The Ninth Circuit’s Prop 8 Ruling: What To Expect Tomorrow? (UDPATED)

If you read the question again, you might notice the careful choice of words: this appeal is not just about the constitutionality of Prop 8; more accurately, the appeals court is passing judgment on whether Judge Walker erred when he declared Prop 8 unconstitutional. The difference matters. From Day 1 of Civil Procedure and Federal Courts, law students know that it's a lot easier for an appellate court to affirm a decision below than reject it. This is what makes this case so important. 

Olson_boiesThe psychological, sociological, and historical evidence that the American Foundation for Equal Rights (AFER) and its legal team of Ted Olson, David Boies, and a host of others so skillfully offered at trial was left unanswered by Protect Marriage at trial. In fact, Judge Walker stated numerous times that this or that factual finding was offered unopposed, with no evidence to counter its veracity. So, in the Perry case, the record shows all the psychological evidence that shows that gay parents make excellent parents, that their children grow up to be just as productive as the children of heterosexual parents, and that the state's other justifications for a ban on same-sex marriage have no foundation in facts. The record is also devoid of any evidence contradicting the conclusion that marriage is not about procreation, but about an enduring and emotional union of two people in love. 

A federal appellate court is limited to the record before it. It cannot make decisions based on outside information or anything not raised at trial. The court also has to approve factual findings unless they are "clearly erroneous," and while George Rekers and Tony Perkins and their ilk might disagree with the findings, the findings are certainly not "clearly erroneous" and there is no evidence to suggest they are. A positive Ninth Circuit decision, then, will not only affirm a right to marry under federal law, but it will affirm these facts and conclusions we all know to be true as a matter of federal law, and these facts can be used in other gay rights cases.

This is the main reason why Perry v. Brown is so important, and why we should thank AFER, its leadership, and its legal team for the progress they are making on behalf of all gay persons. No hypothetical ballot initiative to overturn Prop 8 — even if successful! — could help every other gay rights matter like a positive Ninth Circuit decision in Perry could. Advocates would have circuit court precedent for the true equality of gay people as a matter of fact and law, and that would play well in cases related to the Defense of Marriage Act, adoption and surrogacy, employment discrimination, federal benefits for gay service members, anti-harassment laws, and so on.

Third, did Judge Ware abuse his discretion when he denied Protect Marriage's motion to vacate the lower court decision on the grounds that Judge Vaughn Walker should have recused himself? As we have discussed, Protect Marriage's basis for that motion was that because Judge Walker is gay and was in a long-term relationship at the time of trial, he should not have passed judgment on Prop 8 because he may, at some point in the future, want to marry. Judge Ware dismissed that argument as pure conjecture and offensive — that a gay man cannot be impartial is the stuff of insidious stereotypes. We expect the Ninth Circuit to uphold his decision.

UPDATE: What is the standard of review for discrimination on the basis of sexual orientation?

When Perry began, the governing theory was that sexual orientation discrimination gets the lowest standard of review — rational basis — which means that any discrimination against gays can be justified if there is "any conceivable … legitimate state interest" behind the discrimination. Even though that is a low standard, the Supreme Court has found that certain anti-gay discrimination cannot even pass that hurdle (Romer and, perhaps, Lawrence). Judge Walker concluded that Prop 8 does not pass rational basis review by finding that all the state's possible justifications were baseless and just a smoke screen for anti-gay animus. He also offered an alternative holding that sexual orientation discrimination deserved strict scrutiny because of the history of anti-gay discrimination and the immutability of sexual orientation, among other factors. Since then, President Obama has called for heightened scrutiny — between rational basis and strict scrutiny — for state action that discriminates on the basis of sexual orientation. The Ninth Circuit has the first opportunity to declare a standard of review for anti-gay discrimination in this new legal context.

What happens after tomorrow?

Unfortunately, even if the Ninth Circuit affirms Judge Walker's decision, we could not automatically marry our loved ones. The court would have to lift the stay of Judge Walker's order, which it is unlikely to, given the expectation of future appeals.

The losing side has the option of petitioning for a rehearing en banc, which is a reconsideration of the issues by more judges (likely, 11) than just the three on the current panel. A decision on that motion could take a few weeks, but if a rehearing is granted, there could be another hearing. Given how important this case is, an en banc rehearing seems likely. Again, the losing side could then petition for a writ of certiori before the Supreme Court, asking the nation's highest court to take the case, or any part of it. If Perry reaches the Supreme Court, it will most likely be in the Court's next term (2012-2013).

What does this all mean?

Many of us are expecting a positive omnibus decision covering standing, merits, and the motion to vacate. I think the denial of the motion to vacate will be affirmed, standing will be granted, and Judge Walker's conclusions of law will be affirmed. And, when that happens, it will be the greatest day in gay rights history in this country since Lawrence v. Texas. Marriage is a proxy fight for so many things: adoption, surrogacy, access to state entitlements, equality in general. But more importantly, Perry is the vessel through which our federal law will finally recognize the inherent value of who we are. If we can marry, and our law dispenses with the last vestiges of state rationales for anti-gay discrimination — all of which have been levied against us in Perry — then states will have few reasons to discriminate against us in other areas. If we can marry, we will finally be able to say, "We belong."


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. RonTEX says

    Thanks Ari, great summation for all us non-lawyers who just want to understand the bigger picture.

  2. Real Talk says

    This was BEAUTIFUL and lol fired me up. Let’s get these results now! dang, I’m ready for change. Hoping tomorrow is a bright day for gay rights!

  3. Rob says

    While I respect your commitment to this case, there just has to be a shorter way to summarize this.

  4. Real Talk says

    Rob, you just made yourself sound so damn dumb. Do you realize how badly you insulted your (lack of) intellect?
    WAHHH reading is sooo hard. WAHH. My brain hurts.

  5. Utopiabc says

    @ Rob, step out of the way and go back to trolling craigslist and looking for down low dudes. This issue is clearly to complicated for you dear. It’s ok, not everyone is meant to understand big issues with big words.

  6. TJ says

    ROB – given that this is already a distillation of main points, I’m afraid there are no Cliff’s Notes.

    ARI – thanks!

  7. Tyler says

    Ari I’m curious how you reconcile your opinion on the standing issue with Karcher v. May. Seems to me in light of that case that the Supreme Court of California gave the proponents a golden ticket to standing, one that can’t be reviewed by federal courts due to its state-law basis. And it seems further that Judge Reinhardt, a brilliant liberal strategist, deliberately certified the question for that very purpose, to avoid SCOTUS weaseling out of standing like it did on the Newdow Pledge case in 2004.

  8. Marco Luxe says

    When can a motion to lift the stay be heard? Can the court lift the stay of its own accord?

    The balance of equities seem to weigh heavily in favor of lifting the stay during further appeals. This seems obvious considering that no articulable harm has arisen from the existence of state-level marriage equality for pre-Prop 8 gay couples, while other post-Prop 8 gay couples face the risks and burdens of not being able gain the protection of legal marriage.

  9. enough already says

    Ari, thank you.
    Rob, if reading a text which for a non-native English speaker like me took exactly three minutes is too burdensome for you, may I recommend FAUX News?

  10. says

    @tyler: thank you for your question. im no strategist of the appellate courts. nor can i see inside the reinhardt mind. but i think its entirely possible that youre right about the second point. i mentioned that in my troad post when the court first certified the question: even though its not necessary, it will cover all the 9th circuits bases to avoid any hint of not being by the book. however, i dont think karcher v. may is determinative. karcher said that for a law passed by the legislature, the speaker of the state house and president of the state senate can step into the shoes of the state. those elected representatives, who were 3 and 4 in line for governor of nj are in a qualitatively different position vis-a-vis state laws than citizen initiative proponents. arizonans for official english v. arizona is a lot closer, but even that involved an explicit state law granting standing as a matter of state law, which does not exist in california.

  11. says

    @marcoluxe: the 9th circuit could lift the stay if it wanted, but i highly doubt it will. while the initial determination for granting a stay involved a balancing of the equities, there has been little to change the scenario that warranted the stay in the first place (at least according to the court).

  12. enough already says

    Because you have taken the time to respond to questions here, I will put one myself. If you can find the time to answer it, thanks! Thanks for your great explanations, regardless.

    If the court finds for us tomorrow (for same-sex marriage), is there any way to expedite all of these endless appeals to the Supremes? If not, how many more appeals must we endure? Assuming the haters finally lose on this in front of the Supreme Court, can they then go back and get a stay based on another flimsy excuse, or would that be the end of it?

    That was more than one question. Curious me!

    Thanks again!

  13. Mark says


    Is it at all possible there will be a more limited ruling–as the judges seemed to imply in the oral arguments–that would rely largely on Romer but avoid addressing any questions broader than CA?

  14. James B says

    This case is soooooooo messy, compared to Loving vs Virginia 45 years ago. I think the US Supreme court would not want this to be the case that becomes the law of the land.

  15. MikeH says

    Assuming we win tomorrow, I’m more interested in reading the logic of any dissent. If the decision is unanimous that would be simply fantastic!

  16. says

    Dissent is adverse to logi.

    No matter what happend tomorrow, and in the weeks or months afterward, same-sex marriage is a bell that will not be unrung. Every day in evry way we are winning.

    And why are winning?

    Because more and more of us are OUT AND PROUD!

    Speaking as someone who has been involved in the Gay Rights struggle since Stonewall it never cease to amaze me how our strongest weapon has been Being Out.

    Back in the day that was VERY avant-garde. Only total bohemians (Frank O’Hara) artists (David Hockney) and the like were Out. Ordinary everyday people were takign their lives in their hands by being out.

    Even less than ordinary everyday people.

    When I first met Edmund White he was still in the clsoet.

    Not for long, needless to say, but he was still there.

    Now everything has changed.

    This week “People” magazine consulted Neil Patrick Harris on child-raising tips.

    Yes, have indeed come a long way. And we’ve only just begun.

  17. says

    @enoughalready: thanks very much for the undue compliment and for your question. i hope these posts are helpful. expedited appeals to the supreme court are possible, but they happen in very rare and unique circumstances, like when two states are fighting about something or at the discretion of the court for some special reason. i doubt any such special reason exists here. i certainly cant think of one — the fact that peoples rights are involved is true of almost every supreme court case! as for the number of appeals to come: the next step would be for the loser to make a motion for reconsideration en banc, which is another 9th circuit hearing, but with 11 judges. but the motion for reconsideration first has to be granted and opinions written. if they grant reconsideration (likely, but only slightly more likely than not), there may be another hearing, but unlikely more briefs. so, were looking at max 3 months. then a motion for writ of certiorari before the supreme court, with a hearing date probably early 2013.

  18. says

    @jamesb: thanks for your question. doubtful they would deny hearing, though SCOTUS may take it and deny on standing grounds (assuming the 9th accepts Protect Marriage had standing).

  19. says

    @mark: thanks for your question. we always want our decisions to be narrowly tailored, but i fail to see how romer could be the only case that applies since denial of the institution of marriage is very different from the denial of all legislative and political rights. but all our discussions refer to california. i see no reason at the moment to say that anyone thinks the court will automatically apply this case to idaho, for example.

  20. Tyler says

    Hm. Well I have to admit that I am not a fan of the whole standing jurisprudence that Scalia et al have created in the last thirty years, so I may be showing my bias. But didn’t the Supreme Court of California say that initiative proponents stand in the shoes of the State of California in circumstances like these? I understand that you have to separately assure yourself that there is federal-law standing, but federal courts cannot change California law as articulated by the state’s highest court, and it seems to me that means that federal courts must take as given that proponents have any interest in appealing this case that the State of California would have, so that the question is not whether the proponents themselves have standing under federal law, but whether the State of California and its representatives would.

    Also, I think there’s a good chance that proponents will try to go straight to SCOTUS rather than trying for en banc. I think they recognize that their chances at en banc aren’t any better than they were with this panel and they just want this over with.

    Just my thoughts… Thanks for all the help though!

  21. says

    @tyler: maybe, maybe, indeed. but just note standing as a matter of state law — whether x could stand in the shoes of the state if all this were happening in state court — is not the same thing as federal standing, as you note. the court would not have to ignore californias statement of ca law to deny standing. that, of course, is my opinion. its likely that the 9th cir (and, perhaps, the supreme court) will disagree with me. but, thats why they are who they are, and i am just me :)

  22. MiddleoftheRoader says

    There is an easier and more narrow way for the 9th Circuit to find that California acted unconstitutionally — a way that doesn’t affect the other states.

    Specifically, California had previously allowed same-sex couples the to marry, and prior to Prop 8 there was never a state constitutional provision that prohibited same-sex marriage — this latter point is important because it means there was no prior strong state policy against same-sex marriage. So Prop 8 actually took away a right to marry from same-sex couples, and the question is whether there was a compelling basis, or even a reasonable basis, to eliminate a right that previously existed. From the facts in the record, eliminating that right is not justifiable.

    Also, prior to Prop 8 in California, same-sex domestic partners had all of the same legal rights and obligations as opposite-sex married spouses. So, if California was willing (and still is willing, even with Prop 8 in effect) to give same-sex partners the same rights and obligations of opposite-sex married spouses, then how can California have a compelling basis, or even a reasonable basis, to eliminate the word “marriage” which replaced the term “domestic partnership”?

    A 9th Circuit decision that focused on the eliminating of the right the right to marry and that focused on denying use of the word “marriage” would be a narrow decision that would not directly impact 20+ other states which have never allowed same-sex marriage or domestic partnerships and which have state constitutional provisions against them. In other words, a favorable 9th Circuit decision might mean very little in Alabama, Indiana, Virginia or even in Michigan or Florida, which have never allowed same-sex marriage or domestic partnerships, which have state constitutional bans against both, and which have never “granted and then taken away” such rights.

    Yes, in many ways it would be better to have a strong 9th Circuit decision that simply says it is unconstitutional to deny same-sex partners the right to marry. But that type of decision would be begging the current US Supreme Court to overturn it. On the other hand, a narrow 9th Circuit decision of the type mentioned above (which focuses on taking away the right to marry, and on irrationally denying use of the word ‘marriage’ to domestic partners who are in every other way considered to be ‘married’ by law) would be more likely to be upheld by the Supreme Court because it is less threatening to other states.

  23. Mark Szabo says

    Just think he could have talked about Witt Standards, scrutiny, protected classes, impact cases, friend of the court briefs, DOMA, DOMA cases, make up of the 9th circuit, cases in other circuit courts etc…

  24. Paul R says

    I am so tired of our rights being dictated by judges, juries, or ballot boxes. It makes me furious. We are people. Tomorrow better turn out right.

  25. says

    I don’t understand how you can say this would be the greatest day for LGBT rights since Lawrence v. Texas when the 9th Circuit’s ruling is by no means the final resolution of this case. The case is headed to the extremely conservative Roberts Supreme Court, where a decision won’t be issued for at least another year. Everything else is just prologue.

  26. pmacdee says

    Great summary, but to dismiss the decision to vacate as the “stuff of insidious stereotypes” is just as vacuous an argument as leaving AFER detailed evidence unanswered. Walker will benefit. He did not publicly disclose his sexual orientation before the trial. That my friend, is a gaping hole.

  27. Karl says

    The evidence was unanswered because there were no honest arguments against it; one witness was so ashamed of his arguments that he tried to withdraw (although he claimed it was for other reasons.)

  28. Paul R says

    @Ari: this only just occurred to me. Because the jurisdiction of the 9th Circuit Court controls more than CA, would its decision affect (the three or four) surrounding states? I assume that it’s just ruling on Prop 8 as it affects CA, but I don’t know the logistics of these courts. And I’m tired and apparently lazy.

  29. Jay says

    Thank you for such a succinct and yet impassioned summary. Not very usual when writing about court cases!

  30. Brains says


    Could not start the day without expressing a thanks for your wonderful detailed and analytical brief, as usual.!!!..thank you!

    We shall eagerly await more from you later today…..hope all of us see “HOPE” today!

  31. Lucas says

    I dont see how anyone for gay marriage would want it to go the current US Supreme Court. Kennedy was critical for Lawrence and Romer, but those are very different issues. For one thing, few states had sodomy laws are laws that kept gays from being protected from anti-discrimination laws. For instance, in 2003, about 36 states had legalized sodomy. The Court cited the number of states that had legalized sodomy as evidence that it was a fundamental right. Likewise, the court has cited the large number of states that outlawed juvenile and mentally challenged executions as evidence of their constitutional basis. With same-sex marriage, you have a mere 6 states that legalize it, which undercuts the notion it is a constitutional right. Further, the Court is very squeamish about getting too far ahead of public opinion and state law. The Court doesn’t want to be seen as radical, too revolutionary, so it will avoid finding same-sex marriage as a fundamental right until the majority of states have made it legal on their own.

  32. Brains says


    My thoughts, precisely!

    We all await with baited breath..!!…will it be jurisprudence or political and social gamesmanship!

  33. anon says

    Actually, whether they lift the stay or not is more dependent on what they consider an equitable ruling than a balance of factors, particularly in light of the fact the govt. of CA refused to defend the law and because this is a constitutional rights issue, though holding for an en banc appeal would make some sense. The main issue for a stay would be the disruption lifting it would cause CA govt. should the ruling be overturned on appeal versus the harm caused by denying citizens their rights. It could go either way.