9th Circuit Affirms Unconsitutionality of Prop 8

Update: The 9th Circuit has affirmed the lower court's ruling that Prop 8 is unconstitutional. The 128 page opinion is here.

The 2-1 decision found the ban -- known as Proposition 8 -- "served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples." That violates the 14th Amendment's guarantee of equal protection under the law, the decision states

The 9th Circuit Court of Appeals is expected to release its opinion on Prop 8 today. Prop 8 defines marriage as between a man and a woman.

A broad ruling that affirms a federal judge's 2010 conclusion that gays and lesbians have a constitutional right to wed their chosen partner would invite review by a high court that frequently overturns decisions by the more liberal Ninth Circuit.

But the panel might also overturn Prop. 8 on more limited grounds: that California, apparently because of its voters' disapproval of homosexuality, had withdrawn marital rights granted to same-sex couples by the state Supreme Court less than six months earlier....

The Supreme Court, in 1996, said states are prohibited from restricting rights of a minority group because of moral disapproval.

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  • Display: Sort:
    Here's the opinion: (5.00 / 1) (#6)
    by oculus on Tue Feb 07, 2012 at 12:28:34 PM EST
    Next: SCOTUS (5.00 / 1) (#7)
    by MyLeftMind on Tue Feb 07, 2012 at 01:48:50 PM EST
    Dangit, now I'm going to have to vote for Obama in case we have another Supreme Court retirement.

    thats the best reason (none / 0) (#9)
    by Capt Howdy on Tue Feb 07, 2012 at 01:51:53 PM EST
    around IMO

    2 even better reasons, imo (5.00 / 1) (#22)
    by The Addams Family on Tue Feb 07, 2012 at 02:46:34 PM EST
    1. leaving Democrats in charge of all the agencies of the executive branch instead of turning them over to the wingnut GOP

    2. giving Obama 4 more years to continue replacing (as he has been doing) Bush's crony appointees to the federal courts

    There are no true ... (none / 0) (#28)
    by Robot Porter on Tue Feb 07, 2012 at 04:06:09 PM EST
    civil libertarians on the court.  And there never will be.

    But they all seem to have a better understanding of bright line distinctions than any occupant of the executive branch over the last 11 years.  As the recent GPS decision showed this session, and the Hamdi and other decisions earlier.

    The argument regarding federal district court judges is slightly more convincing.  

    But it's still not enough of an argument, for me, to vote for a president or a party which has completely lost the plot where civil liberties are concerned.


    true enough (none / 0) (#30)
    by The Addams Family on Tue Feb 07, 2012 at 04:36:49 PM EST
    that civil liberties are a principle honored more in the breach these days

    but at least this president & his party can be pressured by their base to run on a platform that officially affirms the primacy of civil liberties - no such pressure (for whatever it may be worth) will be brought to bear on the GOP by its base

    admittedly, this is not saying anything more than that re-electing Obama will not be as bad as turning the executive branch over to the GOP, & that really is all i am saying, since i do not see much in the way of a positive record for Obama to run on


    Romney's (5.00 / 0) (#37)
    by Ga6thDem on Tue Feb 07, 2012 at 07:17:47 PM EST
    statement sounds like it came out of Karl Rove Central. I'm not sure I know what the heck Gingrich is talking about? A constitutional crisis?

    The Appellate three-membered panel (none / 0) (#32)
    by KeysDan on Tue Feb 07, 2012 at 05:02:39 PM EST
    that found Prop 8 unconstitutional (2 to l)  was Judge Stephen Reinhardt (Yale) appointed by Jimmy Carter and Michael Hawkins (Univ. of Virginia) appointed by Bill Clinton.  The dissent was Judge Randy Smith (Brigham Young-LDS) appointed by George W. Bush.  The ruling regarding standing and dismissal of the motion to throw out federal judge Walker's decision owing to himself being gay was unanimous (3 to 0).

    Not getting into the voting thing, but (none / 0) (#43)
    by Peter G on Tue Feb 07, 2012 at 10:48:10 PM EST
    I don't think this case will go before the Supreme Court.  As presently postured, it's about an unusual sequence of events that occurred in California.  It's not the clean national test case on the constitutionality of a state's refusal to extend the benefits of marriage to same-sex couples that it might have been, had today's decision come down on other grounds.

    prop 8 (none / 0) (#1)
    by CST on Tue Feb 07, 2012 at 12:07:17 PM EST
    ruled unconstitutional according to msn ticker.

    yep (none / 0) (#3)
    by Capt Howdy on Tue Feb 07, 2012 at 12:10:31 PM EST
    interested in hearing Jeralyns and others opinion of how narrow the ruling is.  according to what I am hearing so far it seems to be a fairly narrow ruling.


    woo hoo
    in yer face bigots


    From skimming the beginning (5.00 / 1) (#4)
    by dk on Tue Feb 07, 2012 at 12:23:06 PM EST
    of the opinion (I found an embed of the opinion over at towleroad.com, but can't find a direct link that works yet), they focused on the fact that the California state supreme court had declared gay marriage a right under the California state constitution, and that Prop. 8 tried to strip that right.  It's the act of trying to strip the right from the state consitution that was determined to violate the 14th amendment of the U.S. constitution.

    What they didn't rule on was whether there could possibly be any reasons to prohibit gay marriage under the U.S. constitution.


    also (none / 0) (#14)
    by Capt Howdy on Tue Feb 07, 2012 at 02:23:54 PM EST
    if I understood it is likely for the proponents to go for the full 9th circuit before trying the sc?

    The author, Judge Reinhardt, (5.00 / 1) (#19)
    by MKS on Tue Feb 07, 2012 at 02:39:03 PM EST
    is very liberal and well known for being so.  His wife was long the head of the SoCal ACLU.

    A wonderful liberal humanitarian, his mere presence renders members of the Federalist Society apoplectic.

    When conservatives talk about the liberal 9th Circuit, they are generally referring to Reinhardt rulings.

    A re-hearing by the entire Ninth Circuit would seem likely.


    Yup, that's right. (none / 0) (#18)
    by dk on Tue Feb 07, 2012 at 02:35:27 PM EST
    Ultimately, I think it's the decision of the majority of 9th circuit whether to have a wider group of the circuit reexamine the ruling of the smaller panel.  I'd think most experts are probably assuming that will happen.

    yea I haven't been able to find the ruling (none / 0) (#5)
    by CST on Tue Feb 07, 2012 at 12:26:36 PM EST
    but my hunch is we're headed for the supremes.

    Which makes me excited and very nervous at the same time.


    supposedly (none / 0) (#8)
    by Capt Howdy on Tue Feb 07, 2012 at 01:49:57 PM EST
    so says Pete Williams, it was crafted so narrowly precisely to make it a less attractive case for the SC.  I understood him to say, in addition to what dk said above, it only applies to certain areas in that district?  if its a district court it seems that would be true most if not all of the time to me but that is why I like to come here and ask lawyers.

    may I say slightly ot (but not really because there is also a marriage lawsuit working its way trough the system on this subject) I think polygamy laws should be struck down.  IMO if thats what they want they should able to do it if no harm to others or the state can be identified.  same as gay marriage (as I said, IMO)


    yea i really don't have a beef (none / 0) (#10)
    by CST on Tue Feb 07, 2012 at 02:06:38 PM EST
    with polygamy.  That being said I don't think it's the same issue.  There are a lot of legal questions that arise that wouldn't be the case for something like gay marriage, such as what is the legal relationship between the spouses that aren't married, if any, and how do the tax issues work themselves out.

    At some level you have to ask if people would start gaming the system to marry as many people as possible, for the best health benefits or tax benefits, or whatever, and is that really an issue I even care about?  Do we put a limit on the number?  I'm torn on the legal questions that arise with polygamy that don't arise with something like gay marriage.


    I think the answer might be... (5.00 / 1) (#11)
    by kdog on Tue Feb 07, 2012 at 02:12:20 PM EST
    get marriage out of the tax code and every other code.

    In the eyes of the government we're all individual citizens, and our personal relationships are just that...personal.  Straight couple, gay couple, polyamorous group, whatever floats your boat with consenting adults.

    Easier said than done I guess with the institution of marriage intter-connected to so many things...taxes, health insurance, health proxy, and on and on and on.  Married people like their perks and won't be quick to part with them or share them with all...but if we had a reset button that would be the play, imo.


    yeah...and let corporations marry too! (none / 0) (#33)
    by DFLer on Tue Feb 07, 2012 at 05:10:26 PM EST
    In S. Dist. of CA, a federal judge (none / 0) (#35)
    by oculus on Tue Feb 07, 2012 at 05:29:55 PM EST
    is deciding whether the Orcas at Sea World have standing under the 14th Amendment to challenge their being held as "slaves."  

    I believe that would be (none / 0) (#40)
    by Peter G on Tue Feb 07, 2012 at 08:04:01 PM EST
    As always, you are correct. Thanks. . (none / 0) (#42)
    by oculus on Tue Feb 07, 2012 at 09:31:07 PM EST
    i have no problem with polygamy either (5.00 / 1) (#12)
    by The Addams Family on Tue Feb 07, 2012 at 02:13:01 PM EST
    as for the possibilty of polygamists "gaming the system" to take advantage of the best health & tax benefits, those benefits should be separate in the first place from the issue of marriage & how people want to define it

    the more pressure is put on such benefits, the more it will become obvious that they have been, all along, "special rights" for heterosexual couples


    As it seems to exist today, (none / 0) (#13)
    by the capstan on Tue Feb 07, 2012 at 02:23:14 PM EST
    it appears that all the rights in polygamous marriages reside in the male spouse--even extending into the afterlife.  (We never even got ERA into the mainstream!)

    I wont argue (none / 0) (#16)
    by Capt Howdy on Tue Feb 07, 2012 at 02:26:29 PM EST
    that I dont understand it from the womans point of view.  but afaic if they are legally adults they can decide for themselves.

    I honestly had not considered or heard raised the other questions CST mentioned.  all valid I guess.
    but it seems an unlikely thing for someone to do to game the system.


    it would happen (5.00 / 2) (#21)
    by The Addams Family on Tue Feb 07, 2012 at 02:43:15 PM EST
    because it already happens

    green card marriages, for example

    & keeping your divorce & second marriage a secret from your co-workers so that your friendly ex-wife, who has had cancer in the past, can continue receiving medical coverage under your employer-based policy

    i was privy to (& heartily approved of) the latter situation - in that case, both of the happily re-married partners worked for the same company, & so wife #2 simply left her own employer-based coverage in place

    again, health benefits should be divorced, so to speak, from marriage & how people define it

    health benefits should also be divorced from the question of whether & how one is employed

    but this is a thread about Prop 8 so i will not go on


    I don't necessarily (none / 0) (#20)
    by CST on Tue Feb 07, 2012 at 02:42:33 PM EST
    think it will be an issue either, I'm just pointing out that it will probably require reworking a lot of things.  I'm not against reworking them, but it's not a cut and dry issue "here are your rights, go excercise them".  Just recognizing that more things would have to change or be defined than simply the application of marriage.

    The wives are chattel (none / 0) (#41)
    by the capstan on Tue Feb 07, 2012 at 09:22:58 PM EST
    in those hidden communities out west.  No choice there; the females are never equal.

    I would think it applies to (none / 0) (#15)
    by dk on Tue Feb 07, 2012 at 02:24:57 PM EST
    the whole district in theory, but in practice so far (I think) the only state it applies to is California since California (I think) is the only state in the district whose courts have decided that gay marriage was a guaranteed right under that state's constitution.  

    But, for example, let's say Oregon's state supreme court decided tomorrow that gay marriage was guaranteed under Oregeon's state constitution.  Then, if there was an attempt to strike that right through a Prop 8-like ballot initiative, then this case would be able to be used as precedent to block such an initiative.


    right (none / 0) (#17)
    by Capt Howdy on Tue Feb 07, 2012 at 02:27:58 PM EST
    if I understood it only applies to places that may have something that is all but marriage and is not in name only.

    it seemed confusing to me which is why I asked.


    It seems that the decision is (none / 0) (#25)
    by KeysDan on Tue Feb 07, 2012 at 03:03:11 PM EST
    narrow and is likely to be applicable  just to California. In the 2004 action (that resulted in the Court finding of unconstitutionality) alleging that the State's marriage statues violated the California Constitution, Prop. 22 was among statutes challenged.  Prop 22 was an "initiative statutory enactment" and as such, it was equal in dignity to an enactment by the legislature and therefore subject to the restrictions of the state constitution.

    The unconstitutional finding of Prop 8 is that initiative powers may not be employed to single out a disfavored group for unequal treatment and strip them of a right as important as marriage.  The finding does go further, in its reasoning,  to include the US Constitution, citing Romer v Evans, written by Justice Kennedy (who is likely to be critical in any Supreme Court case).  The worry here, is that the dissent in Evans, written by Scalia, was more an unhinged homophobic screed than a constitutional argument.


    Sadly, that won't happen in Oregon. (none / 0) (#31)
    by caseyOR on Tue Feb 07, 2012 at 04:58:09 PM EST
    The voters of Oregon made the egregious decision, via ballot measure, to amend the state constitution so as to prohibit same-sex marriage. If we want to overturn that, another ballot measure is our only option.

    In better news, Washington is about to legalize same-sex marriage. It has passed the state senate, is expected to pass the house next week, and Governor Gregoire will sign it.

    Of course, the bigots and haters are already gearing up to collect signatures to put repeal on the Washington ballot. Lots of out-of-state hater money is expected to flow into the state.


    9th Circuit Affirmed Lower Court Ruling (none / 0) (#2)
    by dk on Tue Feb 07, 2012 at 12:10:06 PM EST
    that Prop. 8 is unconstitutional.

    2-1 decision.  Reinhardt wrote for the majority.

    i'm a bit confused. (none / 0) (#24)
    by cpinva on Tue Feb 07, 2012 at 03:02:25 PM EST
    last time i checked, the 14th amendment applies to the entire country, not just california. there is that annoying supremacy clause as well. by definition then, any law/constitutional amendment, restricting/denying the right of gay people to marry who they desire, subject to the normal narrow restrictions (age, consent, etc), would automatically fall afoul of the equal protection clause, absent the showing of a very compelling state interest in so restricting/denying it. again, this applies nationally, so i don't see how the appeals court justice's restriction carries any weight at all.

    Equal Protection under the California laws (5.00 / 1) (#27)
    by MKS on Tue Feb 07, 2012 at 03:23:07 PM EST
    The California Supreme Court had ruled under the California Constitution in favor of gay marriage.

    Prop 8 was in response to the California Supreme Court ruling, and in effect stripped people of rights under the California Constitution.

    The Ninth Circuit just ruled that Prop 8 deprived people of equal protection under the California Constitution.

    All based on the California Constitution.  Nicely done by Reinhardt to try and avoid Supreme Court review.  

    But let's see if the ruling holds up in front of the entire 9th Circuit.


    not sure if this answers your question (none / 0) (#26)
    by CST on Tue Feb 07, 2012 at 03:11:18 PM EST
    or provides more, but here is that section of the ruling:

    "California had already extended to committed same-sex couples both the incedents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incedents"

    Basically I think what they are saying is they didn't even bother to argue state interest, so they aren't making their decision on that issue.  Since the state already provided all the benefits, there could be no state interest in not calling it marriage.  That's not to say the state interest argument would work, just that it wasn't applicable to this scenario.

    That's my very non-legal-minded opinion on legalese, so take it for what it's worth.


    Not just California (none / 0) (#29)
    by MyLeftMind on Tue Feb 07, 2012 at 04:32:29 PM EST
    State courts have ruled both ways on this issue. This is the first time that a federal court of appeals, the level just below the Supreme Court, determined that gay marriage is protected by the 14th Amendment to the U.S. Constitution. This is a great precedent, one of the best things in today's decision. This decision has the potential to establish the foundation for extension of marriage equality to all Americans. I'm not worried about the full 9th Circuit court hearing the case "en banc." But the whole issue is clearly headed to the Supreme Court soon, and I think we'd do better with this case than one of the DOMA challenges headed that way.

    In the 1996 Evans v. Romer case invalidating a Colorado anti-gay ballot initiative, Kennedy's opinion for the Court reasons that the public debate over the measure betrayed the true goal of the law to be animus toward gay people rather than any legitimate public policy objective. That was clearly shown in this case as well, especially because communications were couched in bigoted, religious arguments. However, today's anti- gay marriage organizations are much more careful to hide their homophobia and frame the discussion around supporting straight marriage. Hence the repetition of the phrase by politicians that they believe "marriage is union of one man and one woman." Clearly, hurting same-sex couples doesn't translate to supporting same-sex marriages, but most liberals don't call the homophobes on their rhetoric and force them to expose their biases.

    Given the 50-50 mix of the Supreme Court justices, I think they'd have an easier time of justifying continued discrimination with DOMA than with Prop 8, especially give it's incredibly well documented homophobic basis and propaganda.

    Anyone else have thoughts on the best path proponents of marriage equality should take?


    Point in fact, (none / 0) (#34)
    by MyLeftMind on Tue Feb 07, 2012 at 05:13:55 PM EST
    the so-called National Organization for Marriage (NOM) coaches people to
    be very careful to not expose their prejudice:

    Language to avoid at all costs: "Ban same-sex marriage." Our base loves this wording. So do supporters of SSM. They know it causes us to lose about ten percentage points in polls. Don't use it. Say we're against "redefining marriage" or in favor or "marriage as the union of husband and wife" NEVER "banning same-sex marriage."

    Notice they also call it SSM, hoping for a negative connotation with S&M.