SAN FRANCISCO – The question of whether states can – under the U.S. Constitution – define marriage as between a man and a woman could be headed to the U.S. Supreme Court after an appeals court declined to hear the widely followed Proposition 8 case.
The U.S. Ninth Circuit Court of Appeals declined June 5 to re-consider the Prop 8 case, meaning that if the Supreme Court does not take up the case and if a ruling by a three-judge panel stands, then gay marriage will become legal in California.
But if the Supreme Court does take up the case, then the larger constitutional question – can states define marriage as between a man and a woman? – could come before the court. That means the case would impact not only California but all 40-plus states that currently don’t recognize gay marriage, including the 30 with constitutional amendments defining marriage as between a man and a woman.
If the Supreme Court does take the case, then oral arguments in the “Roe v. Wade of gay marriage,” as some have called the Prop 8 lawsuit, could be heard as early as this fall. Another gay marriage case, this one concerning the Defense of Marriage Act, also could be heard this fall. That one would answer a different question: Can the federal government decline to recognize the gay marriages from a given state?
Prop 8 is a constitutional amendment approved by California voters in 2008 that defines marriage as between one man and one woman. It was overturned in 2010 by a federal judge, and in February of this year a panel of the Ninth Circuit, in a 2-1 decision, upheld the judge’s ruling. That decision was then appealed to the larger Ninth Circuit.
Supporters of Prop 8 made clear they will appeal the case to the Supreme Court.
“The Supreme Court has made it perfectly clear that marriage is constitutional as a matter of state public policy,” Charles J. Cooper, an attorney with the team defending Prop 8, said. “We’re pleased to petition the Court to hear this case. The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will review the 9th Circuit’s decision.”
Prop 8 supporters took heart in a dissent signed by three judges, who said the court had “silenced … respectful conversation” on the subject of marriage. The judges took issue with how the Ninth Circuit panel in February interpreted a 1996 case, Romer v. Evans. In Romer, the Supreme Court reversed a Colorado constitutional amendment that prohibited laws protecting homosexuality.
“Based on a two-judge majority’s gross misapplication of Romer v. Evans … we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia,” the dissenting judges asserted.
Animus is a legal term meaning “prejudice.”
“Even worse,” the dissenting justices said, “we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”
The dissenting justices were Diarmuid Fionntain O’Scannlain – a nominee of President Reagan – and Jay Bybee and Carlos Bea, each nominated by President George W. Bush.
(EDITOR’S NOTE – Michael Foust is associate editor of Baptist Press.)