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Proposition 8 Unconstitutional, 9th Circuit Rules: An Analysis

Prop8BY ARI EZRA WALDMAN

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.

Analysis

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.

CONTINUED, AFTER THE JUMP...

Standing

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).

Merits

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.

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Comments

  1. 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?

    Posted by: Zlick | Feb 7, 2012 6:27:23 PM


  2. @Jorge - Thanks!

    Posted by: OppressedinFLA | Feb 7, 2012 6:31:48 PM


  3. 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.

    truly.

    Posted by: Little Kiwi | Feb 7, 2012 6:33:46 PM


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

    Posted by: Anon | Feb 7, 2012 6:34:57 PM


  5. 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."

    Posted by: Mario | Feb 7, 2012 6:45:17 PM


  6. @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...

    Posted by: MikeH | Feb 7, 2012 6:53:10 PM


  7. @ 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?

    Posted by: Artie | Feb 7, 2012 6:58:05 PM


  8. 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--

    Carefully.

    http://www.youtube.com/watch?v=P6c7xhhmQO4

    Posted by: David Ehrenstein | Feb 7, 2012 7:00:51 PM


  9. Mr Waldman, Thank you!

    Posted by: Oliver | Feb 7, 2012 7:45:12 PM


  10. Time to get a grip.

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

    Just NOT.

    Posted by: Bingo | Feb 7, 2012 8:15:50 PM


  11. Will SCOTUS hear this?

    http://latimesblogs.latimes.com/lanow/2012/02/prop-8-supreme-court-may-not-hear-california-gay-marriage-case.html

    Posted by: Craig | Feb 7, 2012 8:53:01 PM


  12. 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?

    Posted by: Jed | Feb 7, 2012 9:10:02 PM


  13. Great breakdown of the ruling Ari, thank you! If protectmarriage.com 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?

    Posted by: Dana Chilton | Feb 7, 2012 9:41:37 PM


  14. 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...........

    Posted by: MiddleoftheRoader | Feb 7, 2012 9:53:14 PM


  15. 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.

    Posted by: Demian | Feb 7, 2012 9:59:23 PM


  16. 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."

    Posted by: Lucas | Feb 7, 2012 10:21:50 PM


  17. 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!

    Posted by: Ari Ezra Waldman | Feb 7, 2012 11:06:10 PM


  18. 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.

    Posted by: Keith | Feb 7, 2012 11:18:47 PM


  19. 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 ?

    Posted by: MalaysianHO | Feb 8, 2012 1:09:36 AM


  20. 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.

    Posted by: Mike C. | Feb 8, 2012 1:17:29 AM


  21. 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?

    Posted by: Michelle | Feb 8, 2012 1:24:21 AM


  22. @middleoftheroader
    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.

    Posted by: Elegir | Feb 8, 2012 6:25:48 AM


  23. @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.

    Posted by: TruthSeeker_Too | Feb 8, 2012 7:14:19 AM


  24. 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.)

    Posted by: BZ | Feb 8, 2012 9:01:07 AM


  25. (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.)

    Posted by: BZ | Feb 8, 2012 9:21:03 AM


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