Ninth Circuit Won't Say If "Same-Sex Couples May Ever Be Denied the Right to Marry"


As Peter Suderman noted below, a 3-judge panel of the 9th Circuit Court of Appeals voted today to strike down California's Proposition 8, which had amended the state constitution in order to forbid gay marriage. While this is a big win for the cause of gay rights, it is not a definitive judicial ruling in favor of gay marriage. As Judge Stephen R. Reinhardt states in his majority opinion, the court refused to touch the big question of whether the Constitution protects a right to gay marriage:

Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already committed to same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.

In other words, Reinhardt attempted to craft a relatively narrow decision both to minimize the likelihood of the Supreme Court hearing an appeal in the case (if one is filed), and to postpone the ultimate battle over the constitutionality of gay marriage until some later date. Had he issued a sweeping opinion that found gay marriage to be a protected right, the Supreme Court would almost certainly have agreed to hear the appeal. So why not force the vote? Perhaps Reinhardt doesn't think there are five current Supreme Court justices in favor of gay marriage and he doesn't want to give the Court a chance to rule on the issue just yet.