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Ninth Circuit Court of Appeals Upholds Ruling that California’s Proposition 8 is Unconstitutional

The U.S. Court of Appeals for the Ninth Circuit has affirmed the August 2010 decision of Judge Vaughan Walker, then chief judge of the U.S. District Court for the Northern District of California, that an amendment to the California’s state constitution defining marriage as between a man and a woman, commonly known as Proposition 8, violates the U.S. Constitution. In a 2–1 decision the court ruled 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.”[1]
The ProtectMarriage coalition, the organization leading the defense of Proposition 8, asked on February 22 that the full Ninth Circuit review the decision, a move that leaves in place a stay on the implementation of the ruling. As such, same-sex couples are still unable to legally marry in California while the Ninth Circuit weighs whether or not to reconsider the case. If a majority of the 25 judges currently serving on the court decide to hear the case, it will be assigned to a panel of the chief judge and 10 other randomly selected judges.[2]
While the Ninth Circuit’s decision to uphold the decision striking down Proposition 8 represents a victory for supporters of marriage equality in California, it is much narrower than Judge Walker’s landmark ruling. Walker proclaimed Proposition 8 to violate two clauses of the Fourteenth Amendment—the Due Process Clause (proponents failed to “meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest”) and the Equal Protection Clause (“Proposition 8 disadvantages gays and lesbians without any rational justification”).[3] He also, according to legal analyst Dahlia Lithwick, enumerated 80 “spectacularly detailed” findings of fact to support his decision, as “appellate courts must defer far more to a judge’s findings of fact than conclusions of law.”[4]
The Ninth Circuit majority opinion, authored by Judge Stephen Reinhardt, stated only that Proposition 8 violated the Equal Protection Clause and restricted the ruling’s reach to the specific circumstances presented in the case—that Proposition 8 “stripped same-sex couples of the ability they previously possessed from [California] . . . to obtain and use the designation of ‘marriage’ to describe their relationships.”[5] Thus, the decision only applies to the specific case of California, where the state’s Supreme Court had ruled in May 2008 that the state constitution granted same-sex couples the right to marry. That decision was supplanted later that year after voters chose to amend the state constitution when they approved Proposition 8; however, same-sex couples had been able to marry in the interim.
In its ruling on the constitutional questions in the case, the Ninth Circuit also ruled on a second challenge to Judge Walker’s decision. Proponents of Proposition 8 had appealed their unsuccessful petition to the district court that it set aside Judge Walker’ ruling, claiming that he should have recused himself from the case because he is gay and citing his public disclosure following his retirement from the bench in February 2011 that he had been in a committed relationship with a man for a decade. Judge Walker never attempted to conceal or deny his sexual orientation, which was widely speculated and later revealed by the San Francisco Chronicle during the original trial. He noted in an interview that “no parties in the case, including Prop. 8’s sponsors,” requested that he recuse himself at any point before he rendered his decision.[6] The circuit court unanimously affirmed the decision of Judge James Ware, who succeeded Judge Walker as chief judge of the U.S. District Court for the Northern District of California, that:
The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification. . . . Further . . . it is 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.[7]

[1]Perry v. Brown, no. 10-16696, slip op. at 5 (9th Cir. Feb. 7, 2012), accessed 24 February 2012, <>.

[2]“Prop. 8 Backers Ask Appeals Court to Reconsider Decision Striking Down Calif. Gay Marriage Ban,” Washington Post, 22 February 2012, accessed 24 February 2012, <>.

[3]Perry v. Schwarzenegger, no. C 09-2292 JRW, slip op. at 117, 135 (N.D. Cal. Aug. 4 2010), accessed 24 February 2012, <>.

[4]Dahlia Lithwick, “A Brilliant Ruling: Judge Walker’s Decision to Overturn Prop 8 Is Factual, Well-reasoned, and Powerful,” Slate, 4 August 2010, accessed 24 February 2012, <>.

[5]Perry v. Brown, slip op. at 5.

[6]Bob Egelko, “Vaughn Walker, Retired Judge, Reflects on Prop. 8,” San Francisco Chronicle, 6 April 2011, accessed 24 February 2012, <>.

[7]Perry v. Schwarzenegger, no. C 09-2292 JW, Order Denying Defendant-Intervenors’ Motion to Vacate
Judgment at 2 (N.D. Cal. June 4 2011), accessed 24 February 2012, <>.