Jewish Journal

Federal appeals court strikes down California’s gay marriage ban

by Brad A. Greenberg

February 7, 2012 | 11:39 am

Gay Marriage advocates during a rally before hearing the news of the Proposition 8 over-ruling in San Francisco, Ca., Feb. 7. Photo by REUTERS/Beck Diefenbach

Affirming a ruling by the district court that California’s voter-passed ban on gay marriage was unconstitutional, the Ninth Circuit struck down Proposition 8. In a 2-1 opinion, Judge Stephen Reinhardt wrote:

“Although the Constitution permits communities to enact most laws they believe to be desirable,” 9th Circuit Judge Stephen Reinhardt wrote, “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,” Reinhardt wrote

More from Reuters. The full opinion is on the Los Angeles Times website.

This is the latest legal decision in a case that many people have expected would find its way to the U.S. Supreme Court since voters approved the measure in 2008.

One of my law professors, Adam Winkler, has a great piece at the Huffington Post that breaks down what’s next for same-sex marriage and how the Supreme Court might resolve this case. A snippet:

With four Justices expected to vote against gay marriage (Roberts, Thomas, Scalia, Alito) and four others expected to vote in favor (Ginsburg, Breyer, Sotomayor, Kagan), how the Court rules is expected to turn on the vote of Anthony Kennedy, the usual swing vote. And that, perhaps surprisingly, buoys the hopes of many in the gay rights community.

The Supreme Court has twice before squarely ruled on gay rights issues and, in both cases, Kennedy wrote strong opinions endorsing equality for all Americans regardless of sexual orientation. In the most recent of those cases, Kennedy wrote that “our laws and tradition afford constitutional protection to personal decisions relating to marriage” and “other family relationships.” ...

Students of the Supreme Court also recognize Justice Kennedy to be the Justice most likely to side with the individual against the government.

Read the rest here, where he also addresses the standing issue that I discussed in the fall. The Supreme Court could still dismiss this case by ruling that supporters of the state law, as opposed to the state government, are not the proper party to defend the law.

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