9th Circuit Prop 8 Decision: Equal Protection NOT At The End Of The Rainbow

Liberty & Justice by Mirko Ilic

The highly anticipated Ninth Circuit decision on the appeal from Judge Vaughn Walker’s groundbreaking opinion in Perry v. Schwarzenegger (now captioned “Perry v. Brown“) has arrived! IT IS A VICTORY for supporters of marriage equality and constitutional protection of sexual identity interests!

The full text of the decision is here. Authored by Judge Stephen Reinhardt, it is a long opinion discussing several key issues of law. Generally, they break down into three areas: 1) whether Vaughn Walker was qualified to sit as the trial judge in light of the fact he is an acknowledged homosexual, 2) whether or not the proponents of Proposition 8 (referred to in the trial court as “Defendant-Intervenors” or “D-I’s”) have standing to bring the appeal, and 3) whether or not the merits of Judge Walker’s decision trial court decision to grant constitutional due process and equal protection status to the plaintiffs Perry, and thus find that Proposition 8 is unconstitutional, should be upheld. We will take those in order.

Vaughn Walker’s Qualification

The new Chief Judge in the Northern District of California, James Ware, wrote a very strong opinion finding it completely proper for Walker to sit as the trial judge in Perry. And the 9th Circuit had already slapped down an attempt by the Prop 8 Proponents (hereinafter “Proponents”) to disqualify Panel Judge Stephen Reinhardt because his wife worked for the ACLU. So, it would have been shocking for the 9th to bite off on the nonsense that Vaughn Walker could not impartially serve as trial judge for the case. There is no shock delivered today, the 9th has joined Ware in blasting this craven argument, in fact the court states that it adopts Ware’s basis effectively in full.

Standing To Appeal

The issue of standing is arguably the most critical in the appellate case. Since the State of California made the calculated decision not to appeal and give the nominal cover their participation would provide to Proponents, if the Proponents do not have individual standing, there is effectively no appeal. There are actually two parties that have sought standing, the Proponents, and Imperial County of California through its court clerk.

As to Imperial County, I, along with others on the ECF mailing list got accidental notice of the court’s ruling yesterday when the 9th Circuit slipped up and transmitted the separate ruling on their motion to intervene in the appeal. It is denied as being untimely brought.

The Proponent’s intervention was certainly not untimely though, and it was unanimously certified by the California Supreme Court as being proper on the merits. In light of the strong decision finding standing for proponents by the California Supremes, after the 9th Circuit had asked them to make the determination, it would be pretty hard for the 9th to not follow the certified advice and grant standing. And they have done exactly that:

It is for the State of California to decide who may assert its interests in litigation, and we respect its decision in holding that Proposition 8’s Proponents have standing to bring this appeal on behalf of the state.

Constitutional Merits Issues

The big kahuna, of course, is whether or not Vaughn Walker’s meticulously laid out and reasoned decision granting protection to plaintiffs Perry under the Equal Protection and Due Process Clauses would be upheld. And, as I have consistently predicted would occur, the 9th has indeed upheld Judge Walker’s ruling. WAHOOOO!

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. 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 opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

As I said, this is much narrower than hoped for. By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

Also of note, it is a split decision, with Reinhardt and Mike Hawkins joining the majority, and N. Randy Smith dissenting. Although Smith is a Mormon, and reasonably conservative, the strength of his dissent is somewhat surprising compared to his seeming attitude at oral argument of the appeal.

So, where does that leave us? With a good decision for those same sex couples wanting to marry in California, and one more likely than a broader decision to stand up to appeal. But, it is by no means certain that even this narrow ruling will maintain; if the case was going to go to SCOTUS, it should go with all the gusto and Constitutional protection afforded that it can muster for all the same sex couples, in all the states, not just California. Today’s decision falls shamefully short of that. It is somewhat of an embarrassment for one of the last great liberal lions like Steve Reinhardt actually. I have to believe he was choked somewhat by Mike Hawkins, but, frankly, such is surprising to me based on my knowledge of Hawkins, even though he is not nearly the wild eyed liberal Reinhardt is.

Not only is the decision disappointing, but it will likely also be stayed pending further review as well. so not even relief for those in California is in the offing anytime soon. Sigh.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

32 replies
  1. Teddy Partridge says:

    I don’t see how this decision can be applied to any state that didn’t first grant same-sex couples full marriage rights and then stripped them away. The court rules, very narrowly, not on the constitutionality of same-sex marriage, but on the constitutionality of taking away a right already granted to people.

  2. Teddy Partridge says:

    So I wonder: is it possible for the winners to appeal this decision for having been decided on too-narrow grounds? Can it be appealed for not having ruled on the broad constitutional question of the validity of same-sex marriages?

  3. bmaz says:

    @Teddy Partridge: Yes, it is possible, but it will go nowhere. There was always a chance SCOTUS would narrow down to Romer as was done today; but they should have been placed in the position of having to affirmatively doing so and punting on broader constitutional protection. I think, as you know, that Kennedy would have had a hard time doing so.

    Nobody at SCOTUS will want to go further than this if they are not on the hook intellectually for it though. I almost doubt that they even will take cert now. Which means that a whole lot of what Walker set up has been wasted.

  4. Peterr says:

    @bmaz: So if this is the end of the road for Perry, the battle then shifts to the Full Faith and Credit clause and DOMA.

    Specifically: do other states and the federal government have to honor the marriage license granted by California, if it was granted to two people of the same gender?

  5. DWBartoo says:

    Thank you, bmaz, for keeping us informed.

    Walker’s effort was, calculatedly, “wasted”.

    Might other judges, in other federal jurisdictions, use aspects of Walker’s “blueprint”?

    Clearly a “national” decision is unlikely unless another state finds a similar or different potential pathway to a SCOTUS decision.

    Doubtless, most, at SCOTUS are happy to be left off, “…the hook intellectually …”.


  6. Peterr says:


    Right — as of now. I was laying out what I see as the “next question” that would be the vehicle for getting marriage equality to SCOTUS.

    Assuming that cert is not granted here, then CA will start issuing marriage licenses again to same-sex couples, and it’s only a matter of time before one or more of them demand that other states and the federal government recognize that license. The more marriage licenses CA grants, the more likely that court fight becomes.

  7. Jim White says:

    Is there any reason to think that there was a bit of eleventy dimensional chess here to preserve at least of the concept of the right to marry but to narrow things down to the point that even Roberts, Scalia and Thomas couldn’t reverse any aspect of it? In other words, could there have been a genuine fear that an opinion rendered on the wide basis that was deserved would have been struck down in full by the final, prejudiced arbiters, moving things significantly backwards?

  8. bmaz says:

    @Peterr: and @DWBartoo:

    The problem is, none are going to have the structural framework and factual trial findings Vaughn Walker had fashioned. That is simply of critical importance to consideration of these issues. The issue will get to SCOTUS, but it is hard to see it getting there in nearly as good of a package as Walker had created. Not anytime soon, that is for sure.

    It could have been, and should have been, now.

  9. Petrocelli says:

    @bmaz: I know I speak for everyone when I say how grateful I am for your insights on this and all matters.

    You too Marcy … dollar for dollar, the best blog !

    Let’s hit the donate button, folks and show our gratitude !

  10. DWBartoo says:


    I was afraid you would say something like that, bmaz.

    Nonetheless, I thank you for your characteristic frankness, legal acumen, and prescient wisdom.


  11. bmaz says:

    @Jim White: Who knows. I find that to be questionable though, because the decision could have been framed on both grounds, with no loss of having this narrow fallback posture behind the greater constitutional grant.

  12. rosalind says:

    thanks, bmaz, for providing context and clarity as to what the ruling does and does not mean.

    (ot: yesterday began in tears over Mary’s death and ended with a truly inspiring talk by Wael Ghonim, the Egyptian man who started a facebook page that became a spark for last year’s revolution. he was in London on his book tour when the latest violence broke out and was torn about continuing to the U.S., but the feedback from home was “go, and spread the message”. while he was signing my book i thanked him for coming to the U.S. and he said in return i need to spread the word to 50 people.

    so: i encourage anyone on his itinerary to go see him (couldn’t find any links w/specific info), and all to consider buying his book, “Revolution 2.0 – The Power of the People is Greater than the People in Power”, or encourage your local library to add it to their collection.)

  13. Peterr says:

    @bmaz: Could it be that Reinhart might have been trying to keep it narrow, in an effort to get a unanimous opinion, but Smith wouldn’t go along with it in the end?

  14. Peterr says:


    True. But before the trial started in this case, could you have imagined that the end result of the trial would have been the framework and findings that Walker assembled?

  15. rugger9 says:

    While Walker’s work is essentially wasted with respect to the appeal, maybe, I would argue that it isn’t. Unless the SCOTUS strikes down the ruling, the trial record still stands, as does the 14th Amendment. It’s harder to argue against equal protection framed that way as a matter of fairness, and I really don’t see anything [correct me if I’m wrong] to say Walker misapplied his precedents and analysis. Did the 9th explicitly say “don’t go there”? At the very least the transcript remains for citation and stipulation. Walker really did give the D-Is every chance to prove their case and they chickened out or were exposed. He also didn’t press on the involvement of the Mormon and Roman Catholic churches using tax-exempt money to involve themselves in political activity in clear violation of the Tax Code. Someone else will need to do that.

    The problem is that the Bu$hie judges and ideologues packing the federal courts now have no problem overturning centuries of precedent on the flimsiest of ideological grounds [i.e. Citizen’s United], and maybe the 9th knew this will be a 5-4 and needed to keep Kennedy on board.

    As far as Full Faith and Credit, we have the examples from Jim Crow times, and we now have several states with full marriage rights [Loving wasn’t that long ago, nor the one-drop rule], which ought to make it clear that teh gays are less of a threat to marriage than Kim Kardashian, Newt Gingrich, Rush Limbaugh, or a raised toilet seat. But the redneck Foxbots will need convincing, just like when the “blahs” wanted to marry or vote. That took decades and is still not finished.

  16. rugger9 says:

    I read the whole thing again. Page 80 clearly states that Prop 8 violated the Equal Protection Clause, and the earlier discussion was about drawing the constitutional lines as narrowly as possible, but I did not see [again, correct me if I’m wrong] anything that Walker misapplied his precedent or selected improper arguments. The 9th made it clear those were viable arguments to make, but they were selecting what they considered was the most appropriate case, Romer, which they then used to Ginzu the haters on every point.

    As noted before, however, it’s a politically motivated SCOTUS with no respect for precedent or stare decisis where this is going next, I’d say certiorari is definite since the GOP needs this to rally their base. Don’t think the Gang of Four Dummies isn’t already in discussion with Rove on this.

  17. Fractal says:

    @Jim White: Yes. Exactly. Even though I barely followed this case during the trial (read a few of the transcripts, that’s all), the DI’s must have seen the risk of exposing themselves to the crazies on the U.S. Supreme Court, and must have worried about that risk. So, if bmaz & Toobin & others are correct, they dodged those crazies.

    In fact, Supreme Court litigators always know the federal courts will seek to adjudicate on the narrowest grounds possible, avoiding constitutional issues wherever possible, and where a constitutional right is directly at stake, issuing a decision that upholds that right on the narrowest grounds possible and only for the actual persons whose rights were violated. That’s just how it’s done. That’s what it means for a decision to have a “holding” and when a decision is based on a prior Supreme Court precedent, that is following the doctrine of “stare decisis.” Which is what federal courts should always do.

    I do not mean this as a criticism of bmaz’s or Teddy’s disappointment and I am sure that Judge Vaughn is disappointed. But the lawyers for the DI’s had only one ethical duty: win the case for their clients. They fulfilled that duty. They also had a very specific target: force repeal of Prop 8 through the courts. They hit that target.

  18. bmaz says:

    @rugger9: It is how and what was done under EP and DP that is the issue. and, yes it is a Grand Canyon sized difference between what they did and what should have been done. No, the Supreme Court justices are most certainly not getting marching orders from Rove or anyone else on this. they really do not do that. The haters were not “ginzsued” in the least. I would quite imagine they, at least their attorneys, are turning cartwheels of joy over the fact this opinion is as narrow as it is and that there is a dissent, even if somewhat weak in a couple of aspects, from Smith. Scotus may grant cert, may not; hard to tell, but it is by no means definite. If I had to guess right now, I would bet they do not unless Ginsburg or Sotomayor votes for it to expand the ruling basis – which I find unlikely.

  19. bmaz says:

    @Fractal: That is a load of crap. First off, the “D-I’s are the Proponents of Proposition 8, NOT the people seeking marriage equality. Secondly, while there is often a preference for making decisions only on narrow grounds, that most often gives way when there are constitutional issues that have no direct controlling precedent. In short, cases just like this one. Now it may be that SCOTUS pared this down to the narrow grounds decided on today, arguing that the 9th Circuit had some obligation to do that is bullshit.

  20. masaccio says:

    The dissenter says that Prop 8 only bars the designation of marriage for same-sex couples, but does not affect their rights to all of the core legal rights and privileges of the status of marriage. Is that right?

  21. bmaz says:

    @masaccio: Eh, I am not sure it is 100% right in every regard, but within the state of California itself, yes it is arguably pretty close. California has had very liberal domestic partner rights since early 2000’s. This view, however, does not account for the fact that having it be recognized as a state sanctioned “marriage” may give stronger rights to California citizen same-sex couples when they travel out of state – or at least a more sound legal basis for arguing for the same.

  22. jo6pac says:

    Thanks bmz and all commenter’s for the Great impute and how sad from an old straight white guy we just can’t come to grips with others loving one another no matter sex, religion, or race. It seems at this time in Amerika we are moving backwards at in creditable pace on all accounts on the human race:(

  23. P J Evans says:

    it’s a start. Again.
    There was a Facebook commenter at the LA Times who kept trying the slippery-slope argument that this will make marriage legal between two close relatives. I saw him bring it up three times, and each time he was told that it was a slippery-slope argument and that incest is already covered by law. Someone else in another set of comments was arguing that it’s a states’ rights issue and states should be allowed to make their own laws. (I hope someone hit that commenter with the Full Faith and credit clause, as well as the other amendments on civil rights.)

  24. Bob Schacht says:

    @bmaz: BMAZ, did you catch Ted Olson on Rachel Maddow tonight? He was claiming that the decision today was *broad,* not narrow. Also, he predicted that it will go to the Supremes.
    Maddow also had Dahlia Lithwick on, discussing the same case. She saw some linkage with the DOMA cases moving through the courts. They also discussed the extent to which Vaughn Walker’s decision, and this one, are letters to Judge Kennedy.

    I’d appreciate if you’d review the segment and let us know what you thought of his perspective.

    Bob in AZ

  25. burnt says:

    Hey, at bmaz’s request I have made a searchable version of the Prop 8 decision. I’m old school and a closet Luddite so the document is sitting in here:


    It’s named Prop8searchable.pdf

    You’ll find it nestled among a bunch of searchable torture-related docs from back in the Firedoglake days. Marcy found gold in one of them (long ago replaced with a sanitized version) when she found the un-redacted name of the guy running the Salt Pit. What was his name? It’s on the tip of my tongue. Let me see it was Mr. …

  26. marblex says:

    The 9ths decision was based solely on whether the state, once having recognized a right, can then repeal or eliminate it. In accordance with Romer the 9th held that the answer is “no.”

    Though Vaugh’s opinion was directed toward the substantive issue of whether same gender couples should have the right to marry under the EP clause of the 14th amendment, the 9th’s decision did not reach the merits of that issue.

    It was enough for the court of appeal to seize on the fact that both in the language of Prop 8 itself as well as on the California Supreme Court’s reading of Prop 8, the initiative was designed to take away a right.

    Rights, by definition and nature are inalienable and inviolate. Accordingly they cannot be “granted” so much as “acknowledged” and once acknowledged by the state, cannot be removed by legislative or judicial fiat or popular vote.

    It seems unlikely that SCOTUS will bother to take the matter up as it already issued its opinion in Romer. Thus, unless SCOTUS finds that the 9th circuit misread or misapplied Romer a successful appeal is unlikely.

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