Prop. 8: appeals courts set stage for Supreme Court review of gay marriage

The court added that the ban would continue until the appeal was dismissed or decided by the high court.

Judge Diarmuid O’Scannlain issued a dissent to the court’s refusal to re-hear the Prop. 8 case. It was joined by Judges Jay Bybee and Carlos Bea.

Judge O’Scannlain said the appeals court panel had engaged in a “gross misapplication” of an underlying legal precedent.

“Even worse,” he said, “We have overruled the will of seven million California Proposition 8 voters based a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

The judge added: “We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”

“En banc” is the term used to refer to the relatively rare circumstance of a full appeals court examining the decision of a three-judge panel. In the Ninth Circuit, en banc appeals are conducted by 11 of the court’s active judges.

Judge Stephen Reinhardt and Senior Judge Michael Hawkins issued a brief reply to O’Scannlain’s dissent. Both judges formed the two-judge majority that struck down Prop. 8.

“We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid,” they said. “In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage.”

They added: “That question may be decided in the near future, but if so, it should be in some other case, at some other time.”

A tumultuous four years

California’s Prop. 8 was adopted in November 2008 with 52 percent of the vote. It amended the California constitution by explicitly defining marriage as a union between one man and one woman.

The ballot initiative undercut a 4-3 decision by the California Supreme Court earlier in 2008. The state high court had determined that the California constitution recognized same-sex marriages.

During 143 days between the California Supreme Court decision and Prop. 8’s passage, some 18,000 same-sex couples were legally married in California.

After Prop. 8 restricted the definition of marriage, two same-sex couples sued in federal court, claiming the ballot initiative and state constitutional amendment violated their fundamental right to marry under the US Constitution.

A federal judge agreed, ruling in August 2010 that the ballot measure violated the constitutional right of same-sex couples in California to marry.

On appeal, Judges Reinhardt and Hawkins side-stepped the federal judge’s finding of a fundamental right to marry under the US Constitution. Instead, the judges ruled that Prop. 8 violated the equal protection rights of same-sex couples by withdrawing the right to marry under the California constitution after thousands of gay and lesbian couples had already been able to exercise that right.

In their brief to the Ninth Circuit urging the full court to review the case, lawyers for the Prop. 8 supporters said the appeals court panel’s ruling conflicts with decisions of “every other state and federal appellate court to address this question.”

Lawyers representing Prop. 8 opponents said the ballot initiative was passed for the express purpose of reinstating an “inferior status” for gay and lesbian relationships. They urged the appeals court not to re-hear the case, arguing that the decision was consistent with existing legal precedents.

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