BREAKING: Ninth Circuit Rules California’s Prop 8 Unconstitutional


By a vote of two to one, the Ninth Circuit Court of Appeals has just ruled that California’s Proposition is unconstitutional.

Simply put: even though more Californians voted for Prop 8 than not, that proposition was a violation of the constitution of the United States of America, according to the Ninth Circuit. This paves the way for the issue of same-sex marriage to head up to the Supreme Court in the near future.

Also, according to the Los Angeles Times, “In a separate decision, the appeals court refused to invalidate Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship. Walker, a Republican appointee who is openly gay, said after his ruling that he had been in a relationship with another man for 10 years. He has never said whether he and partner wished to marry.”

We will be updating throughout the afternoon with reactions from marriage equality activists around the city, along with legal analysis about what this could mean for marriage on a national level.

1:45 PN: We finally got through to Ninth Circuit’s web page, downloaded their decision and uploaded here:

Prop 8 Decision

Some important quotes pointed out by MetroWeekly’s Chris Geidner:

We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

1:55 PM: Here’s video of the American Foundation for Equal Rights (AFER), which brought about the Prop 8 lawsuit.
Live streaming by Ustream

2:00 PM: At the AFER press conference, George W. Bush’s former solicitor general Ted Olson is standing up defending gay/lesbian Americans and applauding today’s decision. Olson:

“I cannot overstate the importance of the decision today…When the citizens of California took away the right to marry for many,many, many of our citizens…they violated the United States constitution. Thank God for the judiciary to stand up for the constitution…and to saw what the law is. That’s what the Ninth Circuit did today.”

2:05: “Hello, I’m Sandy, Chris’s partner and hopefully, soon her wife.”

2:10 PM: Son of one of couples suing for marriage in the Prop 8 case: “We don’t need a trial to prove we love each other.”

Here’s NOM’s legal analysis of where things go from here. (They are also fundraising for their Supreme Court legal fund, which we predict will attract a lot of donors in the coming days.)

As I expected, a divided panel of the Ninth Circuit has affirmed former judge Vaughn Walker’s outlandish ruling that California’s Proposition 8 violates the federal Constitution. Arch-liberals Judge Stephen Reinhardt and Judge Michael Hawkins were in the majority, with Hawkins joining Reinhardt’s opinion. Judge Randy Smith dissented.

From a quick skim of the introduction, I see that the majority opinion purports to be narrow. It doesn’t opine on the general question “[w]hether under the Constitution same-sex couples may ever be denied the right to marry.” [Emphasis in original.] Instead, it maintains that the particular context in California–in which same-sex couples under California’s domestic-partnership law had all the rights of opposite-sex couples and in which Proposition 8 restored the definition of marriage that the state supreme court had invalidated–means that there was no “legitimate reason” for Proposition 8.

In the grand scheme of things, there is nothing enduringly significant about today’s ruling. The Ninth Circuit was just a way-station on the path to the Supreme Court, and the composition of the Ninth Circuit panel meant that there was no prospect for a reversal of Walker’s ruling. What would have been most troubling would have been a ruling that Prop 8 proponents didn’t have standing on appeal, as that might have complicated the prospects for Supreme Court review. But the case now has a seemingly clear path to the Supreme Court.

2:20: First question: What kind of impact will this have on what’s happening around the country. Also, what will happen with Love, Honor, Cherish, a group (unlike AFER) that wants to take Prop 8 back to the voters.


“Every legal decision allows the American people to hear more…to ask questions, to think about issues. The more you talk to people, the more they listen, the more they realize this is right and this in inevitable. It will affect court decision, it will affect public opinion, it will affect what legislators due.”

Olson points out the court unanimously threw out the bullshit that Judge Walker couldn’t rule because he was gay, even though they were two to one on the constitutionality. Also, February 28th is earliest conceivable date gay-marriages could restart. However, Olson assumes the other side will push for another stay. Olson says the courts can’t hold the 14th amendment.

2:30: Olson, who has argued before the Supreme Court many times and won, says that “from the very beginning, we have intended to be in front of the United States Supreme Court.” He seems unafraid of facing them (even though many marriage equality supporters are nervous about this) and says they take no one’s vote for granted. Referencing both Lawrence (a split decision) and Loving (which was a unanimous decision). Olson brings up again that Barack Obama’s parents would have been arrested in certain states had they been married there pre Loving.