Affirmed: Appeals Court Upholds Decision Striking Down Prop 8

Jim Burroway

February 7th, 2012

A three judge panel of the Ninth Circuit Court of Appeals has upheld (PDF:741KB/133 pages) Federal District Judge Vaughn Walker’s ruling that found that California’s Proposition 8 was unconstitutional.  The ruling was split 2-1. Judge Stephen Reinhardt wrote for the majority:

Prior to November 4, 2008, the California Constition guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, wihc amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they beleive to be desirable, it requires that there be at least a legitimate reasomn for the passage of a law that treats different classes of people differently. There was no suc hreason that Proposition 8 could have been anacted. Because under California statutory law, same-sex couples had all the rights of opposite sex-couples, regardless of their marital status, all paries agree that Proposition 8 had only one effect. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationship. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, or it had no effect on the rights of same-sex coples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education. It could not have been enacted to safeguard these liberties.

It appears to be the second-class “separate-but-equal” status of California’s domstic partnerships, coupled with the fact that same-sex couples once enjoyed a right that was taken away which together formed the basis of the Appeals Court’s ruling:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort” Romer v. Evans, 517 U.S. 620,633

The Court clarified that their ruling is “unique and strictly limited” to California’s Prop 8. It has no bearing on marriage bans enacted in other states within the Ninth Circuit Court’s jurisdictional area. It should also be noted that the ruling does not answer the question of whether bans on same-sex marraiges are unconstituional. Instead, it says that under these circumstances in which the right was first granted and then withdrawn, and the manner in which it was done, that is what they find unconstitutional

On two other issues before the court, the rulings went as expected. The Appeals Court ruled that Prop 8 supporters do have standing to defend Prop 8 in court when the state of California choses not to do so, and the Court ruled that Federal District Judge Vaughn Walker was not obligated to recuse himself.

The rulings on the questons of standing and recusal were unanimous. However Judge N.R. Smith dissented on the queston of whether Prop 8 was unconstitutional.

The current stay on Judge Walker’s original ruling remains in effect for at least another week. Prop 8 proponents are almost certain to file a motion to extend the stay, and that motion is likely to be granted pending further appeals.

Lindoro Almaviva

February 7th, 2012

And the people at NOM start foaming at the mouth, ripping their clothes and crying foul in


Regan DuCasse

February 7th, 2012

True that, Lindoro.
They’ll call THIS panel of judges ‘activist’. They’ll accuse them of legislating from the bench. They already went after Walker’s sexual orientation as the foundation of his decision, rather than THEIR lack of facts and evidence.
To say nothing of his professional RECORD regarding OTHER cases involving gay people.

None of that will matter. The hew and cry will be ‘unfair’! to the VOTERS of CA.
That democracy, religious freedom and judicial impartiality are under the influence of MILITANT gay terrorists.

I can hardly wait.
Can you?


February 7th, 2012

Well this is interest news. Times, they are changing.

Last night I was watching O’Reilly and he was defending Ellen against the Million Moms, saying they were acting like Senator McCarthy in calling for her firing by J. C. Penny. Million Moms had refused to send anyone to appear on O’Reilly, but there was someone there to make their case. She was made to sound like the bigot that she is.


February 7th, 2012

Just read through it thanks to a pdf copy made available at NOMBlog. (Thanks, NOM!)

The best thing about it is that there is a lot of discussion as to why Prop 8 is unconstitutional b/c it stripped an existing right away from gays. The court explicitly avoids the question of whether there is a fundamental right to gay marriage even when it has never been extended as a matter of practice to gays. So the decision would not impact all the other states; it is peculiar to CA’s circumstances and possibly to the circumstances prevalent in IA and NH. This analysis is far more likely to be accepted by the Supreme Court and it is clear that the decision was written with that appeal in mind.

On the other hand, the decision was authored by Reinhardt, who is a lightning rod. And it is a bit breezy and casual in tone at times, which is probably not helpful in a case like this. These are minor quibbles. Over all, based on my first read, it looks really good.

The dissent is not all that bad, as it gins up the issue of the level of judicial scrutiny afforded sexual orientation, an issue on which I believe we have a majority on the Supreme Court.

Best of all, this decision is very likely to make Brian Brown cry, just as he did in the NY Senate gallery last summer. Anything that makes Brian cry is good.


February 7th, 2012

It certainly is going to be appealed all the way to the Supreme Court.


February 7th, 2012

Anyone have an idea of the pros and cons of granting an extended stay when appealed? It seems legit that there should not be one granted. However maybe so.


February 7th, 2012

The fact that the ruling is so narrow is a bit upsetting. Does that not mean that SCOTUS can sidestep the issue of the constitutionality of gay marriage entirely, and just rule only on Prop 8? Meaning, even if they rule in our favor, it will only affect California?

Mark F.

February 7th, 2012



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