[NOTE: This post was expanded and updated, with the last update at 2 p.m.]
The U.S. Court of Appeals for the Ninth Circuit today affirmed the August 2010 decision by U.S. District Court Judge Vaughn Walker that California's 2008 amendment banning same-sex couples from marriage is unconstitutional, deciding the case on narrow grounds relating to the facts of the amendment's impact, which the court notes was to "eliminate the right of same-sex couples to marry in California."
Same-sex couples cannot begin marrying in California today, however, as the court also kept in place its stay halting enforcement of the unconstitutionality decision for the time being.
The case, Perry v. Brown, was brought by the American Foundation for Equal Rights and featured a contrasting team of lawyers -- the conservative Ted Olson and liberal David Boies -- who waged a high-stakes trial in January 2010 and a high-profile public campaign to advance the cause of marriage equality.
In today's decision, Judge Stephen Reinhardt writes for the court:
We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
Specifically, he wrote, "Although the Constitution permits communities to enact most laws believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted."
As to the standing question -- whether the proponents had a right to asppeal the decision -- the court held that it was California's decision to make. "It is their prerogative, as independent sovereigns, to decide for themselves who may assert their interests and under what circumstances, and to bestow that authority accordingly." California, the court noted, decided that initiative proponents have such a right.
The court also denied the proponents' request that the trial court decision be vacated because Walker, the proponents asserted, should have recused himself because he is gay and had a long-term partner to whom he was not married.
The narrow legal grounds on which the court decided to affirm Walker's decision about the constitutionality of Proposition 8 were those established by the U.S. Supreme Court in Romer v. Evans -- referenced as a possibility by Metro Weekly earlier today.
Reinhardt introduced the discussion of Romer by noting of California's amendment, "This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law." In Romer, Colorado voters adopted an amendment prohibiting state and local entities from passing sexual orientation protections. The U.S. Supreme Court struck Colorado's Amendment 2 down as a violation of the Fourteenth Amendment's equal protection clause because the amendment's aim was "not to further a proper legislative end but to make [LGB people] unequal to everyone else."
Reinhardt then wrote: "Proposition 8 is remarkably similar to Amendment 2."
In concluding, Reinhardt wrote:
We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts. For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.
Judge N. Randy Smith disagreed with the court's opinion about the constitutionality of Proposition 8, writing in dissent, "Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate government interest."
It was not immediately clear what the next step will be, but it is almost certain that today's decision will be appealed -- either to the full Ninth Circuit for reconsideration (called en banc consideration) or to the U.S. Supreme Court. In either situation, the court whose review is sought needs to choose to accept the appeal.
What is clear is that the ruling does not go into effect immediately, as the court held, "The stay pending appeal issued by this court on August 16, 2010 remains in effect pending the issuance of the mandate."
This circumstances that led to today's decision have been a long and winding one -- that's by no means over -- for advocates of same-sex couples wishing to marry.
In May 2008, the California Supreme Court ruled, in a 4-3 decision, that California's Constitution prohibited the state from discriminating against same-sex couples in the state's marriage laws. By mid-June, couples began marrying -- although the future of same-sex marriage in the state already was headed to the November ballot.
Then, after about 18,000 same-sex couples had married in the state, on Nov. 4, 2008, the voters of the state of California elected Barack Obama president -- but also voted to pass Proposition 8, which amended California's Constitution to add, "Only marriage between a man and a woman is valid or recognized in California."
The marriages came to a halt, and an attempt to have the initiative thrown out under state law, brought by the organizations who had supported the original lawsuit, was unsuccessful. The May 2009 ruling of the California Supreme Court upholding the amendment as valid, however, galvanized, once again, opponents of Proposition 8.
The same day that the California Supreme Court ruled, word came that, very quietly, the law firm of Gibson Dunn & Crutcher LLP, with help from the law firm of Boies Schiller & Flexner LLP, had a few days earlier filed the lawsuit in federal court that all of the LGBT legal organizations had been avoiding: a direct, federal challenge to a state ban on marriage equality. The challenge, Perry v. Schwarzenegger, was being backed by a new organization, AFER, whose leader, Chad Griffin, had worked in the Clinton White House but later added Hollywood connections to his resume that garnered support for the lawsuit from names like Rob Reiner and Dustin Lance Black.
The case moved forward quickly, with the proponents of Proposition 8 moving to intervene in the case to defend Proposition 8. Walker allowed this, noting at the time that this made sense considering that neither then-Gov. Arnold Schwarzenegger nor then-Attorney General Jerry Brown were going to defend the initiative at trial. In January 2010, a three-week trial was held, with closing arguments held in June 2010.
On Aug. 4, 2010, U.S. District Court Judge Vaughn Walker held that Proposition 8 violated the federal constitutional guarantees of equal protection of the laws and due process of law, which protects "fundamental" rights -- including marriage.