i­for­nia Supreme Court ruled, in 2008, that a prior propo­si­tion in that state was uncon­sti­tu­tional. That rul­ing per­mit­ted same-sex mar­riages and then Gov­er­nor Arnold Schwarzeneg­ger vowed to pro­tect that right.

A sec­ond propo­si­tion then added a pro­vi­sion to the Cal­i­for­nia con­sti­tu­tion pro­vid­ing that mar­riages could only be per­formed between a man and a woman. The case worked its way through the court sys­tem and on Tues­day a three judge panel of the 9th U.S. Cir­cuit Court of Appeals issued a most care­fully worded rul­ing in what might just be the final deci­sion on the issue in that state.

The case was seen as hav­ing the poten­tial to be a land­mark rul­ing for a num­ber of rea­sons. What­ever way it was decided it would, of course, be a land­mark case for Cal­i­for­nia and for the other states cov­ered by the 9th Cir­cuit Court of Appeals, but this was not your nor­mal state case about gay rights. That’s because in this case the state of Cal­i­for­nia had adopted a state con­sti­tu­tional amend­ment mak­ing this an appeal under pro­vi­sions of the U.S. Con­sti­tu­tion. Depend­ing on how the court ruled, the rul­ing could fea­si­bly be applied to the entire nation and any rul­ing from the Cir­cuit Court could be appealed to the U.S. Supreme Court.

In addi­tion, court watch­ers were pay­ing par­tic­u­larly close atten­tion to this case because they believed that the make-up of the 9th Cir­cuit panel that was hear­ing the case made it more likely that there would be a ground-breaking rul­ing in the mat­ter. Tak­ing a page, per­haps, from the recent trend of U.S. Supreme Court con­sen­sus build­ing, the 9th Cir­cuit found an unex­pected mid­dle ground.

Rather than mak­ing a gen­eral find­ing, the 9th Cir­cuit, by a 2–1 major­ity, avoided the ques­tion of whether pro­hibit­ing same-sex mar­riage is, in itself, a vio­la­tion of the Equal Pro­tec­tion Clause of the U.S. Con­sti­tu­tion. Rather, the court held that a state may not remove a pre­vi­ously granted right from a select group of peo­ple, a right that it grants to other peo­ple, with­out a com­pelling gov­ern­men­tal rea­son to do so. In so craft­ing its deci­sion, the court nar­rowly tai­lored the hold­ing to apply to Cal­i­for­nia and to Cal­i­for­nia only, simul­ta­ne­ously avoid­ing a deci­sion that could have involved the entire nation and reduc­ing the like­li­hood that the U.S. Supreme Court will become involved by accept­ing a fur­ther appeal of the case.

Judge N. Randy Smith dis­sented from the deci­sion. He agreed with the basic legal prin­ci­ples being applied but reached a dif­fer­ent con­clu­sion about whether there was a com­pelling state inter­est at play.

Oppo­nents of same-sex mar­riage in Cal­i­for­nia will cer­tainly ask the U.S. Supreme Court to hear the case, but the nar­row hold­ing reduces the chances that four of the nine Jus­tices will agree to take the appeal. If the ‘rule of four’ is not met, then the hold­ing of the 9th Cir­cuit would be the final rul­ing in the mat­ter. You can read the entire 128 page deci­sion online at ca9.uscourts.gov.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on Feb 10 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.