WASHINGTON — Within a week, two federal appeals courts have delivered major victories to proponents of same-sex marriage and moved the issue closer to Supreme Court review. But neither case would require the justices to decide whether the Constitution provides a right for gays to marry.
On Tuesday, the full U.S. Court of Appeals for the 9th Circuit in San Francisco said it would not reconsider a panel’s 2 to 1 ruling that struck down California’s Proposition 8, a constitutional amendment limiting marriage to a man and a woman.
And last week, the U.S. Court of Appeals for the 1st Circuit in Boston ruled that part of the federal Defense of Marriage Act is unconstitutional because it denies equal treatment of same-sex couples legally married in states that permit it.
Both appellate decisions relied on Supreme Court precedents that say animus toward gays is not a legitimate reason for government to discriminate, rather than asserting that there is a fundamental right for homosexuals to marry.
Appeals of the two decisions are expected to reach the Supreme Court in the fall. The court typically accepts review of a lower court’s decision that declares part of a federal statute, such as the Defense of Marriage Act, unconstitutional. It could accept the Proposition 8 case at the same time, even though the 9th Circuit’s ruling upends only California’s ban on same-sex marriages.
Brian Raum, senior counsel for the Alliance Defense Fund, one of the groups defending Proposition 8, said the appeal will come quickly and his group “looks forward to standing before the U.S. Supreme Court on behalf of the people’s right to preserve the fundamental building block of civilization.”
Theodore B. Olson, the conservative Republican lawyer who teamed with Democratic counterpart David Boies to challenge Proposition 8, said the two will tell the Supreme Court to let the 9th Circuit’s decision stand.
If the court, however, decides to consider the case, Olson said, they will argue both the narrow ruling by the appeals court and their broader argument that marriage is a fundamental right that must be open to gay and lesbian couples.
The 9th Circuit announced Tuesday that a majority of its 25 active judges had decided not to review the February decision, which focused on the fact that gay couples in California for a brief time had the right to marry and that Proposition 8 took that right away.
In 2008, the California Supreme Court ruled 4 to 3 that same-sex couples could not be denied the right to wed, and over the next five months, about 18,000 couples took marriage vows. That fall, however, 52 percent of California voters supported Proposition 8, amending the state constitution to validate “only a marriage between a man and a woman.”
U.S. Circuit Judge Stephen Reinhardt said this “taking away” of a right by the majority was not allowed.
“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause” of the federal Constitution, Reinhardt wrote.
He based the ruling on the Supreme Court’s 1996 decision in Romer v. Evans. That decision involved an amendment to the Colorado Constitution that prohibited the state or local jurisdictions from outlawing discrimination against gays. The ruling was in response to local governments that had extended such protection.
The Romer decision was also cited last week when the Boston appeals court agreed with those challenging the Defense of Marriage Act, a 1996 law that limits federal recognition of marriage to those between a man and a woman. The law denies federal benefits, such as filing joint tax returns or receiving survivor benefits, to same-sex couples who were married in states that allow such unions.
The Obama administration said it would no longer defend the law, and President Obama said last month that he believed states should allow same-sex marriages.
Three 9th Circuit judges who objected to Tuesday’s decision cited Obama’s belief that the decisions should be left up to states and criticized the panel’s reasoning.
“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,” wrote Judge Diarmuid O’Scannlain of the U.S. Court of Appeals for the 9th Circuit. “We should not have so roundly trumped California’s democratic process.”
The victories of same-sex-marriage proponents in the courts have not been matched at the polls, where voters have yet to approve gay marriage. But Chad Griffin, co-founder of the American Foundation for Equal Rights, said much has changed in the three years since the Proposition 8 lawsuit was filed on behalf of two California same-sex couples.
More states allow same-sex marriage, the Defense of Marriage Act has been declared unconstitutional, the ban on gays serving openly in the military has been repealed and polls show that Americans, especially the young, endorse marriage for gays, he said. “It is clear where this country is headed,” Griffin said.