| Today, the U.S. Court of Appeals for the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Northern Marianas, Oregon, and Washington) issued its opinion in the case challenging the validity of Proposition 8. In a 2-1 decision, the majority found a way to find that Proposition 8 violated the equal protection rights of gays and lesbians in California without finding that there is a constitutional right to gay marriage. The way that the majority managed to accomplish this feat goes back to a Colorado case decided by the U.S. Supreme Court in 1996, Romer vs. Evans. In the early 1990s, conservatives in Colorado saw several cities and towns in Colorado considering or granting civil rights protections to gay and lesbians. In response, they proposed and passed a state constitutional amendment that prohibited the State or any political subidivison from passing a law giving civil rights protections to gay and lesbians. The U.S. Supreme Court saw this state constitutional amendment as having no legitimate purpose and being solely designed to discriminate against gays and lesbians and to prevent them from fully participating in the legislative process. Using the Supreme Court precedent of Romer, the Ninth Circuit found that, as California had previously recognized gay marriage and otherwise granted gay and lesbians all the rights and privileges of marriage under a domestic partnership statute, taking away the rights of gays and lesbians to officially describe their relationship as marriage served no purpose other than to discriminate against gays and lesbians. In reaching this decision, the Ninth Circuit left open for another day whether the refusal of a state which had never recognized gay marriage and did not extend legal rights to domestic partnerships might be able to justify its policies. While nothing is ever certain with the United States Supreme Court, this decision makes it easy for the Supreme Court to pass on this case. There are not very many states in the country that currently recognize gay marriage (and even fewer that have recognized gay marriage and then rescinded that recognition). This decisions is very much like Bush v. Gore -- good for this case only on this unique set of facts -- which makes it a bad case for Supreme Court review even though both parties would like a broader decision that resolves the issue of gay marriage once and for all. With periodic and notable exceptions, the Supreme Court over the past two decades has tended to try to find a way to evade contentious issues when possible. The Ninth Circuit decision gives the Supreme Court a reason to not take the case (assuming that the entire Ninth Circuit does not decide to take the case and issue a broader opinion. There are other cases in the pipeline challenging the Defense of Marriage Act, but it seems likely that the Supreme Court will now be able to avoid this issue until 2014. |
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