Blog of the International Journal of Constitutional Law

California’s gay marriage ban struck down as unconstitutional

American readers are likely to have heard this already, but this is sufficiently big to be of interest to readers elsewhere. Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California, originally appointed by George Bush Sr., ruled today that Proposition 8, an amendment to California’s constitution prohibiting gay marriage that was passed via ballot initiative by a 52% popular vote, violates the Equal Protection Clause of the Fourteenth Amendment. Judge Walker’s opinion concludes that Proposition 8’s prohibition of gay marriage lacks any rational basis (where mere discriminatory animus does not constitute a “rational basis”). Plenty of obvious echoes of Romer v. Evans, the Supreme Court’s earlier decision striking down Colorado’s constitutional amendment (also passed by popular initiative) that prohibited localities from enacting laws to protect gays from discrimination. Surprisingly, Judge Walker’s own sexual orientation has received little mention (as far as I can tell), which either reflects either very well or very poorly on the media, depending upon how one chooses to explain the omission.
I’ll go out on a limb and make some predictions here. The district court’s ruling contains many findings of fact (regarding, for example, the success of gay as opposed to heterosexual marriages) that, at least in theory, should make it more awkward for the 9th Circuit or Supreme Court to reverse the decision. That does not necessarily mean, of course, that the decision will stand; an appellate court that wants to overturn the ruling will undoubtedly find a way of doing so, deferential standard of review for factual findings be darned. But the way in which the district court’s opinion is written may force an appellate court to do a little fancy footwork (or be especially blunt on questions of law) in order to reach the desired outcome.
The District Court’s official webpage for this case, Perry v. Schwarzengger, is here. Quickie coverage/highlights from the opinion here.
Looking down the road, the next stop for this case will be the U.S. Court of Appeals for the Ninth Circuit (a.k.a. “the Ninth Circuit”; just try to count the number of ways the court’s name gets mangled in the media), which is required to hear the appeal as of right. There is a reasonable likelihood that whatever the initial (randomly drawn) panel of 3 judges concludes, the case will be reheard by an en banc panel consisting of eleven judges drawn at random from the full roster of the court’s active judges, over which Chief Judge Alex Kozinski (an often unconventional Reagan appointee) will automatically preside. A majority of the court’s active judges will vote on whether to rehear the case en banc. Notwithstanding the “renegade liberal” label that conservatives like to affix to the Ninth Circuit for political and rhetorical reasons, the Ninth Circuit is in fact rather closely divided along ideological lines, which makes the outcome at the circuit level difficult to predict with reasonable certainty. Eyeballing the roster of active judges, I end up with a quick-and-dirty count of – wait for it! – 11 Republicans who would vote to reverse versus 11 Democrats who would vote to affirm, with a couple of potential swing votes (namely, Judges Gould and Silverman, both nominally appointed by Clinton but under heavy duress from Senate Republicans. I am already counting Richard Tallman, nominally a Clinton appointee, as a Republican; his appointment was part of the price extracted by Republicans for Clinton’s concurrent appointment of Willie Fletcher to the same court. If anyone is interested, I can redo, and explain, my count more carefully.)
From there, the next stop will be the Supreme Court. If the Ninth Circuit affirms the district court, the odds that the Supreme Court will grant certiorari and decide the issue itself strike me as especially high. If the case is decided on the merits as opposed to procedural grounds, my guess is that Justice Kennedy might be willing to affirm the district court, given his authorship of both Romer v. Evans and Lawrence v. Texas, while the votes of the other 8 justices can all be taken for granted, which would make for a 5-4 squeaker.
No doubt there will be (is already?) more extensive coverage elsewhere, but hopefully this will be of interest to at least some of our readers.


One response to “California’s gay marriage ban struck down as unconstitutional”

  1. David Law Avatar

    To update the part about the initial randomly drawn three-judge panel: Rick Hasen has blogged that this month’s motions panel consists of Judges Leavy, Hawkins, and Thomas (the same Thomas who was interviewed by Obama for the vacancy on the Court just filled by Elena Kagan); as he puts it, this panel tilts slightly liberal. Although a motions panel is supposed just to deal with motions in pending cases until a merits panel is convened and can hear argument, it would not be surprising at all if the motions panel were to keep jurisdiction over the case. This all suggests the initial panel ruling is more likely to uphold Judge Walker.

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