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In a long-awaited decision, a three-judge panel of the Ninth Circuit Court of Appeals ruled today that Proposition 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California, is unconstitutional. Judge Stephen R. Reinhardt authored the majority decision, which was joined by Judge Michael Daly Hawkins. The third judge, N. Randy Smith, dissented.

The majority affirmed the August 2010 ruling by retired United States District Judge Vaughn R. Walker—but on a different legal basis. After a 12-day trial, Judge Walker ruled that Prop 8 is unconstitutional because it deprives same-sex couples of the fundamental right to marry and discriminates against them based on their sexual orientation. In its ruling today, the Ninth Circuit held that it was not reaching or ruling on either of those issues—which would apply to every state that prevents same-sex couples from marrying.

Instead, the court focused on the unique history of Prop 8. California is the only state that first recognized that same-sex couples have an equal right to marry and then permitted a majority of voters to take that right away. The court closely based its ruling on those unprecedented facts, explaining: “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”

The court reasoned that there is a constitutionally significant difference between refusing to extend a right to a group in the first place and withdrawing a right that has already been extended. “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place … .” While both are harmful, the court noted there is something particularly pointed, harmful, and invidious about stripping away an existing right.  “The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

The court also discussed the serious injury inflicted on same-sex couples by being excluded from an institution with so much personal and social significance. As the court put it, “marriage is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”

The court ruled that when the voters enacted Prop 8 in 2008, they did so not for any substantive reason, but rather simply to preserve the esteemed institution of marriage only for heterosexual people. Although some supporters of Prop 8 argued that its purpose was to promote parenting by heterosexual parents, Prop 8 did not change the substance of California law dealing with same-sex couples or parents in any way—other than preventing them from enjoying the benefits of being married.  Both before and after Prop 8, California law provides that same-sex parents must be given exactly the same rights, responsibilities, and protections as heterosexual parents.  As the court noted, “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California … and in no way modified the state’s laws governing parentage.”   

Judge Smith’s dissent acknowledged that those supporting Prop 8 assume that permitting same-sex couples to marry would devalue the institution of marriage in the eyes of straight people who disapprove of gay people. Remarkably, however, despite acknowledging that Prop 8 rests on anti-gay animus and “private biases,” Judge Smith concluded that “a measure is [not] invalid under rational basis review simply because the means by which its purpose is accomplished rests on such biases.” This may be the first time a federal judge has voted to affirm an anti-gay marriage law despite acknowledging that it is rooted in irrational bias. That even a judge who voted to uphold Prop 8 conceded that it was based in part on hostility toward gay people speaks volumes about the success of LGBTQ advocates in exposing the lies and stereotypes that underlie Prop 8 and similar measures.

Judge Reinhardt’s careful, tightly reasoned opinion puts the plaintiffs in the strongest possible position as the supporters of Prop 8 consider their next steps.  The Prop 8 supporters can now ask a larger panel of Ninth Circuit judges to reconsider the decision, or they can go directly to the Supreme Court and ask the justices to consider the case. In the meantime, California same-sex couples who want to get married will need to keep waiting. The Ninth Circuit panel decided to temporarily keep its decision from going into effect, and it is likely the Prop 8 supporters will ask for that temporary hold to continue while they decide on their next move after losing their appeal.

Given the reasoning of the Ninth Circuit’s decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case.  The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications.  The Ninth Circuit’s California-focused decision presents neither of those circumstances.  Unless the Supreme Court breaks with its own tradition and intervenes in the case, it’s possible that wedding bells will be ringing in California again before the end of the year.

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