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Appeals court declares Proposition 8 same-sex marriage ban unconstitutional

on February 7, 2012

A federal appeals court declared California’s Proposition 8 unconstitutional today, overturning the statewide ban on same-sex marriage that had been approved by voters in 2008. In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled that Proposition 8 unfairly took away rights from a minority group.

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” stated Judge Stephen Reinhardt in writing the majority opinion. “The Constitution simply does not allow for ‘laws of this sort.’”

You can read the complete ruling here.

The court’s decision drew cheers from a crowd of gay rights supporters who had gathered at the steps of the James R. Browning U.S. Court of Appeals in San Francisco. Teresa Rowe, who lives in San Francisco with her girlfriend of six years, Kristin Orbin, said they have been at every motion that’s been filed and every hearing that’s happened related this appeal. “It was very exciting, there were lots of tears of joy,” Rowe said in a phone interview. “We’re just a couple that is desperately wanting to get married and it looks like that might be able to finally happen soon.”

Proposition 8 was approved by 52 percent of state voters in November, 2008. It amended the California Constitution to repeal a Supreme Court ruling six months prior, which said the state’s then-existing ban on same-sex marriage violated guarantees of equality ensured by California’s constitution.

The court’s decision Tuesday was based on the idea that the major purpose of Proposition 8 was one of moral disapproval and hostility towards gays and lesbians. However, Reinhardt, joined by Judge Michael Hawkins, refrained from deciding whether same-sex couples have a basic constitutional right to marry, saying that they “express no view on these questions.”

Dissenting Judge N. Randy Smith expressed his respectful disagreement with the majority opinion on the grounds that he believes that Proposition 8 is in fact related to a legitimate governmental interest. “Same-sex couples in domestic partnerships still enjoy the same substantive rights and benefits as opposite-sex couples in marriages,” Smith wrote.

Proposition 8 supporters quickly vowed to contest the court’s decision.  “We will immediately appeal this misguided decision that disregards the will of more than 7 million Californians who voted to restore marriage as the unique union of only a man and woman,” said Andy Pugno, the general counsel for the coalition, the official proponents of Proposition 8, in a written statement issued this morning. “We are confident that the rights of California voters will finally win out.”

Pugno said that his group will need to take time to digest the ruling before deciding whether to petition for a rehearing or appeal straight to the US Supreme Court.

For the time being, California’s ban on same-sex marriage remains in effect while the case is still potentially under appeal. So for same-sex couples hoping to tie the knot, it’s still a bit of a wait-and-see game. “We’re just continuing to live our truth in our daily lives. We’re fully open and honest,” Rowe said. “That’s all we can do.”

Jesse Choper, the Earl Warren Professor of Public Law at UC Berkeley, thinks that the most likely next step will be an en-banc review in the Ninth Circuit. This would mean the case would be reheard, but with eleven judges rather than three for a broader review of the case. But whether or not this happens, he said the chances are very good that the Supreme Court will eventually take up the case.

“Then and only then will we know what the story is as far as law and gay marriage is concerned,” Choper said.

 You can see Oakland North’s complete previous Proposition 8 coverage here.

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