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By JEREMY HAY
THE PRESS DEMOCRAT
A federal court ruling Tuesday that Proposition 8, the 2008 voter initiative that banned gay marriage in California, is unconstitutional was greeted in Sonoma County with the passion that marks one of the most contentious cultural issues of the time.
Supporters of gay marriage react outside the James R. Browning United States Courthouse after a federal appeals court declared California's ban on same-sex marriage unconstitutional on Tuesday, Feb. 7, 2012 in San Francisco. (AP Photo/San Francisco Chronicle, Lea Suzuki)
Proposition 8 opponents said the ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals, which relied heavily on U.S. Supreme Court opinions, affirmed basic civil rights for gays and lesbians.
“The decision today upholds that promise of our constitution, of the right to life, liberty and the pursuit of happineness for everyone,” said Stu Harrison, 58, of Healdsburg, who co-chaired the local campaign against Proposition 8.
But staunch Proposition 8 supporters said it was another notch in a social decline.
“I see the fabric of our society being dismantled and destroyed,” said Tim Arensmeier, 71, pastor of the Sonoma Valley Community Church. He said marriage was intended by God to be only between one man and one woman.
In its 2-1 ruling, the court said: “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.”
The court left in place a stay, which means gay marriages cannot start again in California while the case go through the appeals process.
It is generally agreed the case will make its way to the U.S. Supreme Court, though it is less certain whether the court would choose to hear it, a decision that would depend on factors including its import to the nation at large.
The heart of the Circuit Court’s decision was a statement on page 77 of the 89-page majority opinion. It said that Proposition 8 violates the Equal Protection Clause of the Constitution, the 14th Amendment, unfairly stripping a minority group of a right to marry that is afforded to others.
That finding, legal experts said, was noteworthy for breaking largely unploughed legal ground on questions of gay rights.
“It’s a particularly important opinion because you’ve got a federal appellate court interpreting the U.S. Constitution in a way that is very favorable to gays and lesbians,” said Larry Levine, a constitutional law professor who teaches sexual orientation law at the Pacific McGeorge School of Law.
The majority opinion, by Judge Stephen Reinhardt, said the proposition “enacts nothing more or less than than a judgement about the worth and dignity of gays and lesbians as a class.”
Such emotional language broadly, and pointedly, colored the ruling in favor of gays and lesbians. For example, Reinhardt wrote: “Groucho Marx’s one-liner, ‘Marriage is a wonderful institution … but who wants to live in an institution?’ would lack its punch if the word ‘marriage’ were replaced with the alternative phrase.”
But legally, experts said, it was far less extensive.
The ruling did not address the question of whether gay marriage is constitutionally permitted; rather. It was confined to California issues; and nothing in it affected other states in the 9th Circuit, which ranges from Montana to Hawaii to Arizona.
“The rhetoric of the opinion is a home run for the opponents of Prop. 8, but the holding itself is narrow,” said Evan Lee, a constitutional law professor at UC Hastings College of Law.
“My guess is that formally, in front of the press, they’re (Proposition 8 opponents) celebrating,” Lee said. “In private, they’re arguing about it, some of them are saying this is half a loaf, we expected better.”
In his dissent, Judge N. Randy Smith cited a 1972 Supreme Court case in which the court dismissed an appeal of a Minnesota court ruling that upheld the right of the state to refuse a marriage license to two men.
Smith wrote: “Throughout our nation’s history, the States have had ‘the absolute right to prescribe the conditions upon which the marriage relations between its own citizens shall be credited,’”
He said the court was going too far by invalidating an initiative that did not have significant “breadth” in its consequences for gays and lesbians.
And, citing a 2006 8th Circuit Court case, he wrote: “The family structure of two committed biological parents — one man and one woman — is the optimal partnership for raising children.”
People on both sides of the issue said it is far from settled, with further legal battles — perhaps at the level of the U.S. Supreme Court — almost certain.
“You want to celebrate, but it’s hard to because it’s not over yet — it’s an emotional roller-coaster,” said Rhonda Findling, 51, of Sebastopol, who is married to a woman and has two daughters.
Findling was one of about 18,000 gays and lesbians who married in 2008 in a 6-month window during which same-sex marriages were legal in California, before Prop. 8 was passed.
Likewise, for Proposition 8 supporters, the ruling only extended a long battle over what marriage should be.
“Today’s decision is a continuation of this valuable and vigorous debate in the courts on the right of the people to define and protect marriage,” said Ray Henderson, 37, president of the Santa Rosa Stake of the Church of Jesus Christ of Latter-day Saints, which has about 4,000 members.
On Tuesday, the ProtectMarriage.com organization, which defended Proposition 8 in the court, quickly declared its intention to appeal the decision.
Proposition 8 supporters have two legal options.
They can ask the full 9th Circuit for an en banc hearing, in which 11 judges, including the three-judge panel that ruled on Tuesday, would decide the case. Or they could apply to the nation’s top court, which would choose whether or not to hear it.
Both Levine and Lee said that because Tuesday’s ruling confines itself largely to California, it’s possible the top court may decide the case’s consequences are not felt widely enough for the highest court to take it on.
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I fully believe that anyone should have the opportunity to marry anyone of their choosing. If a gay wants to marry a gay, then find a church that sanctifies it and knock yourself out.
Reality Check has it right. Marriage is a traditionally religious custom that government has, over time, intruded upon through licensing and application of extraordinary financial / taxation status. Government got into the game several generations ago to help check the spread of various diseases, including venereal diseases, and — in some cases — to prevent inter-racial marriages. Ideally government should not be involved in marriage at all.
What is most troubling to me out of all this business is the complete shredding of the constitution by both state and federal courts on the issue. If people could, for a moment or two, set aside their emotions and their agendas and actually examine the damage being done they might conclude that this victory for gay marriage is a Pyrrhic one for our system of laws and our constitution.
There was never any enumerated right to marry. On the part of anyone. It’s not in the US constitution and was not in the state constitution. When the City and County of San Francisco took it upon itself to put the imprimatur of government on marriage between same sex couples it was something of a leap of faith relative to the law.
In the court cases that followed the California Supreme Court ruled that there was an implied right to marry through the concept of due process. They invented the right out of thin air. When the voters subsequently passed Prop 8 and lawfully amended the state constitution, as is their prerogative and within their enumerated powers, a federal court stepped in.
Judge Vaughan Walker, himself a gay man in a long term monogamous relationship who (apparently) did not disclose that before or during trial, issued a narrow, agenda driven ruling overturning Prop 8 as a violation of civil rights. He relied on the principle of ‘rational basis’, the lowest possible test of constitutionality. He held that the ruling of the state Supreme Court, which again invented the right to marry out of thin air, was more correct than the voters and that there was no rational basis for the constitutional amendment that the voters passed. Essentially it says that the proponents of Prop 8 and the voters who passed it are stupid, even though the measure left all of California’s long standing domestic partnership laws (which gays argued for years was all they really wanted) completely intact.
This past week a three judge panel ruled 2-1 siding with the now retired Judge Walker. Again, a very narrow ruling and the dissent of Judge Smith points out a split of opinion between the 8th and 9th circuits, which would seem to virtually guarantee that this is not over.
The declaration of a right, where none existed, by judicial fiat and the obvious over reach by both Judge Walker and the majority of the appellate panel as called out in the final pages of Judge Smith’s dissent, are where the whole thing goes off the track for me.
The road ahead is going to be interesting. I’d bet that ultimately the proponents of gay marriage will win, but I fear that such a win will be accompanied by a further erosion of the constitution, both state and federal.
Mr. F. Up… I welcome such a change.
“Oh really. How long after gay “marriage” is sanctioned before they demand all references to a marriage as being between a man and a woman be removed from our kid’s curriculum? Think it can’t happen? It’s already has started. Check out http://content.clearchannel.com/cc-common/mlib/11573/02/11573_1328116104.pdf“
“Gay marriage [snip] doesn’t impact your lives at all.”
Oh really. How long after gay “marriage” is sanctioned before they demand all references to a marriage as being between a man and a woman be removed from our kid’s curriculum? Think it can’t happen? It’s already has started. Check out http://content.clearchannel.com/cc-common/mlib/11573/02/11573_1328116104.pdf
The blathering here about “rights” belies a profound ignorance of our Constitution and its precepts. Here’s a question to ponder. Prior to the passage of the 19th Amendment, did women have the right to vote? No? Why not, the 14th amendment was put in place five decades hence, why didn’t Equal Protection automatically confer suffrage to women? The answer lies in the Constitution itself, which unfortunately for them explicitly reserved the right to vote to males. Unfair? Sure, Stupid? Absolutely. Unconstitutional? Don’t be ridiculous. Was the 19th Amendment necessary? Most assuredly. As Madison and Jefferson both elucidated at the nations founding, unenumerated rights are vested in the majority, which is to say, unless the right you claim is explicitly enumerated in the Constitution, it is not a right at all until the majority agrees it is a right. This is only fair since the citizenry may be called upon to fight to defend it.
Words have meanings and definitions are by their nature discriminatory. A women who claimed at the turn of the last century that the term “males” in the Constitution included females would be laughed out of court and probably institutionalized. Likewise the term marriage. It has a meaning which discriminates. Sorry about that. You don’t have a “right” to change the definition until you convince the majority of your fellow citizens of the rightness of your cause. Feel free to define your relationships however you wish. Pardon us however if we refuse to participate in your delusion.
What irritates me is that this proposition shouldn’t have been on the ballot in the first place. As far as I’m concerned it’s a non issue and the constitution already gives gay rights. It’s really a religious issue and people who object to gays marrying have no say. Just like birth control. YOU HAVE NO SAY. You have an opinion but you have no right to run other people’s lives through legislation because your religion dictates YOUR BEHAVIOR. If you don’t want birth control DON’T USE IT.
98% of catholics use birth control. Lots of catholics are gay and some are married. Same with other religions. If you think this is morally wrong, TOO BAD. There are other important issues THAT AFFECT YOU. Focus on those REAL ISSUES. Gay marriage and birth control for others doesn’t impact your lives at all.
I love all the comments everywhere from people who are quick to label this and other things as unconstitutional or not, but who quote the preamble as a basis of authority. We should all get a little more familiar with the constitution, the different levels of review that have applied to it historically and the fact that it’s a document that is meant to be consistant (not a breathing document) because we are republic based on law, not men. More specifically regarding marriage, people should read cases such as Loving v. Virginia (388 US 1) or Lawrence v. Texas (539 US 558). Then voice your opinion.
BTW… To all you parishioners, a word of warning that MIGHT strike home now that you’re facing a Government assault on your beliefs…
You had better re-think your Tax Exempt Status while you still can!
THAT will be the NEXT salvo of bombs crossing your bow.
You enjoy the benefits now but at what cost in the future?
Will you learn the lesson? It’s clear as day & right in front of your face NOW!
Or will you once again, wait until it’s too late.
Wait until the Government realizes that they are granting you “special treatment” for which you OWE them “say” in your institution?
It’s only a matter of time & the clock is ticking.
You’ve been warned!
This issue is an EXCELLENT example of what happens when you assume YOUR GUY will be in charge forever…. HE WON’T!
As long as the Government was staffed predominantly by “good Christians” the church was happy to reap the rewards of marriage.
So they FOOLISHLY handed over control of THEIR religious institution to the Government in exchange for a few Government goodies.
Yes, even the church suffers from the age old product of human nature… GREED!
Now they’re all up in arms because the Government has decided that allowing SOME people to reap the benefits of marriage but not others is un-just.
TOO DAMN BAD!
You made your bed, now you get to share it with Gay couples!
You anti-gay marriage people really need to face the fact that you made a HUGE mistake & allowed your greed to invite the Government into your religion.
At this point, the ONLY good that can come of that mistake is a very valuable lesson.
A lesson you will never learn because your greed won’t allow it.
You are fighting a battle that you lost long ago. It’s over.
@Jim, no…I have known that voting does no good for too many years! Just trying to be sure the rest of the people learn this too! Only then will we have a Revolution that says “We’ve Had Enough!” I just pray it’s not too late, but I’m pretty sure it is.
When a history of the decline and fall of marriage is written, the chapter on same-sex marriage will be short.
Good ol’ god-fearing Christians have done more to undermine marriage than anyone. Traditional marriage was doomed when govt extended tax and benefit preferences that turned it into a benefit calculation.
Young people may still marry for reasons of love and family expectations. But I know too many older couples who do (or don’t) marry after calculating the financial pluses and minuses from ex-marriages, pensions, healthcare benefits, and the granddaddy consideration of post-65 citizens, Social Security.
Society desanctified marriage a long time ago.
All this says is that our votes don’t matter. Weather you are for or against prop 8 the majority of Californian’s voted to ban gay marriage and now their votes don’t seem to matter.
Talk about not following the constitution. Why do we bother to have elections if they are not going to count?
The issue here was whether or not the state has the power to abolish a right previously given to the people. It doesn’t. Furthermore, the state cannot deny equal protection of the law to a group of people without a rational cause. Advocates for a ban on same-sex marriage were unable to present a rational cause for denying that equal protection. If anything, advocates for small/limited government should be overjoyed by the rulings of Judge Walker and the 9th Circuit.
@Just Me….You are just now realizing that your vote in CA is meaningless? As I recommend to everyone I know…find a good CPA who can shelter your income from the government and laugh as the state crumbles. This way you can sleep at night knowing you aren’t contributing to the corruption.
It has been clear for decades that the voting is meaningless. The activist courts in CA overturn the will of the people all the time. Add in that most voters are complete idiots, voting out of ignorance and with blinders that only see the “D” next to the names, and we get exactly what we should:
A legislature that has a 9% approval rating (who are those 9%??) but everyone is re-elected. Either the system is corrupt and ripe with fraud (most likely accurate) or the voters are idiots (definitely true). The combination of corruption and Sheeple idiots create what CA has become.
Once the puppets of the unions are voted into office by the ignorant Sheeple, they appoint radicals to the courts, they create corrupt organizations like CARB and implement taxes and regulations that drive productive businesses and people out of the state.
Again, I have no skin the game regarding Prop 8. I don’t care. My time is far to valuable to waste voting for a proposition that was going to pass regardless of what the voters said. I knew either (1) Prop 8 would fail by the voters or (2) would be overturned. I spent my time on more important things.
What I find amazing is that every Proposition goes through thorough constitutional analysis before being put on the ballot. Then the people are encouraged to vote. When the results aren’t what the activists want, they get an activist judge to overturn it. Why bother with the voting process? I don’t understand. Basically every state that has put this issue on the ballot has passed it. Yet the courts control. So why vote?
There is no constitutional right to marriage. If gays want to be joined for life, they need to be in a legal civil union (a legal civil contract) not marriage.
The gay objective is to destroy marriage as we know it. Why, because it buys more legitimacy for the gay life style and life style is what it is.
Why destroy the corner stone of what this society is based on for a life style? It makes no sense.
I’m sick of this whole topic. Who cares any more? I have no skin in this game. This state is a laughing stock in terms of finances, morals, environmental wackos, government control and excessive taxes.
Just to be clear…the SMART supporters say the voters spoke, live with it. The anti-Prop 8 people say the voters spoke but it doesn’t matter. The voters said ‘no’ to legal pot but it keeps coming back. The voters said ‘no’ to services for illegals, but it was reversed. Interesting. Seems the voters only matter when the result is what the activists and the shouters want.
I’m waiting for this whole thing to settle so the next step can start. “Marriage”, though a religious joining of a man and a woman, will be redefined. Then any consenting adult can marry anyone…cousin, sister, mom, brother, etc. Then we can get to the real issue…those who want to marry more than one person. The Constitution grants equal rights to all. If someone wants to marry another who is already married, why shouldn’t they be able to?
Glad to see the progression of CA society. It is about time.
The central pillar of American civilization had to be toppled.
Now the short descent to cultural oblivion can continue unimpeded.
Well, if states don’t have the right to discriminate against anyone, then presumably Muslim men will now be allowed to marry up to 4 women, as their religion allows.
To be blunt, moving the tent pegs far enough to include same-sex couples within the marriage tent hardly solves the issue of discrimination.
If anyone is serious about ending discrimination, and most of the talk isn’t, then government will need to get out of the business of marrying anyone. Marriage will become a private church, or possibly contractual, matter. They, and only then, can we say that government doesn’t discriminate when it comes to marriage.
Beware of what you ask for.
More imposed polarity (devide and conquer), more distraction.
I never understood how what someone else does with their uterus or genitalia effects their experience of life after they get up in the morning.
Especially amidst a backdrop that has such important issues facing us at this pivotal time is our ongoing.
If your moral compass is that acute, get active in helping to preserve our Country and our freedoms.
We shoulf fixate on that which unites us, not that which devides us.
“In his dissent, Judge N. Randy Smith cited a 1972 Supreme Court case in which the court dismissed an appeal of a Minnesota court ruling that upheld the right of the state to refuse a marriage license to two men.”
Back in the day states were allowed to deny marriage licenses to mixed race couples and this opinion smacks of that type of thought process. I bet the Honorable N. Randy Smith is a supporter of Ron Paul as well. States do not have the right to discriminate against anyone!
No matter which side of the fence you stand on in this issue, it is clear that Democracy does not rule! Same thing happend with the marijuana issues as well as many others.
The People wanted this on the ballot, the Majority voted and then those who didn’t like the outcome threw a tantrum.
WHY should we vote on any measure on the ballots if this is the outcome to be expected.
Perhaps the answer is to have the tax dollars spent to fully research anything that goes on the ballot to find out if it is legal (INCLUDING verification of the President’s eligibility to be President of the USA) BEFORE it goes on the ballot????? THEN let us vote!
As the old saying goes “If voting did any good, it would be illegal!”
Much as I dislike legislating from the bench, I am glad to see the courts overturn an initiative that was unconstitutional to its core.
On a semi-related note, I think this could lead to a net gain in jobs, because soon there will be demand for gay divorce lawyers.