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.

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  1. "...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.

    Posted by: Gregv | Feb 8, 2012 10:42:14 AM

  2. 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?

    Posted by: MikeH | Feb 8, 2012 11:53:03 AM

  3. @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.

    Posted by: Jorge | Feb 8, 2012 12:20:30 PM

  4. 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?

    Posted by: Mark Szabo | Feb 8, 2012 12:57:45 PM

  5. 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.

    Posted by: Sheldon Laskin | Feb 8, 2012 3:17:57 PM

  6. 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.

    Posted by: MiddleoftheRoader | Feb 8, 2012 5:54:40 PM

  7. @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.

    Posted by: BZ | Feb 8, 2012 10:29:22 PM

  8. Here is the timeline for what happened in Oregon.

    Posted by: BZ | Feb 8, 2012 10:35:42 PM

  9. U.S. 9th Circuit Court of Appeals to Decide Whether Permanent Injunctions Are Unconstitutional

    Posted by: Guy Chamberlaim | Feb 15, 2012 5:23:41 AM

  10. « 1 2 3

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