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Ninth Circuit Affirms District Court, Strikes Down Proposition 8

by Professor Will Huhn on February 8, 2012

in Constitutional Law,Equal Protection,Wilson Huhn

On Tuesday the United States Court of Appeals for the Ninth Circuit handed down its decision in the case of Perry v. Brown, the Prop 8 case.  The Court of Appeals struck down Proposition 8, but it did so on narrow grounds.  It is unlikely that the United States Supreme Court will agree to review the decision of the Court of Appeals.

On Tuesday the Ninth Circuit upheld the decision by District Court Judge Vaughn Walker declaring California Proposition 8 to be unconstitutional.  The Court of Appeals did not hold that same-sex couples have a constitutional right to marry.  Instead, the court ruled that it was unconstitutional for the people of the State of California to take away a previously granted right purely for symbolic reasons.

There are a few things that make this case unique among the same-sex marriage cases.  First, Proposition 8 does not distinguish between same-sex unions and opposite-sex unions in any practical or legal sense.  Under Proposition 8 same-sex couples are allowed to enter into domestic partnerships and opposite-sex couples may enter into marriage, and domestic partnerships and marriages confer precisely the same legal rights.  Under Proposition 8 there is no difference between domestic partnerships and marriage  except in the term used to describe the legal relationship. 

Another remarkable thing about this case was the trial that occurred in the District Court.  In the trial court there were a parade of witnesses who testified about the status of gays and lesbians in our society, the nature of their relationships, and their capacity to raise children.  In general, the experts who testified on behalf of the same-sex couples were highly qualified social scientists who relied extensively upon peer-reviewed studies to support their conclusions that gay and lesbian couples have as stable relationships and are as good at parenting as opposite-sex couples.  The experts who were offered in support of Proposition 8, on the other hand, were self-appointed "experts" who relied upon anecdotal evidence and outmoded stereotypes to argue that the right to marry should not be extended to gay and lesbian couples.  The stark disparity between the two sides was evident to anyone who looked at the evidence.  The plaintiffs challenging Proposition 8 had science and reality on their side; those supporting Proposition 8 had nothing but tradition and prejudice.  Judge Walker entered detailed findings and conclusions based upon this evidence.  The Prop 8 trial was and will remain a watershed in the history of the movement seeking equal rights for gays and lesbians.

However, the Court of Appeals ignored all of this evidence.  Instead, the Court found that only one evidentiary fact was relevant – that the whole case turned upon a single finding.  That fact, admitted by the supporters of Proposition 8, is that there is a symbolic difference between domestic partnership and marriage.  It was this fact – a fatal concession - that drove the majority of the Ninth Circuit panel to the conclusion that Proposition 8 was unconstitutional. 

The third unique aspect of this case is that the plaintiffs did not have to persuade the courts that they had a constitutional right to marry (although Judge Walker ruled that they did have such a right).  Instead, the plaintiffs only had to persuade the court that it was unconstitutional for the State of California to take the right to marriage away and substitute the same legal rights under the name "domestic partnership" for purely symbolic reasons.

Accordingly, the Court of Appeals for the Ninth Circuit issued a ruling confined to the facts of this case.  The Court held that it violated the rights of same-sex couples for the State of California to take away their right to call their legally-recognized relationship "marriage" instead of "domestic partnership." 

In dissent, Judge Smith half-heartedly offered the following rationale for upholding Proposition 8:

Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting.  "The assumptions underlying these rationales may be erroneous, but the very fact they are 'arguable' is sufficient, on rational basis review …."

Because Proposition 8 grants same-sex couples in domestic partnerships the same rights as parents that opposite-sex couples have in marriage, it is difficult to imagine how Proposition 8 promotes responsible procreation and optimal parenting.  Furthermore, the terms used by the dissenting judge to describe this argument - "might," "arguably," and "may be erroneous" do not betoken confidence.

The decision of the Ninth Circuit is quite narrow.  In effect, the Court of Appeals found that Proposition 8 was not intended to alter any legal rights or responsibilities, but rather was intended to "send a message" about the value or significance of same-sex unions.  The Equal Protection Clause of the Constitution, ruled the Court of Appeals, does not permit the states to express their disapproval of entire segments of society in this manner. 

I do not believe that the Supreme Court will choose to review this case.  The precise facts are not likely to occur elsewhere.   Other, more substantive same-sex marriage cases are wending their way through the federal courts.  The Supreme Court will wisely wait until a Court of Appeals has issued a decision in one of those cases.

I do not mean to diminish the political and social significance of this decision.  When California's 33 million residents are added to those of New York and five other states, one-fifth of all Americans will live in jurisdictions where same-sex marriage is recognized.  A handful of other states, including Washington, Maryland, and New Jersey, are poised to join that group.  Gay and lesbian married couples will become more commonplace and more accepted.  In the not-too-distant future, people will wonder what all the fuss was about.


larry d. February 8, 2012 at 11:09 am

There are no studies proving same sex parents are as good as opposite sex parents, professor. Just how many poor same sex parents do you think have been out there these past 50 years?

It's machine science, much like the global warming hoax. In many cases, academia has violated its public trust and abandoned its societal obligations to promote political goals, in much the same way the national media has. You are paid to be part of that, I understand, but isn't life too short?

Dave February 8, 2012 at 11:00 pm

Professor Huhn, we have missed you.

I enjoy reading your take on things, almost as much as I enjoy arguing with your points.

The Supreme Court must address the issue of same sex marriage and same sex marriages across state borders. But you are probably right, this is not the right case.

So what then are the interesting questions about this case?

First, what about the people's right to have the state competently defend their constitution against court challenges? I never got a good feeling from the state of California or the Attorney General that they were properly motivated to make an adequate defense. Maybe I could better state the issue this way – a case before the SCOTUS should be decided on the law, not on the presentation of the attorney. What if one arguing the case was not quick on their feet with answers or was some how annoying to the justices. Could this or should this somehow affect the decision of the court?

Second, an amendment to the California constitution changes the constitution. Does just deleting the amendment unchange any changes? When the current congress wanted to read the constitution, there was some arguing about what should be read and what is part of the constitution. The implication is that you don't always know what has been changed until it is sorted out. We needed another amendment to undo the 18th amendment. Is this decision a defacto amendment to the California constitution? And sure this is a bit of a stretch, but there is no severability clause in the California constitution. Could this be construed to invalidate the entire constitution?

Quidpro February 12, 2012 at 8:25 am

No, Professor. The Ninth Circuit decision is not "quite narrow". The people of California did not "take away a right previously granted". Same sex pseudo-marriage was imposed upon the people of California against their expressed will. Proposition 8 merely restored the status quo ante against this judicial usurpation. This "narrow" holding establishes an ominous ratchet rule for the culture wars. Even though there is no Constitutional right to same sex marriage, once it is obtained, regardless of the means, it cannot be taken away.

Even more ominous is the imposition of thought control behind the decision. It is not enough for the proponents of same sex pseudo-marriage that they have all the rights of traditional marriage. No, they demand that the State and its people, refer to their unions as "marriage".

Welcome to the brave new world of liberal totalitarianism.

Dan S. February 13, 2012 at 2:55 am

Quidpro, I respect the consistent tenacity of your personal beliefs. However, your statement: "Even though there is no Constitutional right to same sex marriage, once it is obtained, regardless of the means, it cannot be taken away." seems to acknowledge the inevitable outcome of this struggle. In all likelihood you will never accept same sex families as an entity equal to your own family. But can you wholeheartedly dispute the truthfulness of this final thought from the professor? "Gay and lesbian married couples will become more commonplace and more accepted. In the not-too-distant future, people will wonder what all the fuss was about."

The brave new world will not be defined by political rhetoric. It will be an age of relationships based on common lifestyles and convenience. And like it or not, the laws will also evolve to reflect those relationships. Haven't they always?

larry d. February 16, 2012 at 7:59 am

"An age of relationships based on common lifestyles and convenience."

I guess I don't find it odd that you seem to miss the irony our culture typically assigns to the term "brave new world," Dan.

Quidpro February 14, 2012 at 9:48 am


The inevitability of same sex pseudo-marriage is what its advocates wish to project. They may be correct. I hope not. In any event, I will continue to stand for moral truth.

Jill February 18, 2012 at 10:51 am

Thanks for clarifying why this would not be "the one." We had been talking about it at home and I was wondering what your take would be.

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