Understanding the 9th Circuit Court of Appeals Ruling on Proposition 8

Scales of JusticeLast week, a three judge Federal appeals court panel ruled that California’s ban on same sex marriage violates the constitutional rights of gays and lesbians.

California first approved same sex marriage in June of 2008 when the California Supreme Court ruled in favor of gay marriage based on the equal protection clause found in the Fourteenth Amendment to the United States Constitution. Anti-gay efforts to overturn the law via ballot measure began immediately and, in November 2008, their proposition — known as Proposition 8 — was passed by a 52% majority of the vote. With that, Proposition 8, an amendment to the California Constitution defining marriage as between one man and one woman, thereby outlawed same sex marriage.

The ruling is a bit complicated from a layperson’s perspective, but can be understood as follows:

The Appeals Court’s ruling is based on a very narrow reading of the California law and this narrow ruling does not state that there is a constitutional right of same sex couples to marry. Rather, the ruling provides that the disparate treatment of married couples and domestic partners is unconstitutional.

Let me try to explain a bit further.

On August 4, 2010, Judge Vaughn R. Walker, then chief judge of the Federal District Court of the Northern District of California, but who has since retired, issued an opinion holding Proposition 8 unconstitutional. Judge Walker, whose opinion was questioned by anti-gay members of the community on the basis that he was a gay man in a long-term committed relationship, was clear and unequivocal in his decision. His ruling asserted that it was an unconstitutional infringement of both the equal protection and due process clauses of the constitution to deny same sex partners the right to marry.

In its opinion from last week, however, the Appeals Court specifically stated that its decision was not to be interpreted as holding that the prohibition of gay marriage is unconstitutional. Rather, it found that the Proposition 8 singled out a minority group for disparate treatment and did so without any compelling reason.

In other words, it found that since California has a domestic partnership law that grants gay couples all of the rights and benefits of marriage provided they register as domestic partners, there was no compelling reason to deny them the right to marry other than for unconstitutional reasons. “Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership With a Millionaire,’” the court stated, “it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

What makes this case particularly important is that it is the first case concerning gay marriage that has been decided by a federal court. Those opposed to gay marriage are hoping the United States Supreme Court will agree to hear this case. Some legal scholars are unsure if the Supreme Court will agree to hear this case since it is based on a very narrow issue relating to a California law.

In any event, this opinion is seen as a win for gay marriage advocates. As Judge Stephen Reinhardt wrote in this opinion: this law “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.”

Six states allow gay couples to marry — Connecticut, New Hampshire, Iowa, Massachusetts, New York and Vermont — as does the District of Columbia. Washington State is expected to pass a law in favor of same-sex marriage as early as today, and there is much debate on the issue in New Jersey, where a civil union law in on the books. Other states with civil union laws are Delaware, Hawaii, Illinois, and Rhode Island.

In California, there is a stay of new marriages for two weeks and it is expected that the proponents of Proposition 8 will file an appeal. It is unknown if the stay will be lifted during the appeal’s but you can bet that there are many same sex couples in California hoping to celebrate with a kiss and a vow.


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Ellen S. Fischer of the Law Office of Ellen S. Fischer has been working closely with individuals and families throughout the greater Philadelphia region for more than 20 years. Ellen received her Bachelor of Arts degree from Temple University and returned to earn a Juris Doctor degree from the Temple University School of Law. Ellen serves on a number of leadership committees and is a member of Gay and Lesbian Lawyers of Philadelphia (GALLOP). In addition to LGBTQ services, Ellen's practice areas are family law and personal injury.