“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
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.