Prop 8 Ruling: Same-Sex Marriage Ban Rests Unconstitutionally On Dislike Of Gays, 9th Circuit Says

WASHINGTON -- Same-sex marriage continued its march to the Supreme Court on Tuesday as a federal appeals court in San Francisco struck down California's gay marriage ban as a violation of the U.S. Constitution's guarantee of equal protection.

By a 2-1 vote, a panel of the U.S. Court of Appeals for the 9th Circuit found that California voters were motivated by disapproval of gays and lesbians when they voted in favor of Proposition 8, a 2008 ballot measure that stripped same-sex couples of the right to marry. And not approving of a group of people is not, constitutionally speaking, a good enough reason to pass a law against them.

"It will not do to say that Proposition 8 was intended only to disapprove of same-sex marriage, rather than to pass judgment on same-sex couples as people," wrote Judge Stephen Reinhardt on behalf of himself and Judge Michael Daly Hawkins, both Democratic appointees to the federal bench. "[T]he elimination of the right to use the official designation of 'marriage' for the relationships of committed same-sex couples," continued Reinhardt, "send[s] a message that gays and lesbians are of lesser worth as a class -- that they enjoy lesser societal status."

Such a singling out, the court concluded, violated the 14th Amendment, which states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

The appeals court on Tuesday sidestepped the issue of federalizing the right to same-sex marriage, instead focusing on the fact that Prop 8 took away from gays and lesbians specific rights already recognized by the California Supreme Court earlier in 2008. In so ruling, the 9th Circuit significantly narrowed the August 2010 decision by U.S. District Judge Vaughn Walker, which placed same-sex marriage firmly within the federal right to marry previously recognized by the U.S. Supreme Court.

The 9th Circuit's narrow decision is likely designed to appeal to Justice Anthony Kennedy, considered the crucial swing vote on a Supreme Court widely expected to divide along ideological lines should it ultimately take the case. Not only does Reinhardt's opinion give the instinctually conservative Kennedy a blueprint to vote for same-sex marriage without finding that it's specifically covered by the Constitution; the lower-court opinion also rests entirely upon a landmark gay rights decision by Kennedy himself. That 15-year-old case, Romer v. Evans, struck down a sweeping Colorado voter initiative that would have barred the state from enforcing any ordinance, current or future, prohibiting discrimination based on sexual orientation. Laws like the Colorado initiative, Kennedy wrote, "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of person affected."

Prop 8, Reinhardt wrote, "is remarkably similar" to the unconstitutional Colorado law. That Prop 8 left intact the panoply of privileges still available to same-sex couples -- including parental rights, property rights, joint tax-filing, spousal insurance access and hospital visitation rights -- made the ban on same-sex marriage even more suspect for the 9th Circuit. "A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not," wrote Reinhardt.

Quoting from the Romer decision, Reinhardt wrote that a "law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more 'unprecedented' and 'unusual' than a law that imposes broader changes, and raises an even stronger inference" that mere animosity or disapproval drove the passage of Prop 8.

To overcome that inference, Prop 8's proponents had to show some legitimate reason for keeping the same-sex marriage ban in the state's constitution. (Prop 8 was defended by its sponsors, ProtectMarriage.com and other private citizens, after California's governor and attorney general refused to do so.) The appeals court rejected every justification they offered. Dispatching the proponents' primary rationale that the ban advanced the state's interest in responsible procreation and child-rearing, the majority wrote that Prop 8 "had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California."

Judge N. Randy Smith, a Republican appointee, wrote in dissent to find this reasoning unpersuasive. Arguing that it was not the court's duty to second-guess the proponents' rationale, Smith wrote that "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage" would further the state's interest in responsible procreation and "optimal parenting."

Conventional wisdom expects the Supreme Court to hear this case, yet intense public interest alone is rarely a reason for the justices to grant review. The 9th Circuit majority may have even given the justices good reason to deny the case and let the ruling stand. By keeping its decision limited to California law and refusing to recognize a federal constitutional right to same-sex marriage, the 9th Circuit wrote an opinion that could satisfy Kennedy, not trigger the conservative justices' ire and deter the liberal justices from pressing their luck.

Still, Smith's dissent contends that the majority's opinion creates a split with another appeals court, the 8th Circuit, which accepted the same procreation and child-rearing rationales. And circuit splits, more than political salience, are irresistible catnip for the Court.

The 9th Circuit's judgment on Tuesday remains stayed -- meaning there will be no same-sex weddings in California -- until the case reaches the end of the line. The proponents need not go directly to the Supreme Court. They first could ask the full 9th Circuit to review the case. But because of the 9th Circuit's reputation as the nation's most liberal appellate bench -- a court that the conservative Supreme Court loves to reverse -- Prop 8 proponents might rather press straight ahead to the justices.

Comments

[homophobe2]

12:03 AM on 02/21/2012

I love prop 8. Homosexual marriage should not be legal.

[Ry M]

02:45 AM on 02/09/2012

Prop 8 is Unconstitutionally

[Stan-Musical]

01:47 AM on 02/09/2012

The legal reasoning here is somewhat confusing. The court declined to state that there is a constitutional right to same sex marriage. They decided that it was unconstitutional to vote on the definition of marriage once same sex marriage became legal. We'll see where this goes, as the appeal process continues.

[James Jhun]

02:18 PM on 02/09/2012

There's only one more stop dude...

The legal reasoning is confusing because constitutional law on civil rights is complex. Though there may be an argument that Same-Sex marriage is freedom of speech, association etc... but these freedoms have been severely reduced by case law. An argument in basic constitutional right for marriage has been specifically controlled by the state (underage marriages, certain prison marriages, transgender marriage). If you were looking for a simple answer, it won't be found in the law.

In itself, the ruling is consistent with constitutional law and precedent, but presents a split on the issue of "state's interest in responsible procreation and optimal parenting" which is a finding of fact based on the evidence presented in the original federal district case. This would have to be resolved nationally by the supreme court. BUT the panel argued heavily (very very heavily, pages and pages) that the original district ruling should stand based on the fact that same-sex marriages were in fact legal in California for a while. If you want to feel good, go back and read justice walker's original opinion. Here he describes in detail the facts of the case and how it is clear to him that no rational relationship exists between prop h8 and the legitimate government interest in "responsible procreation and optimal parenting."

There's your law lesson, bro.

[gjdavis60]

12:14 AM on 02/09/2012

"Government marriage" is a ploy invented by the elite to control the people and steal their money. It makes me sick reading about how some self-absorbed bureaucrat wrote his clever little decision, crafting his words in order to flatter and influence some other bureaucrat. And we hang on every word like it really means something; like these frauds have any right to determine who we can love or how we can love.

If you have ever wondered if Americans have surrendered their natural rights to government, you have no further to look than this plutocratic, word-mincing screed masquerading as justice. Will we sell out for this? That's what they want. They want us to believe the illusion that they really have the power to tell us how to live. They want us to be grateful for the few crumbs they have deigned to throw down to us from their thrones of power. They want us to become what we despise.

I will not. I say rip these cowards out of their comfortable little shells of power and destroy the system that elevated them over common, decent people. I will no longer be fooled by their propaganda; I will no longer be placated by their empty promises; I will not prostitute the principles I have so painfully come to embrace, nor abandon my brothers and sisters whose rights are still trampled by a system that sees us as nothing more than pawns to be exploited, controlled, and consumed.

[GBMeyers]

02:31 PM on 02/08/2012

Until the 70's or 80's homosexuality was listed as a psychiatric disorder in the DSM. In my opinion they had it right the first time. It was changed due to political pressure not because of other evidence. Homosexuality is a crime against nature. I have yet to see to homosexuals reproduce without outside help. As for marriage, homosexuals are simply trying to redefine marriage to make it more acceptable and to force others to accept it. That is why they are trying to redefine marriage otherwise why should they care whether it is called marriage or not. Not just that, but homosexuals were the ones telling government to stay out of the bedroom. I could appreciate that if homosexuals would stop knocking down the bedroom walls.

[David N Taiwan]

10:46 AM on 02/10/2012

"In my opinion, they had it right the first time."

And what credentials do you have which gives your opinion any substance beyond your mere opinion? Are you a psychiatrist or psychologist?

But beyond your credentials, what research have you conducted to counter the findings of the American Psychiatric Association or the American Psychological Association? Their decision to reclassify homosexuality was based on scientific evidence, not mere "opinions" or "political pressure."

As for homosexuality being a crime against nature, how do you explain that scientists have been documenting homosexuality in nature in over 1,500 species for the past 100 years?

As for redefining things, this happens all the time. Hot used to mean "hot," but now it means something is "cool." Bad used to mean something wasn't good, but now it means it is. Gay used to mean "happy," but then for a while it meant "homosexual" but now its evolving to mean "lame" or "uncool."

Ya' just gotta' keep up with change.

[GBMeyers]

02:04 PM on 02/15/2012

I said "in my opinion" what credentials do I need? READ! The decision to remove homosexuality from the DSM was not so much of a scientific one as it was a political one.

[pjburke]

12:03 PM on 02/12/2012

"Homosexual­ity is a crime against nature."

Religion is a crime against humanity... a slow-rumbling wrecking ball of every single societal sickness and perversion ever known to man.

[all black3360]

11:56 AM on 02/08/2012

They allow same sex couples to marry even though those couples cannot biologically create life, which is the characteristic of a married couple but then the same courts deny marriage to polygamists to marry (by Edmunds Act 1882) even though they are consenting adults exercising their freedom of choice and they can biologically create life. Polygamist have to live in hidding in todays society to avoid federal charges but gays can openly protest in front of the courts, openingly claim a 'right' and even get several courts now to rule in their favor. Something is wrong with this scenario!

[EmmaDarian]

12:15 PM on 02/08/2012

Neither the intention nor the ability to procreate is a condition of marriage.

[all black3360]

05:28 PM on 02/08/2012

Never said it was a condition, but it is the distinguis­hing characteri­stic of marriage. When a man and woman form a new marriage they can go, be fruitful and multiply. A gay couple can't by nature and have to resort to things like contractin­g a surrogate womb or adopt. So, by very definition they are involved in another type of relationsh­ip. Call it 'gay marriage' or 'gay union' it needs some qualifyer to distinguis­h it form marriage where procreatio­n is biological­ly natural.

[Wayne Peterson]

12:58 PM on 02/08/2012

Well, tell it to your God....he intervened in a marriage and had his son born of a married virgin, without any procreating by her husband! So much for your assertion that marriage is for procreation. And, while you're at it, try explaining it to that guy named Joseph!

[all black3360]

05:29 PM on 02/08/2012

My God is also your God.

Marry was an interesting case, but she was said to be virgin and pregnant before she married so ...one can believe or not I guess.

I don't know any Joseph dudes at all. Not sure why you said that.

[Henry Crum]

10:36 AM on 02/08/2012

How is it unconstitutional to disapprove of behavior patterns. I am not against civil unions or gay marriage, but I do not believe that the constitution protects them, as it is a pattern of behavior and not an intrinsic characteristic like race or sex. Evolutionary speaking it would be a complete dead end if it were such and it would quickly breed itself out of the race.

[talkstocoyotes]

12:15 AM on 02/09/2012

It would be a "dead end" if Nature had a specific interest, so to speak, in every member of a species reproducing. That isn't the norm.

As far as "not [being] against civil unions" is concerned, that would have earned you kudos from the gullible 4 years ago. Now, it's like applauding a mythical Jim Crow community for broad-mindedness because they spruced up the upholstery in the movie theatre's Colored Balcony.

[Milo Hoffman]

10:26 AM on 02/08/2012

This ruling is one of the biggest destructions of personal liberty in decades. This is the federal court telling the people of a state that they are not allowed to govern themselves but instead have to look to their totalitarian overlords in Washington on how to run their entire lives.

[SciFiChickie]

11:12 AM on 02/08/2012

Do you understand what personal liberty is?

Personal liberty - the liberty of an individual to do his or her will freely except for those restraints imposed by law.
Liberty-1. freedom from arbitrary or despotic government or control.
2. freedom from external or foreign rule; independence.
3. freedom from control, interference, obligation, restriction, hampering conditions,
etc.; power or right of doing, thinking, speaking, etc., according to choice.

Prop 8 is the infringement on the personal liberties of each and every member our LGBT community who live in California.

[homophobe2]

11:55 PM on 02/20/2012

No its not. Homosexuality is wrong and you know it. Honey... its Adam and Eve. Not Adam and Steve. I also think that nobody is born gay. Someone might have gay tendencies but its their choice if they act on it or not. They are not forced to be gay. Its their choice. And i also think that most people do it for attention. Its ridiculous that that's what people have to do to get attention these days. And you can think what you want but thats not how life is supposed to be. We are supposed to procreate and gay's or lesbian's cant do that in a natural way. I feel so sorry for all the children that have to be raised in a gay or lesbian family. It is very wrong and i would never wish that for anyone.

[EmmaDarian]

11:41 AM on 02/08/2012

You have no understanding of our system of government. The people can't govern themselves, to use your words, unconstitutionally. They can't govern themselves and decide that black people can't walk around free. For example. No matter how many votes such a proposition might get.

[OlHippie]

09:49 AM on 02/08/2012

I know several attorneys, including my daughter, and my patent guy. When these "defense of marriage" laws were first discussed, they all said, "Absolutely no way these laws are constitutional." It seemed obvious they would all be overturned.

I wonder if the homophobic groups and their attorneys could actually be dumb enough to believe they can win. It's a mystery. But it seems like the millions of dollars spent litigating these "no chance" laws could be better spent.

[rockysparks]

02:17 PM on 02/08/2012

"... I wonder if the homophobic groups and their attorneys could actually be dumb enough to believe they can win ..."

(Rocky raises his hand and waves it eagerly.)

I know! I know! The answer is YES! They are that dumb!

[hecatr]

09:40 AM on 02/08/2012

Federal District Court Judge Vaughn Walker made 4 mistakes in his 2010 decision that were grounds for overturning:

1. He interpreted the law as discriminatory on the basis of sexual orientation, when in fact the law reads: “only marriage between a man and a woman is valid or recognized in California.”

2. He declared sexual orientation an immutable trait, equivalent to skin color, national origin, and gender. Sexuality is behavioral, thus mutable and not fixed. Thus homosexuals are not a suspect class.

3. He asserted, and provided zero evidence in support of, “men and women [do not] fulfill different roles in civic life.”

4. He inaccurately applied precedents to prove same-sex marriage is a fundamental right “rooted ‘in our Nation’s history, legal traditions, and practices.’” None of the precedents he cited addressed same-sex marriage. All of them addressed various obstacles to opposite-sex marriage.

[James Jhun]

10:40 AM on 02/08/2012

These were not errors. These were his rulings in his federal court based on his interpretation of constitutional law. As a federally appointed justice, he has the space to do this. If you read Justice Walker's opinion, it is far less fraught than the appeals opinion, which is working very hard to work with the 2012 SC. The 5-4 conservative/liberal split (which is insane) with two hard core religious law/constitutional originalist types on the bench makes it dangerous. The appeals court narrowed the frame in order to preserve their ruling to the best degree. When you read the appeal opinion, the discussion on jurisdiction is lengthy, precisely for this reason. The law itself is unconstitutional ultimately because it singles out a group for discrimination under the law without a legitimate government purpose rationally related to it. California has had gay marriages and families with same-sex parent couples for years now, to no attributable ill-effect. This is the heart of the constitutional question. So the Appeals court narrowed the ruling for california, while Walker ruled on its unconstitutionality free from those constraints. So when you bring up these legal arguments today (which are not set in stone, and are constantly being revised whether by justice or politic), they are irrelevant to the case at hand, but would likely have aided pro-h8 when it was brought into Walker's court. I'd say hindsight is 20-20, but your vision seems rather occluded with prejudice.

[hecatr]

02:18 PM on 02/08/2012

You said the law "singles out a group for discrimina­tion." But the law reads: “only marriage between a man and a woman is valid or recognized in California­.” What is the group being singled out? Homosexuals? Jim McGreevey and Meredith Baxter both married and had children. Clearly the law did not prohibit them from getting married.

If you're argument is, "Anyone should be able to marry anyone they want," then say so.

[jmatrixrenegade]

12:03 PM on 02/08/2012

[1] In intent & practice, it is discriminatory.

[2] Sexual behavior is not "sexual orientation" -- the one are desires, the other action.

[3] He provided lots of evidence to show that men and women fulfill the same roles in a diverse number of areas. The fact they are not exactly the same is not the point. They aren't different enough to discriminate here.

[4] He explained how, as with interracial marriage, that the breadth of the term changed over time. In 1912, few thought interracial marriage was protected either.

[hecatr]

02:27 PM on 02/08/2012

[1] Discriminatory against anyone who wants to marry someone of the same sex, but that does not constitute a suspect class. If I, a heterosexual, petitioned the state for permission to marry my brother, do I fall within this class?

[2] If you're limiting your argument to orientation only, then you've opened up a can of worms. No one isn't guilty of a fleeting homosexual thought. People with "desires" do not constitute a suspect class.

[3] Walker wrote: "men and women [do not] fulfill different roles in civic life.” He is saying a father is no different to a child than its mother. He's delusional.

[4] Interracial marriage was overturned because nonwhites have an immutable, easily identifiable trait: the color of their skin. They are a suspect class. A homosexual orientation (people with "desires," as you put it) are not a suspect class, as desires constantly shift and adjust, more so than sexual behavior.

[ronp121]

09:24 AM on 02/08/2012

Seems not to change in this country any more. Should just pull out the constitution change it to include discrimination. Like pot, the majority vote for it but doesn't matter in this society for the few that don't want it spends all it's time and money to stop what the majority wants.Save money get rid of the voting machines and the right to vote for they seem not to matter to the politicians that use to be there to serve not to rule without representation.

[MrTaban9]

08:46 AM on 02/08/2012

that California voters were motivated by disapproval of gays and lesbians

So let's see, "People Disaprove Of Someone Else's Lifestyle So They Want To Outlaw It" hmmm seems like old times again. One group of people wanting to shove THEIR views DOWN EVERYONE ELSE'S THROATS. I could care less about what Gay People do, THAT'S THEIR BUSINESS AND NO ONE ELSE'S. I don't particulary care for the way Outlaw Bikers Live, should I try to get a law passed AGAINST THEIR EXISTENCE, BECAUSE I DON'T LIKE THE WAY THEY LIVE? . My point is simply this. There are many many things us humans DON'T LIKE ABOUT SOME OF OUR FELLOW HUMANS, but we all don't run around trying to outlaw every single thing our "NEIGHBORS" do that WE DON'T LIKE, DO WE? PEOPLE SHOULD JUST MIND THEIR "OWN" DARN BUSINESS AND LET OTHERS "LIVE AND LET LIVE"

[Rehbock]

08:45 AM on 02/08/2012

I am disturbed by the number of people who attack this decision Laws based on animus to gays or for that matter otherwise denying fundamental freedoms between and by citizens remind me that people are the same the world over. Hate is based on fear and fear is tribal based on an ignorance that we are superior to them. People forget that the them think they too are superior to us for the same reason
When ferarful, ignorant and hateful Americans continue not to distinguish between laws that protect individual freedom from those that deny individuals freedom, we behave no better than those despots and zealots whose ignorant subjects we so often bomb in the name of making them free and equal.

[jstanavgguy]

09:38 AM on 02/08/2012

However, rights are not granted as a result of lifestyle choices.

To equate the civil rights of blacks, who have no choice in being black, to hat of homosexuals, who choose a lifestyle, is insulting.

[SciFiChickie]

10:38 AM on 02/08/2012

To say that being gay is a "choice" shows that you lack logical thinking skills...

Let me dumb it down for you...

The only way you can know it is a "choice" is if you made the "choice" to be straight. Just ask yourself "Am I atrracted to both males and females equally?" if the answer to the question is no then logically being gay is not a choice...

[James Jhun]

10:42 AM on 02/08/2012

Your disgust is very unfortunate. We apologies for being discriminated against because of who we are. I hope for your sake that none of your loved ones are disgusted by you. It hurts a lot.

[yrbmegr]

08:43 AM on 02/08/2012

The anti-Ninth Circuit.

[toby d]

08:15 AM on 02/08/2012

The only thing that matters in America is the Supreme Court. Thats it. The Congress is permanently broken. The Supreme court has the biggest impact on the lives of all Americans. They decide abortion rights, worker's rights, the health care law, they even decided that corporations were people. They make all the decisions that govern our lives from drug laws to almost ever social issue. They even decided who won the Presidential election of 2000 (think how many innocent people would still be alive if Al Gore would have been declared the winner). From 1980 to 2008 we had 20 years out of 28 of conservative Presidents appointing conservatives justices. We not only need Obama to win, we need his successor to win in 5 years so that we can finally get the majority on the court. That is what will impact my 2 year old son's life for decades to come. Nothing else matters....we must win back the Supreme Court. Only then can we secure a woman's right to choose, take all the big money out of politics, and ensure equal rights for all Americans. It's not "the economy stupid" It is THE SUPREME COURT you dummies. Nothing else matters.

[INTJ]

09:23 AM on 02/08/2012

While I agree with your conclusion, and the basic premise that the Supreme Court is preeminent and critically important to either side of any legal or constitutional debate, I point out some flaws in your argument (fruitlessly no doubt):

They did not "decide" the 2000 election. There is no scenario ever advanced in which Gore could have won. The newspapers completed the full-state recount on which Gore's final appeal (which would have worked had it been his first) rested, and proved that Gore still lost Florida.

The Court did not decide that "corporations were people." Even though they are free associations of people, the SC merely ruled that the First Amendment ("Congress shall make no law...abridging the freedom of speech, or of the press.' does not allow Congress to place restrictions on the freedom of speech and the press in the case of corporations, but actually means what it says.

[James Jhun]

11:01 AM on 02/08/2012

These are wonderful distinctions being made at the fringe of law. Entertaining Corporate personhood is a fine idea for commercial regulation, however CU puts Corporate personhood directly into the democratic process with greater rights than the human contributor. The resulting SuperPac is a proxy for candidacy right now. This is fringe. This is not mainstream legal interpretation of corporate personhood.

The 2000 election was loaded with more irregularities than just Florida. As you recall, testimony and retrieved evidence demonstrated the destruction of ballots, disinformation at democratic precincts etc... The failure of Gore to push further was a sign of his emotional weakness in the face of adversity, but the underlying turmoil around a highly irregular election begged judicial discipline. Instead, it received a judicial blank check. Now we have Diebold infiltrated across the nation, and we can confidently look at the SC and say, nope, they won't be providing judicial discipline for illegal election practices any time soon.

They may have not "technically" stolen the 2000 election as you prescribe, but they enabled and continue to enable the regressive party in its quest to bend the rules against the rest of us.

[rockysparks]

02:27 PM on 02/08/2012

You are choosing to rewrite history. Gore won the popular vote in Florida. The activist conservative judges on the Supreme Court, some of whom were appointed by or were close professional associates of George W. Bush's father, chose to select Dubya as president. People remember what happen, even if you are trying to pretend that it didn't.

You can tell a lie many times --- as you are currently doing with this phony interpretation of the Citizens United ruling --- but you cannot make all the people believe it. It only makes YOU look either delusional or a prevaricator.

[jstanavgguy]

09:39 AM on 02/08/2012

Gore lost.

Independent investigations showed it.

Get over it.

[rockysparks]

02:30 PM on 02/08/2012

The Supreme Court stole the election for Bush. No independent investigations proved anything.

But you're right. The damage to America can't be undone and we have to move past it. One way to do that is to elect presidents who will appoint honest Supreme Court justices and congressmen who will approve them.

Vote Democrat in 2012.

[pjburke]

12:40 PM on 02/12/2012

That's a lie.

Bush was never legitimate.

Get over that.