BREAKING: US Circuit Court of Appeals Rules That Prop 8 Is Unconstitutional

feature image via AP Photo/Gary Kazanjian

There have been a half-dozen legal developments and court rulings having to do with Prop 8 since the ending of the original trial; some were relatively minor and hard to understand, and some could potentially alter the course of the marriage equality movement in America. The ruling being handed down today by the US 9th Circuit Court of Appeals is closer to the latter.

Today a three-judge panel — Stephen Reinhardt, who was appointed by President Carter; Michael Daly Hawkins, who was appointed by Clinton; and N. Randy Smith, who was appointed by George W. Bush — announced their decision on whether Judge Vaughn Walker’s ruling on Prop 8 should be upheld. In a 2-1 decision, the panel ruled that restricting marriage to a man and a woman is indeed unconstitutional:

Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court said.

Proponents of Prop 8 have confirmed their intent to appeal; while they have the opportunity to appeal to a larger panel of the 9th Circuit Court, or they can take their appeal straight to the Supreme Court. Protect Marriage, the group defending Prop 8, has indicated their intention to take it to the highest court possible as soon as they can. Judge N. Randy Smith was the dissenting vote, writing that “…he wasn’t convinced that there couldn’t have been a rational basis for citizens to enact the law, such as promoting responsible procreation and optimal parenting.”

The ruling will be limited to California, which means that no other marriage laws or bans in other states will be affected. When the appeal reaches the Supreme Court, though, that decision will have far-reaching consequences for marriage laws nationwide; it will essentially determine whether it’s legal to enact a ban on same-sex marriage. The LA Times reports that “The high court is expected to be divided on the issue, and many legal scholars believe Justice Anthony Kennedy will be the deciding vote.” A ruling from the Supreme Court probably won’t come until at least 2013, “unless the justices take extraordinary steps to expedite the case.”

Also, thanks to AS reader kokari, who has already read the entire decision and has helpfully identified what’s going on with the stay that was originally applied to Judge Walker’s ruling, and which determines whether couples can marry yet:

On page 80 it says “The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.” 

Based on that, it would appear that we’ll have to wait for further developments in court before couples in CA can legally marry again.

Read the full decision here:
10-16696 #398_Decision

Check back for more updates!

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


      • I haven’t finished reading the opinion yet, but according to media reports Smith’s dissent relies on a 70’s SCOTUS ruling against a gay couple’s application for a marriage license (but that was way before Lawrence, and the more stringent rational basis review applied in Romer). And he relied on Scalia’s DISSENT in Lawrence, so the case law was weak, to put it mildly.

        So far the ruling reads lean, mean and smart. Maybe the SCOTUS won’t even grant certorari, but the flip side of that is so many people would have to wait and grind it out through ballot initiatives, appeals courts and state legislatures. It would be amazing to have the right to marry in my state this year or next year, but what about a LGBT in Alabama? South Carolina? 2042 maybe? 2059?

        The federal courts need to intervene in the next 10 years and get this shit over with. I’d say sooner, but certain Supremes need to die/retire first.

    • I’m gonna guess and say it’s the Bush appointee, but then again, judges’ political opinions often change a lot over the years since they’re not affiliated with parties and voters, so they don’t have to toe the party line. A lot of conservative presidents have sorely regretted appointments that seemed like strong conservatives when their views shifted to the left over time.

  1. Does this mean that same-sex marriage bans in the other states that are under the jurisdiction of the Ninth Circuit (including Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and sections of California and Washington) are also effectively struck down? Or do appellate courts not work that way?

    • This decision is restricted to CA, I believe. A Supreme Court decision won’t be, though. I’m also unclear on how this impacts the stay that was originally applied to Walker’s decision, but am going to look into that and update the post.

    • Those states will not be required to act based upon this ruling unless the laws of that state is challenged or if the state chooses on it’s own to simply ignore any ban that’s been in effect

    • On page 80 it says “The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuence of the mandate.” So I think we have to keep waiting for new marriages in CA.

      Also, I suggest reading Part VII on page 79-80. If I am understanding it correctly, it makes the argument that it is unconstitutional in CA because they had the right and it was taken away. This makes it difficult to be used as precedent in other states, where same-sex couples never had the right to marry.

        • Thanks Rachel! My life is now complete. If only my typo had been fixed (issuance, not issuence, oops).

          And it was actually pure luck. I was like, “133 pages is a lot of pages, I bet it gets good around page 80.”

      • Yeah, that seems like it’s going to be a problem when it comes to nation-wide implementation, when it comes to that. If you read the Constitutional Law Prof Blog ( he breaks it down pretty well. It seems one of the main reasons Judge Perry’s decision was upheld was because it was a right that got taken away, and THAT was unconstitutional.

        Since prior to Prop 8, same-sex couples in CA had all the rights and privileges as straight couples, only as domestic partners, they were really only deciding on the term ‘marriage’ as it applies to same-sex couples, not necessarily the legal right for us gays to have universal equal rights.

      • yeah, and while the narrow ruling kinda sucks in a way, it also makes it much much more likely that the supreme court will not overturn the ruling. so from one perspective, maybe a very clever decision — the ninth essentially offered the sc a way to overturn prop 8 without requiring all states to legalize s.s. marriage (something that it’s not clear this s.c. would do).

  2. !!!!!!!!!!!!!!!!! okay that’s all the coherency i have for the rest of the day, basically just ugly crying into my sweater sleeve

    • Yeah, I think they’re planning to take it to a higher court, instead of appealing where they’ve already lost. If there’s anything these bigots are known for, it’s their inability to realize when they’re beat.

    • Yup, they’re appealing to the Supreme Court. It’s unclear what’s happening with marriages as of this very second, but we’ll investigate!

  3. Yay!!!!! I gasped when I saw this on facebook and scared my boss. She ran over and asked me what was wrong. All I could do was point at my phone because I was so teary. She said “Aww, yay” and gave me a hug.

    Kind of related (not really): I’ve been wondering if I should ask this cute girl to coffee today and I think this is a “yes.”

  4. Yay!!!! :D

    Although my gf and I aren’t affected by Prop H8 because we’re still legally a “heterosexual couple”… I kinda want to get married in a state like Texas or Tennessee just to spite the homophobic politicians there :P

    • If you want to get married in Texas I would totally host a kick ass reception for you and your new wife!!
      And I would film it and send a copy of the video to every politician in the state as a big ol’ happy fuck you.

  5. The fact that this has been going on since 2008 makes me want to punch a million nutsacks…but this is fantastic step in the right direction. Let the people marry, dagnabit!

    • The courts in general move at a slow pace. This is likely heading to the Supreme Court, and if you look at most of their decisions, they’re usually made years after it was originally introduced in a lower court.

    • You really know it’s been a long day when your first thoughts about Supremes-as-a-noun are the giant Transformers…

      (In my defense, there really WOULDN’T be a mountain high enough.)

  6. So excited, one step closer. And from descriptions I’ve seen, the opinion is tailored to appeal to Justice Kennedy.

  7. oh, i am sooo soo happy, but at the same time i hate this shit:
    ““Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court said.”

    gays and lesbians mister? there are bisexuals too. *facepalm*

    nevertheless, i’m very happy that the law is passing because it’s not constitutional. that means that same-sex marriage is not a question of opinion or politics but merely of human rights, and it is indeed immoral to separate people according to their sexual orientation or other phenotypic characters. cool!

    • it’s going to take seriously forever for bisexual invisibility to go away. ditto with trans rights, though there are far more outspoken activists for trans rights than there seem to be for bisexuals. and in the meantime people are going to say things like “can’t you just be happy for what progress has been made” and other erasey things like that.

      I’m very pleased though. of course.

    • Oh for christsake. We’re talking about gay marriage here. If you’re bisexual and get married to the same gender, that’s interpreted as a “gay marriage”. Bisexuals can get married to opposite sex partners. We’re not talking identity here, just logistics. You need to find the right moment to bitch about bisexual (in)visibility. This AIN’T IT.

      • This x2. It’s called GAY marriage for a reason, because it affects people who actually have GAY relationships (ie, not getting drunk and making out w/their BFF to get attention from guys).

        Plus, bisexuals always end up in straight marriages anyway. This doesn’t really affect them.

        • thanks laura. now everything is clear. i guess i was just confused for a little while. going back to hunting a boyfriend in 3,2,1…

        • Oh goodie..We’re gonna do that whole “slamming bisexuals and discriminating within an already discriminated against group, I’m gay so I’m better than you but she’s a gold-star lesbian so she’s even better than us both” thing..’Cause it’s been so long since we’ve done that here

        • I used to think that, but I fell in love with a bisexual girl. For the first three years of our relationship I was convinced she was going to leave me for a dude (I was also young and naive), but it has been 7 years now and she is still with me. So no need to hate on bisexual women, just be happy they are willing to at least give you a chance!

        • Oh my God she’s back, you guys. Haven’t we had this conversation before, Laura? Didn’t Rose already direct you to AfterEllen for you bisexuality-blinder-comfort? (Bi-blinders? That sounds weird.) Are you secretly crushing on Krisily Kennedy and threatened by the double-gendered competition for her sweet, sweet lady love? Are you just copy/pasting your most offensive comments as a “greatest hits” collection?

          I’m in class right now and trying to look like I’m paying attention. But, while I’ll admit it’s tempting to also turn to a copy/paste of my and others’ admittedly stellar rebuttals of your prejudiced, short-sighted, ignorant bi-bashing, I won’t. I’ll simply say this…

          Bisexuals exist. They’re are not even as rare as unicorns (thank God). Chances are, there’s at least one of them within a 50-yard radius of you RIGHT NOW. The ones who fall in love with and want to marry an opposite-gendered partner are “lucky” enough to not be affected by discriminatory laws like Prop 8 (though I doubt they’d call it luck, or really want luck like that). The ones who fall in love with and want to marry a same-gendered partner don’t want to wait for their “luck” to change. Neither do I. And neither, I’d wager, do you.

          This article, this ruling, and this whole idea of “marriage equality” is not about straight vs. gay, lesbian vs. bisexual, queer vs. transgendered, or any other combination of sexual identity you can think of. It’s about every human being being given the equal chance and equal right to marry any other human being they love, regardless of who they are. Claiming the larger share of oppression doesn’t help you achieve this any faster than the rest of us, and really only serves to negate your personal arguments about not being discriminated against.

          Here’s the thing, though…all those bisexuals you claim don’t exist? They do, and they still think you deserve the same rights that everyone else has, even if you don’t seem to agree. And while I doubt any of this is going to change your mind, I think everyone deserves to know that people still love them in spite of their offensive opinions, y’know? *BIG INTERNET BEAR HUGGGGG* for you!

          Lemon out.

          ::full disclosure: I’m not bisexual. Total lesbian here…though I prefer the term “gaydy”, myself.::

          • I actually have dibs on that one, if we’re both unmarried by the age of 35. We decided today. She makes omelets.

            (don’t forget!)

            (but if I can find some other awesome lady to make me omelets, that would also be great)

          • I won’t forget. OFL. (That’s “omelets for life”, in case you were confused. I’m often confused.)

      • We’re not talking about “gay marriage.” We’re talking about “same-sex marriage.” Not that three (presumably heterosexual) judges would go out of their way to use (or even be aware of) inclusive language, but we ought to. Considering bisexuals are not gay, and considering bisexuals can be and are affected by the legal status of Prop 8, “gay marriage” promotes their invisibility. You want to celebrate? Don’t be abrasive when someone points out that bisexuals once again are left out of the equation–you’re only starting an argument then.

        • gay marriage or same sex marriage. i don’t care what you call it. if the word “bisexual” is left out of a judge’s statement in support of “gay marriage”, i don’t give a shit. my point is, we are fighting for what will ultimately benefit any adult who wants to marry any other adult, regardless of their gender. it’s a pick your battles angle. you are welcome to disagree.

          • thank you. this is why despite being bi i hate bi activism. its not as if they are going to take away your marriage certificate if they find out you like both genders instead of just one. some people need to get over themselves.

  8. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    -my feelings

  9. Is anything going to change now or do we have to wait for a Supreme court ruling ? What would be the Supreme Court decision then : would it be only about Prop 8 or would it be general ? For instead, could the Court say that gay marriage prohibition is always unconstitutionnal ? Thank you for explaining that to us, non-American citizens :)

    • It’s going to be appealed so now we do get to wait for the oral argument before the Supreme Court and then a ruling. As to what the decision would be, that’s up to the Supreme Court. They could make a very narrow technical ruling or it could be as broad as saying that gay marriage prohibitions are unconstitutional.

      • First we have to wait and see if SCOTUS will even hear the case. It is possible that they will find no compelling federal issue and reject the case. If this happened the lower courts ruling would be affirmed and same-sex marriage would be the real deal complete and total law of California. However, it would have no effect outside of California under those circumstances.

        At least that is how I understand it.

        • That’s right, SCOTUS can refuse to hear it and then it would only apply to California. They could also try the 9th Circ en banc but it’s likely they’ll skip that step and directly petition SCOTUS.

  10. Does this mean I can move to Cali and marry a girl yet, or…? Still, WE WON A THING. Now we need to WIN MORE THINGS.

  11. Hold up: “promoting responsible procreation and optimal parenting” is a purview of the US government?

    In that case, that judge should be banning all Kardashians from marrying anyone, and immediately arresting all of the moms on Toddlers and tiaras.

  12. YAY!! SUPER duper excellent news. A Supreme Court case could be truly monumental, I almost hope they appeal it just so we have the chance to make all same-sex marriage bans unconstitutional.

  13. “Opponents of Prop 8 have confirmed their intent to appeal”

    Do you mean proponents or did we all change our minds? just to mess with NOM’s heads?

    • You didn’t get the memo? We’re joining sides with NOM up until the case reaches the Supreme Court. Then we’re going to flashmob them with a well-choreographed song and dance routine (I’m thinking “You Can’t Stop the Beat” from Hairspray, but nothing has been decided yet) in the streets. Ellen Page has already confirmed her attendance.

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