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February 7, 2012 in Nation/World
Court: CA gay marriage ban is unconstitutional
SAN FRANCISCO — A federal appeals court today 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.
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.”
© Copyright 2012 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Stocks plummet as outlook in Europe dims 
dataxman on February 07 at 10:25 a.m.
The ban on polygamy will be next
greenlibertarian on February 07 at 10:42 a.m.
catbox on February 07 at 10:29 a.m.
maybe Washington will follow suit. I hope. I cant believe this is at the top of the issues. If homosexuals can get married, wife and I will get divorced. We don’t want any part of it.
So that’s how much you respect this institution of marriage, eh?
Figured you’re that type.
Actually, I’m pretty sure you’re just making stuff up as you go along.
liberal_in_right_wing_land on February 07 at 10:42 a.m.
Its to bad people cannot figure out the difference between a marriage between ONE HUMAN and ONE OTHER HUMAN, regardless of sex…instead somehow they think that means people want polygamy legal also and people able to married animals.
When people make claims that that, its just showing their stupidity on this issue and they have no better reason to be against this other than hate.
ManleyPointer on February 07 at 10:45 a.m.
People should be able to decide for themselves how they want to live. I know: what a concept!!
empyrius on February 07 at 10:47 a.m.
Tis a, a-hem, straight-forward issue that requires not this vast expenditure of time and money.
Two adults want the same set of civil rights as any other two adults: how can this be any sort of problem?
You want biblical marriage get a priest, rabbi, preacher, or religious dude from whatever variety of religion ya got.
You want equal rights buy a marriage certificate from city hall.
Also, does not a judge who is married to a women have a sexual orientation that makes him unable to objectively rule on a matter of sex and civil unions?
Yep.
fishinjay on February 07 at 10:49 a.m.
You know what will happen when gay people are able to get married? Gay people will get married. That’s it. Why all the hate and animosity?
Al_Loysius on February 07 at 10:53 a.m.
Not a big surprise. The 9th Circuit has always been the most liberal and they are the most reversed circuit. The real test will be in a year or two when this gets to the Supreme Court. Justice Scalia has already said in an earlier case that the rulings against polygamy in the 1800’s will not stand if the Supreme Court strikes down the ban on gay marriage. Conversely, the rulings in the Polygamy Cases would be precedent to uphold the ban on gay marriage here.
liberal_in_right_wing_land on February 07 at 10:55 a.m.
catbox, I am sure the state and federal government will gladly take your divorce, that way instead of giving all those tax breaks to you for being married both the state and government will now be able to collect more tax money from both of you. Please, go get divorced and show your support for the government by paying higher taxes.
Also, catbox, if your worried about gay marriage somehow ruining your marriage, were you ok with all these things that have made straight marriage a joke? 48 hour marriages by celebrities and weddings just to have a TV show and make a couple million bucks on it, people getting married 8, 9, 10 or more times, a divorce rate of over 50%., drive-thru wedding chapels in Las Vegas, and finally, someone running for the presidency on his third wife after asking to have an open marriage with his second wife who he meet and was sleeping with while the first wife had cancer
If none of those has ruined your sacred “institution of marriage” then I am pretty sure straight marriage will survive a few gay people marrying and I am also pretty sure you and your wife’s marriage will survive also…unless you both don’t love each other that much and are just using this as an excuse to divorce her.
dataxman on February 07 at 11:00 a.m.
lib - why should it be limited to two people? The Court has found that a arbitrary restriction on marriage is unconstitutional. I am not sure why one arbitrary restriction (just one man & one woman) can be considered discriminatory and another (just one man/woman & one man/woman) would not also be found unconstitutional.
Washingtonian on February 07 at 11:07 a.m.
dataxman, the polygamy argument is a red herring. Look at all of the other western countries which permit gay marriage. Polygamy has not followed.
The fact remains that we have reached the point where most people believe that gay marriage is ok and polygamy is not. I understand that the bible says polygamy is a good thing, but that does not make it so.
jdspokanewa on February 07 at 11:10 a.m.
I’m thinking catbox will get a divorce so he can marry his secret male lover. It’s the only thing that makes sense.
Civil rights aren’t up to the idiot masses, legally speaking, only very few (activist) judges have upheld anti-gay legislation and prior rulings. I’m tempted to think even the very right-wing activist SCOTUS will decide in favor of gay marriage though probably with a 5-4 decision.
dataxman on February 07 at 11:34 a.m.
WA - but other countries do not have our constitution. The argument for gay marriage is being made based on the constitution. If it were being allowed based on societal acceptance then your argument would hold. Same sex couples are argued (and the 9th Circuit agreed) that they have a constitutional right to marry - so why not 3 or more.
Diana on February 07 at 11:36 a.m.
“If homosexuals can get married, wife and I will get divorced. We don’t want any part of it.”
Well, that is certainly your choice. Key word - choice.
Sorry to hear your marriage is too weak to withstand other loving, committed couples having the same rights and choices you do.
SpokyDaBear on February 07 at 11:44 a.m.
Diana, he only wants to divorce his wife so he can marry his boyfriend.
pmbrown49 on February 07 at 11:52 a.m.
If we determine that marriage is between One Human and One Other Human, we may be opening a can of worms. We’ll need a definition for “Human” and everyone may not fit that definition!
But I have no problem with gay marriage. Really doesn’t affect me.
I also believe I shouldn’t be mandated by the government to buy health insurance or anything else for that matter.
Less government = more freedom
liberal_in_right_wing_land on February 07 at 11:52 a.m.
dataxman, if you want polygamy legalized so bad, maybe you should start en effort to get it legalized. Lets see how many people around the country besides the Mormon church and the fundamentalist mormons living on compounds with 20 wives already support your effort.
This is America, you are free to try and start whatever movement you want to get polygamy legal, nobody is holding you back but yourself. So if you want to be able to marry all your girlfriends you better start moving on it, posting the question of why polygamy isn’t legal on the Spokesman Review isn’t going to help you.
Ashree_Simon on February 07 at 11:57 a.m.
Our best friends our gay and have been together for 40 years. Both are retired teachers and are good people and citizens. They don’t have a desire to be married, but they will if given the opportunity. And their only reason for doing so is to protect each other from their family and the courts should one of them die. They have their wills drawn out, but still that is not a guarantee that one of their “next of kin” won’t contest it. By being legally married, that is just one more layer of protection when one of them passes on.
liberal_in_right_wing_land on February 07 at 11:58 a.m.
People who want less government only want less government in things they don’t agree with. They don’t want less government when telling women not to have abortion or birth control. They don’t want less government when telling people who they can and can’t marry. They don’t want less government handouts to corporations and oil companies. And they most certainly don’t want smaller government in their military and defense contracts.
ManleyPointer on February 07 at 12:07 p.m.
So what’s the problem with polygamy? I have several friends who have multiple wives and, apart from logistical issues and non-stop exposure to PMS-ing spouses, it seems to work ok for them.
dataxman on February 07 at 12:12 p.m.
lib - this country has a large Muslim community that still practices polygamy. When I was working on my masters @ GU a person in my group was from Saudi. He brought over his wife and ‘sister’ while he went to school. He said it was very common for Muslim immigrating to the US to bring their wives over that way. So it is not just a FLDS thing…
pmbrown49 on February 07 at 12:15 p.m.
Yes, liberal, you are right. I don’t want government handouts going to oil companies…or corporations like Chrysler/GM either. I don’t want government telling us what we can do with our bodies, but if the government is going to mandate I buy insurance, when will they also tell 400lb people they must change their “lifestyles”, too? Big brother is already doing this with tobacco, why not obesity and irresponsible behavior like substance abuse?
I do think we need to keep a reasonably strong military to perserve our freedoms, not nation building as Presidents from both parties have done. You’re going to need more than a .22 rifle to stop that nuke attack from some crazed religious zealot in the Middle East.
misjustice on February 07 at 12:33 p.m.
YEAH, for the 9th US Circuit Court of Appeals!
DOWN with Prop 8!
YEAH, for Marriage Equality!
DOWN with discrimination!
liberal_in_right_wing_land on February 07 at 12:43 p.m.
dataxman, well sounds like you have a good start for your campaign to legalize polygamy…you got radical mormons and some muslims. Good Luck!
EthicsinLE on February 07 at 12:55 p.m.
Whether or not you agree with gay marriage, I think it’s time the Supreme Court decided on it. Most states are taking on the issue and it is costing millions in court battles across the nation. Let’s get one final decision and move on. By the way, the 9th district is the most overruled court in the nation, so I would not be surprised if they got overruled on this one, like they have many times in the past. Look up their past history, they by far are the most overruled compared to any other court of the same level. On a moral basis, I do not agree with gay marriage, but MY personal morals should not decide the life of others. I am good friends with many gay people and understand their lives and decisions. Even though I do not morally agree with gay marriage, I would vote for it. Let gays marry so they can be miserable like us married folk :).
Note_to_Self on February 07 at 12:58 p.m.
The Mormons spent millions of dollars on Prop 8. They were told by their leaders that it was gods will. I guess gods will is in the hands of the SCOTUS now.
Indie on February 07 at 1:02 p.m.
This won’t go to the Supremes - very narrowly focused opinion that refers to CA only.
Bruce (aka thatoneguy) on February 07 at 1:12 p.m.
As I’ve said before: if you want polygamy legalized, then get to work on that public relations campaign to combat fears & misconceptions, and wait for a substantial portion of the population to die because they will never change their minds… and when you are pretty sure you finally have public opinion on your side, let the rest of us take a vote on it.
Bruce (aka thatoneguy) on February 07 at 1:15 p.m.
Oh, and the cool thing about this is that you don’t even have to be gay to marry someone of the same sex! You can just be good friends and want to be able to own property together, share in health benefits, etc. without having to deal with someone of the opposite sex. Once straight people awaken to that concept, then traditional marriage with really be in trouble! :-p
IHike4Fun on February 07 at 1:35 p.m.
How can a constitutional amendment be … unconstitutional. I would have thought it was constitutional by definition. What am I missing here?
oneanddone on February 07 at 1:36 p.m.
It’s always been said that any fundamental right stops where another’s begins. In this case it has more to do with the reverse. I honestly can’t imagine whose rights are infringed upon by virtue of gay marriage. That’s why polygamy doesn’t work, or incest, or pedophilia. Seems to me the only real objection many people have are taxes. I never did understand, where there are no kids, why married people pay lower taxes than two singles living together. If there are kids, sure - society has a stake in keeping a family together. Otherwise it’s anachronistic and should be changed, if for nothing else, fairness. And after all, isn’t fairness what gay marriage is about?
JDinSeattle on February 07 at 2:07 p.m.
What the court deemed unconstitutional was that Prop 8 violated the equal protection clause of the 14th amendment.
i.e. All Californians were afforded the right to marry, then Prop 8 came along and stripped one class of people (the gays) from exercising that right, for no good reason. And FYI - tradition and status quo are not valid reasons, otherwise womens suffrage, inter racial marriage, and the civil rights act never would have happened.
Yes, the initiative process is important in California and elsewhere (I could probably argue against that a lot more effectively), but that doesn’t mean that all initiative’s are constitutional - as this one certainly is not.
Good on the 9th circuit for making the right decision.
dougfresh on February 07 at 3:40 p.m.
Why do people keep bringing up polygamy? I don’t see any problem with that morally, it certainly would be a nightmare for the tax code though.
Anyway, this will go to the supreme court, and gay marriage will be legal all through the land, and like Roe Vs Wade, the right wing haters will cry about how the decision will surely bring god’s wrath and the apocalypse.
Life will go on, and we will continue to progress despite the cries and moans of those that would prefer to have our society like it was in the 1800s.
Local on February 07 at 4:43 p.m.
Unelected judges cast aside the will of the people of California.
nslopeofw on February 07 at 4:50 p.m.
LIRWL-
I am for reducing government, and yet i do not agree with anything you claimed us “small government” proponents are for. I have no problem with right to chose, i just don’t want to pay for it with tax dollars. I don’t care if two people of the same sex want to marry. I don’t want government handouts to corporations, or individuals.
I do believe in a strong defense, but that would only be to protect our freedoms. Just think if we didn’t have a strong military, any psycho-Islamic state could come over and tell us we had to kill all our homosexuals, our mentally challenged, cover the faces of our women, no women would be allowed to go to school, women would be stoned to death for not being a virgin when they got married, men would all have to wear beards, etc. If that sounds bad to you, then a strong military would also be OK once you thought about it.
If you really wanted to understand what people like about less government, you would quit your anti-everything except liberal beliefs.
The government is what keeps you from making legal marriage, with binding laws that allow you the same rights as me, the celebration with your pretty white clothes, and the exchanging of rings. Oh, and the “i, do”.
misjustice on February 07 at 5:43 p.m.
Someone whined, “Unelected judges cast aside the will of the people of California.”
Funny, that is the EXACT same thing that Mitt Robme said.
jdspokanewa on February 07 at 7:05 p.m.
I do not have a problem with unelected judges ruling against the ignorant voters as long as their reasoning is sound and based upon the law, not based on theology or ideology.
misjustice on February 07 at 8:22 p.m.
Someone whined, “Unelected judges cast aside the will of the people of California.”
Funny, that is the EXACT same thing that Mitt Robme said.
And I should have added that Mitt Robme’s church, the Mormons, heavily funded the vote for Prop 8; maybe with some of the millions that he tithed to the church?
silverlake89 on February 07 at 9:17 p.m.
We’ve reached a point where you can no longer define a marriage anymore than you can define family. It’s different in every household, get over it. And I for one hope that polygamy follows in the footsteps of gay marriage because I don’t think I would be able to stand seeing the same person day after day. I don’t know how married people do it without going insane. I think I would like 1 or two sister wives and a couple of husbands.