Prop. 8 declared unconstitutional by 9th Circuit Court; stay prevents same-sex marriages from resuming

Published: Tuesday, Feb. 7 2012 11:00 a.m. MST

Gay marriage supporters learn the news that backers of Proposition 8 can defend their measure against gay marriage outside the California Supreme Court in San Francisco, Thursday, Nov. 17, 2011.

Associated Press

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SAN FRANCISCO — A three-judge panel of the 9th Circuit Court of Appeals ruled this morning that California's Proposition 8 is unconstitutional, but a stay remains in place preventing same-sex marriages from resuming in the state and the case of Perry v. Brown is likely headed to the U.S. Supreme Court.

The 2-1 decision affirmed Judge Vaughn R. Walker's decision in the Federal District Court — but narrowed the scope to only apply to California.

Judge Stephen Reinhardt wrote the opinion and was joined by Judge Michael Hawkins. "Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California," Reinhardt wrote.

Judge N.R. "Randy" Smith concurred with the majority that the appellants had standing to appeal, and that the motion to vacate the judgment should be denied. However, Smith voted against the appeal and wrote a dissent. "Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate government interest. I must therefore respectfully dissent."

Reaction on both sides was swift.

"This decision is not entirely unexpected given the judges assigned to the case, but that doesn't make it any less disturbing," said Bill Duncan, director of the Marriage Law Foundation, a non-profit legal organization whose mission is to reaffirm the legal definition of marriage. "There is nothing in the U. S. Constitution that requires, or even allows our courts to define marriage contrary to a millennia of human history."

The Church of Jesus Christ of Latter-day Saints, which had actively worked to pass Prop. 8, issued a statement that regretted the court's decision. "California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman," LDS Church spokesman Scott Trotter said in the statement. "We have always had that view. Courts should not alter that definition, especially when the people of California have spoken so clearly on the subject."

Brandie Balken, executive director of Equality Utah, a gay rights advocacy group, said her group celebrated with the long-term committed couples in California. "Today's ruling may well, and likely will, lead to this being heard before the Supreme Court," she said. "But regardless of today's decision, it is still legal in the state of Utah to be fired from your job or evicted from your home based upon your sexual orientation or gender identity."

Republican candidate Mitt Romney said the ruling was relevant in the 2012 presidential election.

"Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage," he said. "This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices."

Romneys leading opponent in the Republican primaries, Newt Gingrich, said the ruling exposed Americans "to the radical overreach of federal judges and their continued assault on the Judeo-Christian foundations of the United States."

White House press secretary Jay Carney declined to make a statement on the ruling because the administration doesn't comment on ongoing litigation. However, Carney said President Obama has long opposed divisive and discriminatory efforts to deny rights and benefits to same-sex couples.

Duncan said the next step is likely to be another appeal. It is likely to be an appeal for the 9th Circuit to consider the case "en banc." Because of the size of the circuit, a lottery is held to select 11 judges to hear such appeals. But that would only be another stop on the way to the U.S. Supreme Court.

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