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

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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Jazz Shaw 12:31 PM on December 07, 2023