A three‐judge panel of the Ninth Circuit Court of Appeals has ruled that California’s ban on same‐sex marriage — enacted in 2008 in a popular vote on Proposition 8 — violates the constitutional right to equal protection. The court’s decision upheld a 2010 decision by former Judge R. Vaughn Walker, a Reagan‐Bush appointee, that found marriage to be a fundamental right protected by the Constitution, and that the proposition “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Proponents of Proposition 8 will likely appeal the decision either to the full Ninth Circuit or directly to the Supreme Court.
The American Foundation for Equal Rights is the sponsor of the case, Perry v. Brown (originally Perry v. Schwarzenegger). Cato Institute chairman Robert A. Levy is co‐chairman of AFER’s Advisory Board. He and co‐chair John Podesta wrote in the Washington Post in 2010:
Nearly a century after the 14th Amendment was ratified in 1868, the Supreme Court unanimously affirmed that “marriage is one of the ‘basic civil rights of man.’ ” That 1967 case, Loving v. Virginia, ended bans on interracial marriage in the 16 states that still had such laws.
Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law.… The principle of equality before the law transcends the left‐right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans.
Levy and Podesta, along with AFER’s lawyers Ted Olson and David Boies, spoke at this Cato Institute forum. And Levy also wrote about the case in this New York Daily News column.
In this 7‐minute video Levy, Podesta, Olson, and Boies make the case for equality in marriage law: