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BREAKING: Proposition 8 ruled unconstitutional by 9th Circuit panel

9th Circuit Court of Appeals Community/Meta DADT trial Prop 8 trial

By Jacob Combs and Adam Bink

Continual updates on today’s ruling will be published at the bottom of this post, after the text of the ruling. has received the 9th Circuit’s opinion in Perry v. Brown that Proposition 8, the 2008 voter-enacted ban on marriage equality in California, is unconstitutional. In addition, the appeals panel ruled that the proponents of Prop 8 did have standing to pursue their appeal of Judge Walker’s decision striking down the marriage ban, and upheld District Court Judge Ware’s decision denying a stay to throw out Walker’s ruling because he is gay. The ruling on constitutionality was divided on an 2-1 vote, with Judges Stephen Reinhardt and Michael Hawkins voting to strike Prop 8 down, and Judge N. Randy Smith voting to uphold the ban. The ruling regarding standing and the motion to throw out Judge Walker’s decision was a unanimous 3-0 vote.

In his August 4, 2010, decision, which the 9th Circuit upheld today, District Court Judge Vaughn Walker struck down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th Amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact. Today’s ruling affirms Judge Walker’s findings of fact, meaning that they can but used in the future in other trial cases in the 9th Circuit that deal with LGBT rights.

Today’s ruling is also significant because the 9th Circuit ruled that District Court Judge James Ware, who took over the Perry case when Judge Walker retired, was correct in denying a motion filed by Prop 8’s proponents to overturn Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released). In a December 8 hearing on the motion to overturn Judge Walker’s decision, the 9th Circuit panel seemed deeply skeptical that Judge Walker’s ruling should be thrown out because of his orientation and relationship status. The 9th Circuit’s decision today is an important victory for the assumption of impartiality that our judicial system is based on, and demonstrates that LGBT judges are just as fit to preside over cases pertaining to LGBT rights as are their heterosexual counterparts.

What comes next? The first issue on everyone’s minds is whether same-sex couples can wed immediately if Prop 8 is struck down. The answer is that it depends on whether a stay is issued in the case. After Judge Walker issued his decision, a stay on his ruling was also issued that kept Prop 8 in effect as a law until such time that another court struck it down, meaning California’s same-sex couples have not been able to wed since his ruling. If the 9th Circuit panel or another court body issues a stay, same-sex couples cannot wed. Many legal observers expect a stay if Prop 8 is struck down, however it’s not entirely certain.

The other issue on everyone’s mind is, what comes next in terms of appeals? The losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the 3-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case. You can find a full, detailed history of the Perry case, which has been following from the beginning, here.

Below, you can find the full ruling striking down Prop 8, authored by Judge Reinhardt, via Scribd.

[scribd id=80680002 key=key-1a6zsalo5sm1wpeed9ev mode=list]

UPDATE 1: From the ruling, p. 80, footnote 27:

“The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.”

UPDATE 2: The National Center for Lesbian Rights’s senior attorney, Chris Stoll, shares his thoughts with us on the next steps of the trial:

The stay is still in effect.  Footnote 27 the opinion says that the previously issued stay remains in effect pending issuance of the mandate.  Mandate issues 7 days after the deadline for filing a petition for rehearing expires, or 7 days after petition for rehearing is denied, whichever is later.  I expect that the proponents will ask for a further stay from 9th Circuit, and if that is not granted, they will ask the Supreme Court.

It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all of the 20-something active judges on the court. Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc. If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral argument and issue a decision. It is really almost like starting the whole appeal all over again.

The losing party has up to 90 days to ask the Supreme Court to take the case. It then usually takes a couple of months at least for the Supreme Court to decide whether to take a case. The party opposing Supreme Court review gets to file a brief saying why the Supreme Court should not take the case, and amicus briefs can be filed on both sides as well. Also, the Court does not do any business from the end of June to September. If all that briefing is not completed before the Court’s summer recess begins, then it will not even consider whether to take the case until it comes back in September.

UPDATE 3: The Courage Campaign sent out this email about the ruling:

Just now, the 9th Circuit Court of Appeals panel released their decision ruling that Prop 8 is UNCONSTITUTIONAL!

That means we are 2 for 2 in the courts. But we’re not done yet. Our opponents are certain to appeal today’s decision to the full 9th Circuit and/or the U.S. Supreme Court. This victory belongs to all of us and MUST be defended by all of us.

We need to raise $45,000 immediately to defend today’s decision even as the Supreme Court considers it. Can you make a tax-deductible contribution NOW so we can uphold today’s ruling?

Here’s what we’re up against, Jacob: Prop 8 campaign leaders and right-wing fringe organizations like the National Organization for Marriage and Focus on the Familywill stop at nothing to delegitimize this decision before it ever reaches the Supreme Court. In fact, they already have: they tried to get the courts to throw out Judge Walker’s decision just because he’s gay.

To prevent the right-wing from spouting the same lies that were debunked and destroyed in Judge Walker’s courtroom, we must translate today’s victory in court to victory in the hearts and minds of Americans. We would not be here without the bold leadership from Ted Olson, David Boies and the American Foundation for Equal Rights, but we have work to do ourselves.We can’t forget that the courts pay attention to public opinion. The more we continue to demonstrate that Americans support marriage equality, the more likely the courts are to rule in our favor.

That’s why we need to raise $45,000 to support our work moving the poll numbers. That’s why we collected nearly 140,000 signatures to televise the Prop 8 trial — a campaign cited in a dissenting opinion to the Supreme Court’s 5-4 decision against broadcast. That’s why we put Palm Springs’ Ed Watson and Derence Kernek on the cover of the Los Angeles Times, telling the world why their relationship over more than 40 years deserves to be recognized. That’s why we made our “Fidelity: Don’t Divorce Us!” video about California’s same-sex married couples the most-watched political video in California history. That’s why we launched — generating more than 4 million views and 150,000 comments as the #1 Google result for “Prop 8 trial” so undecided Americans find us.It’s why we’ve live-blogged the trial along with every hearing, brief and decision. And it’s why we need your support today.

Chip in to help meet our $45,000 goal to defend today’s decision across America as we take the next step towards the big stage — the U.S. Supreme Court.

Thank you for all you have done to make today’s victory possible. With your ongoing support, full equality will eventually be the law of the land.

Rick Jacobs

Chair and Founder, Courage Campaign Institute

UPDATE 4: Rick Jacobs, Chair and Founder of Courage Campaign, released this statement regarding the ruling:

Statement from Rick Jacobs, Chair and Founder of the
Courage Campaign, on the 9th Circuit Court of Appeals Decision

“This is the Day We’ve Been Waiting For”

Los Angeles — After three years of Prop 8 weaving its way through the federal and California court system, the 9th Circuit Court of Appeals panel upheld Judge Walker’s August 2010 ruling that Prop 8 is unconstitutional. Marriage equality proponents throughout the state, including Courage Campaign members who worked valiantly to overturn Prop 8, cheered the historic decision.

The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign, a progressive, grassroots online organization with more than 750,000 members around the country. “Having live-blogged every piece of this trial, especially in Judge Walker’s courtroom two years ago, it became patently clear that the fringe opponents of equality would never prevail. We owe a huge debt of gratitude to the dynamic duo of attorneys Ted Olson and David Boies and their colleagues at the American Foundation for Equal Rights (AFER) who took to heart that real people are hurt by Prop 8 and its evil cousins across the nation. The time for waiting has ended.”

The Courage Campaign has played a leading role in informing and organizing around the entire Prop 8 trial. The organization collected nearly 140,000 signatures in support of televising the trial — the first time the U.S. Supreme Court ever cited such an online effort in an opinion. Upon learning that the historic trial would not be televised, Jacobs live-blogged daily from the courthouse and documented every important motion and court ruling on Prop 8 Tour Tracker (, a project of the Courage Campaign Institute. Over the course of almost three years, the widely-read blog has logged in over four million views and 150,000 comments. It is also the #1 Google result for “Prop 8 trial.”

Courage Campaign’s Testimony: Equality on Trial project staged re-enactments of the trial, including many from the general public. It was designed to educate the public on what happened in the courtroom, more vital now since the tapes have been forever sealed from public view. Two video re-enactments were used as evidence in federal court by the legal team from AFER. The first video was staged with Academy Award-winner Marisa Tomei (playing Kristin Perry, the plaintiff in Perry v. Brown) and actor Josh Lucas.

When the California Supreme Court decided it would take six months to offer its advice to the 9th Circuit, thus adding nearly a year to the process, the Courage Campaign asked members to submit their stories on what the delay meant to them and their families. Three hundred stories came in, including one from Ed Watson and Derence Kernek in Palm Springs, a couple for over 40 years. Ed had Alzheimer’s and his health was quickly deteriorating. A video of their story prompted a front page Los Angeles Times story. Ironically, Ed died on the eve of the last Prop 8 hearing in the 9th Circuit.

The decision made by the 9th Circuit, to be honest, is a bittersweet one for me,” said Mr. Kernek, who still lives in Palm Springs. “I know that my partner of 41 years, Ed, would’ve been thrilled to have heard the news. He missed it by less than two months because he passed away in December. Even as he took his last dying breaths, Ed spoke of wanting to marry me. Even though he did not get his last wish, I am heartened to know that other gay couples who love each other will be able to take sacred vows and fully commit their lives to one another. And that makes it a glorious day for gay people in California.”

UPDATE 5: From the AP’s coverage of the decision:

The court crafted a narrow decision that applies only to California, even though the court has jurisdiction in nine western states. California is the only one of those states where the ability for gays to marry was granted then rescinded.

“Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question,” the court said. “We need not and do not answer the broader question in this case.”

UPDATE 6 (Adam): The money line from the ruling:

“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution].  We hold Proposition 8 to be unconstitutional on this ground.”

UPDATE  7: To those asking whether this ruling applied to just California or the entire 9th Circuit, the answer is California. The court narrowly tailored the ruling to the state of California in remarking that Prop 8 is unconstitutional. While there is still a possibility that the Supreme Court (if it takes the case) may strike down laws/constitutional amendments limiting marriage to opposite-sex couples, that did not happen here.

UPDATE 8: Jon Davidson, Legal Director at Lambda Legal, just sent in his reaction:

The opinion is wonderful. It goes right to the dark heart of Proposition 8 — the measure had no purpose other than withdraw from lesbians and gay men the right to designate their committed relationships as marriages in order to deprive us of a societal status that affords dignity to those relationships. That is simply not a government objective the federal Constitution allows. It also brilliantly explains why it matters so much. “We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered it” and that’s what Prop 8 wrongly tried to take away.

UPDATE 9: At the AFER press conference, attorneys Ted Boutrous and Ted Olson spoke about their ideas of whether or not the U.S. Supreme Court will take the case.  Boutrous pointed out that the 9th Circuit’s decision today is deeply founded in previous Supreme Court rulings, particularly Romer v. Evans, and doesn’t raise any thorny issues that conflict with a decision from another circuit, the Supreme Court may be less inclined to take the case for those reasons.  On the other hand, Ted Olson argued that part of California’s constitution, the largest state in the country (representing around 1/8 of the total U.S. population), has now been struck down by two courts, so the Supreme Court may wish to weigh in on those grounds.  Both arguments are intriguing, and of course we won’t know anything until the case makes its way to the Supreme Court.

UPDATE 10: Also at today’s conference, attorney Ted Olson addressed the stay that is currently prohibiting Judge Walker’s now-upheld ruling from going into place.  According to today’s ruling, the previous stay placed on that ruling by the 9th Circuit in August 2010 is in effect until the appeals court’s mandate is final.  What this means is that the proponents of Prop 8 now have 14 days to ask for a rehearing by an en banc panel of the 9th Circuit.  If they do not, the stay will be lifted.  It is likely the proponents will ask for further appellate review, and ask for the 9th Circuit to place an extended stay on its decision pending that review.  If the 9th Circuit were to deny that stay, the proponents could then go to the Supreme Court to ask for a stay pending appeal.  The following guidelines for an en banc rehearing can be found after Judge Smith’s concurring and dissenting opinion in today’s ruling:

Purpose (Rehearing En Banc)

A party should seek en banc rehearing only if one or more of the following grounds exist:

  • Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
  • The proceeding involves a question of exceptional importance; or
  • The opinion directly conflicts with an existing opinion by another court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
UPDATE 11: Today, at 5 p.m., Courage Campaign’s Rick Jacobs, Chair and Founder, and Adam Bink, Director of Online Programs, will attend a community event at Los Angeles City Hall.  L.A. Mayor Antonio Villaraigosa will be in attendance, as well as AFER board members Rob Reiner and Dustin Lance Black and a broad range of community and advocacy organizations.  The event will take place at City Hall, on the 3rd floor of 200 N. Spring St.  More information can be found on AFER’s Facebook page.

UPDATE 12: NOM’s reaction, which was itself predictable:

“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.”

UPDATE 13 (Jacob): I got to listen in to AFER’s press call this afternoon about the 9th Circuit decision.  Here are some highlights:

  • Ted Olson spoke in a little more detail about the stay.  Essentially, in its decision today the 9th Circuit set it up so that the stay would expire when it issues a mandate affirming Judge Walker’s ruling.  The proponents of Prop 8 have 14 days from today to request further appellate hearings.  If they don’t, the mandate goes into effect 7 days later, and the stay is lifted (that would happen on Feb. 28).  If they do seek a rehearing or Supreme Court review, the mandate cannot be issued until that process is complete, and the stay would remain in place.
  • AFER’s attorneys were very clear that while the specific decision the 9th Circuit came to today is carefully crafted and applies only to California (following the principle of judicial restraint), the reasoning the judges use to make their decision is much broader and could have major repercussions.  In essence, today’s decision says that discriminating on the basis of sexual orientation is unconstitutional.  On p. 77 of the decision, Judge Reinhardt writes, “Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status.  Proposition 8 therefore violates the Equal Protection Clause.”  This kind of reasoning follows that made by AFER’s attorneys in trial, and as AFER President Chad Griffin points out, it could have ramifications in other states with marriage equality, such as New York (and possibly Washington, later this year), in which marriage opponents wish to seek to rescind previously enumerated marriage rights through a popular referendum or by changing the makeup of the legislature.
  • To further prove this point, attorney David Boies pointed to this quotation from p. 60: “There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.”  Again, because of the scope of today’s decision, that sentence technically only applies to California.  Nevertheless, that sentence (and its explicit rejection of the ‘responsible procreation’ argument made against marriage equality) can be cited and expanded upon by other courts in the future.
  • Ted Olson noted that when it decided Lawrence v. Texas, the Supreme Court (in a majority opinion authored by Justice Kennedy) argued that it was not making any decision about the validity of gay relationships, and only ruling about private sexual conduct.  In his dissenting opinion, Justice Scalia blasted the majority and argued that Lawrence could some day used in support of marriage equality.  He was correct, of course–the Perry decision cites Lawrence and Justice Scalia’s dissent specifically.  In Olson’s mind, today’s ruling demonstrates unequivocally that marriage is a centrally important American institution, and that it is unconstitutional to call gay couples’ relationships civil unions or domestic partnerships, because doing so implicitly classifies those relationships as less valid than heterosexual marriages.  In his mind, today’s decision lays the framework for further expansion of marriage rights in other courts.

UPDATE 14: Over on Twitter, “Modern Family” stars Jesse Tyler Ferguson and Eric Stonestreet ask a very good question.

UPDATE 15: GOP presidential candidate Mitt Romney released this statement regarding the 9th Circuit’s decision:

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

UPDATE 16: When asked about the appellate ruling, White House Press Secretary Jay Carney had no official response from the administration, saying, “I don’t have a comment on litigation in general and in this litigation to which we are not a party.  Beyond that, I can say that the President has long opposed, as you know, divisive and discriminatory efforts to deny rights and benefits to same-sex couples.”

UDPATE 17: From the Wall Street Journal’s opinion pages, James Taranto writes:

The Ninth Circuit has a poor batting average in Supreme Court appeals, and this decision was written by Judge Stephen Reinhardt, who is notoriously liberal. Those facts are likely to inspire optimism among conservative commentators who oppose same-sex marriage. They shouldn’t. Reinhardt’s decision was expertly crafted to appeal to his former Ninth Circuit peer Justice Anthony Kennedy, whose view of the matter is all but certain to prove decisive.

In August 2010, this column ventured a prediction: “When the Supreme Court takes up Perry v. Schwarzenegger–perhaps under the name Brown v. Perry or Whitman v. Perry [it will be Perry v. Brown if today’s opinion is appealed]–the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.”

Although we still think that is Justice Kennedy’s inclination, we hereby walk back our prediction a bit. The court will not find a constitutional right to same-sex marriage in this case, but it will strike down Proposition 8 and thereby reimpose same-sex marriage in California. Reinhard’s decision lays out a way in which Justice Kennedy can do so–and indeed makes it very difficult for Kennedy to uphold Proposition 8.

The trial judge in the Perry case held that same-sex marriage was itself protected by the U.S. Constitution. But the Ninth Circuit judges set aside this holding and decided the case on “narrow grounds.” They found that Proposition 8 was analogous to Amendment 2, a Colorado ballot measure that the Supreme Court struck down in Romer v. Evans (1996).

Amendment 2 barred state and local government in the Centennial State from official actions “designed to protect the status of persons based on their ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.’ ” In a 6-3 ruling, the high court held that the amendment violated equal protection by “imposing a broad and undifferentiated disability on a single named group.” The author of that decision was Anthony Kennedy.

UPDATE 18: Towleroad’s Ari Ezra Waldman has a long, detailed reaction and analysis piece to the 9th Circuit’s ruling.  His fundamental argument, though, is crystal clear:

More than any single vote, more than any single veto, more than any single legislative majority, the Ninth Circuit’s decision in Perry v. Brown is the most significant advancement in the fight for marriage equality in American history to date. Consider this: Never before has a federal appellate court affirmed any of the conclusions that the Ninth Circuit did today:

  • that denying committed gay couples their right to marry cannot encourage opposite sex marriages;
  • that when a state denies the right to marry while allowing gay couples all the rights and privilges of marriage, it cannot base the marriage ban on any rationale that denigrates gay parents;
  • that domestic partnerships are unequal to marriage;
  • that, as a matter of law, marriage rights do not hinge on natural procreative ability;

and, of course,

  • that a ban on same-sex marriage unconstitutional.
UPDATE 19: Thank you all for following‘s coverage of today’s exciting and historic decision.  This thread will no longer update, but we will have more coverage of the decision tonight and in the coming days!


  • 1. Taylor S.  |  February 7, 2012 at 10:02 am

    Come on! Come on! Under what grounds!?

  • 2. Phil L  |  February 7, 2012 at 10:06 am

    Under what grounds what???

  • 3. Taylor S.  |  February 7, 2012 at 11:03 am

    I was looking for this:

    “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution]. We hold Proposition 8 to be unconstitutional on this ground.”

  • 4. Taylor S.  |  February 7, 2012 at 10:10 am

    Yeah…according to the decision, they limit their analysis to the California case–specifically stated.

  • 5. HarvardLaw92  |  February 7, 2012 at 11:04 am

    True, but they also upheld all of Vaughn's findings of fact and opened the door to mirror challenges in the other 8 states that make up the 9th Circuit.

  • 6. MJFargo  |  February 7, 2012 at 11:14 am

    Check the top of page 32 regarding the finding of facts.

  • 7. elliott  |  February 7, 2012 at 10:03 am


  • 8. MJFargo  |  February 7, 2012 at 10:03 am

    When the shock wears off….. But for now, just WOW!

  • 9. Kevin  |  February 7, 2012 at 10:04 am

    Seriously. Gay marriage just broke the Internet.

  • 10. Tony  |  February 7, 2012 at 10:09 am

    Yes Kevin…and kittens everywhere are now dying. Tragic.

  • 11. fiona64  |  February 7, 2012 at 10:04 am

    So, what's the deal with standing? Do we presume that Article III standing was found since the ruling is on the merits?

  • 12. peterplumber  |  February 7, 2012 at 10:08 am

    They found that the proponants do have artical III standing.

  • 13. fiona64  |  February 7, 2012 at 10:13 am

    I'm puzzled as to *how.* How are the proponents suffering particularized harm??

  • 14. peterplumber  |  February 7, 2012 at 10:17 am

    I am reading Smith's dissent right now. I will post something on your question in a second.

  • 15. peterplumber  |  February 7, 2012 at 10:29 am

    It's a lengthy explaination, and I can't seem to copy & paste, like the document is encrypted or something. BUT, the 9th concludes that since CA would have Article II standing, and the CASC ruled that proponants do have standing to appeal for the state, then proponants also have article III standing.

  • 16. fiona64  |  February 7, 2012 at 10:24 am

    Never mind, I found my answer on page 29, which basically says that in this case they don't have to have suffered harm.

  • 17. MJFargo  |  February 7, 2012 at 11:16 am

    I thought this was a very convoluted way to go 'round the barn. I'm not sure SCOTUS is going to agree with the standing issue.

  • 18. Chris S  |  February 7, 2012 at 10:05 am

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    That is your Constitution speaking.

  • 19. AnonyGrl  |  February 7, 2012 at 10:06 am

    Wooo hooo!!!!

  • 20. JonT  |  February 7, 2012 at 10:06 am


  • 21. rj daily  |  February 7, 2012 at 10:06 am

    I am trying to be hopeful, but I'm sure this is just another stepping stone towards equality.

    What happens if the majority of all active judges in the 9th Circuit do NOT vote for an en banc hearing? Is the Supreme Court forced to take it? What if the Supreme Court merely tables it, and refuses to hear it for a while?

  • 22. Stefan  |  February 7, 2012 at 10:09 am

    -there is no guarantee that even one judge on the 9th circut will allow for an en banc hearing

    -assuming such a hearing is denied, Prop 8 side could appeal to the Supreme Court yes, but there is no guarantee they will take it

    -I doubt they would table it, given how important of an issue this is

  • 23. rj daily  |  February 7, 2012 at 10:29 am

    Thanks! If the Supreme Court decides to take it, do we have an approximation as to when they would take it?

    Also, when will be know if a stay has been issued (ie. I can't run down to city hall right now and marry my fiancee)

  • 24. Jamie  |  February 7, 2012 at 10:42 am

    2012-2013 Supreme Court Session is already closed. 2013-2014 at earliest.

  • 25. AnonyGrl  |  February 7, 2012 at 10:45 am

    The current stay seems to have been extended… so no, you cannot. It is fairly certain that the stays will remain in place until the final decision is reached, either by SCOTUS ruling on or refusing to hear the case.

  • 26. JNL  |  February 7, 2012 at 10:07 am

    Here is the decision:

  • 27. Str8Grandmother  |  February 7, 2012 at 10:07 am

    Now Let's Hope we won BIG!!!! Sweeping decision. Please.

  • 28. _BK_  |  February 7, 2012 at 10:07 am

    I was so nervous yesterday. Now I'm strangely calm. Hardly any emotion. Anyone else like this?

  • 29. Samantha  |  February 7, 2012 at 10:39 am

    Yes, it will take 24 hours to deal with the emotions… it's your body saying "not all at once!"

  • 30. MJFargo  |  February 7, 2012 at 11:18 am

    I too am a little puzzled at how nonchalant I am after my feelings of dread for the last many months.

  • 31. Mackenzie  |  February 7, 2012 at 10:07 am

    I just ran outside from work and did my happy dance!!!! 😀

  • 32. Tony  |  February 7, 2012 at 10:07 am

    Your last link in your last paragraph above is invalid/404. Look at the link…it is clearly wrong. Just so you know. BTW….WOOOOO friggin' HOOOOOO!

  • 33. Kelly  |  February 7, 2012 at 10:08 am

    It is a good day in California, but I want to get married ASAP! I am tired of waiting.

  • 34. michael  |  February 7, 2012 at 10:09 am

    MEEEE TOOOOO!!!!!!!!!!!

  • 35. Roxy  |  February 7, 2012 at 10:28 am

    Me threee!

  • 36. rj daily  |  February 7, 2012 at 10:30 am

    Me three!

  • 37. James A. Tuttle  |  February 7, 2012 at 11:13 am

    Us four and five. :-/

  • 38. Mark M. (Seattle)  |  February 7, 2012 at 3:36 pm

    With six you get egg roll 🙂

  • 39. EricKoszyk  |  February 7, 2012 at 10:08 am

    So, does it just effect CA or all states in the 9th's jurisdiction?

  • 40. Guest  |  February 7, 2012 at 10:08 am

    Does this mean anything for the status of gay marriage in the rest of the ninth circuit (assuming for simplicity that they don't appeal)?

  • 41. Eric  |  February 7, 2012 at 10:26 am

    It means if Washington passes marriage equality and it survives a referendum challenge, anti-family groups wouldn't be able to use a separate ballot initiative to repeal marriage equality.

  • 42. nightshayde  |  February 7, 2012 at 10:42 am

    … meaning that once a right is granted, it can't be taken away without a darn good reason. "We disapprove of gays & lesbians" is NOT accepted as a "darn good reason."

  • 43. Shannon  |  February 7, 2012 at 11:01 am

    What's funny is how the other side will continue to insist that they DO have darn good reasons. What they don't understand is that no matter how strongly they FEEL about something, they need evidence and objective reason to back them up.

  • 44. Dr Brent Zenobia  |  February 7, 2012 at 7:09 pm

    Well, it's an interesting point and one that Reinhardt raised in his opinion: what does "rational basis" mean if (literally) any sort of flimsy, unsupportable, after-the-fact excuse constitutes rational basis?

    His reply: that's just not good enough. Rational basis does not mean toothless. The Proponents advanced certain arguments in the campaign – e.g. it will hurt children, it will hurt heterosexual marriage, etc. I thought Reinhardt dealt with that quite effectively. He said (I'm paraphrasing) was, "Okay, you claimed the initiative would strengthen heterosexual marriage; if that's your rational basis, you need to prove it." A ratonal basis test that does not require any proof or connection to consequences is a smoke screen, and he called them on it.

  • 45. MJFargo  |  February 7, 2012 at 11:21 am

    Although the 9th pointed to how "unusual" California's voter initiative is and I don't know that the same set of circumstances exist in Washington (having the State Supreme Court rule that same sex marriage is legal and then voters pass an initiative to limit that right).

  • 46. grod  |  February 8, 2012 at 4:41 am

    Your example may be of interest to those in the 9th circuit who are wishing to push the envelope. When the legislature and governor approve the current civil marriage equality bill, a right will have been given, but not yet bestowed. No doubt a ballot initiative effort will begin. Could an injunction be sought? Does this ruling suggest other possibilities?
    Since 2004, Maine [in the 1st Circuit]has a domestic partnership law, and in 2009 an enacted marriage law was held en suspense until the outcome of a ballot initiative was determined. The not-for-equality outcome was not challenged in Court as Prop 8 was. In 2012 the legislature and/or the executive will likely reject the over 105,000 citizens' request for a reinstatement of the law, and another ballot initiative will follow. Has this ruling any lessons for Maine?

  • 47. Leo  |  February 8, 2012 at 6:58 am

    It's a veto referendum. If the legislature passed a law and the governor vetoed it, nobody would argue that the governor's veto was unconstitutional or can be blocked by the courts. If the legislature passes a law and the governor signs it, but the voters veto it, how is that different?

  • 48. Brett  |  February 8, 2012 at 7:54 am

    If I recall, there were TWO referendums being sought:

    One was the veto referendum, which seems to still be constitutional.

    Another was an outright referendum for a new law which would define marriage as between a man and woman…basically Prop8 in the form of the law.

    My guess would be that the former would still be constitutional, but the latter would not be, since it would not repeal the law, so the right would have been bestowed, but then taken away. Then again, I'm no lawyer, so what do I know?

  • 49. grod  |  February 7, 2012 at 6:33 pm

    While claiming to address only CA particular circumstance of a withdrawal of a right, the significance of the ruling for 5 states in the circuit that have/had domestic partnerships can not be underestimated. Of course it will take time, and more court cases but the groundwork has been well laid. .

  • 50. peterplumber  |  February 7, 2012 at 10:09 am

    The stay is still in effect.

  • 51. Roxy  |  February 7, 2012 at 10:29 am


  • 52. rj daily  |  February 7, 2012 at 10:36 am


  • 53. Beth  |  February 7, 2012 at 10:11 am

    Another step in the direction of full equality!

  • 54. Brad M  |  February 7, 2012 at 10:12 am

    Can't stop smiling!!!

  • 55. Keith  |  February 7, 2012 at 10:12 am

    AWESOME! I'm tickled Pink! Now they should deny any stay motion. This has been ruled unconstitutional in federal court and the federal appeals court. What will it take for them to realize that issuing more stays is unconstitutional as well.

  • 56. nightshayde  |  February 7, 2012 at 10:43 am

    They wrote the stay into the decision. It's on page 80.

  • 57. Tim in Sonoma  |  February 7, 2012 at 10:13 am

    Another step in the right direction! NEXT!

  • 58. rocketeer500  |  February 7, 2012 at 10:14 am

    The 9th District Court has not yet posted the pdf. Does anyone have a copy of the opinion in pdf? I can't read scribd at work.

  • 59. AnonyGrl  |  February 7, 2012 at 10:33 am

    NOM posted it…

  • 60. Eric  |  February 7, 2012 at 10:14 am

    Does this mean we are back to the original definition of marriage in California?

    “No contract of marriage, if otherwise duly made, shall be invalidated by want of conformity to the requirements of any religious sect.” – Article XI, section 12 of the California Constitution of 1849.

  • 61. Alyson  |  February 7, 2012 at 11:01 am

    Nice quote – why haven't I hear that one before? Kind of open and shut. Did the original CA court that decided our constitution didn't preclude us from getting married rely on that?

  • 62. MightyAcorn  |  February 8, 2012 at 12:58 pm

    Because it doesn't refer to the right of marriage, it refers to the content of the solemnization (or ceremony, as laypeople call it.) CA Family Code 400 or thereabouts, I believe.

  • 63. Keith  |  February 7, 2012 at 10:15 am

    Happy with the outcome, but deeply disturbed by the 2-1 vote, as it just proves the liberal vs. conservative bias that's built in to such judicial decisions. Without an unanimous decision by the three judges, it will continue to give hope to those who wish to deny equal constitution rights to the LGBT community that they will ultimately be victorious with the more conservative-leaning US Supreme Court. I'm very curious as to what the Mormon judge had to say about why he felt Prop H8 was constitutional.

  • 64. peterplumber  |  February 7, 2012 at 10:20 am

    I thought I kinda liked Smith, but not after reading his dissent.
    He is all about Romer v Evans and Baker v Nelson. Pffffft

  • 65. Carpool Cookie  |  February 7, 2012 at 10:54 am

    Yes…..downer about the Mormon vote infiltrating the 9th Circuit.

  • 66. alyson  |  February 7, 2012 at 11:06 am

    Exactly my thoughts – if a judge can arrive at a 'prop 8 is constitutional decision' after the 80 findings of fact and the oppositions 'I just don't know' closing arguments then that is my definition of a kangaroo court. It does offer hope that the farther away they get form the 'liberal' 9th circuit the more likely they are to win. I can't even follow how they arrived at these yahoos having standing either but I haven't read it yet. It's confusing.

  • 67. Surprised At White  |  February 7, 2012 at 12:47 pm

    Judge White referred to the proponents argument: “Plaintiffs fail to cite to a single study comparing outcomes for the children of married biological parents and those of same-sex parents. Thus, Plaintiffs have failed to undermine, lone alone remove “from debate,” the studies showing married biological parents provide the best structure for raising children..” Judge White goes on to say "Both sides offer evidence to undermine the evidence presented by their opponents."

    Say what Judge White?? The (Evangelical" American College of Pediatricians gets equal weight as peer reviewed evidence?

  • 68. Dr Brent Zenobia  |  February 7, 2012 at 7:12 pm

    Smith based so much of his analysis on the pre-Bowers Nelson and High-Tech Gays decisions, it's hard to take seriously.

  • 69. Mark M. (Seattle)  |  February 7, 2012 at 10:17 am

    Typing through tears of joy!!
    Congrates California!!!!!

  • 70. Steve  |  February 7, 2012 at 10:21 am

    What's the summary of the dissent? I'll read the rest of the decision, but I can't be bothered with reading several pages defending Prop 8

  • 71. bythesea  |  February 7, 2012 at 11:33 am

    Very narrow ruling striking down prop H8. So narrow in fact, I know think the case will not likely be heard further by either the en banc 9th Circuit nor the SCOTUS either. I think after the stay expires there will be no further stays nor appeals hear, but that is just my opinion.

  • 72. Steve  |  February 7, 2012 at 11:42 am

    I meant the DISSENT. The judge who thought Prop 8 is ok

  • 73. W. Kevin Vicklund  |  February 7, 2012 at 12:11 pm

    Basically, some noise about how Baker v. Nelson might still apply, and that he was unconvinced that "responsible procreation" and "optimal parenting" were not rational bases. Note that he didn't actually say that the majority opinion was wrong, merely that it might not be right.

  • 74. alyson  |  February 7, 2012 at 2:40 pm

    Did he not read the evidence of the case? this is where I think if a judge just has ' that feeling that gay people are kind of icky' and they can't pin point why – they can still find a way to go against us – even in the face of the evidence. The proponents know how powerful that trial was – I don't understand why their own supporters don't demand the tapes released to see for themselves if they don't believe us.

  • 75. fiona64  |  February 8, 2012 at 8:45 am

    It is my considered opinion that Judge Smith wrote his opinion from his other position as "Brother Smith," and allowed his personal religious bias to enter into the matter. I am sorry, but no one is going to be able to dissuade me from this position after I saw how he gave any weight at all to the discredited NARTH.

  • 76. nightshayde  |  February 7, 2012 at 12:14 pm

    My take on the dissent is that it pretty much says "Gays and Lesbians have all the rights they had before, except the right to use the word 'marriage,'" and that the word isn't that big a deal if they have all the rights that go along with domestic partnerships.

  • 77. Lora  |  February 7, 2012 at 10:24 am

    "After Judge Walker issued his decision, a stay on his ruling was also issued that kept Prop 8 in effect as a law until such time that another court struck it down, meaning California’s same-sex couples have not been able to wed since his ruling. " another court has struck it down…how long are we supposed to put our lives on hold???

  • 78. Carpool Cookie  |  February 7, 2012 at 10:58 am

    I'm sorry, but as a legal secretary, I can tell you that this is how the system works. It's not unusual for a stay to remain in effect until all appeals are exhausted.

    We are actually being treated EQUALLY in this way. (No one likes the courts. But their systems are all devised by centuries of experience as to the checks and balances as to how to treat all sides as fairly as possible.)

  • 79. Ana  |  February 7, 2012 at 10:24 am

    great news! when will know if a stay is issued?

  • 80. Roxy  |  February 7, 2012 at 10:30 am

    There is a stay 🙁

  • 81. Latest Prop 8 Ruling R&hellip  |  February 7, 2012 at 10:28 am

    […] The San Francisco 9th Circuit court has ruled today to uphold Judge Walkers decision that Propositio… […]

  • 82. truthspew  |  February 7, 2012 at 10:29 am

    My guess on this, the USSC will agree to hear it. I say this because I see strong parallels between the marriage equality fight, and the Loving v. Virginia case.

    The justices on the USSC cannot be immune to the goings on recently regarding marriage equality. In case after case, legislatures have granted, initiatives have taken away, etc. It's the same thing that went on during the period of Loving v. Virginia. Back in the 1960's you had a handful of states that allowed interracial marriage. And you had the same revocation, the same harassment, everything the same.

    So here's hoping it reaches reaches the USSC and we prevail.

  • 83. Gregory in SLC  |  February 7, 2012 at 10:38 am


  • 84. Roxanne  |  February 7, 2012 at 10:43 am

    The ruling is narrow enough that the USSC can deny the appeal. I think that's still a good decision for California, but not great for the rest of the country. The good news is that the trend is clearly established and has so much momentum that it will eventually result in all American's being allowed to marry, regardless of who they want to marry.

  • 85. MJFargo  |  February 7, 2012 at 11:25 am

    I think you're right, although the hall of mirrors about the issue of standing in this opinion would be tempting for SCOTUS to jump in and try and straighten out.

  • 86. Brian  |  February 8, 2012 at 8:23 am

    I have to disagree with you here. I spelled out why in this post over at DKos:… and it's just too long to copy and paste here. In short….well, just ready it.

  • 87. Guest  |  February 7, 2012 at 11:50 am

    My guess is they won't agree to hear it, unless the pro-marriage-equality bloc on the Court is bigger than we think. They might take the case if they either want to uphold and expand the ruling, overturn it, or decide against the Proponents' standing – which would have the effect of upholding the ruling. The pro-marriage Justices can achieve the goal of marriage in CA by letting the ruling stand. They don't need to risk overturning it by hearing the case. Thus my calculation that they'll only want to take the case if they feel there is support on the Court for expanding the ruling.

    On the other hand, it only takes four to grant cert, so the four conservatives could take it, hoping to overturn it. But they, too, might not want to risk their disfavored outcome. It just seems to me that the odds are stacked in favor of the Supreme Court punting it.

  • 88. Ray in Sacramento  |  February 7, 2012 at 10:29 am

    Here is the article from Sacramento Bee that says the ruling was stayed pending appeal:

    "The decision by the appeals court upholds the historic ruling by U.S. District Judge Vaughn R. Walker in 2010 that the ban violates gay people's equal protection and due process rights. The ruling has been stayed pending appeal."

    Wonder how accurate this is?

  • 89. MJFargo  |  February 7, 2012 at 11:26 am

    Well, this opinion is much narrower than Judge Walker's (by many degrees).

  • 90. AnonyGrl  |  February 7, 2012 at 10:32 am

    NOM posted the PDF… 🙂

    "Proposition 8 serves no purpose, and has no effect, other than to lessen the status of 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.""

    Well said, Judge Reinhardt.

  • 91. Steve  |  February 7, 2012 at 10:42 am

    Also the paragraph before that. I love how he smacks it down so succinctly right at the start of the document

  • 92. Carpool Cookie  |  February 7, 2012 at 10:59 am

    Mmmmmmmmmmmmmmmm….. ! ! !

    I'm surprised NOM posted the ruling. You'd think they'd want to bury such an unflattering document.

  • 93. MightyAcorn  |  February 8, 2012 at 1:03 pm

    They may see it as winning the standing part…whichis a big win and a harmful ruling, IMHO.

  • 94. Lesbians Love Boies  |  February 7, 2012 at 10:35 am

    Donated for Equality!

  • 95. Adam Bink  |  February 7, 2012 at 10:40 am


  • 96. peterplumber  |  February 7, 2012 at 10:52 am

    I will make another sizable donation in few days. I have some big stuff going on in my life right now and need to work donations into the budget. Please be patient with me.

  • 97. Adam Bink  |  February 7, 2012 at 12:58 pm

    That's very generous, Peter. At your convenience.

  • 98. peterplumber  |  February 7, 2012 at 10:36 am

    Meanwhile, over at the NOMblog…
    The NOMbies are PISSED!!!

    And they must have had an advance copy of the opinion to have posted so much about it 10 minutes after it was released.

  • 99. Carpool Cookie  |  February 7, 2012 at 11:00 am

    Maybe that Mormon judge who dissented slipped them an advance copy?

  • 100. alyson  |  February 7, 2012 at 11:09 am

    they never base their posts on fact anyway so they probably wrote it all out before hand and just posted it after to release to try to look legit.

  • 101. Kathleen  |  February 7, 2012 at 11:11 am

    This is no way suggests they had an advance copy. Like all of us who work on breaking the news, we have multiple posts ready to go the moment we know which one top publish.

  • 102. Mackenzie  |  February 7, 2012 at 10:37 am

    In the event that the ruling today is upheld later on, would this not mean that Maine would be in the same boat, and the Repubs in New Hampshire might as well give up on their BS. Kinda wish they would have spoken to the broader issue, but I can see why they didn't. At least we have a strong case to reference off for all the states that will now have to bring up suits agaisnt their own states.

  • 103. grod  |  February 7, 2012 at 6:46 pm

    Mackenzie I can see your point given New Hampshire's legislature would be withdrawing a right that some of its citizens enjoy, but in Maine, the legislation never came into force. This ruling says that a right could be withdrawn, but in reality there must be a plausible explanation for doing so. NH legislators will carefully be reading this decision before deciding their next step

  • 104. Dr Brent Zenobia  |  February 7, 2012 at 7:16 pm

    At the end of the day it's hard to imagine that the "withdrawing a right once extended" hair-splitting will survive the test of time. Rights come from the Constitution, not from judges. As Olsen argued, same-sex marriage is a discovered right that was always present in the Constitution, it just took a while for people (and the judiciary) to see it for what it was.

  • 105. Dwight  |  February 7, 2012 at 10:38 am

    I wanted to offer my congratulations to the gay community, From a straight guy

    The right thing happened, now the best hope is that it goes to the supreme court so such un-American laws can be overturned nationwide, and not just in the state of California.

  • 106. Dr Brent Zenobia  |  February 7, 2012 at 7:18 pm

    Thank you Dwight. You'd performed a mitzvah today. (look it up.)

  • 107. Alan_Eckert  |  February 7, 2012 at 10:39 am


  • 108. Balu Vellanki  |  February 7, 2012 at 10:39 am

    The dissent by Judge Smith says "Gays and Lesbians are not a suspect class, so heightened scrutiny wont apply". So a rational basis review needs to be applied. Rational basis review "is not a license for courts to judge the wisdom, fairness, or logic of legislative ideas". So he is basically saying that anyone can discriminate against gay ppl as long as they can come up with some imagined potential reason. What an A%^*)le

  • 109. Glenn I  |  February 7, 2012 at 10:53 am

    The dissent relies heavily on earlier opinions that declare real world evidence completely unnecessary. A rational basis can be anything you make up. Literally ANYTHING. (caveat: me no lawyer)

  • 110. JayD  |  February 7, 2012 at 11:25 am

    "Gays and Lesbians are not a suspect class"

    Perhaps Judge Smith should view some of the comments (especially on Yahoo) of hatred directed toward gay people.

  • 111. pditty  |  February 7, 2012 at 12:02 pm

    Oh Judge Smith, here is a refresher on the criteria set for suspect class:

    Strict scrutiny is applied to government action that affect groups that fall under a "suspect classification."

    The US Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect classification, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify.[1]
    Some of the criteria that have been cited include:

    The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.[1]
    They possess an immutable[2] and/or highly visible trait.
    They are powerless[2] to protect themselves via the political process. (The group is a "discrete" and "insular" minority.[3])
    The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society

  • 112. Dr Brent Zenobia  |  February 7, 2012 at 7:23 pm

    Judge Smith reminds me of one of the characters from 1776, Judge James Wilson, who has a memorable exchange with Benjamin Franklin:

    Wilson: "There is simply no precedent for [a colony breaking away from the mother country]
    Franklin: "IT'S A NEW IDEA, YOU CLOD!!!!"

  • 113. Adam Bink  |  February 7, 2012 at 10:40 am

    So we're about a 3rd of the way to our $45,000 goal to support our programs around the trial (P8TT, public education, moving the poll numbers). Help us hit our mark!

  • 114. Larry  |  February 7, 2012 at 10:42 am

    Don't get me wrong, it's awesome that the 9th circuit rules that Prop 8 is unconstitutional. But I'm cautious because the decision was made on the narrowest of grounds. 1) It only follows Romer v Evans in situations where a right is granted and taken away, so it would only be applicable to California. 2) It didn't address whether marriage is a fundamental right, just about taking a right away, so most of the academic testimony from the original trial was ignored (e.g. that same sex parents are just as good as opposite sex parents). 3) It didn't consider whether gays and lesbians are a suspect class requiring heightened scrutiny, so Prop 8 was analyzed using the rational basis test (Judge Walker's original decision did use heightened scrutiny, but I forget whether is for gays and lesbians being a suspect class, or for marriage being a fundamental right.) The decision did seem to rest on the 9th circuit High Tech Gays case from the early 90s that decided gays and lesbians were not a suspect class.

    But still, this might be a very good thing. The more narrow the decision, the less likely a higher court is able to overturn it for being too sweeping. Onto en banc and/or the Supreme Court!

  • 115. Sam  |  February 7, 2012 at 10:51 am

    I feel the same way–in some sense this is very weak sauce. Waiting for the Boises/Olson presser

  • 116. Carpool Cookie  |  February 7, 2012 at 11:02 am

    But all the Findings of Fact are still upheld, whether the judges mention them or not. They haven't disappeared, and can be cited in many other cases.

  • 117. MJFargo  |  February 7, 2012 at 11:30 am

    They only affirmed one finding of fact.

  • 118. Carpool Cookie  |  February 7, 2012 at 11:57 am

    But they didn't "disavow" the others…as far as I understand it. If they chose to concentrate on 1 of them, that's fine, but the others don't disappear just because they weren't addressed.

  • 119. MJFargo  |  February 7, 2012 at 12:52 pm

    But I think they invited others to "disavow" when/if necessary; for the purposes of this narrow decision they weren't going to comment.

  • 120. MJFargo  |  February 7, 2012 at 12:54 pm

    You know, that press conference really was wonderful. Hearing the original plaintiffs and their families was very touching. "I didn't choose to be gay, but I did choose to hide that I was gay…." And the young son's testimony…. Wow.

  • 121. Dr Brent Zenobia  |  February 7, 2012 at 7:26 pm

    Judge Reinholdt's opinion was specifically targeted at Justice Kennedy, as was Judge Walker's. This opinion is a lot more sweeping than it appears on the surface.

  • 122. Brian  |  February 8, 2012 at 8:27 am

    Well said. This has been expressed in some interviews since the decision was announced. I posted a link somewhere about my thoughts on it.

  • 123. fiona64  |  February 7, 2012 at 10:42 am

    Okay … after finally getting through the whole thing, it *appears* to me that the ruling is narrowly tailored to California. Any legal eagles with better minds than mine care to chime in?

  • 124. Maria  |  February 7, 2012 at 10:49 am

    It's completely tailored to California, because the law at issue only affected California. And the court was careful to not decide the issue of whether marriage is a fundamental right such that barring same-sex marriage was unconstitutional. It was only the targeting of gays to deprive them of *a* right that was found unconstitutional.

    Does anyone think the 9th Circuit will hear this en banc? Or that the Supreme Court will touch it? The stay is disheartening.

  • 125. bythesea  |  February 7, 2012 at 11:42 am

    I believe the stay is pretty much automatic, and no I actually do not think such a narrowly-tailored ruling will be heard for further appeal. I think it likely ends here, after the smoke and stays clear.

  • 126. James Sweet  |  February 7, 2012 at 12:18 pm

    I agree with bythesea. You're dreaming if you think there is not going to be a stay, and I think SCOTUS breathes a big sigh of relief that the 9th Circuit narrowly tailored it to California, refuses to hear it, and goes merrily home to a death-threat-free existence.

  • 127. Dr Brent Zenobia  |  February 7, 2012 at 7:29 pm

    It's not tailored to California, that's only a surface impression. California is the only state that had the particular combination of circumstances before the court. But if Washington – also in the Ninth Circuit – passes marriage equality, and (god forbid!) an initiative overturns it this November – this ruling will be trotted out quite conveniently to invalidate the initiative.

  • 128. torque  |  February 7, 2012 at 10:48 am

    Couple of pictures and an upside down video from this morning:!/okaytorque/media/grid

    Can't wait for the legalese-to-English translation!

  • 129. David_Sandy_UT  |  February 8, 2012 at 8:51 am

    I'm not a lawyer (nor do I play one on TV), but I found the ruling to be relatively easy to understand.

  • 130. James  |  February 7, 2012 at 10:48 am

    The decision is great b/c it is written in a way that is most likely to be affirmed. Also, it will have an impact on other states such as Iowa and New Hampshire. These are the states that have marriage equality and are under pressure to repeal. Although the Perry decision doesn't control the actions of those states, it will impact and influence any state that has recognized the right of gays to marry and then tries to take it away. If they are smart, the pro-equality side in New Hampshire should make good use of this decision to persuade the legislature that repealing marriage equality will mean lengthy and perilous litigation.

  • 131. alyson  |  February 7, 2012 at 11:17 am

    Anyone know if this only applies to states where the court found a right to marry in their constitution or would it apply to any state where people enjoy marriage equality regardless of how they got there?

  • 132. Paul Mc  |  February 7, 2012 at 10:49 am

    I just read through the whole thing…. wow. The judges ripped the Prop 8 proponents arguments to complete tiny tiny pieces that will drift away into the wide wide Pacific.

    Inparticualrly liked the conclusion that Prop8 is a pure piece of animus. Although the ruling is narrow, the arguments are demolished forever. It will not be overturned re: California. It forms a firmer foundation for other states.

  • 133. Nick  |  February 7, 2012 at 10:50 am

    At this point, given the narrowness of the ruling, don't we WANT the Supremes to deny cert on this and punt, which they may well do? Best case scenario for us, SCOTUS affirms the 9th Circuit decision… and California gets marriage equality, but the decision leaves every other state alone– so not really the sweeping SCOTUS decision Boies and Olson were hoping for. And the result is the same as if SCOTUS never hears it at all and the 9th Circuit decision stays the law. So putting it in front of the Supremes at this point seems like a risk with NO reward.

    Further, given the narrowness of this ruling, isn't it quite likely that SCOTUS will pass on this? That seems to be my gut feeling, but I could be wrong… just don't see why they would risk the public spectacle of this over such a narrow ruling with only local ramifications.

  • 134. Don  |  February 7, 2012 at 10:54 am

    Citizens United started as a VERY narrow case before Roberts got their fingers into the pie 🙂

  • 135. Guest  |  February 7, 2012 at 11:02 am

    Yes. I'd like the Supreme Court to conclude that California can remain the land of fruits and nuts, and just not hear the case.

    To use this case to get the big Supreme Court decision we want, they'd have to take today's decision and decide that it was *too narrow* and affirmatively determine that it should apply broadly. That seems like a bad bet to me.

  • 136. Dr Brent Zenobia  |  February 7, 2012 at 7:31 pm

    Actually that would be really helpful to Washington, also in the Ninth Circuit. Just in case there's a ballot initiative to repeal marriage equality there.

    And if SCOTUS declines to take this there will be a case filed in Oregon in three……

  • 137. Maria  |  February 7, 2012 at 11:05 am

    SCOTUS needs to take on DOMA

  • 138. MJFargo  |  February 7, 2012 at 11:42 am

    I think the case is too convoluted for SCOTUS to jump in. All along I've thought our saving grace was having the State Supreme Court first affirm same sex marriage as a right and then have the Prop 8 people jump in and take it away (for no good reason…at least any good reason they stated in court). So SCOTUS would have to first challenge our State Supreme Court on their opinion of Prop 22, and I don't think they have an interest.

    However, the ruling on standing is pretty muddled and might invite SCOTUS.

  • 139. alyson  |  February 7, 2012 at 2:56 pm

    Was there any question of the proponents of prop 22 appealing that CA court decision through the federal court? I wonder why they didn't?

  • 140. Straight Dave  |  February 7, 2012 at 5:17 pm

    If you're referring to the "Marriage Cases" that was just a case about the CA Constitution, so no federal issue was at stake. Besides, it's a lot quicker and easier to BS the voters in 4 months than to convince SCOTUS in 3 years. No principles invoved at all, just a shortcut.

  • 141. MJFargo  |  February 7, 2012 at 5:41 pm

    AND…the screw tightens as this goes along. Our opponents see how much they have to lose. When the CASC threw out Prop 22, we relaxed but our opponents geared up to the mother of all reversals: Prop 8. It was such an ugly time. They don't trust the courts which is why they want this as voter initiative. BIG set back for them.

  • 142. Sam  |  February 7, 2012 at 10:51 am

    PRESS CONFERENCE- -—los-angeles

    starting in a minute

  • 143. Seth from Maryland  |  February 7, 2012 at 10:57 am

    its not working for me

  • 144. Lesbians Love Boies  |  February 7, 2012 at 11:09 am

  • 145. Lesbians Love Boies  |  February 7, 2012 at 11:16 am

    omg I am crying

  • 146. Gregory in SLC  |  February 7, 2012 at 11:45 am

    ditto- llb..thx for link update so I could hear

  • 147. MJFargo  |  February 7, 2012 at 2:14 pm

    This press conference was extraordinary.

  • 148. New  |  February 7, 2012 at 11:05 am

    It works, Thanxs

  • 149. Ninth Circuit Rules Prop &hellip  |  February 7, 2012 at 10:54 am

    […] this is some news that will get a night shift gal out of bed in the early afternoon: “ has […]

  • 150. Clint Anderson  |  February 7, 2012 at 10:59 am

    well,go down to 95 Seventh Street and tell them how you feel

  • 151. Carpool Cookie  |  February 7, 2012 at 11:01 am

    Yay! Thank you.

    Please come over for donuts some time : )

  • 152. Shane  |  February 7, 2012 at 11:09 am

    I did hear on MSNBC that this ruling could have implications in states that have passed domestic partnerships and civil unions. They were saying in states that have some form of gay relationship recognition, this ruling may require full marriage rights granted. Any comments?

  • 153. Guest  |  February 7, 2012 at 11:23 am

    My take is no, the ruling does not require that. This ruling is all about the ability of a popular vote to withdraw a right once established:

    "The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."

  • 154. Jamie  |  February 7, 2012 at 11:44 am

    I agree with Shane's statement and disagree with "Guest". If a state has considered and passed domestic partnerships that have the exact same rights as marriage, that means that they've considered the issue in much the same manner that Californians did. They consciously decided to extend benefits to gay couples, but deny them the respect of the term marriage.

  • 155. Guest  |  February 7, 2012 at 11:54 am

    Read the quote again. The ruling overturns an *initiative* that *strips* a right. If the right was never there, and there was no initiative stripping it, this ruling doesn't apply. Every word counts here.

  • 156. Dr Brent Zenobia  |  February 7, 2012 at 7:34 pm

    I disagree. What Reinholdt seems to be saying is that, if a state grants all the incidents of marriage but just refuses to grant the word "marriage", it's on shaky Constitutional grounds. An important finding for any state in the Ninth Circuit that's granted "everything-but-the-word" domestic partnership/civil union rights to same-sex couples.

  • 157. Brett  |  February 8, 2012 at 8:06 am

    Is it correct that circuit courts are supposed to give deference to decisions by other circuit courts, though they need not consider the other decision binding?

    If so, this would be interesting grounds for a federal suit in New Jersey. The State's courts have previously ruled that denying gay couples the rights and benefits of marriage is wrong, but calling it domestic partnerships was okay. (I honestly suspect that the ongoing cases in the state's courts will succeed if couples can show the truth that DPs are not treated the same as marriages)

  • 158. EricKoszyk  |  February 7, 2012 at 11:13 am

    Couldn't this ruling be used to overturn Oregon's Measure 36 in 2004?

    In OR, several counties, including the most populous, Multnomah, granted same sex couples the right to marry. Several thousand marriage licenses were issued.

    Then, in November of that year, Measure 36 was approved, taking away the marriages of those gay and lesbian couples who had married in the interim.

    Couldn't it be argued that this ruling makes Measure 36 unconstitutional as well?

  • 159. Guest  |  February 7, 2012 at 11:27 am

    The Oregon marriages were not valid, according to the Oregon Supreme Court. Thus, the right to same-sex marriage never existed in Oregon before Measure 36. Therefore, today's ruling does not address the circumstances there.

  • 160. DaveP  |  February 7, 2012 at 11:37 am

    That certainly seems promising…..

  • 161. Steve  |  February 7, 2012 at 11:43 am

    Same as in CA in 2004. Cities or counties can't decide this issue on their own. It's a state matter and they overstepped their authority

  • 162. Dr Brent Zenobia  |  February 7, 2012 at 7:40 pm

    Probably not on the basis of the hundreds of marriages granted in Multnomah County in spring 2004 (including mine.) The problem there is that a local authority (in this case the Multnomah Co. Commissioners) decided on their own to grant a right that was beyond their jurisdiction.

    In a place of honor, in our home, is a framed certificate of our marriage on March 3 2004, before Massachusetts marriage went into effect. It felt so great when it was issued, and hurt so much when it was taken away. If I live to be 100 I will never forget or forgive the Oregonian when (after the Oregon Supreme Court decision invalidating our marriage) it said these certificates were nothing more than a historical curiosity.

    When marriage equality is the law of the land across the country, I intend to track down the author of that editorial, and I'm going to rub it in his bigoted face.

  • 163. BREAKING!!! Prop 8 in Cal&hellip  |  February 7, 2012 at 11:18 am

    […] The Ninth District panel ruled that taking away the existing rights of a minority is not kosher. Read the whole story at Prop8TrialTracker. […]

  • 164. BREAKING!!! Prop 8 in Cal&hellip  |  February 7, 2012 at 11:20 am

    […] The Ninth District panel ruled that taking away the existing rights of a minority is not kosher. Read the whole story at Prop8TrialTracker. […]

  • 165. loaferguy  |  February 7, 2012 at 11:41 am

    NOM Responds to 9th Circuit's Prop 8 Ruling, Calls It 'Absurd'

  • 166. Lesbians Love Boies  |  February 7, 2012 at 11:53 am

    Brian has on that brown suit again!

  • 167. James A. Tuttle  |  February 7, 2012 at 11:44 am

    I know I should be super thrilled and I am to a degree. This is just one more step in a still LONG battle and I really am afraid about the SCOTUS decision. I'm also pretty sure the proponents will request an en banc hearing that hopefully will be denied. So if I have this correct: en banc request and denial, the. Supreme court denial 4 months. En banc hearing then SCOTUS denial, maybe a year or more, en banc hearing then SCOTUS hearing, two or more years. From any perspective his is almost never ending. But, I'm still happy for the step in the right direction today.

  • 168. Carpool Cookie  |  February 7, 2012 at 12:11 pm

    It's not never-ending.

    For California, we're getting closer and closer and we have TWO COURT WINS on our side. As you point out, there's no assurance an En Blanc hearing will happen and there's no assurance the US Supreme Court will hear it, so no one needs to panic and think it will go on "forever".

    I'm not directing any exasperation at you…I'm just always surprised when others are mystified by how long and involved lawsuits are. The system is THOROUGH, and for something to be airtight, unassailable and thorough, it does take time. We should just be happy we're not living in Victorian England. Cases could go on for 30 or 40 years back then, as happened in Jarndyce vs. Jarndyce in Dickens' "Bleak House."

  • 169. chris hogan  |  February 7, 2012 at 11:47 am

    I'm glad, of course, that we prevailed on whether prop 8 was constitutional. I am deeply troubled, however, that the ruling essentially says, "It's fine to ban marriage, just make sure you don't legalize it first." Am I reading this wrong?

  • 170. Taylor S.  |  February 7, 2012 at 11:53 am

    I certainly feels like that, but the court just DIDN'T SPEAK to the instance where it is not legalized first, so we cannot assume any legal answers on that question… But it still sucks.

  • 171. Guest  |  February 7, 2012 at 11:56 am

    no, i don't think you are; that's how i am seeing it also,

  • 172. Jamie  |  February 7, 2012 at 12:07 pm

    Courts say what they mean. The people of California considered whether gays and lesbians should be afforded the designation of marriage and decided to eliminate that right. Similarly, 30 other states considered that same question and decided to eliminate any CHANCE of that right. I think the qualifying issue is did the people ever consider the issue and specifically decide to eliminate the right from gays and lesbians, but not from anyone else. Whether gay marriage was legal or not beforehand is simply not material.

  • 173. Dr Brent Zenobia  |  February 7, 2012 at 7:44 pm

    "Whether gay marriage was legal or not beforehand is simply not material."

    No, it just wasn't necessary to reach this opinion. That's different from saying it's immaterial.

  • 174. Bill in San Diego  |  February 7, 2012 at 12:10 pm

    The "Prop 8 took away something that was legalized and put into effect" argument is certainly strongly present in the opinion, but there's more to it. The majority opinion is heavily based on the Romer case, where the Supreme Court found that Colorado Initiative 2 unfairly singled out lesbians and gay men to have fewer rights than other groups. So, to my mind, the main argument of the majority goes to how the campaign was conducted and the animus demonstrated toward toward lesbians and gay men in the process. In effect, this opinion reinforces Judge Walker's much stronger findings on this topic.

    Judge Smith's dissent seems to make the case for the legality of Prop 8 that the proponents tried but failed to make. I wondered when a credible case for Prop 8 would come forward, and the proponents finally have it in this dissent. It rejects the idea that lesbians and gay men are a suspect class and supports the idea that the state has a rational basis for regulating marriage, including promoting procreation among married couples and providing the most stable basis for raising children. It speaks approvingly of the evidence offered by the proponents without commenting at all on the validity of that evidence or of evidence submitted by the plaintiffs that contradicted the proponents' witnesses. It relies on a 1970s case that the Supreme Court refused to take as controlling precedent and concludes by quoting as admirable from an opinion that says that going slowly is best in civil rights cases. It is an opinion that will certainly infuriate opponents of Proposition 8, but it does lay out a case for affirming its right to be incorporated into the California constitution. It certainly could provide the basis for an eventual Supreme Court ruling in favor or Prop 8, so the proponents can be quite glad that Justice Smith wrote it.

    I would guess that the majority tailored its opinion narrowly knowing that this dissent was coming (in fact, they quoted from it at one point) in hopes that the narrow ruling would discourage the Supreme Court from taking the case.

  • 175. alyson  |  February 7, 2012 at 3:03 pm

    With all the talk of walker being ay influencing his decision in this case – is there any indication that judge smith donated through his church to the pro prop 9 side? During oral argument he was really leading the proponents – saying things like 'well – couldn't you make this arguement..hint hint..' – kind of spoon feeding them so his dissent isn't a surprise – it just seems he had his mind made up and cherry picked the 'evidence' much like people do bible quotes instead of actually reviewing everything presented in the case.

  • 176. Dr Brent Zenobia  |  February 7, 2012 at 7:51 pm

    But Smith's dissent is heavly based on precedents (Baker v Nelson, High Tech Gays) that relied on Bowers v Hardwick, which was overturned by Lawerence v Texas. So, his dissent is as antiquated as the buggy whip.

    Remember who authored Romer v Evans and Lawrence v Texas – it was Justice Kennedy, the primary audience for Reinhardt's opinion today.

  • 177. Lymis  |  February 7, 2012 at 12:50 pm

    Yes, you are reading it wrong. It's a very natural way to read it, but this is a legal decision, not a regular conversation.

    What they are saying is that it is SO wrong to give marriage and then take it away that they don't even have to ask the question about whether they had to offer marriage in the first place, and that the justifications presented for taking it away are SO weak that they don't even have to address whether the underlying reasons are valid or not.

    It's like talking about someone who broke into your house and drank your milk, and then having them try to explain in court that they were really, really thirsty. The court would say, "We aren't going to even discuss whether you had a right to the milk, breaking in was so wrong that it's all we have to look at." That doesn't mean that they are saying it's okay to steal stuff if you let them into your home.

    As far as we are concerned, having our right to marriage equality affirmed by the court is the more important issue because it's the big picture here, but that isn't the way the law works. This may work to our advantage, especially coupled with some of the other cases that are headed toward the Supreme Court.

    And remember, this makes it all that much harder for a change in legislature or a lot of NOM funding to get a repeal somewhere that our rights are granted – getting marriage equality passed doesn't mean as much if a Tea Party victory in four years just gets it repealed.

    And, mixed in with everything else is the new precedent that most of the arguments that the bad guys use don't hold water.

  • 178. alyson  |  February 7, 2012 at 3:05 pm

    I like your optimism!

  • 179. Dr Brent Zenobia  |  February 7, 2012 at 7:59 pm

    I agree; and in addition, I would say that today's opinion is bigger than marriage equality. It goes to the question of whether government at ANY level, has even a rational basis (let alone heigtened scrtiny) as being the water-carriers for homophobic bigots.

    To the homophobic bigots I've been fighting for 35 years, I say: "Bigotry is YOUR baggage. Shoulder it yourself! If you're so sure you're right, then stop enlisting the government to carry your water for you!" See how they like that.

  • 180. AnonyGrl  |  February 7, 2012 at 1:56 pm

    While it could be read that way, I don't. I read it as "you can't give a right, then take it away", not "you should be careful to exclude rights before they become an issue." There is a fine line there, but I don't think this case is attempting to encourage the latter, merely restrict the former.

    It reads to me that they are most carefully avoiding the issue of granting those rights in the first place, leaving that question for someone else to determine.

  • 181. Kalbo  |  February 7, 2012 at 11:51 am

    After watching the press conference, it seems to me that the 9th Circuit ruling still leaves it open to striking all same-sex marriage bans while obviously applying more specific cases to Prop 8. AFER is going to SCOTUS, when it be this case or another. Also, they mentioned its affect on the DOMA cases. This is key. Federal recognition is a must if we're to be equal.

    'The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of **a right as important as the right to marry**.'

    To me, that still affirms that disparity in marriage (unequal treatment) is unconstitutional — regardless of how it's done (initiative after state court ruling, legislatures, ballot amendments) — while narrowing in on the specifics as it was done in California.

  • 182. Dr Brent Zenobia  |  February 7, 2012 at 8:15 pm

    'The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.'

    No asterisks, ifs/and/buts. No footnotes.

    Do yourself a favor, and read that again.

    I came out before AIDS. I watched my friends die from AIDS. I landed in the hospital as a consequence of Oregon's horrible Ballot Measure 9. (

    My husband and I were married March 3, 2004; our marriage was invalidated by the Oregon Supreme Court in 2005. We were remarried in Vancouver Canada two months later.

    I have never read a more powerful statement about the worth of our relationships than that – admittedly legalese – sentence.

  • 183. John  |  February 7, 2012 at 11:53 am

    I know the dissenting opinion had something to do with "gay people are not a suspect class." However,compared to Reinhardt's colorful opinion, Smith's opinion was a major snooze fest and I couldn't stay awake through it. Could someone provide an analysis of Smith's opinion and surmise who on the SCOTUS might share his views aside from the obvious two–should they even decide to take the case?

  • 184. Jamie  |  February 7, 2012 at 11:57 am

    Judge Smith says allowing gays to marry will tarnish the institution of marriage which will then lead to less people being married and more children being borne out of wedlock and therefore will harm California. The people of California had a rational basis for banning gay people from marriage in order to prevent this from happening. No word on how he considers this a rational reason that is related to banning gays from marriage.

  • 185. Michael  |  February 7, 2012 at 11:53 am

    So…there is a stay….a "en banc" process…then the Supreme Court…..What the [email protected]#$ ???? THREE MORE YEARS TO WAIT.

    Let's have the gonads to fight for our rights in all front.
    The moment we win big states…our opponents will know is fruitless to go after us with their slogan "take it to the people"

  • 186. James Sweet  |  February 7, 2012 at 12:00 pm

    Not entirely true. Leave the courts out of it, and Texas would still have laws against sodomy to this day. An electoral victory would undoubtedly be a positive thing, but it doesn't change crap in the flyover states.

  • 187. Jamie  |  February 7, 2012 at 12:10 pm

    It's unlikely that this case will ever change anything in the fly-over states either.

  • 188. James Sweet  |  February 7, 2012 at 12:15 pm

    True, but there's at least a possibility that a SCOTUS ruling could.

  • 189. Carpool Cookie  |  February 7, 2012 at 12:15 pm

    "The moment we win big states…our opponents will know is fruitless to go after us with their slogan "take it to the people" "

    Not really….it's how the H8ers make their living, by soliciting donations for "the fight". Who wants to go through that every election, in every state?

    And are you going to pay for the defense?

    Going through the court system is more economical and thorough.

  • 190. James Sweet  |  February 7, 2012 at 12:40 pm

    Yep. If it were up to the electorate, it would be decades before marriage equality was recognized in all 50 states, maybe even a century. Remember, it took a SCOTUS case to strike down an anti-sodomy law in Texas in THE TWENTY-FIRST CENTURY. If it weren't for the courts, forget about same-sex marriage, it would still be illegal to have same-sex intercourse in several states!

  • 191. DaveP  |  February 7, 2012 at 1:46 pm

    If we take this back to teh ballot it will be a disaster for marriage equality EVEN IF WE WIN. That's because winning the right to marry at the ballot box will immediately undo EVERYTHING that has been done in this trial. It will all come to a complete stop, with NO FINAL RULING, as if this trial never happened at all. And THAT will allow any anti-gay group with enough money to put our rights back on the ballot AGAIN and AGAIN, YEAR after YEAR, with each new election cycle, draining us of more money and other resources over and over again. We will be in the exact same position we were in before Prop 8. WE MUST LET THIS TRIAL REACH ITS CONCLUSION.

  • 192. fiona64  |  February 8, 2012 at 8:50 am

    Exactly. For crying out loud, the parental notification initiative that anti-choicers promote has been voted down three times in as many election cycles and they're gathering signatures *again.* Do NOT take this to the ballot again, with CA's effed-up initiative process. It would undo too much hard work and put us in a never ending cycle of voting things in and out.

  • 193. sdjfhasdfhausdui! PROP 8 &hellip  |  February 7, 2012 at 11:58 am

    […] i saw this and peed a little… […]

  • 194. Jamie  |  February 7, 2012 at 12:00 pm

    I think the LOSERS could go straight to the Supreme Court as is more likely their plan. Going to an en banc review wouldn't seem to make much sense to me. They could come out with a broader decision that affects more states and it just piles up the decisions against Proposition 8. It will be harder for the Supreme Court to over rule three decisions against Proposition 8 instead of just two.

  • 195. Brett Lucey  |  February 8, 2012 at 8:17 am

    If one's goal was to stall gay marriage as long as possible, an en banc appeal would make sense. Seeing as their goal is to stall and deny gay marriage, I would not be surprised to see an en banc appeal. 🙁

  • 196. Leo  |  February 8, 2012 at 8:34 am

    Brian Brown said before, and repeated after the ruling, that they fully expected to lose in the "most liberal" Ninth Circuit, but to win in SCOTUS. Not opting for yet another round in the Ninth Circuit, but going straight to SCOTUS, would be consistent with that. Unless that in itself would hurt their chances with SCOTUS, and that I don't know: Is SCOTUS less likely to grant certiorari if the petitioners haven't exhausted other options, including en banc review?

  • 197. James Sweet  |  February 7, 2012 at 12:03 pm

    So to test my understanding: The 9th circuit ruled that it is (federally) unconstitutional to pass a state amendment specifically designed to rescind the rights of a minority, but left open the question of whether that right must constitutionally be granted in all states?

    I'm thinking SCOTUS isn't going to touch this one. California was going to fall to the electorate sometime in the next few years anyway. SCOTUS (if I can speak of them monolithically) does not want to have to rule that all states must recognize marriage equality, because that would create a crapstorm of controversy. If they can just let this one lie, in a state where marriage equality was inevitable anyway, then I imagine they will be inclined to do so.

  • 198. Seth from Maryland  |  February 7, 2012 at 12:14 pm

    that what im thinking, plus, jeffery tubin the legal expert on cnn said he think it probally wont reviewed by the US Supreme Court, i have feeling this may be over in a few months

  • 199. Guest  |  February 7, 2012 at 12:15 pm

    I would agree on all your points.
    However, I do not think that they can let this one lie. They have already bit off more than they can chew, and I think they are going to double-down.

  • 200. AnonyGrl  |  February 7, 2012 at 12:21 pm

    Your understanding seems correct to me.

    And I think you are right about SCOTUS, but it depends on how much political pressure is brought to bear on them from folks like the Catholic Church, and other organizations which should not be able to sway the courts but do.

    But it is possible that Cooper and Co. will see the benefits of taking a dive at this point too.

  • 201. alyson  |  February 7, 2012 at 3:20 pm

    I can't imagine them backing down – AS long as prop 8 is enforced in CA I imagine them milking as much time out of it as they possibly can and I think the Smith decent is their fuel and their new argument.

    and by the way … read this in another article:

    'The California Catholic Conference, the lobbying arm of the state's bishops, declined requests to comment Tuesday, although it was one of the primary sponsors of the original, successful Proposition 8 campaign'

    Can someone explain why churches get to pay no taxes AND have lobbying arms!!!! Is there some case that can be brought about this to make the tax exemption go hand in hand with no lobbying?

  • 202. Sagesse  |  February 7, 2012 at 12:04 pm


  • 203. Jamie  |  February 7, 2012 at 12:10 pm

    Isn't Hawaii in the 9th Circuit? I would assume this reasoning would apply to them as well? Didn't the state court find that gays and lesbians were entitled to equal marriage rights, but then the people revised the constitution to allow the legislature the opportunity to define them out of it? Is it somehow OK to hold a ballot referendum to allow the Legislature the opportunity to define gays out of the constitutional rights, but not OK to do it directly?

  • 204. phoenix  |  February 7, 2012 at 6:03 pm

    For one thing, no gay or lesbian couple ever got a Hawaii-issued marriage license. Read the ruling–it's very specific to how Prop 8 was passed in California, the ballot booklet, the campaign literature, the initiative process in CA, the fact that we had DPs with equal statewide "incidents" of marriage but not the name, etc. The ruling explicitly declines to address anything but these specific circumstances. Somewhat unsatisfying as rhetoric, but also pretty darn bulletproof.

  • 205. Mormon Mother  |  February 7, 2012 at 12:11 pm

    Great news to come home to. Wish I could be at the rally tonight, but don't get off work until 6 pm.

  • 206. Carpool Cookie  |  February 7, 2012 at 1:54 pm

    Thanks : )

    Best wishes!

  • 207. Scott P  |  February 7, 2012 at 12:13 pm

    Does anyone understand what this subtext means (page 19 of the opinion), and does it have any relevancy?

    "Without explanation, the district court failed to enter a separate declaratory judgment as Plaintiffs had requested. The court made clear its holding "tha Proposition 8 is unconstitutional". But the clerk apparently never issued this declaratory judgment as a separate document, as Fed R. Civ. P. 58 requires."

  • 208. Anne  |  February 7, 2012 at 12:27 pm

    I wish it wasn't such a narrow decision. but since it is – do the supporters of Prop 8 really want to risk the supreme court allowing same sex marriage for all? or are they better off leaving it in California?

    I wish it applied to the whole 9th district myself. Sigh.

  • 209. Pat  |  February 7, 2012 at 8:59 pm

    I heard earlier on NPR that the decision to keep it narrow is strategic; it has something to do with believing that there is a better chance the Supreme Court will take the case.

  • 210. Anne  |  February 7, 2012 at 12:39 pm

    I wish it wasn't such a narrow decision. but since it is – do the supporters of Prop 8 really want to risk the supreme court allowing same sex marriage for all? or are they better off leaving it in California?

  • 211. Dwight  |  February 7, 2012 at 1:00 pm

    I have been thinking of that as well, the Supreme Court is quite conservative right now, it is possible that if this went to the supreme court it might not go as hoped.

    As it stands now, going from 0 states to the states we have now ( which will include California when the dust settles ) that allow it is actually very fast change for a civil rights issue.

    You are winning, very very quickly ( I say you as I don’t happen to be gay, but it is we that are winning as I see it as the right decision to not discriminate )

  • 212. Brett  |  February 8, 2012 at 8:21 am

    The Supreme Court has the potential to become significantly more conservative in the next 4 years if a Republican were to be elected President. We have 3 Justices 75 or older. 2 of them are Justices targeted to vote in favor of SSM. I wish people would realize how critical it is to keep a Democrat in the oval office. The next Presidential election could well decide whether or not we see marriage equality in the next 20-30 years.

  • 213. MightyAcorn  |  February 8, 2012 at 1:26 pm

    WORD. Everyone, REGISTER everyone you know to vote… Especially the whiners who say, "there's never anyone I like to vote for" or "it doesn't make any difference." There'll be a BIG difference for all of us if it's Romney as President…or heaven forfend, Santorum. Libraries and post offices have registration forms, put some in your car and explain to those slackers it will be THEIR FAULT if they don't vote and an Anti-equality Pledge Signer wins.

  • 214. DaveP  |  February 7, 2012 at 12:42 pm

    I'll be at the SF rally at Market & 17th/Castro at 5PM. I'll be wearing a white Harvey Milk T-shirt. Anyone who sees me, stop by and say 'hi'!

  • 215. James Sweet  |  February 7, 2012 at 12:42 pm

    This is mostly neither here nor there, but let me say once again that it just floors me that the California constitution can be amended by a naked majority in a popular vote. This is not news, but every time I think about it (as I am compelled to do as I read the opinion) my mind boggles. WTF were the drafters of the CA constitution thinking????

  • 216. Kate  |  February 7, 2012 at 12:47 pm

    This has been a constant problem here in California, and now it has been made even worse by permitting any ol' band of crazies who get an initiative passed to actually defend it in court. This is going to be the long-term problem created by today's decision, once the dust settles down and the world has moved on from screaming about marriage equality. Initiatives should be deemed constitutional BEFORE they are put up for a vote.

  • 217. Owen  |  February 7, 2012 at 12:56 pm

    It's a problem in a lot of states. There are too many states that allow for constitutional ballot initiatives by simple majorities.

    I understand allowing that for statutes, but how in the world do you justify allowing 50%+1 to decide on something as permanent and integral as a constitutional amendment?

  • 218. phoenix  |  February 7, 2012 at 6:06 pm

    Ironically the amendment that allows ballot initiatives was passed in order to keep corporate-bought legislators in check. Can you say 'unintended consequences'?

  • 219. Lis in SF  |  February 7, 2012 at 12:47 pm

    So can the Prop 8 supporters request en Banc, get it… (several months elapse) get (rightfully) smacked down, and then ALSO go to SCOTUS? Or do they have to pick now?

  • 220. _BK_  |  February 7, 2012 at 12:56 pm

    I also would like to know.

  • 221. Kathleen  |  February 7, 2012 at 1:30 pm

    Yes, en banc review and SCOTUS are two different levels of appeal. They can skip the en banc appeal & go straight to SCOTUS or they can first request en banc review, then go to SCOTUS.

  • 222. Adam Bink  |  February 7, 2012 at 12:57 pm

    I'll be going to the response event at City Hall in LA, if anyone is coming by there say hi!

  • 223. Jacob Combs  |  February 7, 2012 at 1:12 pm

    I'm writing happily about today's decision from New York City, but my heart is still in my favorite state, California on this exciting day! To all those that are going to the City Hall event later today, I'll be with you in my hometown in spirit!

  • 224. Jeff Baily  |  February 7, 2012 at 1:20 pm

    When it comes to us crossing our fingers: Wouldn't the Massachusetts cases that have already won at the Federal level be more suitable for the Supreme Court, rather than today's win? What's the status on the advancement of the 2 cases that Mass. won at the federal level?

  • 225. Kathleen  |  February 7, 2012 at 1:27 pm

    The appeals are pending in the 1st Circuit–fully briefed, oral arguments expected in April.

  • 226. Sam  |  February 7, 2012 at 2:00 pm

    _April_? Why so long? The briefing was complete in December. 🙁

  • 227. David_Sandy_UT  |  February 7, 2012 at 11:21 pm

    Justice is blind, so it takes time for someone to read out loud all that paperwork.

  • 228. nightshayde  |  February 7, 2012 at 1:35 pm

    Also, those cases (if I'm reading your comment correctly) are about DOMA where Prop 8 doesn't technically have anything to do with DOMA.

  • 229. Steve  |  February 7, 2012 at 1:42 pm

    "The Johnson argument, to put it mildly, does not help Proponents' cause"

    That seems to be judge-speak for "WTF were you thinking bringing this up?"

  • 230. Carpool Cookie  |  February 7, 2012 at 1:52 pm

    California has a huge population within the United States. It's an enormous piece of the puzzle. This isn't like Marriage Equality being legal in a tiny state like Rhode Island or something….it's a much much bigger precedent.

  • 231. Sagesse  |  February 7, 2012 at 6:16 pm

    With California and New York, over 35% of the US population live in jurisdictions with marriage equality. That's some kind of critical mass.

  • 232. bjasonecf  |  February 7, 2012 at 2:04 pm

    FYI: The email notice from the court that was sent about 15 minutes ago in the Perry Case is the reposting of the denial of Chuck Storey's attempt intervene (which they accidentally posted yesterday). Nothing new.

  • 233. fiona64  |  February 7, 2012 at 2:10 pm

    Brother Romney bleated: I will protect traditional marriage and appoint judges who interpret the Constitution as it is written.

    I hate to break it to you, Mitt, but that's just what the court *did.* I think the Equal Protection clause is very clear.

  • 234. Gregory in SLC  |  February 7, 2012 at 2:22 pm

    Oh brother (Romney)! He's "going down" O.B.A.M.A., O.B.A.M.A!

  • 235. Dwight  |  February 7, 2012 at 2:41 pm

    It is still the primary, to get nominated he has to appeal to the brain dead extreme right wing, he has no choice.

    Still it is a losing position and of course will bite him in the general election

  • 236. Steve  |  February 7, 2012 at 3:02 pm

    Also funny how he whines about "unelected judges" and then he wants to *appoint* judges who think like him

  • 237. Tom  |  February 7, 2012 at 3:55 pm

    Haha, yeah Mitt… You will appoint judges who interpret the Constitution as [you think] it is written.

    And then you whinge about "radical" judges with "politial bias". The role of the courts is to *impartially* uphold the law. Not to write it down as you think it should be written!

    Suggesting that you'll appoint judges who will be at your beck and call is about as undemocratic, unconstitutional and as absurd a thing as I've ever heard.

    Good thing you'll never be in a position to make such appoinments 🙂

  • 238. Bob  |  February 7, 2012 at 5:07 pm

    everybody better get to work, on the streets door to door, everywhere in America, to get out the vote for Obama,,,,,,, don't take anything for granted, come on the world is watching,,, if the people don't give Obama another term,,, Wow,,, big year for the history of the U.S.

  • 239. Pat  |  February 7, 2012 at 9:13 pm

    LOL…you tell him!!!

  • 240. David_Sandy_UT  |  February 7, 2012 at 11:16 pm

    Mitt is a tool and will say anything to convince voters that he is one of them. Right now he is saying what the aluminum-foil-beanie wearing members of the Grossly Obnoxious Party want to hear.

  • 241. OppressedinFLA  |  February 7, 2012 at 2:30 pm

    Could someone answer this question for me? If SCOTUS picks up this case, are they limited to rule on just the findings of this ruling today – (14th amend – Romer??) – or could they also rule on the things like the fact that the word "marriage" itself should get strict scrutiny?

  • 242. David_Sandy_UT  |  February 7, 2012 at 11:12 pm

    To some extent, SCOTUS makes its own rules on what it wants to rule on.

  • 243. Proposition 8 ruled uncon&hellip  |  February 7, 2012 at 2:45 pm

    […] BREAKING: Proposition 8 ruled unconstitutional by 9th Circuit panel […]

  • 244. Josh  |  February 7, 2012 at 3:50 pm

    I was wondering if this ruling could eventually apply to what happened in Maine?

  • 245. Tom  |  February 7, 2012 at 3:51 pm

    This opinion seems, to me, to mirror what is likely to happen in Washington State.

    The way things are looking in Washington is that the legislature is going to pass a same-sex marriage bill, which opponents have vowed to challenge at the ballot box. How is this any different from Prop 8?

    It may not be a constitutional amendment that the anti-ssm forces are seeking in Washington, but surely if a SSM bill was to pass and SSM were to become legalized, this ruling would prevent any referendum stripping LGBTs of marriage?

  • 246. Jamie  |  February 7, 2012 at 4:28 pm

    The referendum process stops the law from going into effect BEFORE it actually has a chance to go into effect.

  • 247. Straight Dave  |  February 7, 2012 at 5:57 pm

    Same thing happened in Maine a couple years ago. In some states, MD too, the referrendum is a well-defined part of the law-passing process, along the same lines as a Governor's signature. In CA, it was a whole separate deal disconnected from anything else. SSM was already in place and actively exercized.

    I know it makes a big difference psychologically, but I still have a hard time understanding there being much of a constitutional difference. I'm guessing SCOTUS will let us know that in about 5-6 years from now.

  • 248. Steve  |  February 7, 2012 at 5:00 pm

    The decision doesn't automagically have a direct effect in other states. But it would be binding precedent if a case were filed in a WA court

  • 249. Chris in Lathrop  |  February 7, 2012 at 3:51 pm

    A thrilling victory, even if it's not as sweeping as any of us would like. I, too, am disturbed by the lone dissent. That dissent, to me, is the real judicial activism in this country.

    I think it's high time to revisit the Equal Rights Amendment, reworded to include "all protected classes." Gotta plan for the future, right?

  • 250. David_Sandy_UT  |  February 7, 2012 at 11:09 pm

    The dissent is irrational and irrelevant. Smith fails to understand that his comments apply only to a subset of the population that one reasonable may assume to be biologically fertile–Great-Grandmother and her 99-year-old beau are not likely to procreate. He fails to address the arguments of the majority. The majority already pointed out the disconnect between objectives and what Prop. 8 actually does.

    Smith attended Brigham Young University. Why am I not surprised that his comments were a pile of nonsense.

  • 251. Chris in Lathrop  |  February 8, 2012 at 4:28 pm

    Even the highly-intelligent and highly-educated are not immune from idiocy. Case in point.

  • 252. Josh  |  February 7, 2012 at 3:59 pm

    Ok, great, so now 2 more years until it winds through further appeals. Then at best Prop 8 is struck down in CA and that's it. Wow, how anticlimactic.

  • 253. David_Sandy_UT  |  February 7, 2012 at 11:10 pm

    We take small steps before we learn to run.

  • 254. Jamie  |  February 7, 2012 at 4:27 pm

    Eugene Volokh's take for those interested. He seems to indicate, as I felt as well, that this ruling really affects any state where there are civil unions that have the same substantive rights as marriage, but withhold the word "marriage"

  • 255. John_B_in_DC  |  February 7, 2012 at 5:01 pm

    EVERYTHING NOW HANGS IN THE BALANCE! the NOM headline screams:

    Brian Brown is freaking out about this court "for the first time ever—finding a "right" to same-sex marriage in the United States Constitution!" Of course they did no such thing. What they "found" was a reaffirmation of the rights of due process and equal protection. In fact it was a very narrow ruling and they went out of their way to stress that they are NOT ruling on the broader constitutional issues.

    I would go over there and reassure poor Brian but I'm banned from posting there. Could somebody who is not already banned for posting polite, honest, and reasonable disagreement on their blog please head over there and let him know that these judges didn't do what he claims they did? Although I suppose there's a very small, very slight, very remote possibility that the hystrionics on their part might, just might, be primarily for fundraising purposes, since of course they're already using this ruling to ask their supporters for yet more money.

  • 256. Jamie  |  February 7, 2012 at 5:35 pm

    Well, I agree that the increasing manic posts from NOM that misrepresent the issue are for stirring up the masses. I don't think it's for fundraising though. We already know that they get very little of their funding from normal Americans, so these kinds of posts have so little effect that I doubt Brian can even buy a sharpie for the amount of money his post could have raised. I have no idea why they continue to stoop to these gross mischaracterizations of the issue, except for the obvious. That's what the Pope told them to do.

  • 257. Candy  |  February 8, 2012 at 1:06 am

    Just change your email address or go to a different computer.. NOM's blog is a marketing tool and actual facts dilute their hate campaign. Unless your posts agree with their Rhetoric, you have to jump through posts and reword them in a way that gets the truth out, but makes it sound like you support NOM's hate, in order to pass moderation.

  • 258. David_Sandy_UT  |  February 7, 2012 at 10:59 pm

    "Lying for the Lord" is still a lie. We see it all the time here in HATU–The Bass Ackwards State.

  • 259. fiona64  |  February 8, 2012 at 8:53 am

    I can't get to Louis Marinelli's blog anymore from the office (it's blocked) — BTW, Hi, Louis!

    I wonder what his thoughts are on this.

    Of course, I know what his politics are now that Perry's out of the race. Why? Because I saw him on the news last night being photographed with Rick Santorum at a caucus rally. I just about fell out of my chair and even pointed him out to my husband. Louis may be with us on marriage equality nowadays, but he's still a tool of the Catholic church (just like Santorum).

  • 260. Mormon Mother  |  February 8, 2012 at 9:16 am

    I don't think a person can support marriage equality and support any of the Republican candidates.

  • 261. fiona64  |  February 8, 2012 at 3:30 pm

    Remember, though, Louis had his big about-face as a result of actually talking to GLBT folk during the NOMbie tour (or so he said). Seeing him glad-handing Santorum just made me laugh.

  • 262. Unusual ruling on marriag&hellip  |  February 7, 2012 at 5:21 pm

    […] in marriage in California has been ruled unconstitutional yet again. In June 2008, the California Supreme Court ruled in favour of equal marriage. This was overturned […]

  • 263. rich  |  February 7, 2012 at 5:22 pm

    John: I had quite a bit of success posting earlier in the day and was headed in the direction you to which you refer. Others have made the point but the doors are shutting down fast to those of us who attempt to set the record straight. Surprised?

  • 264. Dr Brent Zenobia  |  February 7, 2012 at 7:42 pm

    It's narrow for a reason. Reinholdt's opinion – like Walker's before him – is tailored for an audience consisting of a single person, namely Justice Kennedy of the SCOTUS.

  • 265. David_Sandy_UT  |  February 7, 2012 at 10:57 pm

    Of course the Mitt has to say something bad about the Ninth Appeals ruling. He is still in full pander mode.

    I was just made aware that judge Randy Smith probably was and probably still is a Mormon. If true, this would more than explain why his comments fail to address the issues raised by the other two judges and why his main points are irrational an irrelevant: (a) biological fertility is not a requirement for marriage (his comments apply only to a subset of individuals who are presumed to be biologically fertile and not to the population as a whole) and (b) Prop. 8 absolutely does nothing to address the issues that Smith raised.

    Did Smith even read Walker's ruling? The issue of "fitness to parent" was addressed in trial.

  • 266. Peter  |  February 8, 2012 at 1:02 am

    Smith even quoted a claim that no evidence, studies comparing child outcomes from heterosexual and homosexual couples, was presented by the Plaintiffs. Was he smoking something when he wrote this, or just didn't read Walkers findings of fact and conclusions of law?

  • 267. Brett  |  February 8, 2012 at 8:31 am

    I think we need to be fair. If Judge Walker could be impartial despite being gay, I think we need to give Judge Smith the benefit of the doubt too.

    We may not like what he said or how he chose to back up his opinion, but that's EXACTLY how the other side felt about Judge Walker.

    Thankfully for us, the other two Judges agreed with Walker.

  • 268. David_Sandy_UT  |  February 8, 2012 at 8:48 am

    I didn't say that Smith was being biased. I said that his presumptive religious preference seems to explain the irrationality of his dissenting opinion. If Smith openly disagrees with instructions from his club's leaders (I assume you know that LDS leaders sent a letter of instruction to every LDS club in California), said leaders could prevent him from achieving godhood and having his own flock of celestial wives and planets to rule.

    Benefit of the doubt. . . You haven't actually lived in Utah, have you?

  • 269. David_Sandy_UT  |  February 8, 2012 at 9:40 am

    Smith's opinion re responsible procreation and/or optimal parenting apply only to a subset of the population, i.e., heterosexual couples comprising a woman of child-bearing age. Neither Prop. 8 nor Smith's dissent address the issue that there are de facto two types of marriage: Marriage where natural procreation (and subsequent parenting) are reasonably assumed, and marriage where 99-year-old great-grandmother Jones and her nonagenarian sweetie tie the knot.

    Smith's comments re Rational Basis are reasonable if and only if there was an upper age limit to marriage. Since responsible procreation and optimal parenting apply only to presumptively naturally biologically fertile couples and not to all potential marriage partners, there is no Rational Basis to apply the same reasoning to couples where there is no presumption of biological fertility, i.e., anovulatory women and same-gender couples.

  • 270. Waxr  |  February 8, 2012 at 1:05 am

    The 9th Circuit Court's jurisdiction includes the states of Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It also includes the territorial courts of Guam and the Mariana Islands.

    Although the Court's decision applies only to California, it serves as precedent in the rest of the jurisdiction.

  • 271. Tom  |  February 8, 2012 at 1:11 am

    This shows, that we have additional work to do, to counter the optimal parent rationale that can be used against us. This was a great ruling to flesh out the mud that another judiciary might use against us. We must be even better prepared for off the wall rationale like Judge Smiths. I think he did us a favor in a way.

  • 272. Karen A  |  February 8, 2012 at 1:21 am

    Judge Smith gave equal weight to the evidence presented by both sides on optimal parenting. Organizations like NARTH and others, whose ideas of peer review are not as robust as the APA for example. How can this be best addressed in future?

  • 273. David_Sandy_UT  |  February 8, 2012 at 10:06 am

    Smith's comments apply only to a subset of potential marriage partners, specifically heterosexual couples comprising a woman of child-bearing age. The comments re responsible procreation and optimal parenting do not apply to couples where there is no reasonable presumption of biological fertility, specifically older (anovulatory) women and same-gender couples.

    Prop. 8 does not address the fact that there are de facto two kinds of marriage: Marriage where one reasonably may assume that natural procreation (and subsequent parenting) are biologically possible; and marriage where no such an assumption can be made.

  • 274. Bryce  |  February 8, 2012 at 1:17 am

    I am 31 flavors of excited and happy!!!!
    Although, news like this always makes me hate being single, lol.

  • 275. MightyAcorn  |  February 8, 2012 at 1:35 pm

    Aw, we love you Bryce! And it's never a good idea to rush into marriage anyway, no matter who you are. 🙂

  • 276. Mike  |  February 8, 2012 at 3:07 am

    Gay Marriage in California, ironically, was legalized 6 months after my boyfriend, someone I very deeply admired and loved, was forced to move back to his country because his visa expired. That was a devastating loss for me. The timing was even more tragic, just moments too late, and before I could do anything about it, they already stopped it to introduce Prop 8.

    This was the first time in my life I ever thought about myself getting married, the first time I wanted and needed it's protections. Now we almost have it for good, but I wonder if I will ever need it again the way I needed it then.

    I wonder how many need it now, and don't have another 3-5 years to wait on SCOTUS.

  • 277. loaferguy  |  February 8, 2012 at 8:42 am

    Rachel Maddow Talks to Ted Olson About the Prop 8 Ruling: VIDEO

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  • 278. chris from CO  |  February 8, 2012 at 8:51 am

    It isn't clear to me WHY they did not answer the question is it constitutional to put a ban on same-sex marriage. That was the question in the case in the first place wether or not it was legal at one point or another was just a factor in the case but not the question in the case. Anyone want to explain that to me.

  • 279. MJFargo  |  February 8, 2012 at 9:22 am

    The opinion addresses that: They felt a narrow ruling resolved the appeal and any broader questions were for another day. In general, the narrower a ruling the less likelihood that it will be overturned by a higher court.

  • 280. Seth from Maryland  |  February 8, 2012 at 9:55 am

    i think they were doing more, i think they were given themselves and the Us Supreme Court a way out to avoid this question right now, by narrowing the ruling so much the US Supreme Court could reject a appeal, plus i've seen several legal experts on the internet and tv saying theres a good possiblty the US Supreme court may reject a appeal, i think this also, but dang i was hoping for a full federal marriage equality law across the land

  • 281. David_Sandy_UT  |  February 8, 2012 at 9:46 am

    Ditto MJFargo. The principle is called "Judicial Restraint" (and it's usually a good thing).

  • 282. Lymis  |  February 8, 2012 at 10:20 am

    I'll try.
    The judiciary is, when it is doing it's job properly, not supposed to be writing laws or setting policy. They are supposed to be evaluating laws against the Constitution and against other court cases that set precedents.
    So they have a tradition of trying to find the narrowest possible interpretation of a case that gives a solid resolution.

    The question in everyone's minds is whether gay people have a right to marriage. But that wasn't actually the legal question.

    In this case, the question before them really wasn't whether all gay people everywhere have a right to gay marriage. It really wasn't even the question of whether all gay people in California have a right to marriage. The question was whether Prop 8 was in line with the US Constitution and whether California voters had a right to pass it. That's really all. And in fact, it's even more restricted than that – the question is whether California had a right to do it to the specific plaintiffs involved, not people in Oregon, or Kentucky, or Utah.

    In order to grant proper resolution to the plaintiffs, those plaintiffs had to be allowed to marry in California, because that was the question. Again, not whether DOMA is also constitutional, not whether California had to give gay people marriage rights in the first place – just that they can be married, now, in California.

    So by addressing it the way they did, they were able to address that point without overstepping into other territory.

    And while we (and possibly they) might think it would be the right thing to do for them to actually do that – declare that gay people have the same right to marriage nationwide as straight people, they were also no doubt aware that the broader their interpretation and the more sweeping their statements, the more likely they were to have the Supreme Court, especially this current Supreme Court, overturn them – which could have resulted in Prop 8 being reinstated by US Supreme Court authority.

    As others have said, though, while they ruled only that Prop 8 is rescinded, their justifications (and Judge Walker's) are still in place, and those justifications, and the scathing damage they do to the "logic" of the anti-gay positions will be able to be used in other court cases that do recognize the need for us to be a protected class under the law, that do affirm our right to marriage equality, and that do guarantee equal rights in other areas.

    Getting that on the books in a form that is not likely to be overturned is a huge deal – possibly even bigger than having Prop 8 reversed in the first place.

  • 283. Prop 8 Trial Tracker &raq&hellip  |  February 8, 2012 at 9:02 am

    […] yesterday’s historic news of the 9th Circuit striking down Proposition 8 as unconstitutional, today brings another […]

  • 284. David_Sandy_UT  |  February 8, 2012 at 9:43 am

    Judge N. Randy Smith's opinion re responsible procreation and/or optimal parenting apply only to a subset of the population, i.e., heterosexual couples comprising a woman of child-bearing age. Neither Prop. 8 nor Smith's dissent address the issue that there are de facto two types of marriage: Marriage where natural procreation (and subsequent parenting) are reasonably assumed, and marriage where 99-year-old great-grandmother Jones and her nonagenarian sweetie tie the knot.

    Smith's comments re Rational Basis are reasonable if and only if there was an upper age limit to marriage. Since responsible procreation and optimal parenting apply only to presumptively naturally biologically fertile couples and not to all potential marriage partners, there is no Rational Basis to apply the same reasoning to couples where there is no presumption of biological fertility, i.e., anovulatory women and same-gender couples.

    HATU–The Bass Ackwards State–Hypocrisy Elevated

  • 285. Prop 8 Trial Tracker &raq&hellip  |  February 8, 2012 at 10:01 am

    […] compelling ruling striking down Prop 8 as unconstitutional.  (You can find the full decision here.)  Below are our 10 favorite quotations, chosen for their clarity and persuasiveness, their […]

  • 286. Top Of 10 Quotations Prop&hellip  |  February 8, 2012 at 11:37 am

    […] prop 8 unconstitutional ruling judge Reinhardt compelling evening. (You can find the full decision here.) Down our 10, favorite quotations chose your clarity and persuasiveness, and full LGBT equality to […]

  • 287. JoeRH  |  February 8, 2012 at 11:58 am

    I read in an article in my local paper that said it was also ruled that Protect Marriage has a right to represent the people of CA. Is that right? If so, how the fuck is that possible? There are gay Californians. Do these twisted freaks represent THEM too?

  • 288. MightyAcorn  |  February 8, 2012 at 1:15 pm

    @ Taylor: I feel the same way. Walker's ruling was so unequivocal and so brave, this is to me the most disappointing of the possible happy outcomes. I really don't like the finding of standing, that's going to have a big impact beyond marriage and I don't think a good one.

    Anyway, this may be the ruling that provides the quickest return of marriage equality to CA, so I'm trying to be grateful for that.

  • 289. Mike  |  February 8, 2012 at 2:49 pm

    when can we get married again

  • 290. Prop 8 Trial Tracker &raq&hellip  |  February 8, 2012 at 3:37 pm

    […] support of the bill, openly gay Rep. Jamie Pedersen read from Judge Reinhardt’s 9th Circuit opinion yesterday striking down Prop 8 as unconstitutional, sharing the following words from the decision: […]

  • 291. There’s a Ninth Com&hellip  |  February 9, 2012 at 11:41 am

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  • 292. Appeals Court: Prop 8 is &hellip  |  February 13, 2012 at 9:36 am

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  • 293. Patrick Davis Consulting &hellip  |  February 17, 2012 at 10:15 am

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  • 294. Prop 8 Trial Tracker &raq&hellip  |  February 18, 2012 at 2:21 pm

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  • 295. Prop 8 Trial Tracker &raq&hellip  |  February 20, 2012 at 3:31 pm

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  • 296. Adam Bink: What TodayR&hellip  |  February 21, 2012 at 9:01 am

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  • 297. WeMustChange » Blog&hellip  |  February 21, 2012 at 9:16 am

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  • 298. Prop 8 Trial Tracker &raq&hellip  |  February 21, 2012 at 10:16 am

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  • 299. Prop 8 Trial Tracker &raq&hellip  |  February 21, 2012 at 10:35 am

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  • 300. Adam Bink: Prop 8′s&hellip  |  February 21, 2012 at 2:23 pm

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  • 301. Adam Bink: Prop 8′s&hellip  |  February 22, 2012 at 12:05 am

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  • 303. Prop 8 Trial Tracker &raq&hellip  |  June 5, 2012 at 10:04 am

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  • 304. February 8, 2012 at 10:59&hellip  |  June 6, 2012 at 5:48 pm

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