The federal courts have been weighing in on the issue of same-sex marriage in the past few weeks, and they have definitely been coming in on the right side of history. Last month the 9th Circuit court of Appeals affirmed Judge Vaughan Walker’s decision invalidating Proposition 8, in a powerful decision that is clear and direct. The appellate justices ruled that since the California legislature had already granted marital rights to same-sex couples (as domestic partners) and the California Supreme Court had ruled (in 2008) that same-sex couples were entitled to marry, and not just register as domestic partners, it was wrong for the voters to take away the access to marriage without a legitimate reason. And, the Court went on to say that there was no such possible justification, since precluding same-sex couples from marrying didn’t help anyone or further any legitimate state policy.
What is most interesting about this ruling is that they did not give any deference to the fact that this was a voter initiative, rather than a legislative action. This is very different than the approach taken by the California Supreme Court when it evaluated Proposition 8 – those justices went out of their way to defer to the voters in upholding Proposition 8.
The proponents of Proposition 8 have now asked the entire 9th Circuit court to review the decision issued by the 3-judge panel. If a majority of the 25 appellate justices agree, then there will be a new round of hearings and a new decision by a larger panel of justices. This will delay the final decision by another year or so, and the outcome is quite unpredictable. Then, the losing side has the right to ask the United States Supreme Court to take up the case – but the Court has the option of simply declining to rule on the request, and thus the 9th Circuit decision becomes the last word.
To their credit, in my opinion, the 9th Circuit justices did us a big favor, by greatly narrowing the scope of the decision. While they upheld Judge Walker’s invalidation of Proposition 8, they based their decision on the particular facts and history of the California situation, rather than making a broad ruling that any prohibition of same-sex marriage would be unlawful, anywhere in the country. By narrowing their decision in this way, they reduce the likelihood that the Supreme Court will take up the case – and to me that is a good thing.
Meanwhile, just down the road in San Francisco, another federal judge recently ruled in the Golinski case that the federal court (as an employer) had a duty to give marital benefits to one of its lesbian employees. The judge ruled that the Defense of Marriage Act was not constitutional and thus the California marriage of this employee had to be honored with regard to federal employee benefits.