Marriage equality moves forward in California

A federal appeals court ruled Feb. 7 that California’s Proposition 8 ban on same-sex marriage, passed by voters in 2008, is unconstitutional, siding with former Chief U.S. District Judge Vaughan Walker’s landmark 2010 ruling in the case.

The decision by a three-judge panel of the Ninth U.S. Circuit Court of Appeals is certain to be appealed by backers of the same-sex marriage ban. They could first ask for a ruling by a larger Ninth Circuit Court panel, or go directly to the U.S. Supreme Court.

“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted,” the court said.

The ruling, which is limited to California, has been stayed pending appeal.

Rebecca Rolfe, executive director of the San Francisco LGBT Community Center, said in a statement that the ruling is “not only the right decision based on law, but it is the right decision to bring fairness and equality to thousands of same sex couples throughout the state of California.” She added, “This is an important acknowledgement that Proposition 8 hurt individuals, couples and families, and laws based on intolerance, exclusion and hate will not be allowed to stand.”

A struggle over same-sex marriage has been going on in California for years.

In May 2008, the state Supreme Court overturned an earlier ballot proposition that banned same-sex marriage. Opponents of same-sex marriage then placed Prop. 8, to amend the state constitution to specifically ban marriage between two people of the same sex, on the November 2008 ballot, and voters passed it with a 52 percent majority.

In 2009 the state Supreme Court upheld Prop. 8, though it let stand same-sex marriages that took place between May and November 2008.

The stage was set for the current court battles by a landmark marriage equality trial in San Francisco in January 2010, the first federal trial over same-sex marriage. Two same-sex couples, Kristin Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank were plaintiffs in a non-jury trial before now-retired Judge Walker.

The couples asserted that Prop. 8 violates the U.S. Constitution because it discriminates on the basis of sexual orientation. They gave moving testimony about the effects of the ban on their families. Perry said the message to her was, “I’m not good enough to be married.” Katami told the court, “I love kids. To think you have to protect some children from me, from Jeff, there’s no recovering from that.”

The plaintiffs offered a series of academic expert witnesses on marriage, civil rights and culture, overwhelming the testimony in favor of Prop. 8. 

In the 2010 trial, the four plaintiffs were represented by an odd-couple of attorneys, who had been on opposite sides in the court struggle over the outcome of the 2000 election. At that time, Republican Theodore Olsen represented President Bush, while David Boies a Democrat, represented Al Gore.

In August 2010, Judge Walker ruled Prop. 8 unconstitutional .

When neither then-Governor Arnold Schwarzenegger, a Republican, nor then-Attorney General Jerry Brown, a Democrat, would appeal the ruling, the ban’s supporters, ProtectMarriage.com, proceeded with the appeal.

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and the District of Columbia now allow same-sex couples to marry. Washington state’s legislature is considering legislation to allow gay marriage there, too. 

Photo: At a San Francisco demonstration at closing arguments in the trial, in June 2010. Marilyn Bechtel/PW