Prop. 8 declared unconstitutional by 9th Circuit Court; stay prevents same-sex marriages from resuming

Published: Tuesday, Feb. 7 2012 11:00 a.m. MST

Gay marriage supporters learn the news that backers of Proposition 8 can defend their measure against gay marriage outside the California Supreme Court in San Francisco, Thursday, Nov. 17, 2011. (Associated Press) Gay marriage supporters learn the news that backers of Proposition 8 can defend their measure against gay marriage outside the California Supreme Court in San Francisco, Thursday, Nov. 17, 2011. (Associated Press)

SAN FRANCISCO — A three-judge panel of the 9th Circuit Court of Appeals ruled this morning that California's Proposition 8 is unconstitutional, but a stay remains in place preventing same-sex marriages from resuming in the state and the case of Perry v. Brown is likely headed to the U.S. Supreme Court.

The 2-1 decision affirmed Judge Vaughn R. Walker's decision in the Federal District Court — but narrowed the scope to only apply to California.

Judge Stephen Reinhardt wrote the opinion and was joined by Judge Michael Hawkins. "Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California," Reinhardt wrote.

Judge N.R. "Randy" Smith concurred with the majority that the appellants had standing to appeal, and that the motion to vacate the judgment should be denied. However, Smith voted against the appeal and wrote a dissent. "Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate government interest. I must therefore respectfully dissent."

Reaction on both sides was swift.

"This decision is not entirely unexpected given the judges assigned to the case, but that doesn't make it any less disturbing," said Bill Duncan, director of the Marriage Law Foundation, a non-profit legal organization whose mission is to reaffirm the legal definition of marriage. "There is nothing in the U. S. Constitution that requires, or even allows our courts to define marriage contrary to a millennia of human history."

The Church of Jesus Christ of Latter-day Saints, which had actively worked to pass Prop. 8, issued a statement that regretted the court's decision. "California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman," LDS Church spokesman Scott Trotter said in the statement. "We have always had that view. Courts should not alter that definition, especially when the people of California have spoken so clearly on the subject."

Brandie Balken, executive director of Equality Utah, a gay rights advocacy group, said her group celebrated with the long-term committed couples in California. "Today's ruling may well, and likely will, lead to this being heard before the Supreme Court," she said. "But regardless of today's decision, it is still legal in the state of Utah to be fired from your job or evicted from your home based upon your sexual orientation or gender identity."

Republican candidate Mitt Romney said the ruling was relevant in the 2012 presidential election.

"Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage," he said. "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. I believe marriage is between a man and a woman and, 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."

Romney’s leading opponent in the Republican primaries, Newt Gingrich, said the ruling exposed Americans "to the radical overreach of federal judges and their continued assault on the Judeo-Christian foundations of the United States."

White House press secretary Jay Carney declined to make a statement on the ruling because the administration doesn't comment on ongoing litigation. However, Carney said President Obama “has long opposed divisive and discriminatory efforts to deny rights and benefits to same-sex couples.”

Duncan said the next step is likely to be another appeal. It is likely to be an appeal for the 9th Circuit to consider the case "en banc." Because of the size of the circuit, a lottery is held to select 11 judges to hear such appeals. But that would only be another stop on the way to the U.S. Supreme Court.

The 9th Circuit's finding that Prop. 8 was unconstitutional gives the U.S. Supreme Court an important reason to weigh in on the question, Duncan said. "The goal of the plaintiffs from the beginning was to get to the Supreme Court," he said. "They want a national declaration that the U.S. Constitution mandates same-sex marriage."

But the circuit court did not give a broad ruling that banning same-sex marriage is unconstitutional in all circumstances in all states. They made it much more narrow and applied it only to California's unique situation.

That situation consists of two main things that existed before the passage of Prop. 8. First, California passed a domestic partnership law that gave all the benefits of marriage to gay and lesbian couples, but reserved the term "marriage" for heterosexual couples. Second, California allowed, for a six-month period in 2008, gay and lesbian couples to be legally married.

As Judge Smith noted in his dissent, the California Supreme Court previously ruled Prop 8 valid under the California state constitution.

But in language similar to Judge Walker's in the Federal District Court, today's ruling said Prop. 8 violated the Fourteenth Amendment to the Constitution. The majority opinion stated that there needed to be at least a legitimate reason for the passage of a law that treats different classes of people differently. "There was no such reason that Proposition 8 could have been enacted," the opinion states. "Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of the marital status, all parties agree that Proposition 8 had one effect only."

That one effect, the court said, was to strip same-sex couples of something the state had already given them: The right to obtain and use the designation of "marriage" to describe their relationships.

"Nothing more, nothing less," the court said.

It was the targeting of a minority group to take away an existing right, they said.

This was the narrow ground the court decided. For the Ninth Circuit, the definition of marriage was "the name that society gives to the relationship that matters most between adults." It was a designation that carried "societal approval" and "official status." The designation "registered domestic partnership" didn't have the same effect, the court said. It wasn't "validation."

To back up their definition, the court cited the use of the word "marriage" from everyone from Frank Sinatra and Abraham Lincoln to Groucho Marx and Marilyn Monroe.

The proposition, the court said, eliminated a right — something it said the Constitution does not allow.

The court dismissed the pro-Prop. 8 position as lacking any footing in reality and said the reason it was passed was "mere disapproval" of and a "judgment about the worth and dignity of gays and lesbians as a class."

But Rodney Smith, (no relation to Judge Randy Smith) distinguished professor of law at Thomas Jefferson School of Law in San Diego, said the Supreme Court might see the issue differently. If the question is about whether the voters for Prop. 8 acted with a rational basis, Smith said the Supreme Court tends to be more conservative than the 9th Circuit. "The more conservative members of the Supreme Court generally would say 'You just need to give us a rational reason,'" he said. "And that the counsel for Proposition 8 will be able to do. The Supreme Court is also more inclined to be deferential to the electorate -- so they won't go behind this and demand a high level of empirical support."

Utah Sen. Orrin Hatch tweeted, "The decision on Prop 8 is judicial activism at its worst, and I strongly oppose this decision."

By keeping the decision narrowly confined to taking away an existing right, the court avoided saying if other states should be required to allow same-sex marriages. Had they decided on that broader question, it would have been more certain the Supreme Court would hear the case. "The Supreme Court would absolutely have taken it," Duncan said. "It would have been like the Roe v. Wade of marriages."

Duncan doesn't agree that California voters acted out of animosity or disapproval in passing Prop. 8, and pointed to the domestic partnership law as evidence. "The fact that California voters wanted to leave the status quo, and bent over backwards to be fair, was not out of hatred, but just the opposite," said Duncan. "They wanted to give the benefits, but still do justice to the value society places on marriage being between a man and wife and what that brings to children."

Duncan believes this decision will invite more lawsuits across the country now, which is another reason the U.S. Supreme Court may want to hear the case.

Equality Utah's Balken finds reasons for optimism in the decision. "One of the things that is beneficial about the court of appeal's statement," she said, "is that the Constitution does indeed apply to gay and transgender people in the United States of America."

The legal journey began with the passing of California Proposition 22 in 2000, which attempted to define marriage as between a man and a woman. The California Supreme Court declared this proposition unconstitutional under California's constitution in May 2008. This meant gays and lesbians were legally allowed to marry in California.

The May 2008 decision also led to the movement to amend California's constitution to define marriage.

Proposition 8 was approved by California voters and went into effect in November 2008, putting a legal end to any further gay marriages in California.

The challenge came quickly from same-sex-marriage proponents American Foundation for Equal Rights, which backed a legal challenge to Prop. 8. Because the proposition had changed the California constitution, it had to be challenged under the U.S. Constitution. The case, Perry v. Schwarzenegger resulted.

The first stop was the Federal District Court, where Judge Walker decided there was no rational reason to oppose same-sex marriage and so it was unconstitutional under the U.S. Constitution. From there the case went to the Ninth Circuit Court of Appeals and is now called Perry v. Brown because of the change in California's governor.

Today the 9th Circuit affirmed Judge Walker's decision, but narrowed it to only apply to California.

"We recognize that this decision represents a continuation of what has been a vigorous public debate over the rights of the people to define and protect the fundamental institution of marriage," the statement from LDS Church spokesman Trotter said. "There is no doubt that today's ruling will intensify the debate in this country. We urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion."

"The court is not trying to make this easy," Duncan said.

The Ninth Circuit panel also ruled today that Judge Walker was not obligated to recuse himself from the Prop 8 case because he was in a longstanding same-sex relationship.

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