Proposition 8 ruled unconstitutional

BY STAMPP CORBIN

Publisher, LGBTweekly.com

Today, the United States Court of Appeals for the Ninth Circuit ruled that Proposition 8 is unconstitutional. Prop 8 was voted into law in 2008 and established in the California Constitution that marriage is the union between one man and one woman.

The ruling does not mean same-sex couples can marry again in California. The court issued a stay, meaning that new marriages cannot be performed until the appeals process is finished. In essence, supporters of Proposition 8 may appeal the Ninth Circuit’s ruling that the law is unconstitutional. However, the momentum is with LGBT marriage equality.

By restricting the recognition of marriage to opposite-sex couples, Proposition 8 overturned the California Supreme Court’s ruling of In re Marriage Cases that same-sex couples have a constitutional right to marry. The wording of Proposition 8 was precisely the same as was proposed in Proposition 22, which passed in 2000 and was invalidated by the California Supreme Court in 2008.

California’s state constitution put Proposition 8 into immediate effect Nov. 5, 2008. Proposition 8 did not affect domestic partnerships in California. Not surprisingly, California same-sex marriages performed before Nov. 5, 2008, during the brief time they were legal, remain valid.

In May 2009, the California Supreme Court upheld the validity of Proposition 8. The same day supporters of LGBT marriage equality filed a federal legal brief challenging a state’s right to ban same-sex marriage. Ultimately in the federal case, U.S. District Judge Vaughn Walker ruled that Proposition 8 was unconstitutional. This set up the appeal to the Ninth Circuit Court of Appeals, who ruled today.

To be able to rule on the constitutionality of Proposition 8, the Court of Appeals for the Ninth Circuit first had to rule on two other major issues: 1) Whether U.S. District Judge Vaughn Walker should have not taken the case because he is gay and in a long term relationship and 2) if the supporters of Proposition 8 had the right to appeal the ruling when Attorney General Jerry Brown and Gov. Arnold Schwarzenegger refused to appeal the ruling on behalf of the state. Once elected governor, Brown continued his opposition to appeal the ruling and was joined in his stance by the new Attorney General Kamala Harris.

The court found that Judge Walker was right not to recuse himself due to his sexual orientation. In short, the court said just because Walker is gay did not make him biased in his ruling. The court further found that the supporters of Proposition 8 did have the right to appeal. These two rulings allowed the Ninth Circuit to rule whether Judge Walker was correct in ruling Proposition 8 unconstitutional. They agreed with Judge Walker.

So what’s next? There are two potential paths for the supporters of Proposition 8. They can request an en banc review, which means all the justices on the Ninth Circuit Court of Appeals will vote whether they will hear the appeal en banc. If that is the case, the Chief Justice and 10 other randomly selected justices from the Ninth Circuit will hear the case. This first en banc review could lead to a review by all the judges of the Ninth Circuit or a direct appeal to the Supreme Court.

Of course, the supporters of Proposition 8 also have the option of not appealing and letting the new ruling stand. Highly unlikely. So expect that this fight will continue for the next couple of years. Today’s victory is another significant step in marriage equality. Let’s hope our momentum continues. Just remember we are just at halftime.