California's Same-Sex Marriage Ban Is Unconstitutional, Court Says

Feb 7, 2012
Originally published on February 7, 2012 6:26 pm

California's Proposition 8 ban on same-sex marriages is unconstitutional, a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled today in a much-anticipated decision from the nation's most populous state. The judges upheld a lower court's ruling.

As you'd expect, the ruling has drawn praise from those who support same-sex marriage and condemnation from those who oppose it. Both sides acknowledge that the decision isn't the last word on the subject — an appeal to the U.S. Supreme Court is expected.

We posted updates on the decision (which you can read below) and as reaction came in.

Update at 1:54 p.m. ET. Newt Gingrich Condemns Decision:

"Court of Appeals overturning CA's Prop 8 another example of an out of control judiciary. Let's end judicial supremacy," Republican presidential contender Newt Gingrich's Twitter page says.

Update at 1:45 p.m. ET. Reaction From Prop 8 Supporters, Who Vow To Appeal.

KQED's News Fix blog reports that:

"The National Organization For Marriage, the main group supporting Proposition 8, has condemned the ruling. From the press release:

" 'As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,' said Brian Brown, NOM's president. 'We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker's first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.' "

Update at 1:40 p.m. ET. A Copy Of The Ruling.

We've put a copy of the court's decision here. To read it in the box below, just click on the headline "Prop 8 Ruling" so it will pop up into a larger view.

Update at 1:35 p.m. ET. Pelosi Reacts:

Rep. Nancy Pelosi of California, the top Democrat in the House, says on her Twitter page that Prop 8 was ruled to be "what we knew it to be: unconstitutional. Victory for equality & CA families!"

Update at 1:25 p.m. ET. Ruling Is On "Narrow Grounds":

In the decision, the judges write that they did not rule on the "broader" issue of whether "same-sex couples may ever be denied the right to marry." That, they said, "is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly."

They continued: "We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents 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 incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds."

Update at 1:18 p.m. ET. More From The Decision:

"Although the Constitution permits communities to enact most laws they believe to be desirable," the opinion states, "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."

Update at 1:15 p.m. ET. 2-1 Decision.

The Los Angeles Times writes that:

"The 2-1 decision ... found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.

"The ruling was narrow and likely to be limited to California.

" 'Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,' the court said."

Update at 1:07 p.m. ET. More Background.

KPCC reminds us that:

"The Ninth Circuit ruling comes 18 months after federal judge Vaughn Walker struck down the ban. Walker found Prop 8 violated constitutional rights under two provisions: the equal protection clause and the due process clause of the constitution to marry."

KQED has a timeline of significant moments in California's same-sex marriage debate. And it is live blogging the news here.

From our original post:

As NPR's Richard Gonzales reported in November, Prop 8 was:

"Struck down as unconstitutional by a federal judge more than a year ago. Both former governor Arnold Schwarzenegger and then attorney general Jerry Brown took the unusual position of declining to appeal, so the sponsors of Prop 8 took it upon themselves to file an appeal before the U.S. 9th Circuit Court of Appeals. ...

"Regardless of the finding, the 9th Circuit is expected by all parties to be just a legal stop before the matter goes to the U.S. Supreme Court."

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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.


And I'm Robert Siegel.

California's ban on same-sex marriage, known as Proposition 8, is unconstitutional. That's the ruling today from a federal appeals court in California. It upheld a lower court decision.

CORNISH: State voters approved Prop 8 in November 2008. Opponents then challenged it in court. In 2010, a federal judge ruled that gays and lesbians have a constitutional right to marry the person of their choosing. But as NPR's Richard Gonzales reports, today's ruling won't be the last word from the courts on same-sex marriage.

RICHARD GONZALES, BYLINE: A three-judge panel of the U.S. 9th Circuit Court of Appeals split 2-to-1, saying that the U.S. Constitution permits communities to enact most laws they believe to be desirable. That was their acknowledgment that Prop 8 passed with 52 percent voter approval. But in their written opinion, the judges say there must be a legitimate reason for the passage of a law that treats different classes of people differently, and they conclude there was no such reason that Proposition 8 could have been enacted.

Lawyers for the same-sex couples who had challenged Prop 8 celebrated today's decision. Attorney Theodore Olson, a conservative lawyer who has nonetheless championed the rights of same-sex couples to wed, said today's ruling could bring the debate over same-sex marriage closer to a hearing before the U.S. Supreme Court.

THEODORE OLSON: From the very beginning, we have been planning to be in the United States Supreme Court, to vindicate for all Americans the right not to be discriminated against on the basis of their sexual orientation.

GONZALES: Prop 8 sponsors left little doubt they will appeal.

ANDREW PUGNO: Well, the ruling is disappointing, but it's not much of a surprise.

GONZALES: Andrew Pugno is general counsel for ProtectMarriage, the sponsors of Prop 8. He points out that the ruling was written by Appellate Judge Stephen Reinhardt, a well-known liberal.

PUGNO: I mean, this is the 9th Circuit that we're dealing with, and a narrow decision - just 2-to-1 - written by a judge that I think is the most often-overturned appellate judge in the country. So you have to look at this in that context, and realize that this is just one of many steps that ultimately lead to the U.S. Supreme Court.

GONZALES: Pugno says it's too early to say whether the sponsors of Prop 8 will request another hearing in front of all the judges on the 9th Circuit - known as en banc - or appeal directly to the U.S. Supreme Court. The 9th Circuit also rejected a bid by Prop 8 sponsors to have the lower court judge's decision set aside because of his personal life. Judge Vaughn Walker waited until after his ruling, and after his retirement, to reveal that he is gay.

Prop 8 sponsors argue that the judge was obliged to disclose this information earlier, and should have been disqualified from hearing the case. Andrew Pugno.

PUGNO: And that kind of disclosure is critical to preserving the public's confidence in the impartiality of federal judges. And it was the failure to disclose that, and kind of put that out in the open - that failure is really why this decision should have been vacated.

GONZALES: However, the court said there was no evidence that Judge Walker was biased. For now, the day has gone to the opponents of Prop 8 such as Kris Perry, one of the plaintiffs in the legal challenge to the measure. She spoke at a news conference this morning in Los Angeles.

KRISTIN PERRY: Very soon, Proposition 8 will be gone forever. When that day comes, we can all celebrate a victory for freedom, fairness and equality. We can't wait for that day. We can't wait.

GONZALES: The judges wrote their opinion in a narrow way so as to affect only California. They did not take on the issue of same-sex marriage in other states, and they said that such marriages cannot resume until the deadline passes for the supporters of Prop 8 to file their appeals. Even if an appeal is filed, same-sex marriages will remain on hold until the U.S. Supreme Court decides to let the ruling stand, or take up the case.

Richard Gonzales, NPR News, San Francisco. Transcript provided by NPR, Copyright NPR.