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Why momentous Prop. 8 ruling might not satisfy gay-rights groups By Warren Richey
What has happened and what will happen in the long-running effort to mainstream the once "alternative lifestyle"  ASHINGTON— (TCSM)
A federal appeals court in San Francisco on Tuesday struck down California's ban on same-sex marriage, ruling that the ballot initiative violated the equal-protection rights of gay and lesbian couples by withholding a marriage right they had already once enjoyed. The decision sets the stage for a potential showdown at the US Supreme Court over an issue that has bitterly divided not just Californians but much of the nation. The panel of the Ninth US Circuit Court of Appeals ruled 2 to 1 that California's 2008 ballot initiative restricting marriage to between one man and one woman, violated the federal constitution by refusing same-sex couples the same marriage rights enjoyed by heterosexual couples. "The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them … of a right as important as the right to marry," wrote Judge Stephen Reinhardt in the majority decision. "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," Judge Reinhardt said. "The Constitution simply does not allow for laws of this sort." The decision represents an extraordinary use of judicial power to invalidate an act of grass-roots democracy. It dismisses the expressed judgment of seven million California voters who approved Prop. 8, and it undercuts a decision of the California Supreme Court that the ballot initiative was a valid amendment to the state's constitution.
The judge rejected claims by Prop. 8 proponents that the measure was a legitimate effort by the state to promote families with a mother and father in the same home raising their own children. He also pushed aside claims that the measure upheld tradition. "Tradition alone is not justification for taking away a right that had already been granted," he said. Judge Michael Hawkins joined the majority opinion. In a dissent, Judge N. Randy Smith said he was not convinced that the ballot initiative and constitutional amendment promoted no legitimate government interest. He suggested the measure could be upheld as an effort by the state to promote responsible procreation and optimal family partnerships of mothers and fathers raising their own children.
WHAT HAPPENS NEXT
The case has attracted substantial national interest because it was seen as an opportunity for the a federal appeals court to address a more fundamental question - whether gay and lesbian Americans enjoy a federal constitutional right to engage in same-sex marriage. The US Supreme Court has not directly addressed that issue, but has suggested that there is no such right. Gay-rights advocates had hoped that the Ninth Circuit panel might become the first appeals court to challenge that position, forcing the high court to confront the issue. Instead, the judges took a different approach, ruling that the effect of amending the state constitution to ban same-sex marriage after same-sex couples had already enjoyed that right amounted to unequal treatment, in violation of the Fourteenth Amendment's equal protection clause. Judge Reinhardt's decision comes at a time when gay rights groups are fighting across the country in the courts, at the ballot box, and in public opinion forums for equal treatment with heterosexual couples in marriage. Groups favoring the traditional definition of marriage are fighting back. Currently, six states and the District of Columbia authorize same-sex marriage. Thirty states, including California, have passed state constitutional amendments banning same-sex marriage. In addition, 37 states have passed statutes defining marriage as between one man and one woman. There are more than 98,000 same-sex couples in California, raising more than 30,000 children, according to the 2010 Census.
LONG-RUNNING BATTLE
California law authorized domestic partnerships for same-sex couples, granting gay and lesbian partners the same legal rights and protections as married heterosexual couples. But state law restricted the use of the term "marriage," to a legal bond between one man and one woman. The California Supreme Court overturned that restrictive definition, ruling that the state constitution required that couples be treated equally regardless of sexual orientation. The landmark ruling in May 2008 came after city officials in San Francisco in 2004 began performing same-sex marriages without prior legal authorization. Immediately following the California Supreme Court ruling, opponents of same-sex marriage began organizing a ballot initiative, Prop. 8, to overturn the state high court ruling by amending the state's constitution to restrict marriage to one man and one woman. In November 2008, voters approved the ballot measure 52 percent to 48 percent, with seven million voters supporting the man-woman limitation, and 6.4 million opposing it. With the state Supreme Court decision overturned and the California constitution amended, gay-rights advocates took their fight to the federal courts. In the meantime, during a 143-day period in 2008, between the state supreme court's ruling and passage of Prop. 8, an estimated 18,000 gay and lesbian couples wed. A gay couple and a lesbian couple filed a civil-rights lawsuit in federal court in San Francisco, claiming Prop. 8 violated equal protection and due process rights guaranteed under the US Constitution. US District Judge Vaughn Walker conducted a 12-day trial in January 2010. He announced his decision in August 2010. The judge ruled that California had no justification to limit its definition of marriage to a man and a woman while offering identical rights to same-sex couples under domestic partnerships. Judge Walker invalidated the state constitutional amendment and permanently enjoined California officials from excluding same-sex couples from marriage in the state. The decision was hailed as a landmark for gay rights. Supporters of Prop. 8 appealed Walker's decision, arguing that the federal judge ignored binding US Supreme Court and appeals court precedents that the traditional man-woman definition of marriage does not violate the US Constitution.
HOW JUDGE REINHARDT RULED
Reinhardt said Prop. 8 did the same thing to same-sex couples in California who had enjoyed a 143-day window in which they were free to marry on the same terms as heterosexual couples. That brief window in effect grandfathered them in for constitutional purposes, the judge said. He noted that Prop. 8 proponents said the ballot initiative merely restored the traditional definition of marriage and left undisturbed all other legal rights enjoyed by gay couples. But Reinhardt said formal designations matter. "Marriage is the name that society gives to the relationship that matters most between two adults," he said. "A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not," he said. The judge also quoted Frank Sinatra: "A man doesn't know what happiness is until he's married. By then it's too late." Sign up for the daily JWR update. It's free. Just click here.
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© 2012, The Christian Science Monitor
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