Divided court rejects Proposition 8


Reporting from San Francisco and Los Angeles -- A federal appeals court has declared California’s 2008 voter-approved ban on same-sex marriage unconstitutional, concluding that the prohibition served no purpose other than to “lessen the status and human dignity of gays and lesbians.”

The 2-1 ruling by the U.S. 9th Circuit Court of Appeals was narrowly written to limit its scope to California’s borders and possibly even avoid review by the U.S. Supreme Court, legal experts said. Nonetheless, gay-rights advocates hailed Tuesday’s decision as historic, while supporters of Proposition 8 immediately vowed to appeal.

Instead of expanding the constitutional rights of gays and lesbians, the court based its decision on a 1996 U.S. Supreme Court precedent that said a majority may not take away a minority’s rights without legitimate reasons.


PHOTOS: Prop. 8 ruled unconstitutional

“Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships,” Judge Stephen Reinhardt wrote for the court.

The ruling won’t take effect immediately; supporters of Proposition 8 have two weeks to appeal to the circuit court and 90 days to file a petition for Supreme Court review.

Though divided on the constitutional question, the three-judge panel unanimously agreed that ProtectMarriage, the backers of Proposition 8, had the right or legal “standing” to appeal Chief U.S. District Judge Vaughn R. Walker’s 2010 ruling against the ballot measure.

The panel also unanimously rejected a challenge by ProtectMarriage that Walker’s ruling should be set aside because he failed to disclose that he was in a long term same-sex relationship. Walker, who has since retired, ruled after an unprecedented, two-week trial that examined the meaning of sexual orientation and the history of marriage and gay rights.

“It’s no surprise that the 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage,” said Andy Pugno, a lawyer for ProtectMarriage. “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 U.S. Supreme Court.”


But other lawyers and legal scholars said the 9th Circuit might have the final word on Proposition 8 because the ruling was so pointedly limited to California, a state where voters stripped a minority of a right that already existed and where the usual justifications for a same-sex marriage ban, responsible parenting and procreation, are undercut by domestic partner laws.

Proposition 8 passed as a constitutional amendment six months after the California Supreme Court struck down a state law that limited marriage to a man and a woman, and an estimated 18,000 same-sex couples married during that time. The initiative also did not affect parenting rights of gays and lesbians, which are protected under other state laws.

“That legal background does not exist in most states,” said University of Minnesota Law School professor Dale Carpenter, who has followed the case.

Loyola law professor Douglas NeJaime agreed, noting that Tuesday’s decision allows the U.S. Supreme Court to postpone a pronouncement on same-sex marriage until a more sweeping case comes along.

“The 9th Circuit decided the case in a way that would allow the Supreme Court to affirm without having to significantly expand on its existing jurisprudence and without having to rule on marriage for same-sex couples on a national scale,” NeJaime said.

ProtectMarriage could ask a larger panel of the 9th Circuit to review Tuesday’s ruling, which could keep the case in the circuit for another year. If the group went directly to the Supreme Court and won review, the high court could rule on the case next year.

ProtectMarriage has long said it wanted the high court to get the case as soon as possible, but its representative said Tuesday that the organization has yet to decide its next step.

In the opinion, Reinhardt drew close parallels between Proposition 8 and a 1992 Colorado initiative that barred the government from passing laws to protect the civil rights of gays and lesbians. The U.S. Supreme Court, in a decision written by Justice Anthony M. Kennedy, struck down Colorado’s law in 1996.

Calling Proposition 8 “remarkably similar” to the Colorado initiative, the 9th Circuit said both measures singled out one class of people and removed an existing right without serving any reasonable purpose.

“It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman,” the court said.

David Boies, one of the lawyers for two same-sex couples who sued to overturn Proposition 8, said the ruling presented “the most difficult set of facts” possible for ProtectMarriage because the decision “so squarely fits” the high court’s precedent in Evans vs. Romer, the case that struck down the Colorado measure.

Despite the 9th Circuit’s attempt to limit its ruling, advocates for same-sex marriage celebrated it as a giant step for gay rights across the country.

“This is the first time a federal appellate court has ever clearly held that marriage equality is constitutionally required,” Boies said.

Joining Reinhardt, a liberal lion of the 9th Circuit appointed by former President Jimmy Carter, was Judge Michael Daly Hawkins, a former Arizona federal prosecutor and an appointee of former President Bill Clinton.

Judge N. Randy Smith, a conservative appointed by President George W. Bush, dissented, arguing that limiting marriage to opposite-sex couples could be justified on the grounds that heterosexual couples are the only couples who can procreate naturally.

“The family structure of two committed biological parents — one man and one woman — is the optimal partnership for raising children,” Smith wrote.

He also noted that states may legitimately prohibit bigamy, incest, bestiality and other sexual relationships condemned by society, as well as impose age limits for marriage or require tests for venereal disease without running afoul of constitutional rights.

Barry McDonald, a constitutional law professor at Pepperdine University, called Smith’s arguments “very reasonable.” Whereas the Colorado case barred gays from receiving all sorts of protections from discrimination, Proposition 8 was limited to marriage, McDonald noted.

“It’s going to be tougher to make the case that the voters of California were animated by pure animus alone” in passing Proposition 8 “since they already had done so much in giving gays and lesbians all the rights of marriage,” McDonald said.

Both the majority opinion and the dissent appeared written largely for one justice: Justice Kennedy, who not only wrote the precedent that Tuesday’s ruling relied on but who is considered a swing vote on the high court, UC Irvine law professor Richard Hasen said.

“Just as Judge Reinhardt was smart and savvy in writing his analysis striking down Prop. 8 on the narrowest grounds possible, Judge Smith’s dissent is similarly crafted to be appealing to a swing justice,” Hasen said.

He said the majority ruling appeared to be aimed at Kennedy’s strong distaste for animus while the dissent appealed to his preference for judicial restraint.

At a news conference in Los Angeles, plaintiff Kris Perry appeared with her longtime partner and their twin teenage sons.

“Today, the 9th Circuit said to our family that we are equal under the law,” she said from a stage draped with American flags. Now, she said, “we can see over the dark wall of discrimination.”

Photos: Prop. 8 ruled unconstitutional

Los Angeles Times staff writer Jessica Garrison contributed to this report.