In a 2-1 vote, an appeals court panel rules that the 2008 ballot measure “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.”
By ANDREW HARMON
A federal appeals court has ruled California’s Proposition 8 unconstitutional, upholding retired U.S. district judge Vaughn Walker’s 2010 decision in the high-profile case and setting up what could be an eventual showdown over the ballot measure at the U.S. Supreme Court.
Nearly three years after two gay couples filed suit when state officials denied them marriage licenses, a three-judge panel with the Court of Appeals for the Ninth Circuit ruled Tuesday that by stripping gay Californians of the right to marry, Prop. 8 violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.
"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently," Judge Stephen Reinhardt wrote in an opinion that social conservatives have already slammed as textbook judicial activism and led GOP presidential candidate Mitt Romney to assert in a Tuesday afternoon statement that as president he would only appoint judges who would "interpret the Constitution as it is written and not according to their own politics and prejudices."
But Reinhardt reasoned that Prop. 8 had a clear, discriminatory, and blatantly unconstitutional aim: to strip gay couples of a right “they previously possessed from the State … the right to obtain and use the designation of ‘marriage’ to describe their relationships.”
The ballot measure, he concluded, “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.”
Weddings of same-sex couples will not resume immediately in California, however. The court notes that a stay pending appeal remains in effect. Prop. 8 supporters have 14 days to decide whether they will seek what’s known as en banc review by the Ninth Circuit; or the legal team could directly appeal to the U.S. Supreme Court within 90 days.
The court decided the case on narrow grounds, ruling that the specific circumstances regarding California and the passage of Prop. 8 created a unique situation. It’s therefore unknown whether the Supreme Court would accept review of the Prop. 8 case or decline to do so, which would allow the Ninth Circuit ruling to remain in place but would apply only to California. Attorneys challenging the ballot measure said Tuesday that the reasoning behind the ruling is much broader than its narrower practical effect, and thus could be accepted for a high court review.
Arguments long employed by anti-gay marriage groups — namely, that excluding gay couples from the institution is essential to encourage “responsible procreation,” as attorneys argued at trial in January 2010 — were quickly rejected by Reinhardt, because Prop. 8 “had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.”
Ted Olson, co-lead attorney for plaintiffs Kristin Perry, Sandra Stier, Paul Katami, and Jeff Zarrillo, said on a conference call with reporters, “The district court and the Ninth Circuit have both ringingly affirmed the right to equality — that marriage cannot be denied to individuals on the basis of sexual orientation.”
As with a federal case challenging the Defense of Marriage Act in Massachusetts, the Ninth Circuit applied a rational basis review, the lowest standard of judicial review, in the Prop. 8 case, as the Supreme Court also did in the landmark Colorado gay rights case Romer v. Evans, which Reinhardt drew from extensively in his opinion.
Jennifer Pizer, legal director at the Williams Institute, said the decision marks the first time a federal appeals court has struck down a state’s exclusion of same-sex couples from marriage. But because the opinion so closely applies the analysis used by Justice Anthony M. Kennedy in Romer, the Supreme Court may be unlikely to hear a case that doesn’t break legal ground, she said.
"Today’s bottom line is that this decision is written about as narrowly as it could be and offers as little reason as possible for the Supreme Court to want to grant review," Pizer said. "Even so, given California’s size and national influence, the immense public interest in the marriage question, and the implications of the decision for other states, means there’s still plenty of reason to think the Justices may find the case irresistible."
The Ninth Circuit panel also upheld a district court ruling denying a request to vacate Judge Walker’s decision in the case because he is gay and in a long-term relationship — an open secret during the trial, though one that was not raised publicly until a San Francisco Chronicle article appeared a few weeks after testimony in the case concluded more than two years ago. U.S. district judge James Ware, who has handled matters involving the case, Perry v. Brown, since Judge Walker retired last year, summarily dismissed those arguments.
The Ninth Circuit ruled that Walker was not obligated to recuse himself, and
that “his resolution of the issue on the basis of facts was not illogical, implausible, or
without support in inferences that may be drawn from the facts in the record.”
The National Picture
Since Prop. 8 passed in 2008, several states across the country have established
marriage equality, either via the legislative process, as was the case in New York last
year and New Hampshire in 2009, or after state supreme court rulings in states such
as Iowa and Connecticut.
In 2009, Maine lawmakers passed a same-sex marriage bill, though voters
overturned that legislation by a small margin via referendum. Late last month
a coalition of marriage equality advocates in the state announced that they had collected enough signatures to return the issue to the ballot in November. Polling
shows increased support for marriage rights among Maine voters.
But another raft of antigay ballot measures reminiscent of Prop. 8, and in
one case far more draconian, is slated for the November election in Minnesota,
North Carolina, and possibly in Washington, where the legislature is poised to pass
a marriage bill that Gov. Chris Gregoire has thrown her support behind. Passage of a
marriage equality bill in Maryland, where lawmakers are currently considering such
legislation, will almost certainly lead to a voter initiative on the matter.
North Carolina’s Amendment 1, which voters will decide in the May state primary,
would constitutionally bar gay couples from the right to marry (state law already
prohibits them) and also denies them any other form of relationship recognition,
which can affect medical decision-making, child custody, and other fundamental
On Monday the Ninth Circuit panel denied an attempt by officials in California’s
Imperial County, where Prop. 8 passed by an overwhelming margin, to intervene in
the case. The officials, represented by the social conservative legal group Advocates
for Faith and Freedom, were denied their request by Judge Walker in his 2010
The Ninth Circuit panel also ruled last week that recordings of the Prop. 8 trial
cannot be made public.
However, because current court rules mandate that documents filed under seal
become public 10 years after a decision in a case, which means that the recordings
could be released August 4, 2020 — a decade after Walker’s landmark decision.
(RELATED: Reaction in pictures to the court’s ruling)
Federal legal challenges to marriage discrimination include several cases against the
1996 Defense of Marriage Act, which defines marriage to the exclusion of same-
sex couples for the purposes of federal benefits, are progressing through federal
courts in multiple circuits. The Obama administration’s Justice Department has
declined to defend the statute, calling it unconstitutional and subject to heightened
judicial scrutiny a year ago (House Republicans have tapped former George W. Bush
solicitor general Paul Clement to defend the law).
Unlike those suits, which focus more narrowly on the constitutionality of
a section of DOMA, attorneys David Boies and Ted Olson have argued in the
Prop. 8 suit that marriage is a fundamental right enshrined in the Constitution,
that it should be interpreted to include same-sex couples, and that after Prop.
8, “California relegates same-sex unions to the separate-but-unequal institution of
domestic partnership,” Olson wrote in the team’s 2009 legal complaint on behalf of the plaintiffs.
Tuesday’s ruling drew immediate reaction from national LGBT groups and lawmakers from across the political spectrum.
California governor Jerry Brown, who is the named defendant in the suit but has uniformly spoken out against the ballot measure, praised the court for its decision.
“The court has rendered a powerful affirmation of the right of same-sex couples to marry,” he said in a statement. “I applaud the wisdom and courage of this decision.”
The Gay and Lesbian Alliance Against Defamation interpreted the “historic decision” as a sign of a shift in political opinion, with its acting president, Mike Thompson, claiming it “reflects the growing support for marriage equality among a majority of Americans who believe all couples should have the same opportunity to take care of and be responsible for each other.”
But the National Organization for Marriage, which has campaigned against same-sex marriage all across the country, said it welcomed the possibility of a Supreme Court fight.
"Never before has a federal appeals court — or any federal court for that matter — found a right to gay marriage under the U.S. Constitution," said John Eastman, chairman of NOM, in a statement. "Today’s ruling is a perfect setup for this case to be taken by the U.S. Supreme Court, where I am confident it will be reversed. This issue is the Roe v. Wade of the current generation, and I sincerely doubt the Court has the stomach for preempting the policy judgments of the states on such a contentious matter, knowing the lingering harm it caused by that ruling.”
Meanwhile, gay conservatives slammed Romney’s denunciation of the ruling. R. Clarke Cooper, executive director of the Log Cabin Republicans, called the candidate’s statement “an unfortunate kneejerk opposition to expanding liberty and a poorly calculated effort to appeal to a shrinking base of primary voters opposed to marriage equality.”