More to follow. The decision is embedded below.

The Court essentially used a bootstrap argument — that since there was a prior right to samesex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment. Judge N.R. Smith filed a 39 page dissent from this finding.

The Court also held that (i) the supporters of Prop. 8 did have standing to defend the law, deferring to the Certified Opinion of the California Supreme Court, and (ii) trial court Judge Walker did not have to recuse himself based on his own longterm samesex relationship. These two findings were unanimous.

Here are opening paragraphs:

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, samesex couples had all the rights of opposite-sex couples, regardless of their marital status~ all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation~ for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other
than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).

The prior stay continues in effect, although the Court did not make clear if that would extend pending a request for the Supreme Court to hear the case.

Some other things of interest:

pp. 31-32 — Court appears to rely on fact finding by Judge Walker, saying that distinction between adjudicative and legislative fact finding was not significant in this case. Court says it relies on Walker’s specific adjudicative findings as to intent of proponents of Prop. 8.

pp. 33-24 — Court makes clear, again, that relying solely on taking away of prior right to marry.

p. 38 — Court applies great weight to use of term “marriage” and “marry” in society, and quotes Groucho Marx and Shakespeare, among others.

Starting at page 56 the Court analyses what it says were the four justifications given by the proponents, and then takes each one individually to find that it was not a rational justification because the individual element could apply to samesex couples.  This is what I have termed previously Deconstructing Marriage, taking its parts rather than the whole. See also my prior post, Ted Olson May Be Too Smart By Half.

Of interest, I did not see the Court taking into account the circular nature of its argument.  Prop. 8 was directed at the very judicial decision which gave rise to the right which the Court now finds cannot be taken away.


Lyle Denniston at Scotus Blog notes that the narrow ruling, which in theory only relates to California, was an attempt to insulate the opinion:

By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court.  However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.

Orin Kerr at Volokh Conspiracy is not waiting for a cert petition to be filed, he’s already announced Supreme Court Grants Cert in Prop 8 Case, “Why bother with the headlines of today when you can offer the headlines of tomorrow?”

9th Circuit Decision on Merits – Perry v Brown


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