Turning Point for Marriage Equality: Federal Appeals Court Declines to Rehear Historic Prop 8 Decision

Opponents of Equality May Now Appeal to U.S. Supreme Court

WASHINGTON – In an announcement that could either lead to a return to marriage equality in California or a historic case before the U.S. Supreme Court, today the full U.S. Court of Appeals for the Ninth Circuit declined to review a February decision of that court ruling that California’s constitutional amendment stripping loving, committed gay and lesbian couples of marriage violates the U.S. Constitution.  With today’s announcement, the proponents of Prop 8 are now likely to seek review by the U.S. Supreme Court and the Ninth Circuit is likely to continue the stay of its decision until that process is complete.  In the event that the Supreme Court decides not to hear the case, the lower court ruling would stand and gay and lesbian couples would again be able to marry in California.

Human Rights Campaign President Joe Solmonese released the following statement in response on the day of this historic announcement:

“Once again, a federal court has affirmed that the cherished guarantees of our Constitution are there to protect all Americans – including lesbian, gay, bisexual and transgender people.  For over three years, the plaintiffs, the American Foundation for Equal Rights, and attorneys Ted Olson and David Boies have shown tremendous fortitude and perseverance in their fight for marriage equality.  With today’s announcement, we are one step closer to ensuring that gay and lesbian Californians – and, one day, our entire community nationwide – are able to join the institution of marriage and have their love and commitment respected equally.

“Today’s announcement is another significant step on a path that we all know leads to equality.  While the U.S. Supreme Court may ultimately decide the outcome of this case, we must all continue to walk that path – in this case and other courtrooms, in legislatures, at ballot boxes and at kitchen table – until all LGBT people are fully and equally part of the American community.”

In response to a 2008 decision by the California Supreme Court ending marriage discrimination in the state, anti-equality forces succeeded in placing a constitutional amendment on the November ballot. Despite over 18,000 same-sex couples having married, California voters adopted the amendment, known as Proposition 8. After the California Supreme Court determined in 2009 that the adoption of Prop 8 did not itself violate the California Constitution, two plaintiff couples — Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo – filed suit against the State of California in federal court, represented by attorneys Ted Olson and David Boies and supported by the American Foundation for Equal Rights, an organization co-founded by incoming HRC President Chad Griffin  The proponents of Prop 8 intervened in the case to defend the constitutionality of the amendment.

Judge Vaughn Walker, then-chief judge of the U.S. District Court for the Northern District of California, held a historic trial in January 2010, in which the plaintiffs presented substantial testimony and evidence to show that Prop 8’s only purpose is to discriminate against same-sex couples.  In August 2010, in a historic decision, he concluded Prop 8 is unconstitutional.  That ruling was appealed to a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which affirmed Walker’s conclusion that Prop 8 in unconstitutional in February 2012, but stayed its decision as the proponents sought a rehearing.

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

The Limbo of Gay & Lesbian Divorce

Photo by Susanna Tanner

Susanna Tanner Photography

By Guest Blogger, Ellen Fischer
Originally published on GayWeddings.com

It is wonderful that gay marriage is finally being recognized as a fundamental right in several states across the country.

As the number of states that will marry same-sex couples increases, it is becoming more common for couples to take a trip to one of these progressive states to tie the knot. Unfortunately, and I am loathe to have to address this, it is quite difficult to untie the knot and to obtain a divorce should the relationship go sour.

Although the United States Constitution provides for contracts entered into in one state to be given “full faith and credit” in another state, a marriage contract is treated differently. This means that a couple who reside in Pennsylvania, which does not recognize same sex marriage, who travel to New York for their wedding, and then decide to divorce, cannot be divorced in Pennsylvania. And, unless and until one of them returns to New York to live for a period of at least one year to become an official resident of the State of New York, they are unable to obtain a divorce in New York.

A Legal Guide for Lesbian and Gay Couples

A divorce is often a messy and lengthy process. The process becomes even more complicated for gay couples that get married out of state. Unfortunately, the vast majority of couples are not educated about the difficulties associated with same-sex divorces. Hopefully, as more states begin to wise up and allow gay marriages, this will become a non-issue in the future. For the time being, we live in a country where there is a Defense of Marriage Act (“DOMA”) which protects individual states from having to give “full faith and credit” to gay marriage contracts. So, it is very important to remain informed and educate yourself on the difficulties that same-sex couples still face in the year 2012.

Although several months old, I invite you to read Karen Hartman’s article in The New York Times from July, 17, 2011 on being bound in a gay marriage. It is the fascinating, sometimes humorous and informative tale of the challenges she faced in attempting to divorce in a state that doesn’t recognize that her marriage ever existed.

Questions for Ellen

Submit your questions for Ellen here.

About The Law Offices of Ellen Fischer

Ellen S. Fischer of the Law Office of Ellen S. Fischer has been working closely with individuals and families throughout the greater Philadelphia region for more than 20 years. Ellen received her Bachelor of Arts degree from Temple University and returned to earn a Juris Doctor degree from the Temple University School of Law. Ellen serves on a number of leadership committees and is a member of Gay and Lesbian Lawyers of Philadelphia (GALLOP). In addition to LGBTQ services, Ellen’s practice areas are family law and personal injury.

Understanding the 9th Circuit Court of Appeals Ruling on Proposition 8

A look at the recent ruling on same-sex marriage in California

By Ellen Fischer

February 13, 2012

Last week, a three judge Federal appeals court panel ruled that California’s ban on same sex marriage violates the constitutional rights of gays and lesbians.

California first approved same sex marriage in June of 2008 when the California Supreme Court ruled in favor of gay marriage based on the equal protection clause found in the Fourteenth Amendment to the United States Constitution. Anti-gay efforts to overturn the law via ballot measure began immediately and, in November 2008, their proposition — known as Proposition 8 — was passed by a 52% majority of the vote. With that, Proposition 8, an amendment to the California Constitution defining marriage as between one man and one woman, thereby outlawed same sex marriage.

The ruling is a bit complicated from a layperson’s perspective, but can be understood as follows:

The Appeals Court’s ruling is based on a very narrow reading of the California law and this narrow ruling does not state that there is a constitutional right of same sex couples to marry. Rather, the ruling provides that the disparate treatment of married couples and domestic partners is unconstitutional.

A Legal Guide for Lesbian and Gay Couples

Let me try to explain a bit further.

On August 4, 2010, Judge Vaughn R. Walker, then chief judge of the Federal District Court of the Northern District of California, but who has since retired, issued an opinion holding Proposition 8 unconstitutional. Judge Walker, whose opinion was questioned by anti-gay members of the community on the basis that he was a gay man in a long-term committed relationship, was clear and unequivocal in his decision. His ruling asserted that it was an unconstitutional infringement of both the equal protection and due process clauses of the constitution to deny same sex partners the right to marry.

Read the rest of this post by Ellen Fischer of The Law Offices of Ellen Fischer via her Legally Yours column.