California | Gay Marriage | News | Proposition 8

9th Circuit Upholds Ruling Striking Down Proposition 8


The Ninth Circuit Court of Appeals has upheld a ruling by Judge Vaughn Walker declaring Proposition 8 unconstitutional.

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Writes Judge Stephen Reinhardt in a 2-1 decision:

"We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does."

"Proposition 8 served no purpose,a nd has no effect, other than to lessen the status & human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

A stay on the decision remains in place, as many expected, so same-sex marriages will not immediately resume.

L.A. Times:

The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.

The ruling was narrow and likely to be limited to California.

The ruling upheld a decision by retired Chief U.S. District Judge Vaughn R. Walker, who struck down the ballot measure in 2010 after holding an unprecedented trial on the nature of sexual orientation and the history of marriage.

In a separate decision,  the appeals court refused to invalidate Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship.  Walker, a Republican appointee who is openly gay, said after his ruling  that he had been in a relationship with another man for 10 years. He has never said whether he and partner wished to marry.

Ari Ezra Waldman will have his analysis up as soon as possible, once he gets a chance to look carefully at the opinion. If you missed it, here's his briefing on what to expect, and what he'll address in the analysis.

Tune in HERE for the press conference by AFER attorneys and plaintiffs beginning in a few minutes at 10:30am PST.

10-16696 #398_Decision

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  1. Yes! Congrats to AFER, our HEROS!

    Posted by: Rhet | Feb 7, 2012 12:57:11 PM

  2. Awesome! Step by step, we're reaching equality.

    Posted by: Bakeley | Feb 7, 2012 12:57:28 PM

  3. WooHoo ... onto the SCOTUS!!!

    Posted by: badlydrawnbear | Feb 7, 2012 1:00:26 PM

  4. A GREAT DAY in history of civil marriage rights!!

    Posted by: Joey | Feb 7, 2012 1:00:49 PM

  5. YEHAW!

    Posted by: TJ | Feb 7, 2012 1:02:00 PM

  6. Everything I read said Walker's opinion was airtight. Still, cue the conservative freakout over "activist judges" in 3..2..1...

    Posted by: Butch | Feb 7, 2012 1:03:38 PM

  7. As happy as I am about this ruling it's disappointing and SCARY that it was a split decision and was only one judge away from going the other way.

    Posted by: TampaZeke | Feb 7, 2012 1:05:27 PM

  8. I'm very interested in reading the dissenting opinion, especially since the Pro Prop 8 attorneys were so abysmal in making their case. It's concerning to me that one judge STILL sided with them.

    Posted by: TampaZeke | Feb 7, 2012 1:07:38 PM

  9. Right? 2 Two to One. I think I more interested in reading the dissent. WTF?

    Posted by: Zlick | Feb 7, 2012 1:08:37 PM

  10. ten bucks says the dissenting "justification" will be as willfully dishonest and evasive as Scalia's "yeah, gay buttsex should be criminal" rubbish.

    this is good news. the decision was stayed, but this is good news.

    Posted by: Little Kiwi | Feb 7, 2012 1:10:46 PM

  11. Hooray! Give up haters. You will never win.

    Posted by: ichabod | Feb 7, 2012 1:11:17 PM

  12. Madonna tourdates, now this... the only thing that could make this day any better is if Antonin Scalia choked on a chicken bone at lunch.

    Posted by: endo | Feb 7, 2012 1:13:31 PM

  13. Anyone with a brain could have seen that. And then you have the Conservatives.

    Posted by: thomas mc | Feb 7, 2012 1:15:07 PM

  14. Just reading through the ruling, this is my favorite line so far:

    "The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."

    Bam! Take that!

    Posted by: RyanInSacto | Feb 7, 2012 1:19:47 PM

  15. A great decision for CALIFORNIA, and CA only.

    The decision doesn't hold that disallowing gay marriage is unconstitutional. It ONLY holds that once gay marriage has been ALLOWED, that *taking it away* is unconstitutional.

    So yes, it's a good decision, but it is EXTREMELY limited in application. Enough to be happy about, not nearly enough to be thrilled.

    Posted by: Jack | Feb 7, 2012 1:20:27 PM

  16. YES!!

    Posted by: Linda | Feb 7, 2012 1:20:34 PM

  17. @Thomas MC ... before you go off on 'conservatives' remember that it is two conservative lawyers who are leading the fight against prop 8 for us.

    Posted by: badlydrawnbear | Feb 7, 2012 1:21:03 PM

  18. I concur with other posters about the dissenting vote by the Mormon judge. It just reinforces the liberal vs. conservative bias judgements by courts, and will give renewed hope (and activism) to those wanting to deny the LGBT community its full constitutional rights when they reach the much more conservative-leaning US Supreme Court. What did the dissenting judge base his decision on in the case presented before him? I'm really curious about how he justifies his opinion without using his predisposed religious bias considering it was his faith that basically bankrolled and pushed the proposition in the first place.

    Posted by: Keith | Feb 7, 2012 1:21:11 PM

  19. Let's not get too excited. After reading the opinion it's clear that this is a step in the right direction but a VERY limited and narrowly defined step. It isn't nearly as far reaching as people might have hoped or thought. The way it is written it will have very little effect outside of California where the state gave the right and then took it away and then gave all of the rights but not the name. This narrow definition of why Prop 8 was unconstitutional will keep it from applying to the rest of the country or even to the other states of the ninth district since none of them have given the right of marriage and then took it away and then offered all of the rights but not the name. Not even Washington currently fits the bill. Even if this case is taken to SCOTUS and won it will probably still only apply to California.

    Rather a disappointing decision for those of us who aren't Californian.

    Posted by: TampaZeke | Feb 7, 2012 1:25:33 PM

  20. I posted a Comment yesterday regarding Ari's on-line article. I noted that the 9th Circuit could issue a narrow decision that would apply to very few other states -- i.e., a decision that California violated the constitution because it TOOK AWAY a prior right to marry that same-sex couple enjoyed under California law (and taking away a right is more serious than refusing to grant or recognize a right in the first place) AND ALSO that California had already given same-sex domestic partners the same rights as opposite-sex spouses (so that refusing to allow a same-sex relationship to be called 'marriage' had no compelling or reasonable basis in the record). This seems to be EXACTLY the analysis used by the 9th Circuit.

    Many will be understandably upset that the 9th Circuit ruling is so narrow. But I think it's benefit is that it makes it less likely that the Supreme Court will reverse it, and more likely that a swing vote like Justice Kennedy might even agree.

    Oh well, lots will be written about this........

    Posted by: MiddleoftheRoader | Feb 7, 2012 1:27:12 PM

  21. The decision seems to say that because CA has a domestic partnership that is equal to marriage in all ways EXCEPT for the term, "marriage," that term may not be denied simply based on sexual identity.

    By this standard, only states that currently have domestic partnerships that are FULLY equal to marriage will be impacted.

    To block this decision in other states, they need only make some difference between domestic partnership rights and marriage rights.

    I fear that this might create a drive to limit domestic partnership rights. The more the two are different, the more the CA ruling will not relevant.

    Posted by: gr8guyca | Feb 7, 2012 1:29:44 PM

  22. The dissenting judge -- the Mormon bigot appointed by Bush -- predictably ruled against us. Just finished reading his dissent in which he goes to great lengths to explain his bigotry by "state interest" in procreation. There is literally so little in the trial for him to base his decision on that he continuously inserts old court cases that were not properly entered as evidence in the trial, as if he's trying to save the Prop H8ers from their own incompetence. He cites Supreme Court Justice Scalia about 100 times -- clearly his dissent is meant to serve as a guide for him and the anti-equality judges once / if this reaches the Supreme Court.

    It all comes down to Kennedy, just as we always suspected. Let's see if the haters go straight to the Supremes or go for an en banc appeal.

    Posted by: Jollysocks | Feb 7, 2012 1:30:05 PM

  23. We should all do well to remeber than in his dissent on Lawrence vs. Texas (the ruling that overturned "Sodomy" laws that made us a "suspect class" and quasi-criminals by definition) Fat Tony Scalia decared that if such laws were overturned same-sex marriage woudl be established.

    Att the time that seemed odd to me. But the old creep was absolutely right.

    Waiitng for Ezra's word but I suspect he'll agree with Jeffrey Toobin who just said in CNN that thinks the Supremes will pas on the prop 8 ruling -- thus makign it applicable to California only for the moment.

    Posted by: David Ehrenstein | Feb 7, 2012 1:30:31 PM

  24. @BADLYDRAWNBEAR: It's actually one liberal, one conservative. In fact, they faced off against each other in Bush v. Gore.

    Posted by: RyanInSacto | Feb 7, 2012 1:31:55 PM

  25. This ruling is bad because it puts the Supreme Court in the position to rule against it. They're already miffed at Judge Walker for his procedural end-run to get the video of the trial publicly released, and they're not fans of Reinhardt and the 9C -- they're the most overturned circuit in the country. But this is setting Kennedy up nicely for a ruling that says SSM is a state issue and Proposition 8 doesn't actively discriminate against a class of people because it doesn't allow gays to marry the individual of their choice.

    Posted by: Jay | Feb 7, 2012 1:46:10 PM

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