U.S. appeals court strikes down Calif. gay marriage ban

Tuesday, Feb. 7, 2012 1:18 PM
Last updated 1:23 PM
  • Follow Crime & courts

SAN FRANCISCO — A federal appeals court on Tuesday declared California’s same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.

  AP file
AP file


A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.

It was unclear when gay marriages might resume in California. Lawyers for Proposition 8 sponsors and for the two couples who successfully sued to overturn the ban have repeatedly said they would consider appealing to a larger panel of the court and then the U.S. Supreme Court if they did not receive a favorable ruling from the 9th Circuit.

“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted,” the ruling states.

The panel also said there was no evidence that former Chief U.S. Judge Vaughn Walker was biased and should have disclosed before he issued his decision that he was gay and in a long-term relationship with another man.

The ruling came more than a year after the appeals court heard arguments in the case.

Proposition 8 backers had asked the 9th Circuit to set aside Walker’s ruling on both constitutional grounds and because of the thorny issue of the judge’s personal life. It was the first instance of an American jurist’s sexual orientation being cited as grounds for overturning a court decision.

Walker publicly revealed he was gay after he retired. However, supporters of the gay marriage ban argued that he had been obliged to previously reveal if he wanted to marry his partner — like the gay couples who sued to overturn the ban.

Walker’s successor as the chief federal judge in Northern California, James Ware, rejected those claims, and the 9th Circuit held a hearing on the conflict-of-interest question in December.

California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.

The ballot measure inserted the one man-one woman provision into the California Constitution, thereby overruling the court’s decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them and its passage followed the most expensive campaign on a social issue in the nation’s history.

The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages, but ruled that voters had properly enacted the law.

With same-sex marriages unlikely to resume in California any time soon, Love Honor Cherish, a gay rights group based in Los Angeles, plans to start gathering signatures for a November ballot initiative asking voters to repeal Proposition 8.

Supporters and opponents of California’s ban on same-sex marriages were anxiously awaiting a federal appeals court decision Tuesday on whether the voter-approved measure violates the civil rights of gay men and lesbians.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco considering the question plans to issue its long-awaited opinion a year-and-a-half after a federal trial judge struck down the ban, known as Proposition 8. The 9th Circuit does not typically give notice of its forthcoming rulings, and its decision to do so Monday reflects the intense interest in the case.

Even if the panel upholds the lower court ruling, it could be a while before same-sex couples can resume marrying in the state. Proposition 8’s backers plan to appeal to a bigger 9th Circuit panel and then the U.S. Supreme Court if they lose in the intermediate court, which would likely put its ruling on hold while that process plays out.

The three-judge panel, consisting of judges appointed by presidents Jimmy Carter, Bill Clinton and George W. Bush, heard oral arguments on the ban’s constitutional implications more than a year ago. But it put off a decision so it could seek guidance from the California Supreme Court on whether Proposition 8’s sponsors had legal authority to challenge the lower court ruling once California’s attorney general and governor decided not to appeal it.

The California court ruled in November that the state’s vigorous citizens’ initiative process grants the official proponents of ballot measures the right to defend their measures in court if state officials refuse to do so. While its reading is not binding on the federal court, the 9th Circuit’s written heads-up suggests the panel accepted the Supreme Court’s interpretation, legal observers said.

Further complicating the 9th Circuit’s consideration of the case was a move in April by lawyers for the coalition of religious conservative groups that put Proposition 8 on the ballot seeking to have the lower federal court decision striking down the measure vacated because the now-retired judge who issued it was in a long-term relationship with another man.

Former Chief U.S. District Judge Vaughn Walker disclosed he was gay and had a partner of 10 years after he retired from the bench last year. Proposition 8’s backers have argued that Walker’s relationship posed a potential conflict-of-interest and that he should have revealed it before he declared the measure unconstitutional in August 2010.

Walker’s successor as the chief federal judge in Northern California, James Ware, rejected their claims that Walker was unqualified to preside over the 13-day trial that preceded his ruling — the first in a federal court to examine if same-sex couples have a constitutional right to get married — because he stood to personally benefit from declaring Proposition 8 unconstitutional.

The 9th Circuit held a hearing on that question in December.

California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.

The ballot measure inserted the one man-one woman provision into the state Constitution, thereby overruling the court’s decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them.

The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages, but ruled that voters had properly enacted the law.

University of Pennsylvania Law School Professor Tobias Barrington Wolff said the unique circumstances giving rise to the ban’s passage could prompt the 9th Circuit panel to strike down Proposition 8 without addressing if banning gay marriage would be constitutional in the eight other states in its territory.

“The circumstances in California are unprecedented. The state supreme court found marriage equality to be a right of the highest order under the state Constitution, and thousands of couples actually exercised that right before a discriminatory initiative took it away,” Wolff said. “The federal courts would do well to focus their attention on those unique circumstances, which would support a ruling that Proposition 8 is unconstitutional while leaving the situation in other States for another day.”

Comments (16) Add comment
ADVISORY: Users are solely responsible for opinions they post here and for following agreed-upon rules of civility. Posts and comments do not reflect the views of this site. Posts and comments are automatically checked for inappropriate language, but readers might find some comments offensive or inaccurate. If you believe a comment violates our rules, click the "Flag as offensive" link below the comment.
Little Lamb
52486
Points
Little Lamb 02/07/12 - 03:24 pm
0
0
The court's ruling made a

The court's ruling made a mockery out of California's constitution. His ruling (see above) called Proposition 8 merely a law, but in reality it is a constitutional amendment. And he called the entire state of California a community. But to liberal judges, words mean whatever the judge wants them to, and laws are merely whims for judges to play with.

Riverman1
106530
Points
Riverman1 02/07/12 - 03:31 pm
0
0
Has the 9th Circuit Court

Has the 9th Circuit Court ever made a ruling that made sense?

OJP
8488
Points
OJP 02/07/12 - 03:50 pm
0
0
@Little Lamb: A state

@Little Lamb: A state constitution is a law - and the Supremacy Clause of our federal Constitution places the U.S. Constitution above all states' laws, including their constitutions.

California's Constitution can no more violate the Equal Protection Clause of the U.S. Constitution (as it was held to have done here) as it can the Second Amendment (by, for example, banning gun ownership via an amendment).

OJP
8488
Points
OJP 02/07/12 - 03:52 pm
0
0
@Riverman1: Did you read this

@Riverman1: Did you read this 128 page opinion before posting that comment?

Riverman1
106530
Points
Riverman1 02/07/12 - 03:54 pm
0
0
OJP, I stopped on page 127

OJP, I stopped on page 127 and must have missed your point. What is it?

Little Lamb
52486
Points
Little Lamb 02/07/12 - 03:59 pm
0
0
But the equal protection

But the equal protection clause does not apply to marriage because marriage is not addressed in the U.S. Constitution. Therefore, the tenth amendment grants regulation of marriage to the states or to the people.

OJP
8488
Points
OJP 02/07/12 - 04:31 pm
0
0
@Riverman1: Well... it should

@Riverman1: Well... it should be pretty clear that you can't assail all the rulings of the Ninth Circuit as unreasonable unless you've read them all - that is, if you want anyone to give your opinion any weight.

OJP
8488
Points
OJP 02/07/12 - 05:21 pm
0
0
@Little Lamb: Says you - the

@Little Lamb: Says you - the Supreme Court disagrees. There is solid jurisprudence regarding marriage as a fundamental right.

Rewind 50 years and your argument is one of the exact same arguments made against interracial marriage.

ETA: Regardless of whether marriage is a right protected by the federal Constitution, the Equal Protection Clause does not permit a law (e.g., marriage) to treat two classes of people differently without a legitimate reason.

burninater
10855
Points
burninater 02/07/12 - 04:48 pm
0
0
Freedom: 1, theocracy: 0.

Freedom: 1, theocracy: 0.

freeradical
1317
Points
freeradical 02/07/12 - 10:07 pm
0
0
This ruling has as much to do

This ruling has as much to do with marriage as the theocracy's

present iron fisted demand and affront to the catholic church, and all

religious institutions for that matter, that they now pay and support

the vile sin of infanticide for their employees has to do with " health

care ".

Both are about jabbing a sharp stick into the eye of the institutions the

almighty dear leader has a seething rage for .

The government forcing of religious institutions to support and

bankroll child sacrifice , and now the soon to follow government

forcing of religious institutions to sanction sodomite marriage.

Sodomy , and child sacrifice .

How marvelous.

Is there any doubt this land is condemned ?

carcraft
32173
Points
carcraft 02/08/12 - 06:37 am
0
0
Marriage is not a "right" ,

Marriage is not a "right" , it is one of the activities regulated by each state . The Defense of Marriage Act, a federal law prevents the Federal Government from recognizing gay "marriage". How can the Federal government rule it is unconstitutional for a state to bar an activity the Federal Government can't recognize?

Techfan
6464
Points
Techfan 02/08/12 - 06:39 am
0
0
The enumeration in the

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

carcraft
32173
Points
carcraft 02/08/12 - 06:53 am
0
0
Exactly Tech Fan and the

Exactly Tech Fan and the people of California spoke and defined what marriage is and what American society has recognized it as for 200 years. The tenth amendment clarly states that the Federal government needs to but out! Under your thinking the courts could rule you have a "right" to drive 80 miles an hour down Bobby Jones, and just because the constitution doesn't enumerate that right the courts can give it to you! Is that your logic? Then the will of the people of the states that passed constitutional amendments banning gay marriage are all wrong!

Techfan
6464
Points
Techfan 02/08/12 - 07:50 am
0
0
This Constitution, and the

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The US Constitution trumps state laws and constitutions. Rights can not be voted away.

Techfan
6464
Points
Techfan 02/08/12 - 08:58 am
0
0
No State shall make or

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

carcraft
32173
Points
carcraft 02/08/12 - 09:37 am
0
0
Since the Federal government

Since the Federal government has a law that does not recoginze same sex marriages how can it be a federal right? If I am in a heterosexual marriage I can join the military , or federal civil service and get survivor benefits for my spouse. If I am in a same sex marriage I can't get those same benefits for my spouse. So please Tech Fan explain to me equal protection, and constitutional rights etc when even the Federal government won't recognize same sex marriages? Can a judge award me the "right" not to participlate in Obama care because I had a right not to participlate in it before?

Back to Top
loading...
Top headlines

Rural residents question stormwater fee

MCBEAN - Wary of downtown's tendency to spend their tax dollars somewhere else, a south Richmond County community didn't warm Thursday to the prospect of paying an additional fee for stormwater ...
Search Augusta jobs