Proposition 8 Unconstitutional, 9th Circuit Rules: An Analysis


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.


  1. says

    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”


  2. Jorge says

    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)

  3. Jorge says

    Sorry, the first line should read: “answering the broader *constitutional* question is not outside the 9th Circuit’s jurisdiction”

  4. wafflefish says

    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?

  5. Ken says

    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?

  6. bostonian says

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

  7. johnny says

    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?

  8. RockinRobbie says

    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.

  9. Adam says

    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?

  10. Lymis says

    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?

  11. TomL says

    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?

  12. Mike says

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

  13. facts says

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

  14. says

    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.

  15. OppressedinFLA says

    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?

  16. TomL says

    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.

  17. Bruno says

    @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.

  18. Daniel Villarreal says

    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

  19. Javier says

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

  20. says

    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…..


  21. Jorge says

    @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.

  22. Stephen says

    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.

  23. Zlick says

    Ari, did I read the opinion wrong, or am I reading your analysis wrong? It seems to me the court did not reach the questions of whether there’s legitimate state interests in promoting potentially procreational marriages, or promoting opposite-sex marriages as the “best” option for child-rearing in depriving gays and lesbians from use of the term “marriage”, but merely that Proposition 8 in particular was not related to those ends.

    If so, how would this affect or not affect precedent for any future litigation under different circumstances – say, for instance (and as hypothesized in the Opinion) if a law strips away marriage rights PLUS adoption rights?

    And generally, with the court keeping everything to the narrowest band possible in this ruling – what are the potential dangers of marriage equality opponents simply “working around” this ruling with even more draconian and substantive attacks in the future? Might this ruling even go so far as to encourage that sort of thing?

  24. says

    I’d like to know if there’s a chance that the Prop 8 team’s “arguments” could inadvertently result in mandatory fertility-tests being done before marriage licenses are granted.

    because, you know, that would actually make a brilliant point to the rest of the non-gay communities.

    it still blows my mind that non-gay people don’t realize that what Prop 8 really was was the enforcement of Mormon values onto Non-Mormons.


  25. Anon says

    Excellent analysis. I didn’t know that a circuit court could affect policy outside its jurisdiction. This could really affect Maine, Ari?

  26. Mario says

    Can you explain the opinion of the dissenting judge a little more? I feel like his reason is weak at best. Just because the majority of people at one time rationally believed the world was flat, therefore, had a rational basis for persecuting scientists who disagreed with the majority, did not make the world flat. A judge is supposed to be impartial. The law, ideally, is supposed to be blind, looking at the best rational evidence objectively. This is what scares me about the Supreme Court with all the conservative leaning judges. He basically said “even if the science was bad and even if connection between Prop 8 and promoting opposite-sex marriage is dubious, Prop 8 might still be justifiable.” He then proceeds to give no solid, rational, objective reasons for his justification, only “the people meant well.”

  27. MikeH says

    @Mario… I was thinking the exact same thing… I read Judge Smith’s dissent and thought “huh”? The “people meant well” isn’t exactly a reason, especially when the evidence leads a rational person to the conclusion that they just don’t like gay people. Ari, would really appreciate if you could enlighten us on what we are missing here, cause at the surface Judge Smith appears to be really reaching…

  28. Artie says

    @ Ari,

    Let’s assume that the anti-equality litigants ask the Supreme Court to hear the case, and the Supreme Court declines and lets the appellate decision stand. Do the anti-equality litigants then lose their right to ask for an en banc hearing, or do they still retain that right?

  29. says

    Great analysis, Ezra.

    I tend to think the Supremes will take a pass on this because it’s narrow — ie. applies to California speifically. They’re not about to invalidate other states that have established Marriage equality.

    And I doubt the other justices (save for Uncle Clarence) agree with Fat Tony Scalia on Lawrence Vs. Texas.

    Listen to this clip of his dissent–


  30. Bingo says

    Time to get a grip.

    The decision did NOT say “that a ban on same-sex marriage unconstitutional.”

    Just NOT.

  31. Jed says

    Ari, if the impending bill to repeal marriage equality in New Hampshire were to be successful, do you think today’s Prop 8 decision can be used as a legal precedent to render that repeal bill as unconstitutional?

  32. Dana Chilton says

    Great breakdown of the ruling Ari, thank you! If files its appeal directly with SCOTUS and skips an attempt at an en bac hearing by the 9th and SCOTUS declines to hear it, is the issue over?

  33. MiddleoftheRoader says

    To answer questions of MikeH & Mario: the dissent is clever.

    1) The dissent said there were two rational (reasonable) grounds to prohibit same-sex marriage: encouraging responsible pro-creation within the context of a man-and-woman (since only a man and woman can naturally pro-create without ‘other’ assistance), AND promoting the raising of children in a man-and-woman marriage, which is the “optimal” way to raise children. Although these ‘reasons’ seem irrational or not based on fact, the dissent argued that because “reasonable people” can disagree whether the facts support these ‘reasons’, then it is not the place of a court to decide that these ‘reasons’ are arbitrary or irrational under the 9th Circuit’s “rational basis” test (using Roemer v Evans). In other words, unless it is essentially impossible for one of these ‘reasons’ to be correct, then it’s not irrational for a decision to be based on one (or both) of these reasons.

    2) To support the above point, the dissent quoted from ex-Justice O’Connor who concurred in LAWRENCE v TEXAS when she wrote that “Texas cannot assert any legitimate state interest here [in criminalizing sex between two same-sex people], such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations — the asserted interested in this case — other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” So the dissent was very clever to quote from an ex-Justice whom many people (Dems & Republicans) respect. (of course, her views might be different today).

    3) Keep in mind that Justice Kennedy — deciding vote — is LESS liberal than ex-Justice O’Connor. So even though the 9th Circuit ruling is very narrow, there’s no assurance that the Supreme Court would uphold the 9th Circuit if it takes an appeal. One can see Justice Kennedy (along with the rapid conservatives like Scalia, Thomas, Alito and Roberts) deciding that the dissent is correct, just like ex-Justice O’Connor had implied in LAWRENCE v. TEXAS.

    IN OTHER WORDS, although the dissent’s opinion is repulsive and based on myth rather than fact, there is no assurance that the Supreme Court won’t take the same approach as the dissent. Hopefully the narrowness of the 9th Circuit ruling, and the fact it would apply only to California (and maybe New Hampshire and Iowa, if NH or Iowa repeal same-sex marriage), will mean that the Supremes will stay away from this case.

    One other interesting fact: Washington DC enacted ‘same-sex marriage’, but Republicans in Congress are threatening to “undo” it, either by overturning it directly (less likely now) OR by requiring Washington DC to hold a referendum and abide by the results. This can be done because Congress has the power to legislate for Washington DC (it’s in the Constitution). The fear has been that a Republican Senate & Republican House would pass such a law for DC, and a Republican President would sign it — which would put same-sex marriage to a vote in DC. It would be very, very interesting if the rationale in the 9th Circuit case was used in the future to find that CONGRESS acted unconstitutionally in requiring DC voters to decide if same-sex marriage should be continued. Hmmmmm………..

  34. Demian says

    The majority opinion leaves open the question whether the mob can take away previously-conferred civil rights if there is slightly more of a rational basis than zero. Worrisome.

  35. Lucas says

    Volokh Conspiracy thinks the decision is weak and very susceptible to be overturned by the US Supreme Court, mainly because it thinks the Supreme Court will find that Prop 8 meets the low standard of rational basis. Further, Orin Kerr thinks Reinhardt did not think the Supreme Court would find a constitutional right to same-sex marriage and therefore tried to craft the narrowest of decisions to delay the Court from deciding that issue while it is hostile to the notion:

    Orin Kerr • February 7, 2012 1:47 pm

    Why bother with the headlines of today when you can offer the headlines of tomorrow? Judge Reinhardt’s amicus brief in favor of striking down Prop 8 — aimed squarely at Justice Kennedy, naturally, and based largely on his opinion in Romer v. Evans — is available here.

    “Based on a quick skim, Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer AMK a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker’s opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.”

  36. says

    oh, orin! :) hes brilliant, but i disagree that this decision is weak and susceptible to be overturned bc of the supposed weakness he cites.

    but, more on that later. THANK you everyone for all your comments. im sorry i havent gotten to respond to them quite yet. its a busy week for me, as i head to give a talk at a symposium. i will get to the questions as soon as possible and, perhaps, accumulate them into a new post with some subsequent thoughts. todays post is just an initial reaction, with many more thoughts to come. thanks everyone for reading and commenting!

  37. Keith says

    This method of social reform by hoping for favourable non bigoted judges to vacate bigoted voters is very slow and tedious. It requires a flu epidemic to kill off the Supreme court and a Liberal President to appoint some new ones. And maybe the flu to remove some of those senators standing in the way of confirmations too.

  38. MalaysianHO says

    I have a question.
    So now that marriages are on hold until the Prop8 supporters file an appeal, how long do they have to file an appeal ? What if the upper court takes more than year JUST TO ANSWER whether they will hear the case , will marriages still be on hold till then ?

  39. Mike C. says

    Big question for me was WHEN this might be heard by the Supreme Court. If it were heard and decided on by the Supreme Court before the November election, that would seem pivotal and probably very bad news for all of us.

  40. Michelle says

    Cam someone PLEASE answer this for me. I’m hearing the supreme court could deny seeing this case as it only pertains to California and isn’t that ‘important’….so IF the Supreme court decides not to hear this case? what happens then?

  41. Elegir says

    I have a bit of a logic problem with your first brackets, where you say, concerning the dissenting judge’s cleverness:
    since only a man and woman can naturally pro-create without ‘other’ assistance

    I’m pretty sure I understand your argument here (or the judge’s argument!) but I think that the logic only seems to work because of the way you’ve used the words “man and woman”. For example, if you narrowed the sentence and said “fertile man and fertile woman”, then the sentence would still be correct but your conclusion would justify only allowing *fertile* men and women to marry.

    As a further example, if you broadened the sentence and said instead “since only 2 people can naturally procreate…”, then again the sentence would appear to justify the conclusion that (any?) *2 people* can marry.

    Sorry if I’m misunderstanding (being neither a lawyer nor an American!) and thank you to you and others who have picked up the legal questions while Ari’s busy.

  42. TruthSeeker_Too says

    @Mike C : It is very remote that the Supreme Court would hear arguments in this case (and even more unlikely that it would issue a decision) before the November 2012 elections–assuming they even agree to take up the case. Do do otherwise, SCOTUS would have to order an expedited appeal which is VERY rare–especially in this case since there is an order in place (called a “stay”) that keeps any decision from being implemented until the “stay” is “lifted” (or dissolved) by the courts.

    @Michelle: If the Supreme Court refuses to review this case, then the ruling issued Feb. 7th by this 3-judge panel of the Ninth Circuit becomes the final result. Gays would then again be permitted to marry in California.

    Also, the anti-gay forces have to make a choice in the next couple of weeks to either (1) ask for an en banc “rehearing” before a panel of 11 justices of the Ninth Circuit Court of Appeals who would rehear arguments by both side and vote to decide the case–and possibly issue their own opinion/decision–which will take many months to schedule and decide. After the en banc ruling, either side would have the option to appeal to the Supreme Court or (2) they can roll the dice and appeal this decision to the Supreme Court and hope SCOTUS will take the case (which is called “granting cert” or more formally, “granting certiorari”). If SCOTUS takes the case, then we have the third and final round in this case–unless SCOTUS remands it back the the district court (unlikely) or the court of appeals for further consideration.

    Confused? That is why attorneys get paid a lot of money and why us gay people have to be very grateful to our legal counsel for all their, dedication, hard work and effort.

  43. BZ says

    It occurs to me, after reading this analysis, that if the Proponents go to the Supreme Court rather than en banc, the refuses to hear the case, and the decision stands throughout the Ninth Circuit, that Oregon’s Measure 36 will be legally vulnerable. Like California, we have a everything-but-marriage domestic partnership law that can never be “upgraded” to full marriage rights as long as this mini-DOMA provision remains in the Oregon Constitution. That places Oregon same-sex couples in a position analogous to the LGBT community in Colorado after Amendment 2 was passed, namely, as a class of people singled out to carry a special legal burden. Just as with CO2, we cannot lobby the legislature or the state courts for a redress of grievances because the constitution was specifically amended to specifically block us from doing that. We could go back to the ballot box to get the DOMA amendment repealed, but the same was true of CO2. That should be true regardless of whether same-sex couples in Oregon had ever been allowed to marry, because when CO2 was passed Colorado didn’t have a statewide gay rights law (although some local jurisdictions did.)

  44. BZ says

    (continuing my previous comment) So, the scenario in Oregon would be: we file suit in the Ninth Circuit, it invalidates that constitutional ban on same-sex marriage, BUT that doesn’t mean same-sex marriage automatically becomes legal in Oregon. It just means we can pursue a law to enact same-sex marriage thru the legislature and governor (both controlled by the Democrats.)

  45. Gregv says

    “…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.”

    @Mario and @MikeH. : How weird, my mind went EXACTLY where the two of your did when I read this part of the analysis.
    I imagined the people of some backward country passing a law that no one may travel beyond the horizon so as not to fall off the edge of the world.
    I don’t know how Judge Smith could argue that someone could “rationally believe” something when the reasoning for the belief is irrational.

  46. MikeH says

    One addition thing I am unclear on… I know the SCOTUS could refuse to hear the case; and I think the Prop 8 folks want to just delay, delay, delay so I would bet they will of course request an en banc from the 9th Circuit. My question is can the 9th Circuit say nope, we decline and refuse? Which would force the Prop 8 folks to go directly to SCOTUS?

  47. Jorge says

    @Mikeh: Yes, the 9th Circuit judges have to vote to grant the rehearing en banc – this process itself can take a few weeks. If the “no en banc” side prevails, the judges wanting to review en banc would have a chance to write an opinion dissenting from the denial.

    SCOTUS will not take years in deciding whether to review the case. The Prop 8 side has 90 days to ask SCOTUS to review the case, our side has a month (I think?) to oppose that. SCOTUS will then calendar the petition for the coming months and decide whether to review it or not within a few months at the most (but certainly not in time to decide it before the November election). There are rare cases in which SCOTUS defers consideration of whether to review a case a few more months, but as far as I can recall this has only happened once in the last several years (with a Guantanamo-related case, where it took them almost a full year to decide whether to even hear the case). Again, that is extremely rare. The normal time table between asking SCOTUS to review a case and a decision either way on that is about 4 months.

  48. Mark Szabo says

    A couple fo questions

    Say the outcome is this ruling is the final ruling on this case whether SCOTUS or the en banc 9th either both agree with the ruling or refuse to hear it. What next? I’m guessing folks are scouting out which populous states with out civil unions/domestic partnerships that have little support for a ballot run might be good to push the next marriage case. OH PA FL and TX seem to be the best targets since ballot measures would probably be harder to win there. Which state and circuit do you see being the best for our “case” to go forth?

    With this narrow ruling could our side appeal for a more broader ruling to answer the broader question? Would it best be to delay and appeal to the 9th en banc in hopes that the DOMA cases reach SCOTUS quicker and provide more opinions on marriage? I see the other side dropping the issue right now or rushing to get SCOTUS to decide in hopes that they accept the 9th’s decision so that in relation to the other states the impact is indirect.

    I don’t see this SCOTUS ruling against the LGBT community. Whether it is 6-3 or 5-4 is the question. I’m still looking for a decision that Kennedy has made that has hurt the LGBT community. Everyone keeps saying he is mixed in his rulings. Where so?

  49. Sheldon Laskin says

    I at first thought the 9th Circuit decision might have implications in Maine, but on reflection, I think not. The 9th Circuit decision turned on the fact that there was a preexisting right to same sex marriage in CA (the CA Supreme Court decision) that Prop 8 took away. It is true that Maine voters, by a narrow margin, rejected the Maine statute legalizing same sex marriage. But that statute was expressly conditional on approval by the voters; that is how the statute was referred to referendum. So arguably there was no “preexisting” right to marriage in Maine; the referendum, had it gone the other way, would have established the right.

  50. MiddleoftheRoader says

    To Elegir: Yes, I think you correctly understood what I wrote about the dissent’s reference to a heterosexual couple being able to produce children. I didn’t quote the exact words, and personally I find that argument non-persuasive. But the point of the dissent is essentially that if ANY person could rationally believe that argument, then it provides a rational basis for denying marriage in CA. And so, if you read the dissent’s reference to Justice O’Connor’s opinion in the Lawrence v Texas case, the dissent believes that even O’Connor would see that argument as rationale to some people.

    To BZ: I don’t think the 9th Circuit decision automatically applies in Oregon, for the reason some commenters have said: there was never a right to same-sex marriage in Oregon that was taken away. Ditto for Washington State — if the legislature passes same-sex marriage but it doesn’t go into effect until after the referendum, then the right never existed, and so it would not be ‘taken away’. However, in some respects the difference between ‘taken away’ VS. “you can never have it’ is relatively small. In Romer, the Amendment took away rights of gay people in Aspen, Boulder & Denver, but it also prevented gay people from trying to gain those rights in other cities. The Romer court really didn’t distinguish very heavily between ‘taking away’ VS. ‘trying to obtain’.

    However, Judge Rheinhart makes this distinction here because he really is trying to keep the decision as narrow as possible to avoid Supreme Court reversal. Therefore, he would probably say that Justice O’Connor might have been right in saying that a state might have a rational basis to refuse to extend marriage to same-sex couples, BUT — and this is important — once a state like California has created domestic partnerships that have the same rights as marriage, and once a state has allowed same-sex marriage, then it is not rational to take away that right.

    We will see how this plays out. Everyone is quoting Justice Kennedy’s prior decisions, but we should keep our eyes on Justice O’Connor’s language in the Lawrence case to see if the conservative Justices (and Justice Kennedy) pick up on it as a basis to reverse the Ninth Circuit.

  51. BZ says

    @Middleoftheroader: Actually, same-sex marriage WAS recognized in Oregon, briefly. On March 3 2004 the Multnomah County (Portland) Board of Commisioners announced that, since nothing in Oregon law specifically precluded same-sex marriage, and taking into account the Tanner decision from 1998 outlawing discrimination against same-sex couples, they would begin issuing marriage licenses on behalf of the state. My husband and I were couple #111 in line the following morning and got married immediately. We saved the receipt for the $60 fee, and received a license from the state. It’s been a long time, but I believe marriages may also have been performed in Eugene, and they are legal to this day in the Coquille Indian Reservation on the southern coast.

    While the legal challenges were winding their way thru the courts, a ballot initiative – Measure 36 – was passed amending the Oregon Constitution to prohibit same-sex marriage. The Oregon Supreme Court then invalided all of the marriages that had occurred during 2004.

    I submit that the actual facts of what happened in Oregon state should not be so quickly submissed as being unaffected by the Ninth Circuit’s decision.