Federal Appeals Court Holds California Gay Marriage Ban Unconstitutional

A victory for proponents of same-sex marriage today in the Ninth Circuit.

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Reagan, a three judge panel of the 9th Circuit Court Of Appeals held today that California’s Proposition 8, which rescinded the State Supreme Court decision legalizing same-sex marriage, is unconstitutional: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:

Perry et al v. Brown et al

FILED UNDER: Gender Issues, Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. Gromitt Gunn says:

    The narrowness of the ruling seems like a smart move to me (as a marriage equality proponent). I can’t see the full 9th overturning it, and its narrowness will make it much harder for Kennedy to join Scalia, et al, rather than Ginsburg, et al. Especially with all of the references to Romer v Evans, which Kennedy wrote.

    From a long run perspective, it also seems to avoid the pitfalls of a Roe v Wade, by providing direct impact only to California, and possible indirect impact to states like New Jersey and Oregon. Overall, I’m pleased.

  2. Gold Star for Robot Boy says:

    Apparently, in light of this development Mitt is going all-in on the anti-gay stuff. According to newscritters’ tweets, he immediately played the “activist judges” card.

    Btw, one of these judges was appointed by Ronaldus Maximus.

  3. Alanmt says:

    I agree with Gromitt. It was a narrowly reasoned opinion designed to return marriage equality to California and appeal to Justice Kennedy. Reinhardt would rather yield the greater argument to preserve the local gain. Sophisticated cleverness under elegantly simple analysis.

  4. Brummagem Joe says:

    The supremes will probably take a pass on this. Even if they confirmed it on the narrow jurisdiction issue it would hard to escape the wider message and likewise if they did overturn it. This is not going away. Within 20 years half the states are going to have gay marriage on their statute book.s

  5. DRS says:

    “Love, love, hurray for love – who was ever too blase for love?…” Sing it Sarah Vaughn!

  6. PD Shaw says:

    I believe the state has a legitimate interest in having the definition of marriage modified only by the legislature, and not the courts. I really hope this is overturned, regardless of how all of these issues turn out, because the courts are making democratic decision-making very difficult by describing compromises as bigotry and protecting court rulings from being overridden.

  7. yan says:

    Kennedy has shown himself to be a creative thinker in the service of his values. For instance he wrote Romer and Lawrence v Texas. Romer especially contains novel applications of legal reasoning. He also wrote Gonzales v Carhart, upholding the partial birth abortion ban at the federal level.

    Lawrence contains language stating that the decision has nothing to do with marriage. That was not just put there to keep conservatives from impeaching him, but because Kennedy really believes that, despite the seemingly inexorable logic of Lawrence to the contrary, somehow marriage is still special.

    Since he thinks that marriage is special, look for a decision in which he makes a case for the uniqueness of marriage using arguments that the proponents of prop 8 haven’t even made for marriage yet.

    If you support prop 8 it is hard to blame the 9th circuit for this decision. Surely they did not sympathize with prop 8 by personal disposition, but they did inquire diligently during oral argument as to what the rational basis of prop 8 was, and they received crappy answers.

  8. Grommitt Gunn says:

    @PD Shaw: That’s the sort of goal-post moving logic that anti-GLBT equality forces have been using for decades. If we acheive victory via administrative law, it doesn’t count, because these decisions should be made by the courts. If we achieve victory via courts, that is illegimate because it should be done legislatively. Legislative victories are vetoed by governors who say it should up to courts to decide. We shouldn’t ask for marriage, because civil unions should be enough and “why do you have to use the word?” but civil unions can’t be approved because they are a slippery slope to marriage. And as a last resort, every other venue is insufficient compared to a voter referendum, because that is the only true democratic solution.

    I’ve been fighting for equality since the 80s, and these excuses and misdirections are all old hat.

  9. Gold Star for Robot Boy says:

    @PD Shaw:

    I believe the state has a legitimate interest in having the definition of marriage modified only by the legislature, and not the courts.

    New Jersey was/is close to making this happen. And you know what Gov. Christie said? It shouldn’t be the Legislature deciding but the people.

    Whatever path the GLBT takes to establish equality, count on some hater being there to tell them they’re doing it wrong.

  10. David M says:

    I believe the California legislature approved same-sex marriage twice, but both times it was vetoed.

  11. june says:

    @Grommitt Gunn: The strategy of the egalitarians, it seems to me, has been to take whatever gains they can get in every area they can make a gain whether in the courts, the legislatures, or the culture at large, and then to proclaim a fait accomplis such that any opposition to their views is deemed impractical and immoral. Their strategy has paid off in respect to this decision, but I have some faith that the truth about marriage will come out when the case goes to the SCOTUS, at which point I pray by God’s grace that they will have met their Waterloo.

  12. Gromitt Gunn says:

    @David M: Yes. And the Governator’s stated reason for vetoing it was that he didn’t have the authority, the courts did. Which is why it went to the CA courts, and ultimately brought us to Prop. 8.

  13. Ben says:

    @PD Shaw:

    “democratic decision-making” is the very place where bigotry and oppression of minorities is most likely to occur. That is why pure democracy would be an extremely evil place to live unless that society were extremely homogenous. Any minorities would immediately be relegated to a lower caste.

  14. SteveAR says:

    This statement by PD Shaw is spot on:

    I really hope this is overturned, regardless of how all of these issues turn out, because the courts are making democratic decision-making very difficult by describing compromises as bigotry and protecting court rulings from being overridden.

    The rights talked about in this ruling were based on a 4-3 California Supreme Court decision that overturned a state statute passed overwhelmingly by the voters in 2000 (Prop. 22); 4 judges decided 4.5 million people were bigoted and wrong. 7 million voters voted for Prop. 8 to overturn the 4 California Supreme Court judges, thus restoring the law to what it had been, albeit in the Constitution instead of in a statute. Now, a total of 3 federal judges have overturned the votes of the 4.5 million in 2000 and the 7 million in 2008. So it is hard for me to reconcile the notion that any rights to same-sex marriage were taken away when there weren’t any rights to same-sex marriage to begin with.

  15. PD Shaw says:

    @Grommitt Gunn:I suupported civil unions in my state, and they passed. For you to accuse me of misdirection and having other views is just avoiding the issue I raised to engage in hypothetical motivations.

  16. Gold Star for Robot Boy says:

    @SteveAR: Checking your linked website, I see you’re the type who thinks it’s funny/clever to call Obama “President Food Stamp.”

  17. SteveAR says:

    @Gold Star: Thanks for checking it out. I can’t help but be accurate regarding my description of Obama.

    However, what you think of my website or the type of person I am isn’t relevant to the point I made above. Maybe you want to stay on topic?

  18. Gold Star for Robot Boy says:

    @SteveAR: To the topic: Your comparison of the number of voters to the number of judges is not even wrong, because if a law doesn’t pass constitutional muster it gets struck down. Simple as that.

  19. WR says:

    @SteveAR: Gosh, 7 million Californians voted for prop 8. I gather from your post that not a single one of us voted against it. It must have been a landslide of epic proportions, since every single citizen of the state was against gay marriages.

    Oh, wait, what’s that? 6,400,000 people voted against it? So it wasn’t exactly 7 million vs. three. I don’t know how I could have made that mistake reading your unbiased message.

  20. Ben says:


    I don’t care if its 4 million or 40 million. All your numbers prove is that a large percentage of the population seem to have no problem with oppressing a minority and denying them rights.

  21. anjin-san says:


    Your site provides interesting insight into the mind of a Newtie. Its a bit like staring at a stale crouton…

  22. SteveAR says:

    @Gold Star: Actually, it does in this case since the original In re Marriage Cases ruling went 4-3 in favor of overturning Prop. 22, as opposed to it being unanimous or a 6-1 or 5-2 ruling. What the California Supreme Court did was to create a brand new right that wasn’t based on any California or federal law, which no court is allowed to do. Yes, I read the the original ruling; it was a mess. They determined Prop. 22 was targeted to same-sex couples. It hardly did that. It denied bigamous marriages, it denied polygamous marriages, it denied marriages between a human and an animal, regardless of the gender of either, and it denied marriages between a human and an inanimate object. So unless all those other groups are similarly discriminated against, the In re Marriage Cases ruling has no merit, especially since the California Supreme Court decided upon using the strict scrutiny standard. By that standard, the state does have a compelling state interest in upholding the religious freedoms of those who don’t believe same-sex couples should be married, such as county clerks who issue marriage licenses. As we’ve seen with the recent HHS ruling, religious rights guaranteed by the U.S. Constitution (and probably the California one) are being ripped asunder.

    Prop. 22 did pass constitutional muster for those who read the actual U.S. and California Constitutions. Unfortunately, the California Supreme Court ignored both, as did Judge Walker and the two judges on the 9th Circuit.

  23. David M says:

    @SteveAR: Wow, you’re right. With all this concern over the people actually prevented from getting married, we’ve overlooked the tyranny involved in processing marriage documents for strangers.

  24. anjin-san says:

    upholding the religious freedoms of those who don’t believe same-sex couples should be married,

    My religious beliefs say that pencil necked homophobic bigots should are not bright enough to be allowed on the internets. Kindly log off.

  25. anjin-san says:


    it denied marriages between a human and an animal

    Sorry – that has to be rough on you.

  26. Herb says:

    @PD Shaw: “I believe the state has a legitimate interest in having the definition of marriage modified only by the legislature, and not the courts.’

    That’s a distinction that I think should impress no one.

    The state also has an interest in making sure that the laws passed by the legislature pass constitutional muster….hence the courts.

  27. PD Shaw says:

    @Herb: Riddle me this then joker;

    If on the first day there is no law;
    And on the second day a civil union law is passed;
    How is it that at the end of the second day the Constition has been violated,
    But not so at the end of the first day?

  28. An Interested Party says:

    I believe the state has a legitimate interest in having the definition of marriage modified only by the legislature, and not the courts. I really hope this is overturned, regardless of how all of these issues turn out, because the courts are making democratic decision-making very difficult by describing compromises as bigotry and protecting court rulings from being overridden.

    So Loving v. Virginia was wrong? Perhaps that should have been left to the legislature…

  29. grumpy realist says:

    Considering that popular opinion was against interracial marriages until quite recently, the same “will of the the people” argument could be used there. Loving v. Virginia has said differently.

    Being attached to a religion does not make a belief automatically pass constitutional muster. Learn some law, please.

  30. grumpy realist says:

    Oh, and if you want to argue “religious freedom”, then explain why honor killings shouldn’t be tolerated.

  31. Gromitt Gunn says:

    @PD Shaw: I’m not avoiding the issue, because their is no issue, since “inappropriate venue” arguements are arguements made in bad faith. See the summaries of the California legislator – governor – courts – referendum process above.

  32. PD Shaw says:

    @An Interested Party: I don’t believe that all changes to the definition of marriage are Constitutional, but that political branches are responsible for those changes. For California to take “half measures” in expanding the rights of marriage to same-sex couples and have that action used to establish its bigotry is to eliminate the possibility of compromise and gradual change. If California was not yet ready for same-sex marriage, it should have passed civil unions, it should have kept the same position as Utah and Alabama.

  33. PD Shaw says:

    @Gromitt Gunn: You are a seeker of enemies then.

  34. Gromitt Gunn says:

    @PD Shaw: Oh, please. What part of the documented history are you not understanding? California already had a domestic partnership registry when the state legislature passed a gay marriage law in two consecutive sessions. The Governor told the legislature at the time that he vetoed the law that it was a matter for the Courts to decide, not the legislature. So proponents then turned to the courts, as that was the only open venue.

    That’s just one example of the goal-post moving that people like NOM have been engaging in for decades. There are many others, in multiple states and at the federal level. You’re entitled to your own opinions, but you aren’t entitled to your own facts here.

  35. anjin-san says:

    If California was not yet ready for same-sex marriage

    Lots of folks were not ready for interracial marriage. Or desegregation. Too bad. There is a time for equal justice under the law, and the time is always now.

    I have lived in the bay area a long time, watching the gay/lesbian community struggle for the basic rights and human dignity that is supposedly the birthright of all Americans, and I am just tired of this crap.

    Sadly, conservatives have nothing else to offer. No ideas, no plans for dealing with our problems – just claptrap about the deficit, which their actions have made very clear is empty talk, whining about taxes that are already at historic lows, and fear and loathing directed at pretty much anybody who is not exactly like them.