By now most everyone has heard about the “gay marriage” victory out West. In a 2-1 decision, the United States Court of Appeals for the Ninth Circuit ruled that a California voter initiative [Proposition 8] stripping same sex couples of the right to marry is unconstitutional. What many may not realize is the limited effect the ruling will have outside of California – at least for now. The court made clear its decision is California specific:
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 extended to committed 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.
. . .
Plaintiffs and Plaintiff-Intervenor San Francisco also offer a third argument: Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634-35. Because this third argument applies to the specific history of same-sex marriage in California, it is the narrowest ground for adjudicating the constitutional questions before us, while the first two theories, if correct, would apply on a broader basis. Because courts generally decide constitutional questions on the narrowest ground available, we consider the third argument first.
In short, the outcome turned on the fact California recognized the validity of same-sex marriages before Proposition 8 was passed.
Unless and until the Supreme Court of the United States hears and affirms the Ninth Circuit’s ruling, it will have no effect beyond the territorial limits of the Ninth Circuit. Some legislators in New Hampshire may be happy about that in view of current efforts there to repeal a 2009 New Hampshire law legalizing same sex marriages. Some commentators speculate the Ninth Circuit’s opinion was written for an audience of one: Supreme Court Justice Anthony Kennedy, author of the 1996 decision on which the Proposition 8 ruling is based, Romer v. Evans, 517 U.S. 620 (1996).
I predict, as I have for several years, that states currently banning same-sex marriage will change course when they are required to recognize the validity of same-sex marriages performed in other states, via Article IV, Section 1 of the United States Constitution, also known as the Full Faith and Credit Clause.