Ted Olson’s legal team would later provide a detailed analysis of the federal appeals court ruling striking down Proposition 8. But at the press conference immediately following the Feb. 7 release of the opinion, the attorney sounded more like a coach relishing an underdog’s victory.
“This is a huge day,” Olson told reporters assembled in Los Angeles and viewing on a live feed on the Web.
He couldn’t say that enough. “Huge.” “Huge.”
Olson stood at a podium in downtown LA with the plaintiffs in Perry v. Brown who want to marry and their families.
Behind them stood a row of eight American flags. Nearby was a stack of paper, copies of the Ninth Circuit Court of Appeals’ opinion. The “Decision on Merits” contained 133 pages of legal review, analysis and findings in favor of the quest for marriage equality. The document was celebrated coast to coast, from the Golden State to the Garden State, on Feb. 7.
The appeals court panel, in a 2-1 ruling, affirmed a district court judge’s August 2010 finding that Proposition 8 is unconstitutional.
Prop 8 was approved by a narrow majority vote in November 2008 and amended the California Constitution to define marriage as the union of a man and a woman, ending new same-sex marriages in the state.
In May 2009, Olson and Boies, working with the American Foundation for Equal Rights and representing two couples – Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo – sued to overturn Prop 8.
After a 12-day trial, U.S. District Court Judge Vaughn R. Walker struck down the measure. He wrote, “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”
Proposition 8 proponents appealed, defending the measure in court because the governor and secretary of state refused to mount a legal defense of a measure they said is unconstitutional.
Fast-tracking of the case led to the release of the ruling on Feb. 7.
Judge Stephen Reinhardt, author of the opinion, wrote, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort.”
The court concluded that Prop 8 violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
“Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its officially recognized status. Proposition 8 therefore violates the Equal Protection Clause,” Reinhardt wrote.
The term marriage, the court also said, carries “extraordinary significance.”
Olson said the court’s “momentous decision” is a reminder “that it is time that we, as Americans, treat all of our fellow citizens with fairness and decency.”
At the press conference in Los Angeles and later in San Francisco, the plaintiffs and their families savored the victory and recommitted to the equality campaign, which likely will go all the way to the U.S. Supreme Court.
“We can see over the dark wall of discrimination,” Perry said.
She added, “It has been a long road. Sandy and I are anxious to get married before our young children graduate from high school next year.”
Son Spencer Perry, 17, said, “When Prop 8 doesn’t allow parents like mine to marry, it says that our family, that my brothers, that my mothers, shouldn’t belong, that we don’t get to be the same as my friends’ families.”
Celebrations of the court’s ruling took place in San Francisco, Los Angeles, Sacramento, Fresno, Concord, Rancho Cucamonga, Santa Ana, San Diego, Santa Barbara and other California cities, as well as in New York City at the Stonewall Inn.
“With today’s ruling we are a giant step closer to the day when the promise of our Constitution squares with the lived reality of LGBT people,” said Kate Kendall of the National Center for Lesbian Rights in San Francisco.
At least one step remains, and maybe two steps.
ProtectMarriage.com, which is defending Prop 8 in the legal battle with help from Christian groups such as the Alliance Defense Fund, immediately announced its intent to appeal. But it was uncertain whether the appeal would be for a review by the full Ninth Circuit or directly to the U.S. Supreme Court.
ProtectMarriage has 15 days from Feb. 7 to ask the appeals court to reconsider and 90 days from the decision date to file for a Supreme Court review.
At the National Organization for Marriage, which helped fund the Prop 8 ballot campaign, Brian Brown called the appeals court decision sweeping, wrong-headed and predictable. “As predictable,” he said, “as the outcome of a Harlem Globetrotters exhibition game.”
But Brown said he’s optimistic the right will win at the Supreme Court level.
“We have every confidence,” he said.
In the meantime, the court likely will maintain a stay, blocking any same-sex marriages from taking place in California.
For the record…
“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game.” – Brian Brown of the National Organization for Marriage.
“This is a huge victory in the battle for marriage equality, but this fight is far from over. The federal government still refuses to recognize our families.” – Rea Carey of the National Gay and Lesbian Task Force in Washington, D.C.
“We are not surprised that this Hollywood-orchestrated attack on marriage – tried in San Francisco – turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court.” – Brian Raum of the Alliance Defense Fund.
“This is not the end of the road, for this case or for the larger struggle for marriage equality. We must all continue our work – in courthouses and statehouses, in church pews and living rooms – until equality is reality for LGBT people and our families everywhere.” – Joe Solmonese of the D.C.-based Human Rights Campaign.
“This ruling substitutes judicial tyranny for the will of the people, who in the majority of states have amended their constitutions, as California did, to preserve marriage as the union of one man and one woman.” – Tony Perkins of the Family Research Council, which has been designated a hate group by the Southern Poverty Law Center.
“This is an enormous step toward marriage equality, not only for California, but for all Americans.” – Kevin Cathcart of Lambda Legal based in New York.
