Prop 8 Decision: Ninth Circuit Rules Same-Sex Marriage Proposition Unconstitutional

The Ninth Circuit has ruled 2-1 in the long-awaited sex-sex marriage case and affirmed the lower court in finding the law unconstitutional. Eighteen months ago former Chief U.S. District Judge Vaughn Walker struck down the ban on same-sex marriage. Judge Stephen Reinhardt wrote the lengthy opinion below upholding Walker and striking down the law. The Court ruled that “[b]y using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause.”

The ruling can now be appealed to the Supreme Court, but it is likely to be first appealed to the full en banc court of appeals.

The three-judge panel is composed of Reinhardt, an appointee of former President Carter; Michael Daly Hawkins, an appointee of former President Clinton; and N. Randy Smith, appointed by former President George W. Bush. During oral argument, the questions appeared to favor those challenging Proposition 8. The panel, however, did raise procedural concerns.

Walker’s status as a gay man in a same-sex relationship became part of the appeal with Proposition 8 backers arguing that he had a potential conflict-of-interest. They insist that he did not properly reveal his relationship before declaring Proposition 8 unconstitutional in August 2010. On April 6, 2011, Walker disclosed that he is gay and has been in a relationship with a male doctor for about ten years.

The panel held “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 notably found standing for the parties to sue — a major question in the case. Even in his partial dissent, Smith still agrees with the majority that the parties had standing and that the motion to vacate should be denied. However, he believes the law satisfied the rational basis test and should have been upheld.

I expect an en banc challenge in the case, particularly with a divided panel decision.

Both opinions are well-reasoned, though I agree with the majority. Reinhardt is viewed as one of the most liberal judges in the country and he seems an attractive foil for some of the conservative justices. Many have said that in the past these justices appeared to be gunning for the Ninth Circuit and particularly Reinhardt. Justices like Scalia are likely to favor cert in the case. However, it is to the advantage of the challengers to try their hand at the en banc first. There is always the danger that one of the four most reliable conservative justices might not want to take the risk of granting cert. As it stands, this is precedent controlling only in the Ninth Circuit.

The matter could not be more central to a nation built on both the rule of law and pluralistic values. If discriminatory views are enough to satisfy the rational basis test, a host of insular minorities would face majoritarian harassment and abuse. Quoting an earlier Supreme Court ruling in Moreno, the court ruled that “[j]ust as a ‘desire to harm . . . cannot While race and religion trigger strict scrutiny, sexual preference is not treated as a suspect classification for the purposes of the constitute a legitimate governmental interest,’ . . . neither can a more basic disapproval of a class of people.”

Here is the opinion: Prop 8 ruling

Source: LA Times

40 thoughts on “Prop 8 Decision: Ninth Circuit Rules Same-Sex Marriage Proposition Unconstitutional”

  1. Please keep in the back of your minds, that for every loud-mouthed, righteously indignant, Christian Conservative you see out there, that the real fundamentalists, THE REAL FUNDAMENTALISTS, mind you (who represent the vast majority of Christians), are bound by one rule, and one rule only: “To love one’s fellow man/woman, as one would love one’s self; and to do unto them, as they would have others do to them.”

    The rest is just details…

  2. Nice….but after all it is the Ninth….It will be Appealed to a Full En Banc Panel….The Sct probably will not want to touch this….

  3. Yeah, you know the wingnuts will be tending the fires on this story and the very, very ebil, 9th will be full of activist judges once again.

    Gotta do somthing to fire up the base given the clown car of losers they have to choose from for the top of their ticket this fall.

  4. evangelicals, conservative catholics and mormons … “Misery acquaints a man with strange bedfellows.” (Shakespeare)

  5. Swarthmore,
    That alliance has been loosely in place since Bush’s days of the Religous Right. Although, the Mormons participation might be new.

  6. Blouise, I read somewhere that a religious alliance was forming for the fall elections – evangelicals, conservative catholics and mormons.

  7. Wasn’t it Hannibal Smith who said, “I love it when a bad plan falls apart”?

    Or words to that effect.

  8. Blouise, The Mormons lose again even with Romney’s money. He gave more to them than he paid in taxes. We know how they used the money in California. Great news for California!!!!!

  9. That was expected in the 9th Circuit, one of the better circuits.

    Self-righteous discrimination is so yesterday … errrrr yesteryear …

  10. I guess my Governor(Christie) is breathing a sigh of relief,hes been looking for wiggle room on this matter:

    http://www.nytimes.com/2012/01/25/nyregion/christie-wants-new-jersey-voters-to-decide-on-gay-marriage.html

    After he came up with this doozey:

    “Jan. 31 (Bloomberg) — Representative John Lewis, a veteran of the U.S. civil-rights movement, joined New Jersey Democrats criticizing Governor Chris Christie after he said blacks in the 1960s would have preferred referendums on desegregation — a move he has backed for same-sex marriage. A day later, Christie apologized.”

    http://www.businessweek.com/news/2012-01-31/christie-finds-himself-on-short-end-with-civil-rights-remark.html

  11. Yeah, that title is a bit confusing, to say the least. Might want to take a look at that. It really caused me to double take as I started to read this post.

  12. Shouldn’t it say ban on same sex marriage unconstitutional rather than same sex marriage ..?

  13. The Prof. fingers must be flying today, because a “…sex-sex marriage case…” sounds wild.

    Good on the 9th Circuit. Its still sad that Prop 8 ever passed in the first place, though.

  14. But raff, since it’s a Ninth Circuit decision, somebody’s gonna take it to the Supremes, and maybe that’s where it needs to be. Cousin in NM and her (now) bride (??), had to go to Gotham to get hitched.

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