Appeals court issues Prop 8 ruling: measure unconstitutional


The U.S. Ninth Circuit Court of Appeals today ruled the anti-gay Proposition 8 is unconstitutional.

The decision was handed down by a three-judge panel in San Francisco and eagerly awaited by activists gathered outside the courthouse and at San Francisco City Hall.

The question before the court was whether to uphold or overturn a trial court’s decision that the 2008 ballot measure approved by voters and adding an anti-gay marriage amendment to the state constitution violates the U.S. Constitution.

The panel, 2-1, has affirmed the decision of the trial court judge and found that the measure does violate the Constitution.

Judge Stephen Reinhardt wrote, “Proposition 8 serves no purpose, and has no effect in California, 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. The Constitution simply does not allow for laws of this sort.”

“The court sent a clear message: It’s unfair and unconstitutional to treat gay and lesbian couples differently,” said Chad Griffin, board president of American Foundation for Equal Rights.

The ruling likely will be appealed to the U.S. Supreme Court, extending the dispute into 2013. The ruling may first be appealed by Prop 8 proponents to the full appeals court.

Proponents and opponents have had months to prepare for the appeals decision, and had plans in place to respond immediately.

In addition to assembling at San Francisco City Hall, where, prior to passage of Prop 8, many same-sex couples married, celebrations were to take place in San Fran’s Castro, Fresno, Concord, Los Angeles, Sacramento and other California communities.

Within minutes of the decision’s release, LGBT civil rights groups hit the send on news releases celebrating a landmark event.

“Today’s decision heartens and gives hope to the 15,698 loving couples in California who are raising more than 30,000 children,” said Family Equality Council executive director Jennifer Chrisler.

“Proposition 8 divided California into marriage haves and have nots. Today, the court has reaffirmed what we already know in our hearts – our United States Constitution prohibits taking away the fundamental right to marry from one particular group. Everyone deserves the freedom to marry the one you love,” said Stuart Gaffney of Marriage Equality USA.

Opponents of Prop 8 argued to the court that the measure:

• Violates the Equal Protection Clause of the Fourteenth Amendment.

• Violates the Due Process Clause of the Fourteenth Amendment by impinging on fundamental liberties.

• Singles out gay and lesbian individuals for a disfavored legal status, thereby creating a category of “second-class citizens.”

• Discriminates on the basis of gender.

• Discriminates on the basis of sexual orientation.

The ballot measure passed in November 2008 in the same election that sent Barack Obama to the White House.

In May 2009, AFER hired two prominent attorneys, Theodore Olson and David Boies, to represent two same-sex couples suing for marriage equality.

AFER won the first round in August 2010, when then-U.S. District Court Judge Vaughn R. Walker ruled that:

• Prop. 8 enacted a private moral view without advancing a legitimate government interest and concluded that Proposition 8 burdens a fundamental right to marry and singles gays and lesbians out for different and unequal treatment under the law.

• Gay and lesbian individuals deserve “strict scrutiny” under the law, meaning that laws which discriminate on the basis of sexual orientation would rarely, if ever, be appropriate.

• Proposition 8 is unconstitutional under both the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.

• Same-sex couples should be allowed to marry again in California.

For more coverage of the Prop 8 decision, see this week’s issue of WIG, due on the streets on Feb. 9, and continue following at