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9th Circuit Court of Appeals rules Prop 8 unconstitutional, appeal likely

Wednesday, February 8th, 2012
Issue 06, Volume 16.

SAN DIEGO - Today's ruling by an appellate panel that Proposition 8, the voter-approved ban on same-sex marriage, was unconstitutional, was hailed by Mayor Jerry Sanders and leaders of San Diego's gay and lesbian community.

"Today's decision is yet another huge step towards creating a society where everyone is afforded the right to marry," Sanders said in a statement to reporters. "Marriage encourages people to take responsibility for each other, provides greater security for children, and helps our country live up to the promises set forth in our founding documents."

Sanders, who once opposed gay marriage, has a daughter who is a lesbian, and he changed his mind on the issue several years ago. He recently became one of the leaders of a group of mayors across the country who support gay marriage.

The 2-1 decision out of San Francisco by the three-judge panel of the U.S. 9th Circuit Court of Appeals, however, will likely be appealed to either the full 9th Circuit or directly to the U.S. Supreme Court. Despite the ruling, a stay on gay marriages in California will remain in effect while the court case continues.

According to the panel's ruling, the proposition's primary impact was to "lessen the status and human dignity of gays and lesbians in California."

"It stripped same-sex couples of the ability they previously possessed to obtain and use the designation of 'marriage' to describe their relationships," according to the court's decision. "Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in child-rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.

"Nor did Proposition 8 have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard those liberties."

Judges Stephen Reinhardt and Michael Daly Hawkins signed off on the ruling, while Judge N. Randy Smith dissented, writing in a separate opinion that he was "not convinced that Proposition 8 is not rationally related to a legitimate governmental interest."

Opponents of same-sex marriage were vocal in their condemnation of the ruling.

Proposition 8 supporter Randy Thomasson, president of, blasted the ruling, calling it "unfair to the voters, against our republic, against our democratic system..."

"It's illogical and unconstitutional to claim that natural, unchangeable race and ethnicity is the same as sexual behavior," he said. "That's not fair or true. Race and ethnicity are inherited, but science has never found homosexuality, bisexuality or transsexuality to be inherited or unchangeable."

The case had been pending before the appellate court for months, including a delay while awaiting a ruling from the state Supreme Court on whether proponents of Proposition 8 had legal standing to appeal the issue. The Supreme Court eventually said they do.

Dolores Jacobs, chief executive officer of the San Diego LGBT Community Center, said she hopes today's decision will lead to same-sex couples being allowed to marry in California again.

"In spite of spending years of time and millions of dollars to eliminate the fundamental human right of marriage for same-sex couples, the supporters of Prop. 8 have continued to fail to demonstrate any legally compelling reason or basis in fact to deny marriage equality to same-sex couples in Advertisement
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California," Jacobs said.

"Those who supported Proposition 8 have continued to employ desperate measures in order to uphold their discriminatory proposition -- today, the Ninth Circuit's ruling wisely refused to let them succeed," she said.

Charles LiMandri, an attorney in Rancho Santa Fe who supports traditional marriage, said the ruling was no surprise because the 9th Circuit "tends to get the social and cultural issues dead wrong" and is frequently reversed by the U.S. Supreme Court.

While the appellate justices opined that there was no reason to treat a different class of people differently, LiMandri said the civil rights argument is more about whether "similarly situated" people are treated differently.

Same-sex couples are not "similarly situated" as couples of one man and one woman, yet they have the same legal rights other than defining their relationship as a marriage, the lawyer said.

In March 2000, California voters approved Proposition 22, which specified in state law that only marriages between a man and a woman are valid in California. But in May 2008, the state Supreme Court ruled the law was unconstitutional because it discriminated against gays, and an estimated 18,000 same-sex couples got married in the ensuing months.

Opponents of same-sex marriage quickly got Prop. 8 on the November 2008 ballot to amend the state constitution, and it was approved by a margin of 52.5 percent to 47.5 percent. The approval was followed by statewide protests and lawsuits challenging Prop. 8's legality.

In May 2009, the California Supreme Court upheld Prop. 8, but also ruled that the unions of roughly 18,000 same-sex couples who were wed in 2008 would remain valid.

Same-sex marriage supporters took their case to federal court, and U.S. District Judge Vaughn R. Walker ruled in August 2010 that Prop. 8 "both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."

Backers of Prop. 8 -- -- appealed to the 9th Circuit, because then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown declined to do so. The appellate court heard arguments last year, but put a decision on hold while it awaited the state Supreme Court's ruling on the ability of Prop. 8 backers to press the case forward.

Once the state Supreme Court decided that Prop. 8 supporters had legal standing, the 9th Circuit moved ahead with its consideration of the case, hearing more arguments in December on a motion by Prop. 8 backers asking that Vaughn's ruling be thrown out because the judge was in a long-term same-sex relationship that he had not disclosed.

Ron Prentice, executive director of, said the issue would definitely be appealed, but a decision had not yet been made on whether to ask the full 9th Circuit court to hear the case or go directly to the U.S. Supreme Court.

Gov. Jerry Brown said the appellate panel "has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision."

San Diego City Councilman Todd Gloria said he was "tremendously grateful" for the decision.

"The battle is far from over, but I know this civil right will be realized and appreciate the court's clear determination in this case," said Gloria, one of two openly gay members of the City Council.



Comment Profile ImageJER
Comment #1 | Wednesday, Feb 8, 2012 at 8:02 am
I read the ruling myself, and enjoyed reading this editorial. The ruling was very narrow, which is what it was supposed to be, legally. In particular, the court explicitly said, "We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so."

They only addressed the question of whether, without justification, the state had the right to take away the right to marry from one group, after they had already granted them that right. They left open the possibility that the state was never required to grant the right in the first place, but they said that, once the right was granted, Prop 8 couldn't take it away without rational basis. It's a very carefully crafted opinion addressing the narrow issue at hand, but leaving many bigger issues unaddressed.

I think that narrowness means it's likely to withstand appeal, but it may also allow the Supreme Court to uphold it without granting marriage rights to gays in other states.

One thing is certain. We haven't heard the last of this
Comment Profile ImageTGIF
Comment #2 | Wednesday, Feb 8, 2012 at 10:14 pm
Government should have no business issuing marriage license to gays or straight. If the church does it, great. Government should treat all people as individuals and not discriminate against singles or unions with one two or more women, man, black or white.
Comment Profile ImageA review of history
Comment #3 | Thursday, Jan 17, 2013 at 9:14 pm
According to Blackstone's 'Commentaries on the Laws of England,'
fundamental means the memory of man runs not to the contrary.
meaning if anyone can remember when the act was wrong, it is not
fundamental. As we can all remember such a time, same sex weddings
can not be fundamental. Blackstone also said Christianity was part of the Common Law, and early U.S. Supreme Courts ruled the Common Law, inclusive of Christianity, was the basis of the law of this country.
Blackstone said no law of man can contradict the divine law of revelation contained in the Holy Scripts.

Article Comments are contributed by our readers, and do not necessarily reflect the views of The Fallbrook Village News staff. The name listed as the author for comments cannot be verified; Comment authors are not guaranteed to be who they claim they are.


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