A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled by a vote of 2-1 on February 7, 2012, that the enactment of Proposition 8 by California voters on November 5, 2008, violated the 14th Amendment of the United States Constitution. Perry v. Brown, 2012 Westlaw 372713. The panel majority adopted the narrowest available constitutional argument, thus avoiding having to address the question whether same-sex couples have a federal constitutional right to marry. Instead, the court ruled that there was no rational basis for passing a state constitutional amendment that revoked the right of same-sex couples to call their legally-recognized relationships a "marriage." Judge Stephen Reinhardt wrote for the majority. Judge N. Randy Smith dissented.
Also ruling on subsidiary issues in the case, this time unanimously, the panel held that the Proponents of Proposition 8, who entered the lawsuit as intervenor-defendants, had federal constitutional standing to appeal the district court's ruling, because the California Supreme Court has ruled that initiative proponents are authorized to represent the state's interest in defending its constitutional provisions. The panel also held that Chief District Judge James Ware did not commit an abuse of discretion when he rejected a motion by the Proponents to vacate the ruling by former Chief District Judge Vaughn Walker on the ground that Walker, a gay man in a ten-year relationship with another man, should have recused himself from deciding the case.
Proposition 8 placed into the California constitution, effective November 6, 2008, an amendment providing that only the union of a man and a woman is valid or recognized as a marriage in California. The immediate effect of the amendment was to carve a limited exception out of the California Constitution's equal protection requirement, depriving same-sex couples from attaining a civil status called "marriage," according to a May 2009 decision by the California Supreme Court in response to a state constitutional challenge to its enactment. California's domestic partnership law provides same-sex couples with almost all the state law rights and benefits of marriage, and the California Supreme Court's May 2008 ruling on same-sex marriage held that same-sex couples are entitled to a legal status, called "marriage," that would afford all the state law rights and benefits of marriage. In its May 2009 ruling, the California Supreme Court said that the only part of its May 2008 ruling affected by Proposition 8 was the ability of same-sex couples to call their status "marriage." Since the rest of the May 2008 ruling remained in effect, said that court, domestic partnership must provide all the rights and benefits of marriage, except the right to claim the term "marriage" itself. The court also ruled that the marriages contracted prior to the passage of Proposition 8 remained valid and recognized as marriages.
Days before the May 2009 ruling, and correctly anticipating its outcome, the American Foundation for Equal Rights (AFER) filed Perry v. Schwarzenegger, attacking the federal constitutionality of Proposition 8. Because none of the named defendants (Governor Arnold Schwarzenegger, Attorney General Jerry Brown, and the two state officials charged with operating the agency that administers marriage licenses, as well as the two county clerks who had denied marriage licenses to the two plaintiff couples because of the barrier created by Proposition 8) were willing to defend Proposition 8 on the merits, the Proponents of the initiative, who had formed an organization to gather petition signatures and to campaign for its enactment, were allowed to intervene as defendants, and the city of San Francisco, which had been a plaintiff in the Marriage Cases litigation, was allowed to intervene as co-plaintiff.
District Judge Walker ruled in August 2010 that Proposition 8 violated the 14th Amendment on two grounds: it denied same-sex couples a fundamental right without any showing of a compelling government interest to do so, and it singled out same-sex couples for exclusion from marriage without any rational justification. Had the 9th Circuit panel affirmed Judge Walker's ruling on either of those theories, its opinion would mark the first time that a federal appellate court had ruled that same-sex couples have a constitutional right to marry. And, most likely, had the panel majority chosen that path, upon internal circulation of the opinion among the judges of the 9th Circuit, a decision would have rapidly emerged among the judges of the circuit to vacate the opinion and grant rehearing en banc by an expanded panel of eleven judges, following a well-established practice in the circuit.
Instead, however, the panel majority chose a narrower approach, avoiding the ultimate constitutional question, instead considering a question presented by the City of San Francisco in its response to the appeal and also argued before the court: whether it violated the Equal Protection Clause for the people of California to vote to rescind from one group of citizens a right that was otherwise available to all. In other words, once the California Supreme Court had ruled in 2008 that same-sex couples had a right to marry under the California constitution, then same-sex and different-sex couples in California had an equal right to form legal unions with all the rights of marriage that were called "marriages." Passing Proposition 8 kept that right intact for different-sex couples and took it away from same-sex couples. In order to treat one group differently from the other, the government has to have at least a rational basis for the differential. "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," wrote Judge Stephen Reinhardt in the majority opinion.
The panel thus defined its task as deciding whether there was a rational basis for rescinding the right of same-sex couples to call their legal status under California law a marriage. And in looking for a precedent for dealing with this question, the majority of the panel saw the U.S. Supreme Court's 1996 ruling, Romer v. Evans, as the most applicable precedent. In Romer, the Supreme Court held that Colorado voters had violated the Equal Protection Clause when they enacted through an initiative a state constitutional amendment providing that the state and its political subdivisions were prohibited from treating gay people as a protected class for purposes of discrimination law. The Supreme Court found that no rational justification supported singling out a particular group of people for this purpose, giving rise to the inference that animus motivated the decision, and such animus is not a legitimate grounds for making public policy.
The panel majority found that despite the more limited scope of what Proposition 8 did, it was closely analogous in relevant ways to what Colorado Amendment 2 did. "Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason," wrote Judge Reinhardt.
When analyzing the various reasons argued in support of Proposition 8, the majority concluded that even if those reasons were credited as stating legitimate interests of the government, enacting Proposition 8 did not advance any of them. The Proponents and writers of amicus briefs in their support offered four justifications for Proposition 8: "(1) furthering California's interest in childrearing and responsible procreation, (2) proceeding with caution before making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools." The majority of the panel concluded that enacting Proposition 8 did not advance these interests, regardless whether they would be considered legitimate. Because California, through judicial decisions and legislation, has recognized equal parental rights for same-sex couples, a situation unaffected by Proposition 8, the Proposition really has nothing to do with childrearing policy. Furthermore, there is no logical connection between denying same-sex couples the right to marry and encouraging different-sex couples to procreate within marriage.
As to religious freedom, there was no showing how granting same-sex couples the right to call their civil unions "marriages" impeded religious freedom in any way. Nothing in California law compels any religious organization to perform any marriage of which its theology disapproves, and Proposition 8 did not directly affect any of the existing anti-discrimination laws of California, which already included sexual orientation as a prohibited ground of discrimination long before the Marriage Cases decision.
The majority found the reference to "proceeding with caution" rather odd, since this might be a relevant consideration in deciding whether to allow same-sex couples to marry, but seemed irrelevant to deciding whether to rescind that right after it had been recognized and acted upon by 18,000 couples. Finally, Proposition 8 had no direct effect on school curriculum, although the majority conceded that to the extent the curriculum in the schools involves instructing students about the reality of the world, when same-sex couples can marry it is likely that this fact will be noticed in their education. Blocking them from knowledge of reality does not seem like a legitimate state interest.
Judge Smith's dissent was focused on the procreation point, and it seemed incredibly weak. Indeed, reading the dissent one suspects that the judge was grasping at straws, for it seemed to concede most points of the analysis to the majority and to fall back on the notion that as long as it was "arguable" or contested that children are or are not better off in a particular kind of family, the state could rationally bar same-sex couples from marrying. This seemed quite contradictory in light of the hearing record showing the large number of children being raised by same-sex couples,and who would continue to be raised by same-sex couples regardless whether they could marry, and who would be disadvantaged in various ways because their parents' unions were not recognized as marriages.
By ruling on the narrowest constitutional ground available to it, the court limited the immediate effect of its ruling to California. As the rationale was that the state must have a legitimate reason for rescinding from a particular group of citizens a previously recognized right, its logic would be important for challenging any attempt in Iowa, for example, to put an amendment initiative on the ballot to rescind the right to marry proclaimed by the Iowa Supreme Court. But one suspects that it would be less significant — if not irrelevant — to moves in other states that now allow same-sex marriage as a result of legislation, such as New Hampshire or Vermont, to rescind that right through an initiative.
Because of the limited scope of the ruling, it seems less likely to merit en banc review or, perhaps most important, U.S. Supreme Court review, although it seems likely that the Proponents of Proposition will try for one or both of those further levels of appeal, which would delay implementation of this ruling. However, neither form of review is available as of right, so it is not certain that the case will go further.
The panel majority left in place the stay of Judge Walker's order that had been issued in August 2010 pending appeal. This will continue "pending issuance of the mandate" embodying the court's order affirming Judge Walker's decision, at least for seven days. But the stay would likely be extended further if Proponents quickly file a motion for en banc review by the Circuit or a petition for certiorari to the Supreme Court, so marriage licenses for same-sex couples may not become available any time soon.