Proposition 8 Unconstitutional, 9th Circuit Rules: An Analysis


More than any single vote, more than any single veto, more than any single legislative majority, the Ninth Circuit's decision in Perry v. Brown is the most significant advancement in the fight for marriage equality in American history to date. Consider this: Never before has a federal appellate court affirmed any of the conclusions that the Ninth Circuit did today:

  • that denying committed gay couples their right to marry cannot encourage opposite sex marriages;
  • that when a state denies the right to marry while allowing gay couples all the rights and privilges of marriage, it cannot base the marriage ban on any rationale that denigrates gay parents;
  • that domestic partnerships are unequal to marriage;
  • that, as a matter of law, marriage rights do not hinge on natural procreative ability;

        and, of course,

  • that a ban on same-sex marriage unconstitutional.

ReinhardtToday's opinion was both broad and narrow, with wide implications and constrained effects. In 76 pages, Judge Reinhardt and Judge Hawkins affirmed the district court's opinion that Proposition 8 was unconstitutional, but its decision hinged on the fact that Prop 8 effectuated a taking away of rights previously existing in California per In re Marriage Cases. That denial of an existing right violated due process and equal protection. The court declined to decide whether due process or equal protection would invalidate all bans on same-sex marriages, especially in those circumstances where no such right existed before. This is the narrow part of the decision. The court also used a rational basis standard of review, granted Proponents standing as a matter of federal law, and affirmed the denial of the motion to vacate. But, in so doing and by savaging the legitimacy of the Proponents' proferred reasons for Prop 8, the Ninth Circuit gave us a remarkable statement of gay rights, one that will have an enduring future regardless of the end result of Perry v. Brown.

Judge Smith concurred, in part, and dissented, in part. He concurred in the standing and motion to vacate decisions, but dissented from the main merits holding, mostly using the traditional rational basis justification that given that low standard, he could not agree that there was "no conceivable" legitimate interest rationally related to Prop 8. Yet, his opinion is notable for the criticism he levies on some of the anti-gay arguments so common in this debate.


This is a momentous decision, indeed. It is the first time a federal appellate court has recognized that a state cannot take away marriage rights from gay people. That holding, together with the courts conclusions about marriage law, children, gay equality, and domestic partnerships, work as precedent in all gay rights cases, not just same-sex marriage cases. Perry should be cited in upcoming appeals challenging the Defense of Marriage Act, in challenging employment discrimination, and the denial of basic entitlements.

Today's decision is also the only federal appellate court to say this:

It will not do to say that Proposition 8 was intended only to disapprove of same-sex marriage, rather than to pass judgment of same-sex couples as people. Just as the criminalization of "homosexual conduct ... is an invitation to subject homosexual persons to discrimination in both the public and private spheres," so too does the elimination of the right to use the official designation of "marriage" for the relationships of committed same-sex couples send a message  that gays and lesbians are of lesser worth as a class -- indeed, that the enjoy a lesser societal status (73, internal citations omitted).

Olson_boiesIndeed, the Ninth Circuit's recognition that Perry is a proxy fight for the recognition of gay people as equal citizens belies the narrowness of its opinion. The denial of the recognition of marriage, whatever the history of that denial, harms gays who want to get married, but stigmatized all gay people as unworthy of recognition for who they are. Gays are, after all, being discriminated against because they are gay, and the court's narrow holding -- limited to the circumstances of California -- does not change the fact that Prop 8 is identity-based discrimination.

But, we must admit that today's decision was narrower than it could have been, limited to the unique circumstances of California's gay marriage saga and how Prop 8 took away rights recognized by In re Marriage Cases.

Why did the court make that narrow holding? Federal courts are required to decide only the case before them -- the Case or Controversy requirement; so, deciding any question not necessary for the resolution of the particular case at hand would exceed its jurisdiction. The Supreme Court and other federal appellate courts have long acknowledged the Constitutional mandate and social preference for narrow decisions. There could also be strategy involved. Any overstep, any overreach could be grounds for reversal at the Supreme Court or reconsideration by the broader Ninth Circuit. A victory for same-sex marriage in California would be a significant victory, and the Ninth Circuit's decision today is a huge leap forward toward that goal.

AFTER THE JUMP, I take you through the main points of the opinion and dissent, discuss a few lasting implications, and answer questions about where we go from here. Please add your questions in the comments, and I will do my best to respond to them as soon as possible. Stay tuned for updates during the day as I add responses to questions at the end.



Previously, I argued that regardless of the California's Supreme Court's decision that Proponents had standing as a matter of state law to represent the State in Perry, that the proper decision as to federal standing would be denial, because Proponents could not show particularized harm to them from overturning Prop 8.

The Ninth Circuit took a different, yet sound, approach and granted Proponents standing. Judge Reinhardt said that federal courts have to accept who a state says can represent it in court. That much we know from Karcher v. May (NJ case, where the Speaker of the State House and President of the Senate were designated). All a federal court has to decide for federal standing in a case where the state declines to participate is whether the State suffered sufficient harm and that the State has authorized another party to represent it (24).

That is, Proponents would not have to show they were harmed; rather, they would merely have to show that California was harmed and they were taking the governor's and attorney-general's place.

Since Arizonans for Official English (AZ case, involving a group of initiative proponents seeking standing) expressed "grave doubts" that initiative proponents could be designated to fill the state's shoes without authorization, the Ninth Circuit asked the California Supreme Court if Proponents would have standing. Since that court determined that the initiative power included a right to defend, the Ninth Circuit concluded that such a decision sufficed for standing authorization (29).


Judge Reinhardt takes us through a brief history of marriage law in California and notes that from the time marriage was statutorily limited to opposite-sex couples in the 1970s and In re Marriage Cases, which granted gay couples the right to marry under California law, the state had created and expanded its domestic partnership law and expanded rights of adoption, access to entitlements, and protected gay people from harassment and discrimination, thus creating a legal regime where California felt that gay people had all the rights of marriage without the designation.

When Perry challenged Prop 8, it did so on three grounds:

1) that Prop 8 violates Due Process because it deprived gay California's of their fundamental right to marry, a right deemed fundamental by a long string of Supreme Court cases;

2) that Prop 8 violates Equal Protection because it singled out one class of persons for a particular disability without any legitimate rationale;

3) that Prop 8 also violates Equal Protection because it took away an existing right to marry, which constitutes a distinct violation because the Equal Protection Clause protects minorities from being deprived of rights by the state.

Because the court made its decision on this third ground, it had no occasion to address the broader arguments that any denial of marriage rights to same-sex couples would violate due process or equal protection or that the fundamental right to marry extends to gay people. Before we analyze why the court decided this case on narrow terms (see Analysis section below), let's finish the summary of the argument.

Prop 8 did something very simple, then. It took "marriage" away from gay people, but left every other right associated with domestic partnerships, adoptions, and so on intact (35). In doing so, Prop 8 was narrow, but exceedingly harmful (37): Prop 8 took away something vital, an institution that is so essential to human life and dignity, and picked out one group that is not worthy of recognition. To illustrate this, Judge Reinhardt inserted a little levity, noting that Marilyn Monroe's "How to Marry a Millionaire" wouldn't have quite the same impact if it were called "How to Register a Domestic Partnership with a Millionaire" (38).

So, the question was whether the people of California had a legitimate reason to enact a constitutional amendment that served only to take away the right of same-sex couples to dignify their relationships with the word "marriage"? The court said no, and its basis was a comparison to the case of Romer v. Evans. In Romer, the people of Colorado passed Constitutional Amendment 2, banning any legislative or executive or judicial body in the state from enacting an anti-discrimination law that included sexual orientation. The Supreme Court found no legitimate rational basis for doing so, inferring that it could only have been based on animus toward gays and nothing more, a rationale the U.S. Constitution cannot abide. Judge Reinhardt admitted that Romer was broader, but, like Amendment 2, Prop 8 "worked a meaningful harm" on a unique class of persons by withdrawing a right, treating one group unequally, and gave one group a special and unique legal disability (46).

California had no legitimate basis for doing so because any supposed rationale was not sufficiently connected to the effect of Prop 8. All Prop 8 did was deny gays the opportunity to solemnize their unions as "marriages." A significant harm indeed, but because Prop 8 left untouched adoption law, domestic partnership law, entitlement law, parental rights law, and a host of other areas, it could not be rationally related to any State objective, such as California's interest in childrearing and responsible procreation, the interest in proceeding with caution with marriage law, protecting religious freedom, and preventing children from being taught about same-sex marriage in school (55). The Ninth Circuit rejected each of these (and then some), making it the first federal appellate court to divorce this tired canards from marriage as a matter of law.

Even if children were better off with one-mom-and-one-dad households, Prop 8 had no effect on where children end up because it made no changes to the rights of gay people to adopt, use surrogates, or have parental rights (56-57). The court also found that denying gays the right to marry could not be rationally related to the government objective of encouraging heterosexuals to get married and have children in wedlock because taking away the rights of one group cannot legitimately encourage another to exercise those rights. The "proceed with caution" argument made little sense, as well, especially since Prop 8 was radical -- it took away rights, rather than maintain the status quo (65). And, the possible rationale, stated during the Prop 8 campaign, to return to the way things were before In re Marriage Cases, was illegitimate as a matter of law: you cannot strip away new rights simply because they are new (70-71). Given the illegitimacy of all these conceivable rationales, the court was left to infer animus as a motivating factor and, per Romer, animus toward gays is an inappropriate reason for acting under the law. The court's animus conclusion was buttressed by its extended citation of the rhetoric associated with passing Prop 8, as well.

The main disagreement between the majority and dissent is that Judge Smith would accept the possibility that even if the science was bad and even if connection between Prop 8 and promoting opposite-sex marriage is dubious, the people of California could still have rationally believed the connection and, therefore, had a rational basis for passing Prop 8. He felt that the majority put too much reliance on Romer, especially given how much broader the harm imposed by Amendment 2 was compared to Prop 8.

Notably, though, the dissent rejected the proposed "responsible procreation" for Prop 8. Proponents argued that Prop 8 advances the state interest in promoting procreation within marriage because (a) only opposite-sex unions risk having unplanned pregnancies out of wedlock, then (b) only opposite-sex couples need to be encouraged into marriage. Hence, the law has always made the distinction between opposite-sex and same-sex couples with regard to marriage. Judge Smith criticized that argument: Since Prop 8 took away a designated right, there could not any new rationale for the discrimination caused by Prop 8.

Motion to Vacate

All judges agreed that Judge Ware did not err when he denied the motion to vacate. Denials of motions to vacate are reviewed for "abuse of discretion," which means that the Ninth Circuit had to only decide if Judge Ware was way off the mark. Since he clearly was not -- there was no need for Judge Walker to recuse himself because he is gay, was in a long-term relationship, and could possibly want to marry in the future -- the denial of the motion to vacate was affirmed.

Responses to Questions:

1. Can gay people marry in California right now?

No. The stay is still in place.

2. Since the Ninth Circuit's jurisdiction covers more than just California, how does this decision affect Idaho, Nevada, Washington, and other states?

There are lots of states in the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington (and Guam and the Northern Mariana Islands). But, this decision was narrowly focused on the unique situation in California that precipitated Prop 8. Even if that were not the case, an appellate court decision can, but need not, immediately change the law in the entirety of its jurisdiction. Because of the ongoing stay and the limited focus to California, this decision has no immediate effect on the other states in the Ninth Circuit's jurisdiction.

3. What happens now?

Right now, attorneys are reading this decision. It's long, which explains my delay today. Though I cannot speak to Proponents' strategy, they can make a motion for rehearing in front of the broader Ninth Circuit (11 judges). If a majority of the circuit judges agree to rehear the case, we would stay at this appellate level and do this again in front of a larger panel. Proponents could also skip that step and go directly to the Supreme Court.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

Feed This post's comment feed


  1. i'm still puzzled as to why "children need two parents" keeps coming up as an 'argument' - banning LGBT couples from marrying does not, in any way, stop LGBT couples from having children.

    this is not about banning LGBT couples from adopting or conceiving their own children, which a great many couples do.

    saying two women can't marry won't mean that those women's children are going to magically have a male father-figure in the picture instead. it's so weird.

    and then we get the circular logic: marriage is about procreation, that's why gay couples *can't* marry - because they can't biologically procreate with one another. and yet when infertile heterosexual couples are mentioned the Prop 8 side says "that's different"... why?.... "because they're not gay"


    Posted by: Little Kiwi | Feb 7, 2012 4:43:41 PM

  2. Thanks Ari! LOVE THIS!

    Posted by: C.J. | Feb 7, 2012 4:50:41 PM

  3. Nitpick: Answering the broad jurisdictional question is *NOT* outside the 9th Circuit's "jurisdiction." Jurisdiction is a constitutional limitation on the Court's power. Answering the narrow constitutional question is a cannon of avoidance developped by Courts but by no mean required by the Constitution (and by no means always followed - see, Citizens United).

    This is a very important nitpick. Judge Walker's ruling was on the broader questions of whether the due process and equal protection clauses require gay marriage. If such questions were "beyond his jurisdiction," then his opinion would have to be necessarily vacated. But they were not.

    The effect of this is important for two reasons.

    1. From now on, one can cited "Perry v. Schwazenegger, N.D. Cal. 2010, affd on other grounds by Perry v. Brown," for the proposition that the U.S. Constitution requires that states grant marriage licenses to same-sex couples. It is not persuasive appellate authority, but it is persuasive federal court authority nevertheless.

    2. This means that the Supreme Court is free to revisit that argument if it grants cert., and is not limited to the narrow tack taken by the 9th Circuit. This doesn't meant it will do so, only that it is allowed to do so by its own prudential doctrines of avoidance. If SCOTUS disagrees with the 9th Circuit on its narrow ruling about what the effect of Prop 8 is, it can still affirm the ruling on the grounds argued by the parties and litigated before the district court. Of course, this is extremely unlikely, but still one of many possible outcomes before SCOTUS that must be kept in mind (which would not be possible if Judge Walker's answering of the questions was outside of his jurisdiction)

    Posted by: Jorge | Feb 7, 2012 4:51:00 PM

  4. Sorry, the first line should read: "answering the broader *constitutional* question is not outside the 9th Circuit's jurisdiction"

    Posted by: Jorge | Feb 7, 2012 4:51:41 PM

  5. When is the proponent's deadline to file an appeal? If they choose to appeal to the Supreme Court rather than the expanded Ninth Circuit, will the stay be lifted in the interim or wait for the appeal decision? Realistically, will we be able to marry in CA in the next 3 years?

    Posted by: wafflefish | Feb 7, 2012 4:52:00 PM

  6. Since the ruling was specific to California's situation - where rights were taken away after being granted - can this decision be used in other states that may lose marriage rights like New Hampshire, Iowa, even Maryland and Washington, should legislatures there pass marriage equality laws?

    Posted by: Ken | Feb 7, 2012 4:52:15 PM

  7. What effect does this ruling have on WA passing marriage equality and then having it placed to the voters this coming November, as expected?

    Posted by: bostonian | Feb 7, 2012 4:58:21 PM

  8. So can Californians get married now or not?

    Posted by: Alex | Feb 7, 2012 4:59:58 PM

  9. Big question: How does this pave the way to a federal level legalization of marriage equality?

    If they appeal this and it goes to the U.S. supreme court, is that where the big battle is fought at last?

    Posted by: johnny | Feb 7, 2012 5:03:01 PM

  10. I'm reading lots of commentary stating that because the ruling was so narrow, it gives SCOTUS plenty of reason not to hear it. Wondering what Waldman's thinking is whether or not it will end up there.

    Posted by: RockinRobbie | Feb 7, 2012 5:09:06 PM

  11. I'm curious about a realistic timeline. How long would the appeals process take assuming the case is reheard by an 11 judge panel? What's the earliest or latest this could go before the Supreme Court?

    Posted by: Adam | Feb 7, 2012 5:10:57 PM

  12. What, if any effect, would a removal (either legislatively or by court decision) of DOMA have now that this ruing is in place?

    The analysis says that all that was involved was the use of the word "marriage" but that isn't strictly true, just practically true. Marriage conveys a great deal more federal benefits than a civil union or domestic partnership does, and the only access to federal marriage is via a state-granted marriage license.

    If a door is locked on both sides, giving you the key to this side only lets you get through the door if they unlock it on the other, but it's still significantly different than saying you don't get a key at all.

    Does Perry become stronger or weaker if DOMA falls, and would it matter if DOMA falls before the SCOTUS hears Perry?

    Because then, it wouldn't be just about the word, but about tangible and important benefits.

    Would the fact that federal benefits weren't available make it hard to claim that California citizens were deliberately saying "this much but no more" in a valid way, thus making Prop 8 valid, or would the fact that now, actual benefits were at stake mean that the Strauss ruling required marriage in a way that it previously didn't? And could either analysis be applied retroactively or would a new court case be required?

    Posted by: Lymis | Feb 7, 2012 5:12:29 PM

  13. Nice analysis. It really does seem to boil down to two different interpretations of what constitutes a 'rational' basis. On the majority side, that's safer than putting forth an argument regarding heightened scrutiny and getting shot down at the next stage. Judge Reinhardt's opinion uses "rational" in the most straightforward sense (is it logical? is it coherent?). Judge Smith seems to be saying that any A->B logic will do regardless of whether it's supported by evidence. Didn't the prop 8 proponents have to present evidence of the rational basis at the original trial? Wouldn't that evidence (or lack thereof or Judge Walker's judgment on it) be important here?

    Posted by: TomL | Feb 7, 2012 5:27:04 PM

  14. It's worth noting that the dissenting judge, Randy Smith is Mormon. Perhaps it shaded his reasoning ?

    Posted by: Mike | Feb 7, 2012 5:27:38 PM

  15. Are there broader implications, if any, for non gay marriage issues regarding gays as a class?

    Posted by: facts | Feb 7, 2012 5:28:03 PM

  16. You know what would help? "A Fierce Advocate." Anybody see one around?

    Posted by: Wavin' Dave | Feb 7, 2012 5:31:04 PM

  17. Thank you so much , Ari,; I thoroughly enjoyed your exposition of the myriad of issues and the implications of what has been decided.
    I especially liked your reference to Romer -v- Evans, Colerado and the precedent of that case.

    Posted by: JackFknTwist | Feb 7, 2012 5:36:00 PM

  18. Could someone answer this question for me? If SCOTUS picks up this case, are they limited to rule on just the findings of this ruling today - (14th amend - Romer??) - or could they also rule on the things like the fact that the word "marriage" itself should get strict scrutiny?

    Posted by: OppressedinFLA | Feb 7, 2012 5:36:22 PM

  19. For KEN:
    The situation in WA state is a bit different. Once signed, there will be a waiting period until the marriage equality law goes into effect. If, before that date, a referendum qualifies for the ballot by getting enough signatures, the effective date of the law is on hold until after the referendum. So it could be argued that we wouldn't actually have had the right to marry before it was rescinded (unlike in CA). Also I think the stay would prevent this decision from being applied to other situations beyond Prop 8.

    Posted by: TomL | Feb 7, 2012 5:38:04 PM

  20. @Ken: My non-lawyery guess here is that it could be applied to a situation in Iowa and/or NH if the right for gay couples to marry existed but was revoked, as it was in California. It would have no effect on Washington or Maryland because in those cases the laws would not take effect until after the corresponding referendums upheld them.

    Posted by: Bruno | Feb 7, 2012 5:45:33 PM

  21. What did the justices have to say about Prop 8 protecting religious freedom, and preventing children from being taught about same-sex marriage in school? Both seem to be the strongest arguments that anti-gay foes keep bringing up to turn swing and conservative voters against us

    Posted by: Daniel Villarreal | Feb 7, 2012 5:47:46 PM

  22. Yep, the more narrow the ruling and its applicability (to California only), the less likely the US Supreme Court will grant cert.

    Posted by: Javier | Feb 7, 2012 5:55:57 PM

  23. how can one "prevent children from being taught about same-sex marriage in school"?

    that's the thing, Daniel - it's an argument that the opponents do indeed bring up, but it actually has no bearing whatsoever on the case, or the issue. yet, they bring it up. all the time. because they have no back up for their actual legal stances. it's the spectre of "gays are going to teach your kids new things!"

    that would be like preventing a kid from learning that Jews exist. or that sometimes people from mixed-ethnic backgrounds marry.

    or preventing kids from sex-education. or preventing girls from understanding why their vaginas are gonna start bleeding soon. and if we've learned anything from the movie CARRIE it's that denying teens knowledge about these realities means a bloodbath of epic proportions is on its way.....


    Posted by: Little Kiwi | Feb 7, 2012 5:57:31 PM

  24. @Oppressedinfla - good question. Unfortunately it is not one that will allow for an easy answer.

    The Prop 8 people will (presumably) seek review of this ruling by the Supreme Court. In their petition for review, they will "present questions" for review to the Supreme Court. The Supreme Court, in turn, has considerable discretion in deciding which of the presented questions to grant review on. In some circumstances, the Court may even present its own questions for the parties to present arguments on.

    For these reasons, it is very hard to predict what will happen if the case is accepted by the Supreme Court.

    To answer your question as to whether the Supreme Court is limited to the narrow ruling: the answer is no. Several things could happen - The Supreme Court could just agree with the 9th Circuit's narrow ruling which right now basically only applies to California (maybe Maine) and affirm that ruling. Or the Supreme Court could say: "We disagree with the ruling on the narrow question - i.e., with disagree with the interpretation of Romer v. Evans." At that point though, the Court can do two things: the normal course is to vacate the 9th Circuit's decision and to remand the case for the 9th Circuit to consider the broader constitutional question of whether the US Constitution requires that the state grant marriage licenses to same-sex couples. But, the Court could also address that question itself, particularly given that it was considered and ruled upon by the district court. Again, that is not the normal path - the Court normally lets both lower courts decide a question before tackling it itself.

    But thorny constitutional cases are rife with examples of the Court doing odd things, so trying to predict the actual outcome of the Supreme Court's review of the case is a fool's game if you ask me.

    If you're into fool's game (i.e. gambling) and want to place bets, my bet would be that (if, and that's a big IF right now) SCOTUS grants review at all, it will either affirm the narrow ruling or vacate it and remand for the 9th Circuit to consider the broader constitutional question.

    But, again, a myriad of other outcomes are possible. The decision tree has at least a dozen branches right now.

    Posted by: Jorge | Feb 7, 2012 6:20:34 PM

  25. Do you know of any sites on which people are doing legal analysis of these rulings but from a conservative point of view? It's hours after the ruling and the Prop 8 site hasn't even made mention that a new ruling came out, and certainly wouldn't have an honest analysis. I'd be curious to see the analysis from a conservative viewpoint.

    Posted by: Stephen | Feb 7, 2012 6:25:52 PM

Post a comment


« «News: Penguins, Karl Lagerfeld, Cape Town, Don Bivens, Smash« «