Tuesday, February 07, 2012

9th Circuit Overturns Prop 8. Ruling, History, and Next Steps

The 9th Circuit Federal Appellate Court has just ruled in a 2-1 decision that Proposition 8, the California initiative that ended Marriage Equality in California, is Unconstitutional under the 14th Amendment of the US Constitution, which guarentees citizens the equal protection of the law. The three-Judge panel consisted of Stephen Reinhardt, an appointee of President Carter; Michael Daly Hawkins, an appointee of President Clinton; and N. Randy Smith, appointed by President George W. Bush.

From today's ruling:

"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 familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for laws of this sort."

In making this ruling, the Court (which has federal jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington State, and the territories of Guam and the Northern Mariana Islands) made two other rulings: it held that the lower federal district court Judge, Judge Vaughn Walker, who initially found Prop 8 Unconstitutional, did not have to disqualify himself from the case simply because he himself is gay; and it affirmed the right of a conservative citizen's group to defend Prop 8 in Court. This ruling represents the first time that an Appellate federal Court has held that discrimination against gays and lesbians seeking to marry violates the US Constitution, and accelerates the likelihood that the entire US Supreme Court will hear the issue in the next term.

This Blog has followed the Prop 8 case closely because of its national significance. Here is a "plain language" timeline of the events leading up today's ruling:

May 15, 2008: The California Supreme Court rules 4-3 in In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384
that Marriage is a fundamental right, and California's statutes prohibiting same-sex marriage were therefore Unconstitutional under the State Constitution. Same-sex Marriages began in California shortly theafter.

Nov 4, 2008: California citizens, through a popular referendum vote of 52%-48%, adopted a Constitutional Amendment to prohibit same-sex marriage. The ballot question was known as Proposition 8 ("Prop 8" for short).

May 26, 2009:Supporters of same-sex marriage bring suit in State Court, challenging the process by which Prop 8 was adopted. The State Court rules, 6-1, that the process was valid, and Prop 8 was a valid amendment to the State Constitution.
(see Blog post )

Aug 4, 2010 – In a move initially seen as controversial by some gay rights activists, supporters of same sex Marriage then chose to sue in Federal District Court, claiming that Prop 8 violated the Federal Constitution. Federal District Court Judge Walker agreed, and overturned Prop 8. (See details at
Blog Post Walker's order declaring Prop 8 Unconstitutional was then stayed ("put on hold") pending appeal to a higher level (the 9th ircuit Appellate Court).

Nov 17, 2011 – Governor Schwarzneggar refused to appeal the ruling on behalf of "The State," enraging conservative activists who sought standing to challenge Walker's ruling on appeal. The Federal Appellate Court was asked to overturn Walker's ruling by conservatives, but that court first had to decide whether the conservatives even had "standing" (or "the right") to sue in the first place, since the Governor and Attorney General of California would normally be the parties involved in defending the law. The Federal Court chose to ask the California State Court whether a citizens group had the right to sue under State law. The state court ruled that indeed, the conservative citizen group had the right to sue, (see Blog Post .)

With that as background, the 9th Circuit Appellate Court had to decide the following questions before it:

(1) Did the conservative citizen's group also have the right to sue in federal court?
(2) Did Walker have to disqualify himself?
(3) Was Walker's ruling overturning Prop 8 correct as a matter of Law.

The Last point is particularly important. In legal cases, *only* the Trial Court (the lowest court) hears and determines issues of *fact.* That means that evidence concerning the effect of discrimination on gays, the history and purposes of marriages, and psychological and medical facts surrounding homosexuality was all entered into the record and decided in Walker's Courtrom. It can not be questioned on appeal. It has been widely acknowledged by people on all sides that the conservatives arguements were extremely poor and not well supported by evidence; several of their witnesses even backed out of testifying at the last minute.

This is critically important for the next steps.

Chances are, this ruling today will be stayed ("put on hold") pending another appeal by conservatives to one of two bodies:

They can appeal to the FULL 9th Circuit. The current decision was issued by a panel of three justices from the 9th circuit, which is standard procedure. The conservatives can request that a "full bench" hear the case(called a hearing "en banc"), which would involve 11 of the 9th circuit's 28 justices.

Or, they could appeal directly to the U.S. Supreme Court. Many observers are skeptical that the US Supreme Court would take the case however, because the 9th Citcuit wrote their decision very narrowly: they decided that the California law, in light of the process followed in California, violated the US Constitution; they did not rule that prohibitions against same-sex marriage "in general" violated the U S Constitution.

According to Shannon Minter, legal counsel for the National Center for Lesbian Rights:

"Given the reasoning of the Ninth Circuit's decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case. The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications. The Ninth Circuit's California-focused decision presents neither of those circumstances. Unless the Supreme Court breaks with its own tradition and intervenes in the case, it's possible that wedding bells will be ringing in California again before the end of the year."
In any event, the issue of same-sex marriage as a federal Constitutional right is not yet established...but it is one step closer.


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