The Gospel Coalition

The Story: A federal appeals panel in San Francisco ruled today that California's Proposition 8 banning same-sex marriage is unconstitutional. By a 2 to 1 vote, the panel overturned the proposition, which was approved by 52 percent of the state's voters in 2008 and amended the state's Constitution to limit marriage to a man and a woman.

The Background: In 2010, Chief U.S. District Judge Vaughn R. Walker struck down the ballot measure after holding an unprecedented trial on the nature of sexual orientation and the history of marriage. Many critics of Walker's decision argued that the judge should have disclosed he was in a long term same-sex relationship. In a separate decision, the appeals court refused to invalidate Walker's ruling on those grounds.

The court did not address the issue of whether the Constitution protects the rights of all same-sex couples to marry, but focused on the more narrow point that same-sex couples in the state for a brief time had the right to marry, and that Proposition 8 took that away. About 18,000 same-sex couples married during a five-month period between the time the California Supreme Court "discovered" the right in the state constitution and the time that Proposition 8 passed.

Why It Matters: Few legal analysts were surprised by today's ruling. The Ninth Circuit Court of Appeals---considered by almost all observers to be the most liberal appeals court in the country---was expected to uphold Judge Walker's decision.

"In the grand scheme of things, there is nothing enduringly significant about today's ruling," says National Review's Ed Whelan. "The Ninth Circuit was just a way-station on the path to the Supreme Court, and the composition of the Ninth Circuit panel meant that there was no prospect for a reversal of Walker's ruling."

Whelan writes that he expects the Court will grant review of the Ninth Circuit's ruling before the November elections, and perhaps even hear oral argument in October or November.

Brian Raum, senior counsel at the Alliance Defense Fund and head of the ADF Marriage Litigation Center, says that, "While this is purportedly a 'constitutionally narrow' decision, it is sweeping in its implications." As Raum notes, the decision does not rule on "whether same‐sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so." Instead, the court concluded that once same‐sex relationships are granted the title of "marriage," the moniker cannot be taken away.

Should this ruling be upheld, says Raum, it imperils marriage in every state where counterfeit marriage schemes (domestic partnerships/civil unions) have been established. While the Perry ruling purports to be limited to the circumstance in California where same‐sex couples could for a very short time obtain a marriage license, it will undoubtedly be extended beyond those deceptively narrow borders and could undermine marriage in all 50 states.

[Note: If you find a story our community should know about, please send the link to joe.carter *at* thegospelcoalition.org.]

Joe Carter is an editor for The Gospel Coalition and the co-author of How to Argue Like Jesus: Learning Persuasion from History's Greatest Communicator.