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.

The Latest on Gay Marriage - California, Washington and the Nation

Folks interested in gay marriage issues, particularly those living in California, are awaiting the 9th Circuit Court of Appeals' decision, expected to be released today, which will reveal its three-judge panel's opinion on whether Proposition 8 (the ban by voters on gay marriage in the state of California) is constitutional, specifically whether the lower court's opinion against the Proposition will stand.  If the lower court's decision is affirmed, the supporters of the ban plan to appeal to the entire panel of the 9th Circuit and then to the US Supreme Court if necessary.  Check out the AP story, as appears at Boston.com.

And there is yet more news on the West Coast. Law prof Joanna Grossman has another interesting article, this one mainly about the gay marriage legislation just passed by the state senate in the state of Washington, and which is expected to be passed soon by the house and signed by the governor there, and which would make Washington the seventh state (after Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York), along with the District of Columbia, where gay marriage has been created and legalized either by legislative or judicial action.

In Washington, this legislative action is unique, as Grossman points out, in that "it will be the first time, since the beginning of the modern same-sex marriage controversy, that a state legislature has reversed itself, moving from a statutory ban on same-sex marriage to a statutory authorization" and it will have all happened in a very short time. For more about these recent developments in Washington, and for a brief summary of the developments in the recent, nine-year-long history of gay marriage in the United States, see her online article, The Beginning of the End of the Anti-Same-Sex-Marriage Movement .

Grossman's optimism, in believing as she does that "same-sex marriage is an inevitable, eventual reality" is understandable, given this and other recent developments. She explains how the Washington state legislature did a rather quick about-face in favor of gay marriage, and sees that as a sign that views around the country are changing quickly and that "even deeply entrenched opposition may dissipate sooner than we thought." She notes that same-sex marriage bills are working their way through legislatures in other states, including those of New Jersey and Maryland.

I once shared her optimism, but now I have my doubts. Any suggestion that the six, soon-to-be-seven, states, plus the District of Columbia, will quickly grow in number to include most or all of the other 44 (soon-to-be-43) states where gay marriage has not been legalized, is wildly optimistic. It is far too easy for those of us who live in New England and New York (home to all but one of the current same-sex marriage states) to be out of touch with what is going on in the more conservative regions of the South and the Midwest, and indeed the vast expanse of the country. I tend to think we are going to continue to have, for the foreseeable future, a vast majority of states that are, as they have been, consistently and obstinately unfriendly to same-sex marriage, while a very small number of new states warm to the idea.

Gay couples are a very small minority of households, even in Massachusetts. In the more conservative states, where the religious right or at least conservative social values hold sway, the small minority of gay couples and their liberal and libertarian supporters are likely to continue to be drowned out by the louder, and stronger, voices of the more socially conservative majority. If you've read this far, you might find interesting as I did these numerous charts showing the demographics of same-sex couples in the US, derived from the latest (2010) US Census.

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