California takes another step toward marriage equality

gay rights

California took one more step on the road toward marriage equality this week, with the 9th U.S. Circuit Court of Appeals' June 5 announcement that it will not rehear a three-judge panel's decision striking down the state's ban on same-sex marriage.

The court's decision is the latest in a process that started back in May 2008 when California's Supreme Court struck down the state's ban on same-sex marriage, calling it unconstitutional discrimination.

Later that year California voters passed Prop. 8, a constitutional amendment to ban same-sex marriage

After two California same-sex couples sued to overturn Prop. 8, the issue was tried before U.S. District Judge Vaughn Walker in 2010. When Judge Walker ruled the measure unconstitutional, the matter moved to the Court of Appeals, where a three-judge panel last February upheld Judge Walker's decision.

Meanwhile, same-sex couples were allowed to marry in the state during the months between the May 2008 decision and passage of Prop. 8 in November.

Calling the Appeals Court's action "a wonderful decision," Rea Carey, executive director of the National Gay and Lesbian Task Force, noted that "the majority of Americans now support marriage equality ... They know that marriage equality is about strengthening families."

Evan Wolfson, president of the nationwide organization Freedom to Marry, said the decision "brings committed same-sex couples in California one step closer to being able to marry," and urged "all Americans to join us in continuing to make as strong a case in the court of public opinion as legal advocates are making in the court of law."

Opponents vow to take the issue to the U.S. Supreme Court. The ban remains in effect while the case is being appealed.

A dissent by three of the Appeals Court's 27 active justices contended that the court's decision overturned the democratic process by striking down a decision passed by voters, and Charles Cooper, attorney for Prop. 8 supporters, said the decision ignored both earlier Supreme Court decisions and "the character and judgment of millions of Californians."

Both sides expect the issue will be decided during the high court's 2012-13 session. Many observers think that if the Supreme Court takes on the case, it will focus its decision narrowly on California's withdrawal of the right to marry. Others think the high court may not want to take on the issue, since marriage equality is a political issue on which public opinion is shifting rapidly.

CNN released a poll June 6 showing 54 percent of Americans think same-sex marriage should be legal. President Obama's declaration last month in support of marriage equality also has big implications for its increasing acceptance.

Meanwhile, in Illinois, Lambda Legal and the American Civil Liberties Union are representing 25 same-sex couples from across the state. They argue that state laws barring the couples from marrying mark them as different and unworthy of fair and equal treatment.

In another action expected to reach the U.S. Supreme Court, the 1st U.S. Circuit of Appeals last week declared the 1996 Defense of Marriage Act, or DOMA, unconstitutional because it bars same-sex couples from receiving federal tax, Social Security and other benefits available to opposite-sex couples. As in the California marriage equality case, the court's ruling is on hold pending the appeals process.

Photo: Marilyn Bechtel/PW

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