A 3-judge panel from the 9th District Court of Appeals released a 2-1 opinion today confirming that stripping the rights of same-sex Californians to marry was unconstitutional.
The dissenting judge, N. Randy Smith of Pocatello, Idaho, opined that Plaintiffs had not met their responsibility to remove all debatable issues surrounding potential legitimate governmental interests in supporting “responsible procreation” (that children should be born in wedlock) and “optimal parenting” (that the best place for raising children is in the homes of two married, biologically related adults). In taking his conservative view that courts should be reticent to strike down legislation, he concluded his dissent by saying,
[B]oth sides offer evidence in support of their views on whether the optimal parenting rationale is a legitimate governmental interest. Both sides also offer evidence to undermine the evidence presented by their opponents. However, the standard only requires that the optimal parenting rationale be based on “rational speculation” about married biological parents being the best for children….Considering “the question is at least debatable,”… the optimal parenting rationale could conceivably be a legitimate governmental interest.
In anticipation of questions regarding his own thoughts and feelings about same-sex marriage (Smith appears to have many Mormon and BYU ties and is probably LDS), he wrote,
“Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task. Instead, we are only asked to consider the constitutional validity of Proposition 8 under the federal Constitution.”
The majority opinion, however, written by Judge Stephen R. Reinhart, put it this way:
“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution]. We hold Proposition 8 to be unconstitutional on this ground.”
The question of whether Prop 8 proponents had standing to bring the appeal at all was unanimously upheld, and the question as to whether Judge Vaughn Walker should have recused himself was unanimous also - there was no reason he should not have heard the case.
This judgment is a narrow one, crafted to apply to Californians mostly because Prop 8 took away the existing right to the name, “marriage” for same-sex unions. As a result, even if the U.S. Supreme Court agrees to hear an appeal, chances that it will be precedent-setting for the rest of the nation are slim to none.
The stay on the judgment remains in place for at least three more weeks, so no same-sex marriages will be created in California immediately.
There are two possible paths to appeal at this point: An en banc hearing in front of all 11 judges in the 9th Circuit or a request directly to the U.S. Supreme Court.