Ninth Circuit rules Prop 8 unconstitutional

[Pint0 Xtreme]

Court Strikes Down Ban on Gay Marriage in California

LOS ANGELES – A federal appeals court panel ruled on Tuesday that a voter-approved ban on same-sex marriage in California violated the Constitution, all but ensuring that the case will proceed to the United States Supreme Court.

The three-judge panel issued its ruling Tuesday morning in San Francisco, upholding a decision by Judge Vaughn R. Walker, who had been the chief judge of the Federal District Court of the Northern District of California but has since retired. Like Judge Walker, the panel found that Proposition 8 – passed by California voters in November 2008 by a margin of 52 percent to 48 percent -- violated the equal protection rights of two same-sex couples that brought he suit. The proposition placed a specific prohibition in the State Constitution against marriage between two people of the same sex.

The court ruled that Proposition 8 violated the 14th Amendment of the Constitution by discriminating against a group of people, gay men and lesbians.

“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different people differently,” Judge Stephen Reinhardt wrote in the decision. “There was no such reason that Proposition 8 could have been enacted.”

“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 ‘marriage,” the judge wrote, adding: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California."

Supporters of Proposition 8 can now ask for a larger panel of the United States Court of Appeals for the Ninth Circuit to take up the case. But they could also chose instead to appeal the case directly to the Supreme Court, setting the stage for a decision by the nation’s highest court on an issue that has roiled legal, political and cultural circles here and across the country.

The decision was the latest victory by same-sex marriage proponents here since losing at the polls four years ago and sets the stage for what backers of same-sex marriage said they were seeking: a fight before the Supreme Court.

Evan Wolfson, the president of Freedom to Marry, hailed the decision and noted that it was the latest victory for same-sex marriage advocates in the courts and state legislatures. Most recently, in the State of Washington, which is on the verge of legalizing same-sex marriage.

“This monumental appellate decision restores California to the growing list of states and countries that have ended exclusion from marriage and will further accelerate the surging nationwide majority for marriage,” he said.

The decision is the latest turn in a tangled battle that has been fought out here for almost 12 years. In the spring of 2008, the California Supreme Court threw out a 2000 voter proposition barring same-sex marriage. Opponents immediately marshaled their forces to get Proposition 8 on the ballot and get it passed. That proposition amended the California Constitution to bar same-sex marriage. During the period when same-sex marriages were legal in the state, nearly 18,000 couples married; their unions remain in place.

Judge Walker ruled in August of 2010 that the ban on same-sex marriage violated the rights of gay men and lesbians. The decision on Wednesday upheld Judge Walker’s ban and reasoning.

The California battle has churned on even as other states – including New York – have moved to legalize same-sex marriage in their Legislatures. Yet it has continued to attract national attention, largely because of California’s size, the state’s large and politically active gay population and the unusual coalition of lawyers who represented the case in court: David Boies, a Democrat, and Theodore B. Olson, a Republican. Before this, the two lawyers were best known as opponents in the Supreme Court battle over the 2000 election returns in Florida that resulted in George W. Bush becoming president.

Some gay activists have been apprehensive about taking this case to the current Supreme Court, fearful that conservative justices could lead it to codify a ban against same-sex marriage. But Mr. Boies and Mr. Olson have argued that this court would be receptive to the arguments they are making and the changing climate in the land.

[Terralthra]

And now the fun begins...the supporters of Prop. 8 are sure to try to appeal to the Supreme Court of the United States.

The SCOTUS could rule that the 9th Circuit judges ruled appropriately, that to give a right, then take a right away from a small group of people, violates due process and equal protection. That would keep gay marriage legal in California, and prevent any other state which has legalized it from repealing or banning it. It would not, however, force any state to make it legal which has not already done so.

The SCOTUS could rule that banning gay marriage violates the 14th Amendment on its face (an easy argument to make, cf. Loving v. Virginia, 388 U.S. 1 (1967)). This would essentially do what Lawrence v. Texas, 539 U.S. 558 (2003) did, practically overturning any and all state laws banning gay marriage, up to and including state constitutional amendments.

The SCOTUS could deny cert, meaning the 9th Circuit's opinion stands, but is only precedent within the 9th Circuit's jurisdiction, and only on the "you can't give it then take it away" grounds. Essentially choosing not to hear the case, which would be the first gay marriage case to make it to the SCOTUS.

Or the SCOTUS could overturn it, finding that gay marriage isn't fundamental, would overturn the 9th and District Court decisions, reinstating Prop. 8, and setting the equal marriage rights and gay rights movements back 30 years.

And it'll be at least 6 months before the case could be heard by the SCOTUS, and another 6 months after that before they'd issue a decision.

[The Duchess of Zeon]

I'm more or less certain they'll deny cert considering how narrow the grounds are. This will create a cautious stalemate between states where gay marriage is legal and those where it isn't.

[Simon_Jester]

Fifteen years, surely?

And... Terralthra, I'm not sure how they can rule that 'wobbling' on a right (so to speak) violates due process and equal protection, without saying that denying the right in the first place violates due process and equal protection.

Also, if they say that it's a due process violation to extend a right to people and then take it away, that becomes a huge precedent on a lot of other issues where the trend is for rights to be restricted and reduced. Think about the implications for privacy rights- if you ever did have a right to privacy in X, it would be unconstitutional to get rid of the right. On the other hand, if corporations have a right to Y, then it would be unconstitutional to get rid of that right, too.

That sounds like an even bigger legal minefield than you'd get by ruling that the 14th Amendment guarantees gay marriage. At least a ruling like that would be limited to one issue, it wouldn't alter precedents on a host of other issues.

If I were in the Supreme Court's shoes, I'd be sorely tempted to go with Duchess's prediction and deny cert- pass the buck.

[Terralthra]

Well, the 9th Circuit didn't say "you can't give it and then take it away," they affirmed the District Court decision that "you can't give it and then take it away without any legitimate state interest, which the proponents of Prop. 8 failed to show." That doesn't set any new precedent, as "laws affecting persons' rights must be shown to have a legitimate state interest" is part of the rational basis test. Rational basis goes all the way back to McCulloch v. Maryland, 17 U.S. 316 (1819), and was clarified in United States v. Carolene Products Company, 304 U.S. 144 (1938). It's not exactly treading new ground.

That is, I suppose, another tack they could take if they decided to grant cert and wanted to overrule. They could rule that the state interest is served somehow by banning gay marriage.

[Pint0 Xtreme]

That is, I suppose, another tack they could take if they decided to grant cert and wanted to overrule. They could rule that the state interest is served somehow by banning gay marriage.

You'd have to find some kind of crazy excuse to say that the state interest is served by such a discriminatory law, which is something I have little doubt that the conservative justices are willing to do.

[Terralthra]

Fifteen years, surely?

On this one, I was referring specifically to Bowers v. Hardwick, 478 U.S. 186 (1986). 26 years ago was the last SCOTUS case I can find where the judges explicitly said that being gay wasn't ok.

[Pint0 Xtreme]

Here is the written decision if anyone's interested in reading it.

[The Duchess of Zeon]

Remember that there's two clauses they require, actually, based on the ruling. You have to show State Interest, and it cannot be targeted against a certain class of people. Remember that the constitution bans "acts attainder", i.e., laws focused on a specific person or a specific class of people like a family, so that Congress can't, for instance, vote to subject someone they collectively don't like to the death penalty. The 9th Circuit panel ruled that both those standards were being violated by the act.

[Terralthra]

Reading over the ruling, it's even worse (for marriage equality opponents) than that. They cite Romer v. Evans, 517 U.S. 620 (1996). In that case, the SCOTUS ruled that sexual orientation counted for strict scrutiny under the equal protection clause. That means any gay marriage ban has to pass the three-prong test strict scrutiny requires: compelling state interest (not just rational basis), narrowly tailored, and least restrictive. That puts a huge onus on any party defending Prop. 8 as constitutional.