Calif. gay-marriage ban found unconstitutional

Appeals ruling may land case in high court

Beck Diefenbach/Reuters

Same-sex marriage advocates cheered the ruling on Proposition 8 outside the federal courthouse in San Francisco yesterday.

LOS ANGELES - A federal appeals court panel ruled yesterday that a voter-approved ban on same-sex marriage in California violates the Constitution, all but ensuring that the case will proceed to the Supreme Court.

The three-judge panel issued its ruling in San Francisco, upholding a decision by Judge Vaughn R. Walker, who had been the chief judge of the US District Court of the Northern District of California but has since retired.


The panel found that Proposition 8 - passed by California voters in November 2008 by a margin of 52 percent to 48 percent - violated the equal protection rights of two same-sex couples who brought the suit. The proposition placed a specific prohibition in the state constitution against marriage between two people of the same sex.

But the 2-1 decision was much more narrowly framed than the sweeping ruling of Walker, who asserted that barring same-sex couples from marrying was a violation of the equal protection and due process clauses of the Constitution. The two judges in this case stated explicitly they were not deciding whether there was a constitutional right for same-sex couples to marry, instead ruling that the disparate treatment of couples under California law since the passage of Proposition 8 violated the Equal Protection Clause of the Constitution.

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“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 people differently,’’ Judge Stephen Reinhardt wrote in the decision. “There was no such reason that Proposition 8 could have been enacted.

“All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage,’ ’’ the judge wrote, adding: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.’’

Supporters of Proposition 8 can now ask for a larger panel of the US Court of Appeals for the Ninth Circuit to take up the case. But they could also appeal the case directly to the Supreme Court, setting the stage for a decision by the nation’s highest court on an issue that has roiled legal, political, and cultural circles here and across the country.


The decision was the latest victory by same-sex marriage proponents here since losing at the polls four years ago and sets the stage for what they said they were seeking: a fight before the Supreme Court.

“This is a huge day: The United States Court of Appeal for the Ninth Circuit, which represents nine states and certain territories, has decided that Proposition 8 is unconstitutional,’’ said Theodore B. Olson, one of the attorneys representing the American Foundation for Equal Rights, which challenged Proposition 8. Speaking at a news conference, Olson said he was now “very confident’’ the Supreme Court would uphold the decision and nullify the voter initiative.

Proponents of Proposition 8 expressed disappointment in the decision but said they were not surprised given the nature of the Ninth Circuit, which they view as a liberal court, and predicted it would fail before the Supreme Court.

“Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the US Supreme Court,’’ said Andy Pugno, general counsel for the coalition, the official proponents of Proposition 8.

The judges continued the stay on the decision that had been handed down by Walker, meaning that it will have no immediate effect: Same-sex marriages will not be allowed to commence while the litigation continues.

The judges also upheld a lower-court decision rejecting an attempt by supporters of the proposition to have Walker’s decision struck down on the grounds that he is gay and involved in a long-term relationship with another man.

The decision is the latest turn in a tangled battle that has been fought out here for almost 12 years.

The court found that Proposition 8 violated the equal protection rights of same-sex couples.

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In the spring of 2008, the California Supreme Court threw out a 2000 voter proposition barring same-sex marriage. Opponents immediately marshaled their forces to get Proposition 8 on the ballot and get it passed.

That proposition amended the California Constitution to bar same-sex marriage. During the period when same-sex marriages were legal in the state, nearly 18,000 couples married; their unions remain in place.

Walker ruled in August 2010 that the ban on same-sex marriage violated the rights of gay men and lesbians. The decision yesterday upheld Walker’s ban and reasoning.

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