Court overturns Calfornia’s ban on gay marriage

This is certainly not the last act in this drama, but a federal appeals court in California has just ruled California’s gay marriage ban unconstitutional.

According to the New York Times,

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians. [JAC: Proposition 8 was a referendum that banned same-sex marriages .)

The court said gay marriages cannot resume in the state until the deadline passes for Proposition 8 sponsors to appeal to a larger panel of the 9th Circuit. If such an appeal is filed, gay marriages will remain on hold until it’s resolved.

Lawyers for Proposition 8 sponsors have repeatedly said they would consider appealing to a larger panel of the court and then the U.S. Supreme Court if they did not receive a favorable ruling from the 9th Circuit.

Whatever happens, this ruling means that the issue will likely land in the U.S. Supreme Court: the final arbiter of law.  And I’m not at all confident that our conservative court would support gay marriage.


  1. Capita
    Posted February 7, 2012 at 12:50 pm | Permalink

    Remember reading when this all began a Professional Conservative wanting this to go to SCOTUS. He thought the Court will find the ban unconstitutional and then the masses can be mobilized to amend the US constitution. And they have the votes. 39 states have amended their own constitutions already–I think.

    • Rob
      Posted February 7, 2012 at 1:00 pm | Permalink

      Banning something in the Constitution worked so well last time too.

      • Capita
        Posted February 7, 2012 at 2:59 pm | Permalink

        It never stops them! By the way, I’m married in Canada.

      • Les Faby
        Posted February 8, 2012 at 8:29 am | Permalink

        I’ll drink to that.

    • TnkAgn
      Posted February 7, 2012 at 10:01 pm | Permalink

      It’s not easy, but amendments can be repealed. And if SCOTUS finds a broad unconstitutionality to gay marriage bans, then those amendments to the state constitutions will be vacated.

      I think Justice Kennedy may be on the right side of history here, if he’s around, and it comes around.

  2. Mary - Canada
    Posted February 7, 2012 at 12:56 pm | Permalink

    What happened to the separation of church and state? Why is such religious bigotry tolerated? This is NOT a legitimate issue

    • dunstar
      Posted February 7, 2012 at 2:06 pm | Permalink

      lolz. faith-heads think that the meaning of the separation of church and state to be that the state can’t tell churches what to do (religious freedom) but churches can tell the state what to do because to them the church is not a state so it can fiddle around with what the state does. To them it doesn’t go the other way around because, now it is the state as the state that’s fiddling around.

      So maybe in their warped mind, they’d finally get it if they somehow established their church AS as a state. So with that label then their church as a state can’t meddle around with the actual secular state!

      I think that’s how they really see it. They think they’re allowed to meddle with the secular state under the banner of religious freedom because they’re religion is not technically considered a state.

      • JustSayin'
        Posted February 8, 2012 at 6:34 am | Permalink

        “faith-heads think that the meaning of the separation of church and state to be that the state can’t tell churches what to do (religious freedom) but churches can tell the state what to do because to them the church is not a state so it can fiddle around with what the state does. To them it doesn’t go the other way around because, now it is the state as the state that’s fiddling around.”

        We have a county commissioner (he’s on at least his second term, probably third) whose campaign platform is exactly that. He’s made this statement many times, even in newspaper ads. By the way–and unsurprisingly–his campaign signs had crosses on them.

  3. Posted February 7, 2012 at 1:00 pm | Permalink


    Nan Hunter has a great pre-ruling analysis (link) in which she says that a narrow ruling concerning only California such as the one the circuit court issued will make it easier for the Supreme Court to deny hearing it. On the other hand, PropH8 bigots can immediately vacate the three-judge panel’s ruling by asking their case to be heard en banc by the 9th Circuit Court.

  4. Posted February 7, 2012 at 1:20 pm | Permalink

    Well done Court of Appeals!

    This is what Jesus has to say about Prop 8.

    • Posted February 7, 2012 at 2:25 pm | Permalink

      OMG, that was great! Thanks! Sharing link with all my friends.

  5. Sajanas
    Posted February 7, 2012 at 1:23 pm | Permalink

    I have to admit, I’m actually more worried now that it will go to the Supreme Court. The original over turning of Prop 8 was done by a Bush appointee in large part because the people supporting the gay marriage ban really had no legal rational for the ban, since it was motivated almost entirely on the basis of ‘immorality’ as defined by their religious viewpoints, while the opponents had plenty of data to show that there was no harm done to society by gay families, and that they deserved and needed equal treatment. A good judge can clearly see good legal arguments from the bad.

    But I don’t trust the SCOTUS to have good judges… if they see corporations as people, why couldn’t they see gays as not people? Scary. And it could be the sort of ruling that wouldn’t just affect CA, but ban gay marriage across the entire country, and they’re the sort of people that aren’t moved by popular protests at all.

    • Jeff Engel
      Posted February 8, 2012 at 5:26 am | Permalink

      Maybe gay would-be spouses should incorporate themselves to secure civil rights under the current Court….

  6. Posted February 7, 2012 at 1:23 pm | Permalink

    The analysis I am seeing suggests that this is a very narrow ruling that is only applicable to the particular situation in California. In that case, it is quite possible that the Supreme court might decline to hear an appeal.

    • Neil
      Posted February 7, 2012 at 1:37 pm | Permalink

      If SCOTUS is consistent, and not hypocritical, it should support California State’s rights in this case, and let the Appeals Court ruling stand.

  7. Posted February 7, 2012 at 2:29 pm | Permalink

    Due to claims of “biblical origin” and the dire need for separation of church and state, I think the government should license and legally recognize civil unions only, and apply civil unions to any and all legal adults.
    Then, any religious group or institution that cares to can continue to make up its own rules regarding marriage, and any adults who want to follow those rules can choose to do so at their own peril, without any legal bearing whatsoever.

    • PhiloKGB
      Posted February 7, 2012 at 5:13 pm | Permalink

      This solution is so obvious, so easy-to-implement, and would solve the major complaint so thoroughly that conservatives want nothing to do with it.

      • Posted February 7, 2012 at 5:15 pm | Permalink

        I think you’re right.

      • Footface
        Posted February 7, 2012 at 7:02 pm | Permalink

        Why is this a better solution than opening up the institution of marriage to anyone who wants in? You’re going to tell millions of married people that they’re no longer married? And only religious people can be married, as opposed to civilly unionized? No, thanks.

        • Notagod
          Posted February 7, 2012 at 9:24 pm | Permalink

          The people can call themselves whatever they like. The state needs to be concerned with the legal aspects not with the ceremonial aspects of the relationship between committed parties.
          I don’t think sexually motivated physical contact should be the deciding factor concerning rights and responsibilities of committed parties in a legal sense.

          I also think that if the state emphasized the legal relationship instead of the ceremonial aspect the parties could be cautioned that they don’t “own” each other and have no defense if they treat their partner violently.

          If the parties want to have a ceremony of marriage in addition to the civil union, that is in practice what is being done now anyway.

    • Doug
      Posted February 7, 2012 at 10:06 pm | Permalink

      No, I don’t believe in compromising with bigots. History is turning our way on this one, may as well stick with it.

  8. will
    Posted February 7, 2012 at 2:44 pm | Permalink

    From what I can gather in today’s Prop 8 ruling, the decision is narrowly crafted by the 9th Circuit and does not apply to other states besides California. It is almost (you might say) insularly crafted to protect itself from being overturned by other courts. Therefore, the U.S. Supreme Court may not even decide to pick up the case (their cases are generally broad, having national implications. The Prop 8 supporters also have a right to challenge this ruling again by a larger panel of the 9th Circuit before moving on to SCOTUS, if they even decide to pick it up.

    From John Burroway:

    “Judges working other cases are very unlikely to find anything in this ruling which applies to their cases. And when you think about it, that statement can apply to Supreme Court judges as well. Unless they’re just itching for controversy, it would be very easy for them to point out that there are no burning questions of national importance which require their attention. This decision appears tailor-made to allow the Supreme Court to duck this case altogether.”

    It’s probable the SCOTUS will decline to hear the case and that CA will still have its victory. The 9th Circuit’s Stephen Reinhardt, however, seems to have crafted the court decision on “Romer vs. Evans” for which Kennedy wrote the majority opinion. They are luring his vote with his own solid reasoning!

  9. Occam
    Posted February 7, 2012 at 2:53 pm | Permalink

    Perhaps WEIT readers from Finland would care to offer their perspective.

    While US courts are playing yo-yo with gay marriage, the runner-up in Finland’s presidential election last Sunday, Green politician and former environment minister Pekka Haavisto, an openly gay man who lives in a registered partnership with a partner originating from Ecuador, obtained 37.1% of the votes. In the metropolitan electoral district of Helsinki, his score was an astounding 49.8%.

    If I read Finland’s electoral map correctly, the results show huge discrepancies between rural and urban areas. Still, a remarkable result for a country which, however modern and liberal it may be, was long and deeply shaped by the influence of a pervasive Lutheran church.

  10. prasad
    Posted February 7, 2012 at 3:45 pm | Permalink

    “And I’m not at all confident that our conservative court would support gay marriage.”

    Why? Kennedy has penned more than one pro gay rights judgment, and sounds like the sort of fellow who’d write one more. And one assumes the four liberals are safe…

  11. Mettyx
    Posted February 7, 2012 at 6:51 pm | Permalink

    So, why exactly do atheists have to pretend they care for gay marriage?

    • Posted February 7, 2012 at 9:33 pm | Permalink

      Surely that’s not the stupidest question you could come up with. Have another go at it. See if you can’t work socialism and Islam in there.

  12. jay
    Posted February 7, 2012 at 6:55 pm | Permalink

    I see problems with this whole thing.

    If the basis is equal treatment, why is the government giving special treatment to a specific family organization: two presumably sexually connected adults and 0 or more children.

    Why should people in this mold get special privileges? Adding (some) gay people to the mix does NOT make it more fair, it just shifts the discrimination around a bit. Why are there two classes of family: those that are ‘married’ and those that are not? And why should the married ones get special treatment?

    • Posted February 7, 2012 at 9:38 pm | Permalink

      As far as I know, equal protection applies to class rather than contractual status. But for gay marriage, marital status is not denied in principle to anyone who wishes to enter into such a contract.

      • jay
        Posted February 8, 2012 at 4:57 am | Permalink

        There are plenty of circumstances where marriage is not a desirable or attainable option but these people are still families in the full sense of the word. (consider a parent and a grandparent raising children together, for example. Or in this case, gay people who are willing to emulate heterosexual mating styles.

        The problem is this whole range of special privileges (which becomes a kind of economoc coercion) given to people who meet a very limited definition of family.

  13. atheist ct
    Posted February 7, 2012 at 10:13 pm | Permalink

    Only 2-1. What was the one thinking?

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