Understanding the 9th Circuit Court of Appeals Ruling on Proposition 8

A look at the recent ruling on same-sex marriage in California

By Ellen Fischer

February 13, 2012

Last week, a three judge Federal appeals court panel ruled that California’s ban on same sex marriage violates the constitutional rights of gays and lesbians.

California first approved same sex marriage in June of 2008 when the California Supreme Court ruled in favor of gay marriage based on the equal protection clause found in the Fourteenth Amendment to the United States Constitution. Anti-gay efforts to overturn the law via ballot measure began immediately and, in November 2008, their proposition — known as Proposition 8 — was passed by a 52% majority of the vote. With that, Proposition 8, an amendment to the California Constitution defining marriage as between one man and one woman, thereby outlawed same sex marriage.

The ruling is a bit complicated from a layperson’s perspective, but can be understood as follows:

The Appeals Court’s ruling is based on a very narrow reading of the California law and this narrow ruling does not state that there is a constitutional right of same sex couples to marry. Rather, the ruling provides that the disparate treatment of married couples and domestic partners is unconstitutional.

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Let me try to explain a bit further.

On August 4, 2010, Judge Vaughn R. Walker, then chief judge of the Federal District Court of the Northern District of California, but who has since retired, issued an opinion holding Proposition 8 unconstitutional. Judge Walker, whose opinion was questioned by anti-gay members of the community on the basis that he was a gay man in a long-term committed relationship, was clear and unequivocal in his decision. His ruling asserted that it was an unconstitutional infringement of both the equal protection and due process clauses of the constitution to deny same sex partners the right to marry.

Read the rest of this post by Ellen Fischer of The Law Offices of Ellen Fischer via her Legally Yours column.