Federal appeals court rules against California ban on gay marriage

A federal appeals court on Tuesday ruled that California’s ban on gay marriage was unconstitutional, injecting the issue into election-year politics.

In a 2-1 decision, the appeals court upheld a lower court ruling that declared a proposition approved by California voters in November 2008 unconstitutional.

GOP candidate Mitt Romney quickly slammed the ruling in a statement.

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“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage," he wrote. “This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values.”

The Obama administration took a more cautious approach, with White House press secretary Jay Carney declining to comment on the specific litigation.

“I can say that the president has long opposed discriminatory efforts to deny benefits to same-sex couples,” Carney said, before alluding to the fact that the president’s position against gay marriage is “well-known.”

In his 39-page majority opinion, Judge Stephen Reinhardt, an appointee of President Carter, said that supporters of the proposition did not have “legitimate reason for passage of a law that treats different classes of people differently.”

“All parties agree that Proposition 8 had one effect only,” he wrote. “It stripped same-sex couples of the ability they previously had possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.”

Reinhardt's decision was signed by Judge Michael Hawkins, an appointee of President Clinton.

The third member of the federal panel, Judge Randy Smith, an appointee of President George W. Bush, dissented.

Proposition 8 sponsor Protect Marriage plans to appeal to a larger 9th Circuit panel, and to the U.S. Supreme Court if necessary. Marriages between same-sex couples in California will likely stay on hold in the interim.

Proposition 8, which defined marriage as between one man and one woman, was approved just months after California’s Supreme Court legalized same-sex marriage.

Groups opposed to Proposition 8 immediately hailed the decision. 



“There are days in our nation’s history when genuine progress toward our goal of forming a more perfect union is realized,” said Chad Griffin, president of the American Foundation for Equal Rights. “Today is one of those days.”

The ruling could be a tricky issue for both parties in the 2012 election at a time when social issues, such as abortion and contraception, have returned to the forefront.

Obama has broad support from, but a conflicted relationship with, the gay community.

He opposes same-sex marriage, though he has said his views are “evolving.” He is against California’s Proposition 8, which he felt was “divisive and mean-spirited,” senior White House adviser David Axelrod has said.

Obama will likely point to the repeal of Don’t Ask Don’t Tell, and the administration’s move to drop the court fight that would have preserved the Defense of Marriage Act, as evidence of his commitment to gay rights.

“The president has a strong record in support of gay people and opposing anti-gay amendments,” said Evan Wolfson, president of the non-partisan advocacy group Freedom to Marry. “It’s in his interests to speak forthrightly because he will lose nobody and will tap into the energy of those who want to see him do the right thing. And it’s not just Democrats, it’s independents too.”

Wolfson said he wouldn’t be surprised if the president announced that he’s reversing his opposition to gay marriage prior to the November election.

“He’s been talking for some time about how his views are evolving,” Wolfson said. “He says it’s clear where the country is moving, so I think he has really paved the way to get to where most Americans already are.”

Conversely, there is little ambiguity among the GOP presidential candidates on the matter of gay marriage.

Romney, Rick Santorum and Newt Gingrich all signed a pledge sponsored by the National Organization for Marriage promising to support a federal constitutional amendment that would ban gay marriage.

However, Wolfson argued that this position could hurt the GOP nominee with independent voters in the general election.

“This is emerging as a real problem for Mitt Romney and his rivals, who are alienating independents and moving away from where a majority of Americans are as they pander to the most anti-gay portion of their base,” Wolfson said.

Recent polls show public support for gay marriage spiking in the last two years, with most polls showing a close plurality or majority of voters now in favor.

Wolfson cited a joint 2011 memo from the top pollsters for Obama and former president George W. Bush, in which they argued that support for gay marriage will soon “dominate” the political landscape, and signaled that it was now a safe political position to stake out.

“Things are changing very quickly because support levels are up in all age and party categories,” the memo read in part. “This allows one to conclude that many adults are rethinking their position, and it is taking place at all age levels and among all partisans, including older Americans and Republicans.”

This story was posted at 1:06 p.m. and last updated at 5:16 p.m.