Category Archives:California Proposition 8


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Prop 8 Bites the Dust

Pro and anti-Proposition 8 protesters rally in...
Image via Wikipedia
Same-sex marriage remains a rapidly-changing area of family law in California and the rest of the country and California is again shaking things up.  A federal appeals court has declared California’s same-sex marriage ban unconstitutional, paving the way for a likely U.S. Supreme Court showdown on the voter-approved law.
This week, a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.
Lawyers for Proposition 8 sponsors and for the two couples who successfully sued to overturn the ban have said they would consider appealing to a larger panel of the court and then the U.S. Supreme Court if they did not receive a favorable ruling.
Nevertheless, those who advocate for gay marriage already found reason enough to celebrate.  Dozens of same-sex couples gathered outside of City Hall in San Francisco following the ruling to commemorate what lawyers called a milestone for human rights.
“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,” said Judge Stephen Reinhardt in the majority opinion.  “The Constitution simply does not allow for ‘laws of this sort’.”
“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently.  There was no such reason that Proposition 8 could have been enacted,” the ruling stated.
Even so, the decision did not go so far as to determine that gay marriage is a fundamental right that cannot be infringed upon by any state law.  Instead, the ruling stuck narrowly to the legality of Proposition 8.  This makes it likely that gay marriages will remain on hold in California until the appeals process ends.  The court made clear in Tuesday’s ruling that proponents of the ballot measure have the right to appeal a decision regarding that measure in court.
As we have previously discussed, Proposition 8 was passed by California voters in November of 2008, making same-sex marriage illegal in the state.  Soon after, two same-sex couples challenged the measure in federal court and it was struck down in 2010 by a federal judge in San Francisco.  In response, opponents of same-sex marriage filed an appeal with the U.S. Circuit Court of Appeals for the Ninth Circuit, which again struck down Proposition 8 on Tuesday.  Now the same-sex marriage opponents have the option to appeal to a larger panel of U.S. Circuit Court of Appeals for the Ninth Circuit or the Supreme Court.

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Decision on Proposition 8 Sets the Stage for U.S. Supreme Court Action Regarding the Constitutionality of Same-sex Marriage Bans

While same-sex marriage remains a rapidly-changing area of family law in California and the rest of the country, the United States Supreme Court has yet to rule on the issue.  This has a great disparity amongst state laws regarding same-sex marriage and gay rights.  However, a ruling last week by the California Supreme Court may shake things up.

Pro and anti-Proposition 8 protesters rally in...Image via Wikipedia

Last week, the California Supreme Court voted unanimously that the sponsors of Proposition 8,  a ban on gay marriage that was approved by the state’s voters in 2008, are entitled to defend them in court when the state refuses to do so.  The state high court’s decision, a defeat for gay rights groups, sets the stage for a federal court action that would affect same-sex marriage bans outside California and puts the issue of same-sex marriage back on track to be heard by the U.S. Supreme Court.

How We Got Here
On August 4, 2010, a San Francisco federal judge ruled that Proposition 8 was unconstitutional and that gays and lesbians have the legal right to marry.  State officials are entitled to champion ballot measures in court, but Governor Jerry Brown and Attorney General Kamala D. Harris have refused to defend  Proposition 8.   This failure to act led supporters of Proposition 8 to petition the judge’s decision before the U.S. Court of Appeals for the Ninth Circuit.  Before hearing the case, the U.S. Court of Appeals for the Ninth Circuit had asked the California Supreme Court to clarify whether state law gives initiative sponsors  standing,  or legal authority, to defend their measures.
Looking Forward
The unanimous decision, written by Chief Justice Tani Cantil-Sakauye, strongly affirmed that ballot sponsors may represent California in defending initiatives when elected officials fail to do so.
Cantil-Sakauye wrote for the court:
“Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters.”

Although the U.S. Court of Appeals for the Ninth Circuit is not bound by the California Supreme Court’s decision, it makes it far less likely that it will decide the future of Proposition 8 and same-sex marriage.  This ruling essentially gives the federal Court of Appeals the opportunity to address the constitutionality of same-sex marriage bans.   It also means the issue could likely end up in front of the U.S. Supreme Court, which could rule on the constitutionality of same-sex marriage bans in all states.
The status of same-sex marriage remains to be seen. 

Legal updates brought to you by the Orange County law firm of Don Ho, LLP.

All factual information taken from the Los Angeles Times.

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