Calif. Court Declares Proposition 8 Unconstitutional

A federal appeals court on Tuesday declared California’s same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court. A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.

The key Supreme Court precedent here, and the subject of most of the jousting between the majority and the dissent, is the 1996 case Romer v. Evans, in which Anthony Kennedy wrote for a majority of six in striking down a Colorado law that expressly barred any “special rights” from being granted to gays. Kennedy also took the tame option in that case, passing on the issue of whether gays are a “suspect class” and finding instead that Colorado’s law was invalid because there was no rational purpose to its discrimination. The question before the Ninth Circuit was whether there’s a rational purpose to discriminating against gays specifically in the context of marriage; read the opinions yourself for the back and forth about marriage and procreation on that. I’m intrigued, though, as to why the famously liberal Stephen Reinhardt wasn’t more aggressive in his majority opinion. Did he want to find that gays are a “suspect class” under the Equal Protection Clause, which would therefore have warranted strict judicial scrutiny of Prop 8, but couldn’t get the other judge in the majority to go along? Or was this a strategic decision, figuring that if he followed Kennedy’s logic in Romer v. Evans closely, this ruling would have a better shot of being upheld by the Ninth Circuit en banc and, eventually, by the Supremes themselves?