It wasn't the definitive, national same-sex-marriage-for-everyone decision that many gays and lesbians (and perhaps the legal team) wanted, but Tuesday's 9th U.S. Circuit Court of Appeals ruling declaring Proposition 8 unconstitutional is a victory nonetheless. The narrow decision will, we expect, make it difficult to overturn, because it explicitly affirms that once rights are granted to a group of people, they cannot be taken away. That is the crux of the decision.
The California Supreme Court ruled in May 2008 that same-sex couples have the right to marry, after which, some 18,000 couples tied the knot in the six months between the high court's decision and the passage of Prop 8, which amended the state constitution to define marriage as a union between one man and one woman. Those marriages were later upheld by the state Supreme Court, but the justices also upheld Prop 8.
The American Foundation for Equal Rights filed the current case, now known as Perry v. Brown, in 2009 after that ruling. A federal trial was held in 2010 and U.S. District Court Judge Vaughn Walker issued a sweeping decision that year declaring Prop 8 unconstitutional. The 9th Circuit Court of Appeals upheld Walker's ruling on Tuesday, but narrowly.
"By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the equal protection clause. We hold Proposition 8 to be unconstitutional on this ground," Judge Stephen Reinhardt wrote for the majority.
But Reinhardt and Judge Michael Hawkins said that addressing the broader question of whether same-sex couples have a constitutional right to marriage would have to wait and "will likely be resolved in other states, and for the nation as a whole, by other courts."
"For now," they wrote, "it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class."
The majority opinion made several references to one of the long-standing arguments used by opponents of same-sex marriage during the Prop 8 campaign: that it was "just the word 'marriage'" that Prop 8 was addressing, not the numerous other rights and responsibilities enjoyed by same-sex couples. Unfortunately for them, the appeals court found validity in striking that argument and Reinhardt used pop culture references to make his point.
"Had Marilyn Monroe's film been called 'How to Register a Domestic Partnership with a Millionaire,' it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different," the judge wrote.
"We are excited to see someone ask, 'Will you marry me?' whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron," Reinhardt wrote. "Certainly it would not have the same effect to see, 'Will you enter into a registered domestic partnership with me?'"
The majority opinion relied heavily on the U.S. Supreme Court's landmark 1996 decision, Romer v. Evans, which overturned Colorado's Amendment 2. Voters in that state passed the amendment, which would have prohibited any city, town, or county in the state from taking legislative, executive, or judicial action to recognize gay and lesbian citizens as a protected class. The U.S. Supreme Court said the government violates equal protection when it withdraws rights. Many legal observers have noted that Tuesday's Perry decision seemed written specifically for Supreme Court Justice Anthony Kennedy, who authored the majority opinion in Romer . That is no accident, as Kennedy is now viewed as the swing vote on the high court.
But getting the Perry case to the Supreme Court may not be a sure thing. Four justices must agree to take the case, which may be doubtful because, as written, it addresses an issue already decided by the court.
In the meantime, wedding bells won't be ringing for same-sex couples right away; but if this decision stands, the Golden State will once again enjoy marriage equality.
And the ruling sends a strong message to our opponents: you can't take away rights once they have been granted. That may be put to the test in Washington state, where the legislature is voting on a marriage bill as we go to press and opponents have vowed to wage a repeal effort if it passes.
Overall, the 9th Circuit's decision affirms equality for same-sex couples, albeit narrowly. That victory must be preserved.