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Posted by on Feb 7, 2012 in Law | 16 comments

9th Circuit Court Of Appeals Rules Proposition 8 Is Unconstitutional

Moments ago a 3 judge panel of the United States 9th Circuit Court Of Appeals ruled that Proposition 8 violates the Equal Protection provisions of the US Constitution.

The 2-1 ruling was made by a 3 judge panel and at first glance it appears it applies only to California. Because the ruling was tailored to apply only to Caifornia and the process of the California Supreme Court ruling followed by Proposition 8 it is possible that the US Supreme Court would reject the case. It is also unclear if there will be a stay imposed during possible appeals or if it would take effect immediately.

The 3 judge panel consisted of liberal judge Stephen R. Reinhardt, moderate Michael Daly Hawkins and conservative N. Randy Smith. Reinhardt and Hawkins voted to strike down Proposition 8 (IE affirm Judge Wakers ruling) while Smith voted to overturn it. All three judges voted that Judge Walker did not need to recuse himself merely because he was gay.

The ruling can be read here

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Copyright 2012 The Moderate Voice
  • ShannonLeee

    “All three judges voted that Judge Walker did not need to recuse himself merely because he was gay”

    good for them. seriously, someone could have tried to make an issue out it.

  • StockBoyLA

    A strike against oppression and bigotry.

  • SteveK

    That’s great! It kind of makes you want to jump up on stage and sing a song of celebration… Like maybe “Prop 8 – The Musical” 🙂

  • PATRICK EDABURN, Assistant Editor

    I have not yet had time to fully read the ruling and dissents (that darn work thing) but I am pleased with the ruling.

  • xyzyx

    It’s probably going to continue up the hierarchy to the (U.S.) Supreme Court. I wouldn’t consider this settled yet, guys.

  • roro80

    So, for those who are really good at law: was the entire thing being decided in this case whether or not Walker must recuse himself? Is that the issue that would go up to the SCOTUS? Or is it actually on the subject of the constitutionality of Prop 8?

  • JeffP

    In other news reports, it is discussed in terms of its constitutionality.

    “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 classes of people differently. There was no such reason that Proposition 8 could have been enacted,”

    Amen to that.

  • PATRICK EDABURN, Assistant Editor

    I will have to review in more detail to comment fully but..

    1. The entire 3 judge panel ruled that Judge Walker did not have to recuse himself

    2 The entire panel also ruled that the supporters of Prop 8 did have standing to step in when the state did not

    3 They split 2-1 on the issue of whether the Prop violated the Constitution, 2 judges said it did while 1 said it did not.

    As to appeals, from what I’ve been able to glean the ruling was very careful and narrowly written, focusing on the issue of the state Supreme Court granting the right and the voters taking it away.

    Because it focused on state issues in that way it may be that the Supreme Court would decline to take it up.

    Under such a scenario the ruling would stand in California but there would be no national precedent.

  • The_Ohioan

    From Liz Goodwin –
    The Lookout

    […Reinhardt was explicit in his decision that his ruling is “narrow” and only relates to California, not to the entire nation. In California, gay people had the right to marry for five months before it was taken away by voters. This amounts to a violation of equal protection because a right was specifically taken away from a minority group, Reinhardt writes. But this argument would not apply to gay people in most other states, where gay marriage was never legalized in the first place. “It’s a strong decision but it is not the ringing endorsement of broader marriage equality that some might have hoped for,” Hunter College professor and gay rights advocate Kenneth Sherrill said.
    The pro-Prop. 8 camp has said it will appeal the decision. The group can now ask for 11 members of the 9th Circuit hear their case, instead of just the panel of three who decided against them on Tuesday. “Today’s ruling finally clears the field for an appeal to the United States Supreme Court, where we are confident we will be victorious,” the Save Prop 8 campaign said in a statement.]

  • StockBoyLA

    “In California, gay people had the right to marry for five months before it was taken away by voters.”

    Actually (if I recall properly) there never was a prohibition for same sex-marriage in California. It was determined (by the court) that the California constitution, as written, allowed same-sex marriage. Same-sex couples had five months to pursue their dreams to get married before conservatives took away that right by amending the CA constitution.

  • roro80

    Hey StockBoy — No, California had a law against marriage equality voted for during the early Ahnold years, that was not an amendment to the constitution. Then Gavin Newsom decided to start issuing marriage licences to all couples anyway, so there were a few months of frantic marriage in San Francisco. The state put an end to that and effectively divorced thousands of married people, citing the law, so a bunch of the newly-married couples then sued. They won, and the law was declared unconstitutional. Then there were another 5 months of marriages, throughout the state, that were legal. The meanie bigots then decided, well, if the law is against the California consitution, let’s just change the constitution, which as well you know, is really easy to do by simple majority vote. That was, of course, the infamous Prop 8, which eeked by due to … well, a lot of things. And the rest, as they say, is history.

  • slamfu

    Cool. Now when the institution of marriage falls apart in the next few years the conservatives will finally get to tell the liberals “I told you so!” and get the vindication all the millions of dollars and hours spent fighting this have justified.

    Alternately I was proposing a compromise. One gay marriage license to be issued for every 10 straight divorces filed within a given state. I’m pretty sure gay people would have all the marriage licenses they could handle.

  • PJBFan

    I vigorously dissent from most of the decision. The only part of the decision in which I would have joined is the view that Judge Walker need not have recused himself. That would set a dangerous precedent, including mandating non-white Judges recuse themselves in issues of race, or women recusing themselves in cases involving issues of sex. From there on, I disagree with most of the decision.

    I would not have ruled that there was standing for the Defendants Intervenors. I find no cognizable interest of the proponents damaged by their inability to intervene. Thus, I would not have found standing.

    Furthermore, I do agree that this passes based on the law as it stands. I merely question the underlying decision, that made the issue come down as it did in Loving v. Virginia. In other words, I do not believe marriage is a fundamental right, so I question how the Constitution could be involved in this issue in any manner.

  • petew

    I agree that the 14th Amendment validates the unconstitutionality of proposition 8 and its disregard for equal protection of the laws, but, I never understood why judging the validity of this matter has had to go beyond the 1st Amendment in the first place.

    The marriage ritual is traditionally considered to have its proper place as part of the religious belief systems and ceremonies defined by each Church. I know that I am not a legal scholar, but can anyone please tell me why each individual church doesn’t have the sole right of deciding who and how they shall marry any couple who desires to make their love known before the world and their peers? If this is denied, then, it should also be left to the government (justified by referendums) to decide any aspect of how any given religion conducts its affairs. How about abolishing Holy Communion, or Baptism rituals, or the right to conduct any particular form of religious service? How in the world does the government, even through the use of a referendum placed on a ballot, feel that it has any right to decide these matters–especially when determining what the sexual orientation of marriage partners should be? If a chuch wants to preform gay marriages when the State government already recognizes the rights of same sex partners to everything else, why shouldn’t it?

    To those of us who are straight, gay couples may seems too picky, but I think Ellen Degenerous put it best by saying that agreeing to civil union privilages, without the freedom to marry, is like being allowed on the bus, but told to ride only in the back. Civil laws are involved, but where did we get the idea that the type of marriage ceremonies conducted by any church should be guided by any government? This is especially true when psychiatrists recognize the health of same sex unions. When nobody else is really subject to harm just because their neighbors are married and of the same sex, The only possible harm is a disagreement over what is considered morally acceptable and, that privilage should belong to each individual church.


  • roro80

    ” but where did we get the idea that the type of marriage ceremonies conducted by any church should be guided by any government?”

    They’re not, actually. Some churches will marry gay couples, and no church is told it must marry gay couples. Some churches will even marry multiple people. The Catholic church, for example, won’t officially marry a couple if the parties have been divorced in the past, or if they’re using birth control, etc. It’s just that if the couple is not issued a license, it will not be civilly recognized. The church can say the union is recognized by God without any government intervention. If the couple wants to have the benefits of legal recognition (which most do, of course) — power of attorney, joint tax returns, automatic name changes, Social Security benefit sharing, community property/joint ownership of assets, that sort of thing — they need to be granted a license and get married under the terms of the government. These aren’t things the church can or should grant.

  • roro80

    By the way, Pete, marriage isn’t necessarily a religious thing. Athiests get married all the time. My wedding was not held in a church, not precided over by a religious official, God was never mentioned, and neither my husband nor I are at all religious. Yet we somehow were allowed to get married anyway.

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