Protect Marriage supporters seek appeal of Proposition 8 ruling
Lawyers for Protect Marriage asked the full federal court of appeals to reconsider an earlier ruling concerning Proposition 8, on Tuesday, Feb. 21, on the grounds that the 9th Circuit decision contradicted earlier Supreme Court decisions. They petitioned the court for what is known as an “en banc” review, wherein a larger portion of the justices review the earlier decision.
”I don’t know that it would change anything,” junior, political science major, David Shelton said. “The Ninth Circuit is the 9th Circuit. Their decision will most likely back up the ruling of the panel.”
What’s more, the three-judge 9th Circuit panel did not review the case from the viewpoint from which it was presented to them, Lawyers for Protect Marriage argues. The petition states, “The panel majority attempted to decide this case without addressing the central question it presents: whether the United States Constitution requires a State to redefine marriage to include same-sex couples.” The court was asked to rule on whether or not homosexual citizens are guaranteed the right to marry by the Constitution. Instead, they focused on a different line of scrutiny, drawing their precedent from a 1996 Supreme Court decision that prohibited state governments from singling out homosexual citizens for revocation of rights.
Ruling to affect only California
Another issue in contention is the reach of the decision. Justice Stephen Reinhardt, the author of the Ninth Circuit majority opinion, maintains that the decision only applies to California.
“The decisions of the U.S. Courts of Appeals, such as those in the 9th Circuit, are mandatory on all district courts and other lower courts within the circuit,” said Kevin Lewis, professor of theology and law at Biola University.
Despite the fact that the 9th Circuit Court has jurisdiction over several other states, Reinhardt has said in the event of a Supreme Court decision upholding the ruling, it would only pertain to California. It would not affect laws on the books in any other states. Considering the recent history of the Supreme Court, this assertion gives legal scholars some pause.
“Given our times, I suspect that the [Supreme] Court will take itself to be resolving another matter of national controversy,” said Scott Waller, a Biola political science professor.
Lack of existing laws poses problem
Further complicating the case is the fact that there are no laws currently on federal books that address the right of gay couples to marry. The main federal law on the issue is the Defense of Marriage Act. A controversial law passed in the 1990s, DOMA defines marriage as between a man and a woman. The Obama Justice Department has refused to defend the law in the Supreme Court.
That refusal bears a striking similarity to Proposition 8 itself. Two governors of opposing parties, former governor Arnold Schwarzenegger, a republican, and current governor Jerry Brown, a Democrat, have both balked at defending the law in California courts, where it has been struck down numerous times. This irks some California residents.
“It doesn’t really matter what their opinion is … They are constitutional officers of the state, bound to uphold the laws of the state, and they need to do that,” Shelton said.
Brown, who was California Attorney General at the time of the law’s passage, has opposed the law since its inception.
Decision meets months of waiting
Proponents of Proposition 8 have claimed that the decision of the federal appellate is a sweeping override of the California constitution. Legal scholars are trying to ascertain the way that the Supreme Court will react to this.
“The 9th Circuit is the most overruled court in the nation. If history is any guide, the [Supreme] Court will probably not find the 9th’s arguments particularly persuasive, but you never know,” Waller said.
Despite the numerous judicial overrides of this law, gay couples in California are still unable to marry. Now that an en banc petition has been filed, the decision will be delayed for months, most likely not reaching a conclusion until the fall of this year, according to the Christian Post. Until that time, Proposition 8 is still in effect.