Today, a three judge panel of the U.S. 9th Circuit Court of Appeals upheld the lower court decision that Proposition 8 violates the federal Constitution in the case Perry v. Brown on narrow grounds
. This comes more than three years after California voters approved the ban on same-sex marriage by a narrow margin of 52% in November 2008 after the State Supreme Court ruled that same-sex marriage was legal.
What the Prop 8 Decision Means
The three judges on the Prop 8 panel were Stephen Reinhardt (an appointee of President Carter), Michael Daly Hawkins (an appointee of President Clinton), and N. Randy Smith (appointed by President George W. Bush). The panel affirmed retired Chief U.S. District Judge Vaughn R. Walker (pictured) decision ruling against Prop 8 in 2010 declaring that it violates the Equal Protection Clause of the U.S. Constitution
, but did so on narrow grounds
. This means they decided the case on the amendment's impact to "eliminate the right of same-sex couples to marry in California", not the constitutionality of marriage itself.
"Although the Constitution permits communities to enact most laws believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently." Judge Stephen Reinhardt wrote in the decision, "There was no such reason that Proposition 8 could have been enacted.
"We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships
, thereby adversely affecting the status and dignity of the members of a disfavored class."
They also maintained the stay on Vaughn's ruling given the expectation of future appeals, meaning there will be no marriages yet in California.
The court also determined that the Prop 8 proponents had standing (the ability to defend the discriminatory statute after California state officials had declined to appeal Judge Walker's ruling invalidating it). They also upheld a ruling by U.S. District Court Chief Judge James Ware denying Prop 8 proponents' motion to invalidate Judge Walker's original decision because he is gay and in a long-term relationship with a man and therefore supposedly should have declined to hear the case.
Where the Prop 8 Case Goes From Here
Proponents of Prop 8, ProtectMarriage, can petitioning for a rehearing en banc, a reconsideration of the issues to a larger panel of the 9th Circuit judges, which would delay U.S. Supreme Court review for many months or longer. They could also go directly to the Supreme court, which is a possibility since the sponsors of Prop 8 have said they were eager to get to the high court as soon as possible. The Supreme court can, however, decide not to hear the case, especially since it was decided on narrow grounds rather than taking on the larger issue of the fundamental right to marry. Today's decision has no immediate effect on other states within the 9th Circuit.
But regardless of the path forward for the Prop 8 case, this decision is indeed historic. The positive 9th Circuit decision affirms the psychological, sociological, and historical evidence and conclusions presented by American Foundation for Equal Rights and their legal team of Ted Olson and David Boies in the trial. These facts, left unanswered by ProtectMarriage during the trial, can be used in other gay rights cases.
The trial record shows vast evidence that gay people are excellent parents and that their children grow up to be just as productive and healthy as the children of heterosexual parents. Judge Walker concluded that Prop 8 does not pass rational basis review by finding that all the state's possible justifications were baseless and just a smoke screen for anti-gay animus. The evidence comes to the conclusion that marriage is not about procreation, but about an emotional union of two people in love that has important societal meanings that should be available to all couples.
To be clear, while this exact fight is far from over, today was a step forward, but not the complete step that many of us hoped for. But this long legal process has set forth strong legal precedents will strengthen our legal fight for equality in all aspects of life, whether it be adoption rights, marriage, employment discrimination protections, or any number of issues facing the LGBT community.
"This ruling foreshadows the ultimate fate of other states in the Ninth Circuit like Washington, Oregon, Nevada, and Hawaii that refuse to recognize the equal dignity of same-sex couples and their families by shunting them off into second-class statuses like domestic partnerships or civil unions." Lambda Legal's Legal Director Jon Davidson had to say of the decision, "The tide is not turning; it has turned
; and we are glad to see the Ninth Circuit join the right side of history."