5:06 PM: California’s ban on same-sex marriage, enacted by voters in 2008 as Proposition 8, was struck down by a federal appeals court in San Francisco today.
A panel of the 9th U.S. Circuit Court of Appeals ruled by a 2-1 vote that the initiative violates the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law.
The decision was written narrowly and it applies only to California, which allowed gay marriage for several months in 2008 until voters approved Proposition 8 in November of that year.
The court majority said Proposition 8 treated gays and lesbians unfairly by taking away a previously granted right to marriage without any reasonable justification.
“By 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,” wrote Judge Stephen Reinhardt.
The panel ruled in a lawsuit filed in 2009 by two same-sex couples. It upheld the result of a 2010 decision in which now-retired U.S. District Judge Vaughn Walker of San Francisco found Proposition 8 to be unconstitutional.
But while Walker had said there is a federal constitutional right to same-sex marriage, the appeals court declined to address that question and ruled more narrowly on the particular circumstances of California.
The decision doesn’t allow same-sex marriages to resume immediately.
Walker’s ruling was previously put on hold while the sponsors of Proposition 8 appealed, and that stay will remain in effect for at least three weeks until the appeals court issues a formal mandate. If the sponsors appeal to an expanded 11-judge panel of the appeals court, the stay will continue, although the couples who challenged Proposition 8 could ask the court to lift it.
The sponsors of Proposition 8 and their committee, Protect Marriage, vowed to appeal. A spokeswoman for the committee said they had not yet decided whether to appeal to an expanded 9th Circuit panel or to go directly to the U.S. Supreme Court.
“We will immediately appeal this misguided decision that disregards the will of more than 7 million Californians who voted to restore marriage as the unique union of only a man and woman,” said Proposition 8 attorney Andrew Pugno.
“Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court,” Pugno said.
Lawyers for the plaintiff couples applauded the ruling.
“This is a great step forward. This is the first time a federal appeals court has ever held that allowing same-sex marriage is constitutionally required,” said attorney David Boies.
Boies and fellow lead attorney Theodore Olson said they will ask the 9th Circuit to lift the stay if it is still in effect within a few weeks.
“The bottom line for us is that constitutional rights cannot wait any longer,” Olson said.
Boies speculated that the narrow nature of the ruling and the unique circumstances in California might make the U.S. Supreme Court less likely to hear an appeal but rather to leave the appeals court ruling in place.
Same-sex couples had a right to marry in California for several months after the California Supreme Court ruled in May 2008 that the state Constitution provides that right.
But Proposition 8, enacted by voters as a state constitutional amendment, overturned that ruling, and in May 2009, the California high court upheld the voters’ right to enact Proposition 8. At the same time, the court said that 18,000 same-sex marriages performed beginning in June 2008 remained valid.
Four days before that California Supreme Court decision, couples Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeffrey Zarrillo of Burbank filed their federal lawsuit centered on the U.S. rather than the state Constitution.
Reinhardt was joined in the 9th Circuit decision by Judge Michael Hawkins.
Judge Randy Smith dissented, saying that California voters might have rationally believed that Proposition 8 was justified by the purpose of promoting responsible child-rearing by married biological parents.
But Reinhardt and Hawkins said that Proposition 8 could not have affected the raising of children in California because state law, including both California’s domestic partnership statute and various adoption and family laws, give gay and lesbian citizens equal rights to be parents.
Reinhardt wrote that Proposition 8’s only effect was to strip same-sex couples of the dignity of using the word “marriage” to describe their relationships.
“All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships,” Reinhardt wrote.
“Proposition 8 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 majority said.
“The Constitution simply does not allow for laws of this sort,” Reinhardt said.
In another part of its ruling, all three members of the panel rejected a claim by Proposition 8’s sponsors that Walker should have disclosed that he is a gay man in a long-term relationship.
The sponsors argued that information might have created an appearance of a conflict of interest.
The panel said that judges are presumed to be impartial and need not disqualify themselves if they would be affected by a case in the same way as other members of the general public.
“To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts,” the panel said.
11:48 AM: A federal appeals court in San Francisco today found Proposition 8, California’s ban on same-sex marriage, to be unconstitutional.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled by a 2-1 vote that the voter-approved measure violates the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law.
The ruling does not allow same-sex marriages to resume immediately. The appeals court said its decision will be on hold until it issues a formal mandate, which gives the initiative’s sponsors time to appeal and seek a stay from either the full 9th Circuit or the Supreme Court.
The appeals court’s ruling is narrow and applies only to the state of California.
The court said that Proposition 8, passed by state voters in 2008, treated gays and lesbians unfairly by taking away a previously granted right to marriage while still allowing similar responsibilities through domestic partnership.
Judge Stephen Reinhardt wrote, “All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships.
“Proposition 8 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,” Reinhardt said.
“The Constitution simply does not allow for laws of this sort,” the court majority said.
The court issued the decision in a civil rights lawsuit filed in federal court in San Francisco by two same-sex couples in 2009.
Same-sex couples had a right to marry in California for several months in 2008 as a result of a California Supreme Court ruling in May 2008, but Proposition 8, approved by voters in November of that year, amended the state Constitution to remove that right.
The 9th Circuit ruled this morning in a federal lawsuit in which two same-sex couples switched the focus to the U.S. Constitution and argued that Proposition 8 violated their federal constitutional rights.
The measure’s sponsors and their committee, Protect Marriage, had appealed to the 9th Circuit after U.S. District Judge Vaughn Walker ruled in 2010 that Proposition 8 is unconstitutional.
Andrew Pugno, a lawyer for Protect Marriage, said the sponsors will appeal today’s ruling.
“We will immediately appeal this misguided decision that disregards the will of more than 7 million Californians who voted to restore marriage as the unique union of only a man and woman,” Pugno said.
“Our path to the U.S. Supreme Court is now very clear,” he said.
Gov. Jerry Brown issued a statement in which he said, “The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision.”
Julia Cheever, Bay City News