9TH CIRCUIT RULES PROP. 8 UNCONSTITUTIONAL
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 2-1 Tuesday that by stripping gay Californians of the right to marry, Prop. 8 violated the equal protection clause of the Fourteenth Amendment.
“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. “There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed from the State, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships.”
The court does not specify whether its decision will go into effect immediately,
though proponents of Prop. 8 are expected to seek an injunction of the ruling as they
continue their appeals.
The court also decided narrowly, ruling that the specific circumstances regarding California and the passage of Prop. 8 created a unique situation. As with federal cases challenging the Defense of Marriage Act, the court applied a rational basis review, the lowest standard of judicial review, in the case, as the Supreme Court did in the landmark Colorado gay rights case Romer v. Evans. It’s yet 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.
While the court ruled that Prop. 8 supporters have legal standing to defend the
ballot measure after state officials declined to do so, “The People may not employ
the initiative power to single out a disfavored group for unequal treatment and
strip them, without a legitimate justification, of a right as important as the right to
marry,” Reinhardt wrote.
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.
(RELATED: Read a PDF of the court’s ruling)
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.”
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.
Meanwhile, another raft of antigay ballot measures reminiscent of Prop. 8, and in
one case far more draconian, are 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.
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).
But 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, Kristin Perry, Sandra Stier, Paul Katami, and Jeff Zarrillo.
Prop. 8 proponents have 15 days to ask the panel for what’s known as en banc review of Tuesday’s decision by an 11-judge panel. A single judge on the ninth circuit can also request review. Or, the pro-Prop. 8 legal team could ask the U.S. Supreme Court to consider the case within 90 days.
California Governor Jerry Brown 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 Human Rights Campaign agreed with the court’s view of the U.S. Consitution.
“Today’s decision affirms what we all know to be true — our Constitution protects the basic civil rights of all Americans, including lesbian, gay, bisexual and transgender people,” said HRC President Joe Solmonese in a statement. “We applaud the Ninth Circuit for recognizing that our Constitution cannot tolerate such egregious discrimination.”
But the National Organization for Marriage, which has campaigned against same-sex marriage all across the country, reacted by sounding ready for 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 US 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 US 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.”
The Gay and Lesbian Alliance Against Discrimination 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.”