Tuesday, February 7, 2012

9th Circuit Panel Finds California's Gay Marriage Ban Unconstitutional

Well, here's the decision from the 9th Circuit out in California, released as expected today.  The three-judge panel affirmed the lower federal court's decision finding Proposition 8 unconstitutional.  See the AP article on this here.   

After reading the decision (and dissent) just then, I concur with Barry Deutsch, who opines here that this ruling is likely to survive scrutiny by the US Supreme Court because it was decided on narrow grounds.   It does not in fact declare that the US Constitution grants a right of gay marriage.  

The narrow issue actually decided was, as Barry Deutsch put it: "Can a state pass a special law to eliminate an already-existing right for same-sex couples to have the legal designation 'marriage' applied to their relationships, when the state otherwise makes no legal distinction between same-sex and opposite-sex relationships? And the Court’s answer is no.But this is not over yet, so stay tuned. Here's the gist of the AP article:
SAN FRANCISCO—A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for a likely appeal to the U.S. Supreme Court.  
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 -- a response to an earlier state court decision that legalized gay marriage -- was a violation of the civil rights of gays and lesbians. 
However, the appeals court said gay marriages cannot resume in the state until the deadline passes for Proposition 8 sponsors to appeal to a larger panel of the 9th Circuit. If such an appeal is filed, gay marriages will remain on hold until it's resolved.  
"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. There was no such reason that Proposition 8 could have been enacted," the ruling states.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

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