Ninth Circuit says NO to H8 Under Proposition 8

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

On February 7, 2012, a federal appeals panel in the Ninth Circuit ruled that California’s Proposition 8, which banned same-sex couples from marrying, was unconstitutional. This split decision is the most recent in a four-year long legal battle that began in November 2008 when 52% of California residents voted “yes” on the proposition, abruptly ending the rights of same-sex couples to marry in California.

This decision impacted the estimated 109,000 gay couples in the state and grassroots movements related to the ban were widespread. The campaigns for and against Proposition 8 raised a whopping $39.9 million and $43.3 million, respectively. Numerous lawsuits were filed in the California Supreme Court by same-sex couples and governmental entities challenging the validity of Proposition 8 and questioning its implications on previously administered same-sex marriages. Ultimately, the Supreme Court of California upheld Proposition 8 as a valid initiative, but allowed prior same-sex marriages to be grandfathered in.

On August 4, 2010, the ban was lifted when District Court Judge Walker overturned Proposition 8 in Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the Constitution. There was said be no compelling state interest justifying denying same-sex couples the fundamental right to marry and no rational basis for limiting the designation of ‘marriage’ to opposite sex couples. Controversy swarmed when proponents of Proposition 8 accused Walker of bias and claimed he should have disclosed his long-term relationship with another man. Some went as far as to say that Walker should have recused himself due to a conflict of interest. They argued that the conflict was not Walker’s sexual orientation, but the fact that his serious relationship could conceivably lead to marriage.

The June 14, 2011, decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by Judge Walker in place. In his opinion, Ware wrote that it was not “reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.” This ruling falls in line with similar precedence as no court has ever upheld the removal of a judge from a civil rights case because of his or her race, religion or gender.

The Ninth Circuit agreed with Judge Ware in saying that Walker was under no obligation to recuse himself for substantially the reasons set forth in the district court’s opinion. After moving past the initial roadblock of deciding that Judge Walker’s decision should not have been vacated, the panel moved on to assessing the constitutionality of Proposition 8.

Although it reached the same conclusion, the Ninth Circuit framed its decision in a narrower fashion than the District Court. Instead of pointing to an outright violation of the Equal Protection and Due Process clauses of the Constitution, the Ninth Circuit focused on another argument: Proposition 8 singled out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a violation of the Equal Protection Clause. The court found this argument the most appealing because it was the narrowest ground for adjudicating the constitutional questions, as compared to more general equal protection and due process arguments with broader applications.

The court sympathized with opponents of Proposition 8 in saying that “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….It is the designation of ‘marriage’ itself that expressed validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.”

The Ninth Circuit found that eliminating the right of same-sex couples to marry in California was unacceptable. “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….The action of changing something suggests a more deliberate purpose than does the action of leaving it as it is.”

To that end, Judge Reinhardt found that “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.” Although the ban on same-sex marriage has now been lifted, a stay imposed on Judge Walker’s original decision will remain in place for at least two weeks after the decision. Opponents of Proposition 8 will likely seek to have the stay lifted, while supporters of Proposition 8 claim they will oppose this move.

Those against same-sex marriage are now faced with the decision to appeal the Ninth Circuit’s decision to the Supreme Court of the United States, or to ask a larger panel of the Ninth Circuit to review the decision. But, legal analysts question whether the Supreme Court will agree to take this appeal because the narrow Ninth Circuit ruling only applies to California law. The Supreme Court may wait to take a case regarding same-sex marriages until it is presented with a broader question that pushes for a final decision applicable nationwide.

Whatever one’s moral opinion on same-sex marriage may be, many have raised positive economic implications that stem from allowing same-sex marriage. The Sacramento Community College Players highlighted these positives in the comical “Prop 8-The Musical.” If you have not yet seen this short, admittedly liberal, star-studded play, you are in for a treat. It echoes what one circuit court judge recently told me: “Let them get married, it will be more business for divorce lawyers.” Sad, but almost certainly true.

Only time will tell what position our nation ultimately takes in this debate, but we can be sure of one thing: the next round in this fight is just over the horizon.

General Sources

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