Berman & Asbel, LLP

Prop 8 Gay Marriage Ban Ruled Unconstitutional but Same-Sex Weddings Unlikely in CA Right Away - Appeal Likely; No Immediate Impact in PA

In a much anticipated ruling, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that California's Proposition 8 which banned same-sex marriage in that state violates the United States Constitution's Fourteenth Amendment.  The decision in the case of Perry v. Brown,* affirms the decision of the trial judge finding that the adoption of a state constitutional amendment banning same-sex marriage violated the federal constitution.   The appeal court's ruling is actually a narrow decision.  It does not go so far as to state that same-sex marriage should be legalized nationwide.  Rather, the court analyzed the history of how same-sex marriage had become legal in California in the first place - a process that culminated in a California Supreme Court decision which held that under California's constitution, same-sex couples had the same right to marry as heterosexual couples.  For a time, same-sex couples could legally marry.  Then in 2008, a voter initiative, Proposition 8, was passed in an election by a narrow majority.  Proposition 8 amended California's constitution to explicitly ban same-sex marriage by defining marriage as only being a union of a man and woman.  Several couples affected by the law filed a lawsuit in a federal court.  The plaintiffs won in the trial court and the backers of Proposition 8 appealed.  

The federal appeals court noted that California law guaranteed numerous other rights, many with financial implications, to same-sex couples, and found that the sole purpose of Proposition 8 was to deny to same-sex couples the right to acquire the status of being married.  The federal appeals court found that to take away a fundamental  right such as marriage  from a specific, politically disfavored group, when that group previously had that right under the California constitution violated the 14th amendment of the United States Constitution. To quote the opinion, Proposition 8 "served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."

This decision will not impact Pennsylvania residents right away.  This decision is about the validity of a state law in another state and will not change the fact that same-sex marriage is not recognized in Pennsylvania.  This case also has no impact on the federal Defense of Marriage Act (DOMA) which bars federal recognition of same-sex marriages entered in states that do recognize them.  That issue is pending in other court cases.  However, if this decision stands or is upheld on further appeal, it could be an important precedent to block a state from banning same-sex marriage after that state's courts have found such a right to exist under that state's constitution or after a state legislature has previously enacted that right.  Thus, for example, if the Pennsylvania courts were to rule in the future that same-sex couples have the right marry under Pennsylvania's constitution, the Perry decision could mean that the state constitution could not be amended to take that right away.

Edwin Chemerinsky, dean of the UC Irvine Law School, takes the view the language used by the 9th Circuit Court could mean that any law in any state banning same-sex marriage is unconstitutional.  Chemerinsky predicts that if the case goes to the U.S. Supreme Court, the Court will affirm the lower court ruling that Proposition 8 is unconstitutional.  Click here to read Dean Chemerinsky's article.

Meanwhile, same-sex couples residing in Pennsylvania, even if they are married under the law of another state, must have carefully prepared documents to plan their estates, arrange for healthcare decision-making rights for their spouses and partners and make arrangements regarding child custody if they wish to secure as many rights for their spouses, partners and families as possible. 

As for the future of the Perry case and whether same-sex couples can marry in California, that remains to be determined.  It is very likely that the people who initiated Proposition 8 will appeal the 9th Circuit Court decision.  They could seek to appeal to have the case reheard by a larger panel of judges (en banc) in the 9th Circuit Court or they could attempt to appeal the case to the U.S. Supreme Court. If an appeal is filed, it is likely that a stay will delay the effect of the current ruling until further appeals are resolved.

To read about our services for same-sex couples, click here.

*The case was originally titled Perry v. Schwarzenegger but the name was changed when Jerry Brown succeeded Arnold Schwarzenegger as Governor of California in 2011.  Both Schwarzenegger and Brown refused to defend Proposition 8 in court so the defense of the law was left to the people and organizations who originally put Proposition 8 on the ballot.

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