Upholding a decision by Federal District Court Judge appointed by Ronald Reagan, a three judge panel of the 9th Circuit Court Of Appeals held today that California’s Proposition 8, which rescinded the State Supreme Court decision legalizing same-sex marriage, is unconstitutional:
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.
Lyle Denniston summarizes the Court’s decision:
The majority summed up its ruling this way: “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 [of the federal Constitution]. We hold Proposition 8 to be unconstitutional on this ground.”
It added: “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. The judgement of the district court is confirmed.”
Perhaps the most significant thing about the Court of Appeals decision here, both legally and politically, is the manner in which it is narrowly tailored. To a large degree, the Court’s decision is limited to the specific situation of Proposition 8 itself and the issue of the Constitutionality of taking away a right that had been previously been granted. The decision also relies heavily on the fact that California law already grants same-sex couples and individuals a number of legal rights such as the right to adopt children that mirror a family but that Proposition 8 was enacted for the specific purpose of denying those same couples the right to obtain a marriage license and call themselves married under state law. As the Court held, there is no rational basis for this distinction
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
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. Because under California statutory law, samesex couples had all the rights of opposite-sex couples, regardless of their marital status~ all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation~ for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.
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. The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).
The Court then concluded:
When directly enacted legislation “singl[es] out a certain class of citizens for disfavored legal status,” we must “insist on knowing the relation between the classification adopted and the object to be attained,” so that we may ensure that the law exists “to further a proper legislative end” rather than “to make[ ] [class] unequal to everyone else.” Romer, 517 U.S. at 632-33, 635. Proposition 8 fails this test. Its sole purpose is “to eliminate the right of same-sex couples to marry in California” – to dishonor a disfavored group by taking away the official designation of approval of their committed relationships and the accompanying societal status, and nothing more. Voter Information Guide at 54. “It is at once too narrow and too broad.,” for it changes the law far too little to have any of the effects it purportedly was intended to yield, yet it dramatically reduces the society standing of gays and lesbians and diminishes their dignity. Romer, 517 U.S. at 633. Proposition 8 did not result from a legitimate “Kulturekampf” concerning the structure of families in California, because it had on effect on family structure, but in order to strike it down, we need not go so far as to find it was enacted in a “fit of spite.” Id. at 636 (Scalia, J.R, dissenting). It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of “marriage,” with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.
This is a somewhat narrower ruling than Judge Vaughn Walker’s ruling back in 2010, though not by much. However, because of the manner in which it is based on the specific facts that led to the passage of Proposition 8 and the rights already granted to gays and lesbians under California law, it’s the kind of decision that is unlikely to lead to a nationwide ruling the same-sex marriage even if it were to be ultimately upheld by the Supreme Court. At the most, it would appear that it would have the most immediate impact in states where civil unions are already recognized but same-sex marriage is not. In those states, the Court’s argument that there is no rational basis to withhold the label of “marriage” when state law already effectively grants homosexuals many of the legal rights of marriage but denies them the legal and social status of marriage itself. As the Court found in this case, and there is of course much more to the ruling than the portion quoted above, there is no rational basis for what Proposition 8 did under any of the theories put forward by the proponents, partly because all it did was say that gays and lesbians couldn’t “marry” while preserving all the rights that California law grants to them many of which undercut the very arguments that the proponents were making.
When it comes to the many states where same-sex marriage is banned, largely be Constitutional Amendment at this point, and there are no same-sex civil unions though, this decision provides at most only half the argument a Plaintiff would need to strike such provisions down. The Court’s ruling that there is no rational basis to restrict the rights of marriage to only opposite-sex couples will be powerful ammunition for Plaintiff’s in those cases, of course. However it’s going to take a little more legal legerdemain to convince a Court to hold that same-sex marriage should be recognized as a right in states that have never recognized it or granted marriage-like rights to same-sex couples. Personally, I’m convinced that argument will be made and will succeed sooner rather than later, but it’s going to take more work than just relying on the decision in this case.
There are several paths forward from here. For practical purposes, it’s unlikely that the injunction on Judge Walker’s ruling allowing same-sex marriages in California will be lifted until all appeals have been exhausted so it will still be awhile before same-sex couples will again be allowed to marry in California. On the legal side of ledger, the proponents have two choices from here. They can appeal directly to the Supreme Court, or they could ask for an en banc hearing before the entire 9th Circuit on the hope that the full Court would reverse or limit the scope of the panel’s ruling. Both of those are within the discretion of the respective Courts, of course, so there’s no guarantee either request would be granted. In the case of the Supreme Court, for example, there may be a desire to avoid this topic given the other high profile cases the Court has accepted this term, and the manner in which this decision is limited largely to California may be one factor that allows them to do decline to hear the case. This issue will make it to the Supreme Court some day, of course, but that doesn’t necessarily have to happen immediately.
On the whole, it seems to me that the Court got this mostly right. Whether it holds up on appeal is something we’ll have to wait and see.
Here’s the decision:
