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A three-judge panel of the Ninth Circuit Court has upheld Judge Vaughn Walker's decision of a year and a half ago in Perry v Schwarzenegger declaring that California's Proposition 8 violates the Due Process and Equal Protection clauses of the 14th Amendment to the Constitution of the United States.

The decision was 2-1, with Judges Reinhart and Hawkins affirming, and Judge Smith in dissent. (We don't know yet whether an immediate stay of the decision was ordered, pending appeal, but it is likely, so you probably can't run out and get married in California if your partner has matching genitalia) UPDATE: It seems that a stay has been confirmed. See updates below.

It's been a long time coming.

Outside the Ninth Circuit Court of Appeals in San Francisco earlier today

When the Ninth Circuit Court put a stay on Judge Walker's decision back in August of 2010, they set up an expedited hearing schedule. Oral arguments were heard just four months later -- a millisecond in legal time -- in December, 2010.

But the Ninth Circuit judges then decided they needed to understand whether California law gave standing to the defendants (in legal terms referred to as the 'defendant-intervenors'). That is, whether the organization that put Proposition 8 on the ballot, the same organization Judge Walker gave permission to to mount a defense in Perry v Schwarzenegger,, really had standing under California law to appeal -- since the State of California had refused both to defend in the original case and refused to appeal. Or was their case effectively dead?

The California Supreme Court ultimately ruled unanimously in September of 2011 that did have standing, and so the ball was tossed back to the Ninth Circuit. In light of the California Supreme Court decision, the Ninth Circuit panel decided to hear further oral arguments, and those took place in December of 2011.

Today they issued their ruling.

What does it mean?

Nothing and everything.

The judgement will likely be stayed by either the full Ninth Circuit or the Supreme Court quicker than I can hit PUBLISH on this diary. Update: It in fact has been stayed.

On the other hand, it is the first time a US Appeals Court has ruled that the 14th Amendment applies to marriage on the basis of sexual orientation, and the first time an Appeals Court has ruled unambiguously that sexual orientation is a protected class and deserving of 14th amendment protection. That's huge. Update: In fact, the court issued a very narrow ruling; it did not specirfically rule that sexual orientation is a protected class. It relied on Romer v Evans to say that constitutionally granted rights may not be taken away from a select group of people.

(In May of 2008, in Witt, the Ninth Circuit ruled that Don't Ask, Don't Tell dismissals were subject to heightened scrutiny; but back in 1990 in High Tech Gays, the Ninth Circuit had said

homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny
and are therefore not deserving of special 14th amendment protections.

Also, In July of 2008, in Cook, the First Circuit decided that sexual orientation was not a suspect classification. There have not yet been any Appellate rulings in DOMA cases such as Golinski or Gill, although Gill is being heard by a 1st Circuit panel currently).

The judgement is also interesting in that is / is not necessarily limited to California. If the judgement had not been stayed (an impossible dream, but still) it would apply to the entire jurisdiction of the Ninth Circuit -- from Alaska and Guam to Montana and Arizona. Yes, same-sex couples in Idaho could have, in theory, gotten married!

Update: The judgement seems limited to California or states which have already enacted marriage equality and try to take it away.

So where do we go from here? The defendant-intervenors have to decide whether to appeal to the US Supreme Court directly, or ask for a hearing before an 11 member (en banc) panel of the Ninth Circuit. Presumably giving up is not an option for them.

I can see very little reason why they should choose to go to the Supreme Court directly, since the longer they delay things from reaching a decision at the Supreme Court, the longer, potentially, marriage equality is denied in Califoria and possibly throughout the nation.

They have everything to gain and nothing to lose by attempting an appeal the the Ninth Circuit en banc, except for having to pay their lawyers even longer (but they seem to have plenty of money). That and the possibility that Obama is re-elected and one of the conservative justices on the Supreme Court will need to be replaced before the case reaches SCOTUS.

On the other hand the Ninth Circuit has the option of granting or denying their request for an en banc hearing. Legal opinion is divided as to whether they would be likely to deny such a request in such a high-profile and controversial case.

So we await the next move. Be happy for a few minutes; then go back into hibernation mode for another year or so, as the wheels of justice grind, slowly, one kernel of equality at a time.


Events in California:

San Francisco
What: Community Rally with music and speakers. We will either celebrate or protest the decision, and either way, re-dedicate our resolve to achieve full equality nationwide.
Where: Market Street & 17th Street (across from Castro & Market) San Francisco, CA 94114
When: 5:00 PM Tuesday, February 7
Materials: Wear your pro-equality, pro-marriage equality, or No on 8 t-shirts.
Contacts: Rev. Kelly Rivera Hart (415) 260-5704 and Billy Bradford (415) 716-6315

Los Angeles
What: Community Rally, then a march down Santa Monica Blvd.
Where: West Hollywood Park on N. Robertson Blvd. (next to the Abbey Bar) West Hollywood, CA 90069
When: 6:00 PM Tuesday, February 7
Materials: Signs will be provided, but please bring your own as well.
Contact: Tristan Blaine (805) 657-4150

10:02 AM PT: No word yet on the scope of the ruling.

10:05 AM PT: No one is reporting a stay yet...

10:06 AM PT: No link to decision yet either.

10:08 AM PT: Link to decision

10:10 AM PT: ZAP!

“Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court said.
10:13 AM PT:
The ruling regarding standing and the motion to throw out Judge Walker’s decision was a unanimous 3-0 vote.
Prop 8 Trial Tracker

10:16 AM PT:
We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

10:18 AM PT: Twitter is reporting that a stay is in place.

kazzadraskmedia Kathy Drasky

Yep #Prop8 unconstitutional! But marriage ban remains temporarily in place. #meusa #LGBT
Who knows if that is true?
10:18 AM PT:
SenGillibrand Kirsten Gillibrand

V plsd the 9th Circuit has upheld ruling that Prop 8 is unconstitutional! We shld all be able to marry the person we love #marriageequality

10:20 AM PT: Stay would seem to be confirmed.

...we are angered that the courts are allowing this judicial process to stand in the way of justice delivered, by granting a continuation of the stay on the decision”

10:24 AM PT: Stay definitivel confirmed. The only real question now is how broad or narrow the decision is. But regardless, it won't affect anything in any other state in the Ninth Circuit since it has been stayed.

10:28 AM PT: From the comments, an opinion about my question immediately above:

This decision will not apply in the entire 9th Circuit, nor will it apply in the entire United States if the respective courts find on the same grounds that this panel did. That is because the court side-stepped the issue of whether there is a constitutional right to marriage equality. The ruling, at first glance, appears simply to be that once marriage equality is granted it cannot be taken away. Thus, states that already have bans do not have their bans implicated in this. However, states that already have equality would have any subsequent repeal implicated
By Met102:

Originally posted to jpmassar on Tue Feb 07, 2012 at 09:58 AM PST.

Also republished by SFKossacks, Milk Men And Women, Angry Gays, and California politics.

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