Gay Marriage Ban Ruled Unconstitutional in California

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Signs both supporting and opposing California’s Proposition 8
Source: Denis Dison, “Calif. High Court Rules Anti-Gay Groups Can Defend Prop 8,”, Nov. 17, 2011

A US federal appeals court ruled California’s same-sex marriage ban unconstitutional on Tuesday Feb. 7, 2012. The 2-1 decision upheld now retired US District Judge Vaughn R. Walker’s Aug. 4, 2010 ruling that ballot measure Proposition 8 was unconstitutional. The initiative banning same-sex marriage passed with 52.3% of the vote on Nov. 4, 2008.

Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” ruled the US 9th Circuit of Appeals in San Francisco. “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.”

The court unanimously voted 3-0 that Judge Vaughn Walker did not need to recuse himself from the case because of his long-term same-sex relationship.

“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, president of Proposition 8 supporters The National Organization for Marriage. “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.”

Ted Olson, who was the lead attorney with David Boies arguing against Proposition 8 in Perry v. Schwarzenegger, said at a Feb. 7, 2012 press conference, “From the very beginning, we’ve been planning to be in the U.S. Supreme Court.”

Same-sex marriages will not immediately resume following the ruling. The defendants, Proposition 8 proponents ProtectMarriage, have 14 days to decide whether or not accept the ruling, ask the 9th Circuit for an en banc hearing involving 11 of the court’s judges, or appeal to the US Supreme Court.

10 countries allow same-sex couples to marry: the Netherlands (2000), Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2009), Sweden (2009), Argentina (2010), Iceland (2010), and Portugal (2010).

It is also legal in six US states: Massachusetts (2004), Connecticut (2008), Iowa (2009), Vermont (2009), the District of Columbia (2010), and New Hampshire (2010), and New York (2011).


Adam Bink, “Proposition 8 Ruled Unconstitutional by 9th Circuit Panel… What This Means, and What Comes Next,”, Feb. 7, 2012

Maura Dolan, “Prop. 8: Gay-marriage Ban Unconstitutional, Court Rules,”, Feb. 7, 2012