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Prop. 8: California's same-sex marriage ban ruled unconstitutional

California's same-sex marriage ban, also known as 'Prop. 8,' has been ruled unconstitutional by a federal appeals court.

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A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco considering the question plans to issue its long-awaited opinion a year-and-a-half after a federal trial judge struck down the ban, known as Proposition 8. The 9th Circuit does not typically give notice of its forthcoming rulings, and its decision to do so Monday reflects the intense interest in the case.

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Even if the panel upholds the lower court ruling, it could be a while before same-sex couples can resume marrying in the state. Proposition 8's backers plan to appeal to a bigger 9th Circuit panel and then the U.S. Supreme Court if they lose in the intermediate court, which would likely put its ruling on hold while that process plays out.

The three-judge panel, consisting of judges appointed by presidents Jimmy Carter, Bill Clinton and George W. Bush, heard oral arguments on the ban's constitutional implications more than a year ago. But it put off a decision so it could seek guidance from the California Supreme Court on whether Proposition 8's sponsors had legal authority to challenge the lower court ruling once California's attorney general and governor decided not to appeal it.

The California court ruled in November that the state's vigorous citizens' initiative process grants the official proponents of ballot measures the right to defend their measures in court if state officials refuse to do so. While its reading is not binding on the federal court, the 9th Circuit's written heads-up suggests the panel accepted the Supreme Court's interpretation, legal observers said.

Further complicating the 9th Circuit's consideration of the case was a move in April by lawyers for the coalition of religious conservative groups that put Proposition 8 on the ballot seeking to have the lower federal court decision striking down the measure vacated because the now-retired judge who issued it was in a long-term relationship with another man.

Former Chief U.S. District Judge Vaughn Walker disclosed he was gay and had a partner of 10 years after he retired from the bench last year. Proposition 8's backers have argued that Walker's relationship posed a potential conflict-of-interest and that he should have revealed it before he declared the measure unconstitutional in August 2010.

Walker's successor as the chief federal judge in Northern California, James Ware, rejected their claims that Walker was unqualified to preside over the 13-day trial that preceded his ruling — the first in a federal court to examine if same-sex couples have a constitutional right to get married — because he stood to personally benefit from declaring Proposition 8 unconstitutional.

The 9th Circuit held a hearing on that question in December.

California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.

The ballot measure inserted the one man-one woman provision into the state Constitution, thereby overruling the court's decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them.

The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages, but ruled that voters had properly enacted the law.

University of Pennsylvania Law School Professor Tobias Barrington Wolff said the unique circumstances giving rise to the ban's passage could prompt the 9th Circuit panel to strike down Proposition 8 without addressing if banning gay marriage would be constitutional in the eight other states in its territory.

"The circumstances in California are unprecedented. The state supreme court found marriage equality to be a right of the highest order under the state Constitution, and thousands of couples actually exercised that right before a discriminatory initiative took it away," Wolff said. "The federal courts would do well to focus their attention on those unique circumstances, which would support a ruling that Proposition 8 is unconstitutional while leaving the situation in other States for another day."

IN PICTURES: Gay marriage debate

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