February 7, 2012 | by Phil Reese
Court declares Prop 8 unconstitutional

In a two-to-one decision, a panel of the Ninth Circuit Court of Appeals has ruled that Proposition 8 is unconstitutional in a federal case challenging California’s marriage ban.

The opinion, authored by Judge Stephen Reinhardt, affirms Judge Vaughn Walker’s 2010 ruling that the law passed by California voters at the ballot violates the Equal Protection clause of the 14th Amendment to the U.S. Constitution because it “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.”

The court also rejected the argument that Judge Walker should have recused himself from the case because of his sexual orientation and relationship status.

Legal experts began to weigh in on the meaning of the decision immediately.

“I think the biggest story is how narrow [the majority decision] really is,” Douglas NeJaime, associate professor at Loyola Law School, Los Angeles, told the Blade Tuesday. “Which in some ways I think that might disappoint some folks who were hoping it would expand to more states, but I think in terms of setting it up for a Supreme Court review — either the Supreme Court not taking it, or approving it — for supporters of same-sex marriage, this is actually the most strategically sound way for the case to proceed.”

Legal experts agree that the decision represents a big win for same-sex couples in California, even though it was a narrow decision limited to California. The Ninth Circuit encompasses multiple Western states and some Prop 8 opponents had hoped the court’s decision would impact a wider swath of the country.

“The decision is a very narrow decision striking down Proposition 8 on grounds that are very unique to California,” NeJaime told the Blade. “What this doesn’t do is directly affect the laws of the majority of states that don’t allow same-sex couples to marry. It doesn’t announce that same-sex couples have a right to marry under the federal Constitution, and it doesn’t engage the question of whether sexual orientation-based classifications should be subjected to some heightened form of scrutiny under the federal Constitution. So it’s a very narrow ruling that only directly impacts the law in California.”

If left to stand, however, what the decision would do, NeJaime says, is allow same-sex couples to marry in California.

“What you would likely have happen is a bunch of other people would file cases in other states, and you would have more litigation, and the states that have a system most directly related to the court’s ruling here, would be states that have domestic partnership or civil union statues that allow same-sex couples to have all of the same rights and benefits of different-sex couples,” NeJaime said. “So Washington, Nevada, Oregon, Hawaii, Delaware, Illinois, Rhode Island, New Jersey, those states’ laws would probably be the first to be challenged.”

Though the court sided with the plaintiffs, the ruling is stayed until the decision goes into effect, in what is called a “mandate.” This means that same-sex couples will not be able to marry in California until the Ninth Circuit lifts the stay, the Supreme Court decides to uphold the ruling or pass on the case, or the state voters decide to overturn the law at the ballot.

Proponents of Prop 8 now have 15 days to ask for what is called an ‘en banc’ decision by a larger random panel of 11 of the court’s 24 judges — a crap shoot for proponents of the law who could not guarantee the judges assigned to the panel are sympathetic. Proponents also have 90 days to appeal directly to the Supreme Court, if they so choose to skip the ‘en banc’ rehearing.

Though at the onset of the case, gay rights advocates were excited about the prospect of the case advancing to the Supreme Court where they hoped it could be used to strike down same-sex marriage bans across the nation, some legal experts say it’s not so simple.

“Everyone thought this case was going to Supreme Court, but given how narrow this ruling is, the Supreme Court might very likely just not take the case,” NeJaime told the Blade. “The Supreme Court does not have to take the case. And they might decide ‘this only affects California. We’ll let it stand. And we’ll take a case down the road.’”

“If they take the case, then the decision by the Ninth Circuit has really set it up so that the Supreme Court can affirm the decision, meaning strike down Proposition 8, by not having to reach very far.”

NeJaime said that the Reinhardt opinion, much like the Walker opinion, borrows heavily from the case law history of swing vote Supreme Court Justice Anthony Kennedy, whom NeJaime says the opinion “aims” for. Kennedy wrote the majority opinion in the Romer v. Evans case that struck down an anti-gay constitutional amendment in Colorado’s Constitution nearly 20 years ago, but that doesn’t mean the justice will help the plaintiffs change the law across the land.

“So basically because its a narrow ruling, and because the court applied the lowest form of scrutiny for equal protection purposes, the Supreme Court could affirm the decision without having to expand much on its current case law, and without having to comment on the laws of the other states. It could issue a ruling that would allow same-sex marriage in California but doesn’t affect anything else directly. That’s the preferred course of the court, is to issue narrow, incremental, case-by-case rulings, rather than broad sweeping rulings, that invalidate the majority of states’ laws in one decision.”

In 2008, more than 18,000 same-sex couples were married in California during a brief period following the decision by the California Supreme Court that barring same-sex couples from marriage violated the California Constitution. The weddings were halted by the November 2008 voter-enacted law, but the court ruled that the 18,000 marriages performed should remain valid.

For now, same-sex couples in California who did not get married during the narrow 2008 window are in legal limbo, waiting for the stay on the original Judge Walker decision to be lifted once and for all, but that could take some time.

“The mandate would issue seven days after the time for filing a petition for rehearing expires, or seven days after the denial of a petition for a rehearing,” NeJaime told the Blade. “They have 14 days to file the petition, so technically, it could issue as soon as 21 days. But more likely it will be later than that, and if they take it for a rehearing, it would be even later than that, so the soonest would be within three weeks.

“But in the meantime, there’s probably going to be additional motions to stay, so that doesn’t mean that once the mandate is issued, same-sex couples can marry,” NeJaime added.

Despite the continued wait, LGBT rights organizations were quick to hail the victory.

“Today’s decision heartens and gives hope to the 15,698 loving couples in California who are raising more than 30,000 children,” said Family Equality Council Executive Director Jennifer Chrisler. “They, like all Americans, understand that while love makes a family, there is no denying that marriage strengthens it. These parents have raised their children to love their country, support their friends and treat their neighbors with respect. Now they only ask for the fundamental American freedom to demonstrate their love and commitment to their family through marriage.”

California-based Courage Campaign also weighed in minutes after the announcement of the ruling upholding Judge Walker’s decision.

“The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign.

Even the LGBT military group Servicemembers Legal Defense Network weighed in with a statement by outgoing executive director and Army veteran Aubrey Sarvis.

“SLDN welcomes today’s important ruling by the Ninth Circuit affirming the lower court decision that Proposition 8 is unconstitutional; indeed, fairness and equality have carried the day,” said Sarvis. “This victory strengthens our case on behalf of married gay and lesbian service members and veterans as we seek to gain equal recognition, support, and benefits for them and their families. This is an historic win for supporters of full equality in the military and in our country.”

“We’re thrilled that today the Ninth Circuit reaffirmed that under our Constitution, all loving couples must be allowed to marry, regardless of the gender of either partner,” said Transgender Law Center Executive Director Masen Davis. “The state should not be in the business of policing who can marry based on gender. I’m optimistic that full equality for all our families is on the horizon.”

 

 

6 Comments
  • Anyone with a brain could have seen that. And then you have the Conservatives.

  • This was good news on several fronts. First of all, it was great as case precidence that can be used in other cases with a strong statement about the damn Prop 8 doing nothing but diminishing the gay & lesbian citizens standing as citizens. Second, the narrow ruling should product the gains we have made in other states as the Supreme Court’s ruling won’t reverse the laws in other states where same-sex marriage already exists. I know a lot of people were hoping for a decision that would effect several states, but the conservative Supreme Court might well rule the other way. As it stands, California should be able to regain same-sex marriage, and that is a big win in its own right.

  • While Log Cabin Republicans “rightly” cheered the ruling in a press release touting the role of conservative republican and former Solicitor General under George W. Bush, Ted Olsen, they noticeably failed to mention that in the 2 -1 vote, the judge who ruled AGAINST repeal was a Republican presidential appointee. The justices voting FOR repeal were appointed by Democrats (Carter and Clinton.)

    We can blather on about how the 2012 election is about the deficit, the economy or jobs, but let’s not lose sight of the the real prize — which party will control the selection of the next two (and likely) three appointments to the US Supreme Court and a bevy of other federal judgeships. Talk all you want about legislative advancements, or ludicrous suggestions from that people in the privacy of the voting booth will do the “right thing”, the fact remains that all major advances in equality have emanated from the judiciary.

    This indisputable truth is what GOP power-brokers fear most: economies recover; judicial appointments are for life. Ask yourself: do you really want a conservative republican president backed by a republican controlled Senate to unbridled power to shape the judicial branch? That is the unspoken dark side of the world that LCR promotes.

  • I am not clear that the Ruling ONLY said that “since the Right already existed…”, although it did say this in part in referring to California Law.

    To be precise, the Law did exist, and was taken away, which is one aspect, but the RIGHT [to Equal Protection] exists via the US Constitution, even though Referrendum prevents its uniform application, un-Constitutionally so.

    The US Constitution was THE basis for the case, and it cannot be ignored.

  • Thanks Mitt Romney for confirming what I was just sayin’…

    From a CBS new report on Romney’s reaction to the Prop 8 ruling:

    “Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage,” Romney said in a statement. “This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values.”

    Romney emphasized his belief that “marriage is between a man and a woman” and vowed that “as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

  • If Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, then how can the Supreme Court possibly limit a decision affirming the Ninth Circuit Court’s striking it down only to California?

    I’m sorry, but I don’t buy the “narrow scope” argument. Decisions by the nation’s highest court on constitutional issues are automatically binding throughout the nation. The U.S. Constitution is the SUPREME LAW of the ENTIRE COUNTRY. It says so in Article VI, Section 1 — the Supremacy Clause.

    Therefore, a ruling by the high court striking down Prop. 8 on Fourteenth Amendment equal-protection grounds MUST, under the Constitution’s Supremacy Clause, apply to ALL 30-plus other state laws that bar gay and lesbian couples from marrying. For the Supreme Court to do otherwise would make a mockery of its landmark 1967 Loving v. Virginia decision, that struck down laws in 16 states that barred interracial couples from marrying.

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