California’s gay marriage ban nullified

Proposition 8 protest, photo by David Shankbone

In a historic ruling, but one that the judges insisted was narrow in scope, the Ninth U.S. Circuit Court of Appeals on Tuesday nullified California’s ban on marriage for same-sex couples, finding that “Proposition 8” amounted to a form of unconstitutional discrimination against a “disfavored” group.

A three-judge panel of the Circuit Court split two to one in barring the enforcement of the ban that had been approved narrowly by the state’s voters as a ballot measure in November 2008.

In closing its 80-page opinion, the majority of the panel stressed that it was not making a sweeping declaration about any constitutional right of same-sex couples to get married, finding it sufficient that the state could not take away a marriage right that such couples previously had under California law, when that was done by targeting “a minority group.”

Despite that disclaimer, the ruling could be interpreted as a major victory for the cause of marriage equality, since the Circuit Court majority found that the California voters had been acting “without a legitimate reason.” That amounted to a flat rejection of the argument made by the proponents of Proposition 8 that allowing gays and lesbians to wed would destroy the institution of marriage and threaten family life in general.

The majority thus sent a message that, in its view, a state’s prior grant of a right to marry for same-sex couples could not be withdrawn on the basis of a conclusion that such couples are not fit for the institution of marriage, or for potential roles as parents.

Since no federal appeals court had ever ruled in that way, Tuesday’s decision – although emerging from a court that is often known as perhaps the most liberal in the nation – is sure to be used by those who support gay marriage to promote their cause in other courts and across the country in state legislatures.

Gay couples in California previously had a right to get married, under a California Supreme Court decision in 2008 based on the state constitution. That ruling, however, led directly to the ballot campaign that resulted in approval of Proposition 8, which banned marriage for couples of the same sex, reserving the legal institution for heterosexual partners.

Proposition 8 was upheld by the state Supreme Court under the state constitution in 2009, although that court ruled that the 18,000 gay marriages that had been performed in the meantime remained valid.

It was then that two same-sex couples who wished to marry, represented by two of the nation’s most experienced constitutional lawyers, Theodore B. Olson and David Boies, went to federal court in San Francisco, relying upon the federal Constitution. It was their case, Perry, et al., v. Brown, et al., that the Ninth Circuit panel decided Tuesday, restoring the right to marry for any gay couples in California who wish to pursue that option.

The ruling, however, will remain on hold for the time being, at least until the Ninth Circuit issues a formal mandate to put the decision into effect. The backers of Proposition 8, though, could delay the ruling further, either by seeking review in the full Ninth Circuit Court, or by asking the U.S. Supreme Court to get involved. It has been widely assumed that this celebrated case would actually not be over until after it had gone to the Supreme Court. The Supreme Court, though, would have no binding legal obligation to review the case.

If the ruling Tuesday is regarded by judges on courts with higher authority to be narrow in scope, as the panel majority insisted, that might make its review at a higher level less likely.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.