Ted Olson, co-lead counsel against Prop 8, hails the court's decision (Ryan Faughnder)

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals upheld a lower court's ruling that California's voter-approved ban on same-sex marriage, known as Proposition 8, is unconstitutional.

The 9th Circuit’s ruling held that the ballot initiative unfairly stripped from California same-sex couples the right to marry whomever they choose. “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,” wrote Judge Stephen R. Reinhardt in the opinion.

His opinion focused narrowly on the California ban and did not deal with the bigger issues in the same-sex marriage debate, such as whether these couples could ever be denied the right to wed. Six states now permit such unions, but California is the only state to have granted gays and lesbians the right to marriage and then rescinded it.

Theodore Olson, lead co-counsel for the plaintiffs supporting gay marriage, hailed the decision, calling it “a huge deal.”

“It is about whether we are going to eliminate discrimination written into the constitution of the biggest state in the United States,” Olson said at a press conference in Los Angeles.

This decision upholds U.S. District Judge Vaughn Walker’s 2010 ruling against Proposition 8 on the grounds that it violated the rights to due process and equal protection under the 14th Amendment. The California ballot measure was approved in 2008 with 52 percent of the vote.

The 9th Circuit’s ruling marks a significant step in the tumultuous battle over same-sex marriage in California and the U.S. Last year, the New York state legislature legalized gay marriage, and Washington state is on the verge of following suit.

Proposition 8 supporters say they will appeal the decision, either to a full 11-judge 9th Circuit panel or directly to the Supreme Court. Once it reaches the high court, the justices must decide whether to hear the case. If it does, the high court’s decision could have far-reaching ramifications in the nationwide debate over gay rights.

Plaintiff Kris Perry, who along with her partner was denied a marriage license because of Proposition 8, told reporters in Los Angeles that Tuesday’s decision sent a message “to our family and millions of Americans that we are equal under the law.”

“Brick by brick, these dark walls of discrimination are being dismantled,” Perry said.
 
Andy Pugno, general counsel for ProtectMarriage.com, dismissed the decision as unsurprising coming from the 9th Circuit because of its liberal reputation. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court,” Pugno said in a written statement. 

To be sure, the 9th Circuit panel limited its decision to the specific circumstances of the California law, in which the right to marry was extended to gay and lesbian couples by the California Supreme Court before being eliminated by voters. The judges did not rule on whether “same-sex couples can ever be denied the right to marry,” Reinhardt wrote.

This is a crucial distinction, says David B. Cruz, a law professor at the University of Southern California, who called the ruling “timid,” “cautious” and “limited.” The fact that the decision is stringently focused on California’s situation arguably makes the issue less important nationally and less likely the Supreme Court will take it on, he argued. “None of those big questions are there,” Cruz said.

However, the 9th Circuit’s decision could affect states such as Washington, in which a bill legalizing same sex marriage will likely become law soon. If voters there were later to pass a referendum eliminating same-sex marriage, Tuesday’s decision could act as precedent, Cruz said.

Olson said the court’s focus strengthens the case against Proposition 8. “This is a case that is extremely strong in terms of being upheld in the Supreme Court because it is based so solidly on the court’s precedent in Romer [vs Evans],” Olson said, referring to a 1996 in case in which the Supreme Court said individual rights could not be taken away based on sexual orientation.

Olson and his co-counsel on the case, David Boies, who was not at Tuesday’s press conference, have individually argued before the Supreme Court many times. Most famously, they were on opposite sides of the 2000 case that  awarded the U.S. presidency to George W. Bush over Al Gore. 

Same-sex marriages will not be allowed to resume in California until the appeals process has run its course. Olson said his team will ask the 9th Circuit to lift the hold on same-sex marriages, but that seems unlikely to happen, according to Cruz.

The law has followed a tortuous legal path. Voters approved Proposition 8 in 2008, which defined marriage as a relationship between a man and a woman, after the California Supreme Court declared the state’s 2000 ban on same-sex marriage unconstitutional.

District Judge Walker's 136-page opinion issued in 2010 concluded the exclusion of gays and lesbians from the institution of marriage had no rational basis, but rather was a thinly concealed attempt to write the public's moral opinion into law.

ProtectMarriage.com had to fight for the legal right to defend Proposition 8 in court after then-Gov. Arnold Schwarzenegger and then-Atty. Gen. Jerry Brown refused.

Opponents of same-sex marriage argued that Judge Walker should have recused himself from the case because he was in a long-term same-sex relationship. The 9th Circuit decision on Tuesday dismissed this motion.

Walker’s ruling was widely interpreted to be directed at Supreme Court Justice Anthony Kennedy, who is expected to be the swing vote in the high court. While the new ruling is less broad than Walker’s, it uses precedents such as Romer, in which Kennedy wrote the majority opinion.

New York, Massachusetts, Connecticut, Iowa, Vermont and New Hampshire currently permit same-sex marriages. California is a crucial component of the nationwide debate over gay marriage because, according to the latest U.S. Census data, it has more same sex households than any other state.

Plaintiff Paul Katami said he believes in the U.S. judicial system and that Tuesday’s ruling was an important moment in the fight for equal treatment for gays and lesbians. “Today’s decision affirms that fundamental freedoms should never be subjected to the whims of a political campaign,” he said, before tearfully introducing Jeff Zarrillo, his partner.

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