Calif. court declares Prop 8 unconstitutional; Update: No ruling on fundamental marriage right

posted at 1:20 pm on February 7, 2012 by Jazz Shaw

News just began coming out a little after noon on the east coast. A California appeals court has struck down Proposition 8, which banned same sex marriage in the state.

A federal appeals court Tuesday struck down California’s ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.

The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.

The ruling was narrow and likely to be limited to California.

“Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court said.

The ruling upheld a decision by retired Chief U.S. District Judge Vaughn R. Walker, who struck down the ballot measure in 2010 after holding an unprecedented trial on the nature of sexual orientation and the history of marriage.

The ruling backs up the previous decision by the now retired Judge Vaughn Walker who gave it a thumbs down in 2010. His case drew national attention for being more of a social circus weighing the value of marriage as a whole rather than the specifics of the law.

Speaking of Walker, in a separate but related ruling, the court refused to kill off Walker’s original findings, which some opponents had decried, saying he should have disclosed that he was both gay and in a long term relationship himself.

This is a lengthy ruling and I’m still looking for a copy of the entire decision, which we’ll link as soon as we have it. (See Update 2 below)

UPDATE: (Jazz) The AP is noting that, even with today’s ruling, it is unlikely that gay marriages will resume any time soon, since further appeals will probably keep things tied up for months to come.

Even if the panel upholds the lower court ruling, it could be a while before same-sex couples can resume marrying in the state. Proposition 8′s backers plan to appeal to a bigger 9th Circuit panel and then the U.S. Supreme Court if they lose in the intermediate court, which would likely put its ruling on hold while that process plays out.

UPDATE 2: (Jazz) Link to the full decision for your perusal.

UPDATE 3: (Jazz) For an ongoing analysis of this decision and what it portends, keep up with updates from law professor William Jacobson at Legal Insurrection. His initial analysis is that this is a “bootstrap decision” but he will do a far better job than I of getting into the legal eagle technicalities here.

UPDATE 4: (Allahpundit) I can’t copy/paste the key part for some reason, so scroll down to the bottom of page 46 of the majority opinion and read from there to the bottom of page 48. The Ninth Circuit could have gone four ways here: (1) They could have found a fundamental right to marry whomever you wish regardless of gender; (2) they could have found that gays are a historically persecuted “suspect class” and therefore laws discriminating against them are invalid unless there’s a very compelling state interest at stake; (3) they could have found more narrowly that Prop 8 serves no rational purpose in advancing any state interest, in which case they wouldn’t have to reach any of the big questions about gays or marriage to find the law unconstitutional; (4) they could have upheld the law.

Number four was never going to happen with a court this liberal, but numbers one and two were possibilities. Instead, they went the third route, which was the tamest possible way to strike Prop 8 down as a violation of the Equal Protection Clause. The key Supreme Court precedent here, and the subject of most of the jousting between the majority and the dissent, is the 1996 case Romer v. Evans, in which Anthony Kennedy wrote for a majority of six in striking down a Colorado law that expressly barred any “special rights” from being granted to gays. Kennedy also took the tame option in that case, passing on the issue of whether gays are a “suspect class” and finding instead that Colorado’s law was invalid because there was no rational purpose to its discrimination. The question before the Ninth Circuit was whether there’s a rational purpose to discriminating against gays specifically in the context of marriage; read the opinions yourself for the back and forth about marriage and procreation on that. I’m intrigued, though, as to why the famously liberal Stephen Reinhardt wasn’t more aggressive in his majority opinion. Did he want to find that gays are a “suspect class” under the Equal Protection Clause, which would therefore have warranted strict judicial scrutiny of Prop 8, but couldn’t get the other judge in the majority to go along? Or was this a strategic decision, figuring that if he followed Kennedy’s logic in Romer v. Evans closely, this ruling would have a better shot of being upheld by the Ninth Circuit en banc and, eventually, by the Supremes themselves? If the goal was to force the High Court to rule on it, then the strategy should have been to be as bold as possible and create a circuit split on the core constitutional issues at stake. Reinhardt didn’t do that. Curious.

Question for con law junkies: How does this affect the likelihood of the Supreme Court granting cert? Since the Ninth stuck with Romer, there’s no pressing need to intervene. I’m not even sure offhand if this ruling creates a circuit split. If not, though, and the Court ends up passing on cert, then an en banc Ninth Circuit hearing is the last hope for gay-marriage opponents in California.

Update 5: (Allahpundit) The other key passage, I think, starts on page 39 of Reinhardt’s opinion and runs through page 40. He notes that Prop 8 did nothing to deny gays the rights traditionally associated with marriage, which are granted under California’s domestic partnership law, but merely the designation of “marriage” itself. That’s key to the ultimate ruling that Prop 8 served no rational purpose in advancing a legitimate state interest. If all you’re doing is denying gays the label and not the attendant benefits of marriage, then what is there to the law except pure stigma?

Update 6: (Jazz) Analysis from our non-resident attorney at Outside the Beltway, Doug Mataconis, largely agrees with what Allahpundit notes, with a few exceptions. First, the short term impact and rationale.

Perhaps the most significant thing about the Court of Appeals decision here, both legally and politically, is the manner in which it is narrowly tailored. To a large degree, the Court’s decision is limited to the specific situation of Proposition 8 itself and the issue of the Constitutionality of taking away a right that had been previously been granted. The decision also relies heavily on the fact that California law already grants same-sex couples and individuals a number of legal rights such as the right to adopt children that mirror a family but that Proposition 8 was enacted for the specific purpose of denying those same couples the right to obtain a marriage license and call themselves married under state law. As the Court held, there is no rational basis for this distinction

Here’s where he sees it going from here:

There are several paths forward from here. For practical purposes, it’s unlikely that the injunction on Judge Walker’s ruling allowing same-sex marriages in California will be lifted until all appeals have been exhausted so it will still be awhile before same-sex couples will again be allowed to marry in California. On the legal side of ledger, the proponents have two choices from here. They can appeal directly to the Supreme Court, or they could ask for an en banc hearing before the entire 9th Circuit on the hope that the full Court would reverse or limit the scope of the panel’s ruling. Both of those are within the discretion of the respective Courts, of course, so there’s no guarantee either request would be granted. In the case of the Supreme Court, for example, there may be a desire to avoid this topic given the other high profile cases the Court has accepted this term, and the manner in which this decision is limited largely to California may be one factor that allows them to do decline to hear the case. This issue will make it to the Supreme Court some day, of course, but that doesn’t necessarily have to happen immediately.

There’s a good bit more of Doug’s analysis, and like some of the other links, he’s a lawyer and I’m not. So, the usual disclaimer… read the whole thing.


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Yep, I remember when being homosexual was considered a mental disorder. Too bad that we can’t go back to the good old days.

SC.Charlie on February 7, 2012 at 6:52 PM

Apparently it’s a physical disorder since all gays claim to be born that way. I look forward to your righteous indignation over me pointing out the obvious logical leap.

NotCoach on February 8, 2012 at 10:03 AM

um yeah that’s what federal judges do, it’s like their job. que surprise! Then you get to read their reasoning on why they did that and other people review their work for mistakes. IT’S CALLED THE FRIGGIN JUDICIAL PROCESS.

So because it it the “friggin Judicial Process” if SCOTUS decides that states and their citizens can determine what “marriage” is; you gays will give up your quest for marriage in the states that voted against it, right?

It is only the “friggin judicial process” because you agree with the decision. Not that it has any constitutional value or reasoning.

melle1228 on February 8, 2012 at 10:06 AM

I get what NotCoach is saying in terms of the technical definitions, and the dangers of using the judicial branch in an activist fashion, but the proposition itself, even though it was voted on by the people, was written with an intent to discriminate in a way that I’m not OK with.

Violina23 on February 7, 2012 at 6:21 PM

At the end of the day it is still a political question and that is where it should remain. Continued insistence on trying to impose gay marriage through judicial fiat will most likely only explode in the faces of the homosexual community because people will be much more open to the idea of amending the Constitution to prevent gay marriage.

NotCoach on February 8, 2012 at 10:09 AM

A bit disingenuous, don’t you think, since most gay marriage opponents (esp. those at Hot Air) oppose it even where it was passed through the legislative process (DC, Conn., NH, NY, Vermont).

cam2 on February 7, 2012 at 5:18 PM

I am opposed to gay marriage in general and would oppose any legislation within my own state to make it legal. I do not support activism by carpetbaggers. If NY wants gay marriage, NY wants gay marriage and that is their problem.

I thought only New York legislatively created gay marriage though?

NotCoach on February 8, 2012 at 10:18 AM

I get what NotCoach is saying in terms of the technical definitions, and the dangers of using the judicial branch in an activist fashion, but the proposition itself, even though it was voted on by the people, was written with an intent to discriminate in a way that I’m not OK with.

Violina23 on February 7, 2012 at 6:21 PM

At the end of the day it is still a political question and that is where it should remain. Continued insistence on trying to impose gay marriage through judicial fiat will most likely only explode in the faces of the homosexual community because people will be much more open to the idea of amending the Constitution to prevent gay marriage.

NotCoach on February 8, 2012 at 10:09 AM

I think you misunderstand me here. I’m not saying that the courts are the way by which gay marriage should be legalized. I’m not trying to say it should be imposed on society. But I believe [again, not a constitutional scholar] the satisfactory method is via constitutional amendment asserting that states treat couples of all orientations the same. I keep saying to my more liberal friends, I think society will get there eventually because I do think it is generational.

My problem with Prop8 is what it was essentially struck down for — it was written with the sole intent of making sure that a group of people are denied access to a benefit. I’m not cool with that.

Violina23 on February 8, 2012 at 10:32 AM

My problem with Prop8 is what it was essentially struck down for — it was written with the sole intent of making sure that a group of people are denied access to a benefit. I’m not cool with that.

Violina23 on February 8, 2012 at 10:32 AM

The only thing Prop 8 does is return California state law back to what it was before the California Supreme Court invented a right to gay marriage. And since civil unions with all the legal protections that a licensed marriage have existed prior to the California Supreme Court acting extrajudicially, I don’t think the above makes any sense.

NotCoach on February 8, 2012 at 10:37 AM

I’m way too lazy to see if this has already been said (surely it has) but this decision really, really helps Santorum.

exlibris on February 8, 2012 at 11:30 AM

It is the job of a judge to defy the will of the people?

NotCoach on February 8, 2012 at 9:58 AM

Actually, it can be. If the will of the people is contrary to anyone’s liberty.

There is a reason we have a republic and not a democracy. As the Greeks discovered, the majority in a pure democracy can walk all over the rights of the minority. If the “will of the people” is all powerful, then what protections does any individual have against the tyrany of the majority? That is a fact that our Founders recognized.

If the will of the people, as determined by a vote, is to enact imprisonment or genocide of any single group of people can they do that? I realize that is an extreme example though no less extreme than arguing over whether I will be able to marry my chair next.

Judges sometimes must protect the minority from the tyranny of the majority. I believe Madison according to Federalist Papers No. 10 would have argued that was one of their most important jobs.

gravityman on February 8, 2012 at 2:33 PM

Further, the Bill of Rights exists for exactly the purpose of ensuring that the majority could never vote to remove certain rights from the people.

gravityman on February 8, 2012 at 2:35 PM

I’m way too lazy to see if this has already been said (surely it has) but this decision really, really helps Santorum.

exlibris on February 8, 2012 at 11:30 AM

I was just coming here to say the same thing…

I believe that Santorum won Iowa because he was the only candidate who had, as a non-candidate, gone to Iowa to help them recall the judges who had ruled “gay marriage” legal in Iowa.

Go back and watch the Thanksgiving Family Forum and hear the audible positive response from the auidence when Santorum reminded them of that fact. Specifically, watch from 01:17:00 to 1:21:00.

In those 4 minutes, you’ll see and hear Bachman, Cain, Perry, and Santorum. I think that the ovation that Santorum received right there marked a turning point for him with conservatives in Iowa and many other states.

And it’s quite likely that the judicial overturning of the electorate’s will and prop 8 in California helped Santorum win the trifecta of Missouri, Minnesota, and Colorado yesterday.

ITguy on February 8, 2012 at 2:41 PM

gravityman on February 8, 2012 at 2:33 PM

gravityman on February 8, 2012 at 2:35 PM

What liberty is being denied? And please remember the latest ruling points to no liberty, but uses an insane legal argument that because the California Supreme Court legalized gay marriage that so called right can now never be revoked. This has never been a civil rights issue and no one can seem to point to an enumerated liberty. So what right do these imbeciles have to deny the will of the people in this case?

NotCoach on February 8, 2012 at 2:44 PM

Actually, it can be. If the will of the people is contrary to anyone’s liberty.

There is a reason we have a republic and not a democracy.

Judges sometimes must protect the minority from the tyranny of the majority. I believe Madison according to Federalist Papers No. 10 would have argued that was one of their most important jobs.

gravityman on February 8, 2012 at 2:33 PM

No, the law protects the minority from the majority. Judges interpret the law. Sometimes they determine that a higher law (i.e. the constitution) invalidates a lower law. In this case they did not do so. In this case, they tossed out an amendment the state Constitution on the basis of “no rational reason to think that it was a good idea” or some such. That has never been part of the judicial branch’s role.

joe_doufu on February 8, 2012 at 3:46 PM

NotCoach on February 8, 2012 at 2:44 PM

I should have made clearer… I was responding to your question in the general sense, not as it pertains specifically in this case.

As for joe_doufu’s repeated responses of them throwing it out for “not being a good idea”, that wasn’t at all what I got out of the opinion. I believe the opinion, at least as I took it to mean, was that they could find no purpose for the proposition. Unless I am mistaken from my limited law classes as relates to my work in government contracting, I believe laws do need to have a discernible purpose. I could write a law to say “California Likes Blue Today”, but what is it’s purpose? What has it accomplished by entering that into the legal code? My impression is that is what the opinion was referencing by saying it had no rational basis. So the Prop8 did not appear to them to actually acomplish anything… not that it was or wasn’t a “good idea”. Think what you like of the merits of allowing or disallowing gay marriage, but please stop with this notion that the judges simply said, “well this seems like a bad idea.”

gravityman on February 8, 2012 at 5:01 PM

Further, the Bill of Rights exists for exactly the purpose of ensuring that the majority could never vote to remove certain rights from the people.

gravityman on February 8, 2012 at 2:35 PM

Gay-sex marriage is not, nor has it ever been, part of the Bill of Rights.

And the hilarity of that is that this imbecile justice and the Ninth Circuit are notorious for insisting that those rights that ARE part of the Bill of Rights, such as the First, Second and Fourth Amendments, are irrelevant and can be ignored at will.

That is the true hypocrisy of this decision. The bigot justice who wrote it denies the First Amendment, denies the Second Amendment, denies the Fourth Amendment, and yet somehow manages to create a magical right to gay-sex marriage.

northdallasthirty on February 8, 2012 at 5:47 PM

The court is glaringly stupid. It’s quite obvious that “state’s interest” exist for any discrimination which is socially acceptable and that no state”s interest exists for discrimination which society has decided to reject.

blink on February 8, 2012 at 5:13 PM

To build on that, the justices claimed to be following the will of the voters as expressed nowhere in the California constitution — while simultaneously ignoring the clear will of the voters as expressed in their amending the California constitution.

If the judiciary cannot be restrained by the constitution, we have tyranny.

northdallasthirty on February 8, 2012 at 5:51 PM

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