Prop 8 violates U.S. Constitution, Ninth Circuit panel affirms

Citing key City arguments about California’s strong legal guarantees for same-sex couples, majority opinion upholds lower court ruling

SAN FRANCISCO (Feb. 7, 2012) — A federal appeals court has held that Proposition 8, which eliminated marriage rights for same-sex couples in California, violates the Equal Protection Clause of the U.S. Constitution. The 2-to-1 majority opinion issued by a Ninth Circuit Court of Appeals panel this morning affirms an Aug. 2010 U.S. District Court decision that the controversial 2008 ballot measure ran afoul of rights guaranteed under the 14th Amendment.

Today’s opinion, which was authored by Judge Stephen Reinhardt and joined by Judge Michael Hawkins, relied on key arguments advanced by City Attorney Dennis Herrera’s office that Prop 8 could not rationally relate to a legitimate governmental interest in California because of that state’s particular constitutional and statutory guarantees of equality for same-sex couples and families. The decision means that the federal court ruling applies only to California. During oral arguments on Dec. 6, 2010, judges hinted that the case would likely be decided on such narrow grounds.

According to the 89-page majority opinion:

“Although the Constitution permits communities to enact most laws they 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. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed from the State, or any other authorized party, an important right — the right to obtain and use the designation ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interest in childrearing 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 the religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.
“All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. 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. The Constitution simply does not allow for ‘laws of this sort.’ Romer v. Evans, 517 U.S. 620, 633 (1996).”

City Attorney Dennis Herrera offered high praise for the decision and his co-counsel, the American Foundation for Equal Rights, along with his own legal team:

“Today’s ruling strikes a devastating blow to the legal defense of Prop 8,” said Herrera. “In its thorough and well-reasoned decision, the Court’s majority has revealed marriage discrimination for exactly what it is: discrimination. Moreover, it has affirmed the U.S. Constitution’s promise of equal protection under the law. I know I speak for everyone in my office when I say how honored we are to continue to work alongside the American Foundation for Equal Rights, and its founder, Chad Griffin; an outstanding legal team led by David Boies and Ted Olson; and, of course, the couples they represent in Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo. I am also very proud of the deputies in my office who’ve worked so hard on this appeal: Chief Deputy City Attorney Terry Stewart; and Deputy City Attorneys Christine Van Aken and Mollie Lee.”

Judge N. Randy Smith dissented from the ruling’s central conclusion on the constitutionality of Prop 8, but affirmed minor aspects of the ruling to grant standing to the Prop 8 proponents to bring the appeal, and to deny a previous motion to vacate the prior judgment.

The City and County of San Francisco was granted permission to intervene alongside AFER in the federal challenge to Proposition 8 on Aug. 19, 2009. In granting Herrera’s motion to intervene, then-U.S. District Court Chief Judge Vaughn R. Walker ruled that the City had demonstrated a governmental perspective and interest in the case, and was the only party (including the State and the Governor) willing and able to present evidence and arguments for such an interest at trial.

In 2004, the City and County of San Francisco became the first government in American history to sue to strike down marriage laws that discriminate against same-sex partners. Over the next six years, it would be joined by almost two dozen other cities and counties statewide — representing more than 17 million Californians — in support of marriage equality and in opposition to Proposition 8. The San Francisco City Attorney’s Office is the only office to have played a role in every iteration of the legal battle for marriage equality in California since 2004, when the office first defended then-San Francisco Mayor Gavin Newsom’s bold decision to issue marriage licenses to same-sex couples in February of that year. Shortly after, the office sued to strike down the anti-same sex marriage exclusion in state courts, a legal endeavor that would ultimately succeed in the California Supreme Court’s landmark In re: Marriage Cases ruling in 2008. After California voters narrowly passed Proposition 8 in Nov. 2008, the City was among the co-plaintiffs to unsuccessfully challenge the amendment in the California Supreme Court. The City then joined plaintiffs in the Perry case, bringing in expert and lay witnesses they had worked with during the state court marriage litigation.

The current case is: Perry v. Brown, United States Court of Appeals for the Ninth Circuit, case numbers 10-16696 and 11-16577.

Related Documents:

PDF iconPDF of the 9th circuit ruling on Prop 8 presskit (Feb. 7, 2012)