Ninth Circuit Rules Proposition 8 Barring Same-Sex Marriage Unconstitutional - An Employer Update

On February 7, 2012, in a 2-1 decision a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled in Perry v. Brown that Proposition 8, a voter initiative that amended the California Constitution to provide, "Only marriage between a man and a woman is valid or recognized in California," violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The majority affirmed the judgment of the district court on narrow grounds not considered by the lower court, ruling that Proposition 8 had taken away from same-sex couples the right to marry that they already had under California law without a legitimate reason for doing so. The court emphasized that it was not deciding the broader constitutional question of whether a state may deny same-sex couples the right to marry in the first place.

The three-judge panel unanimously ruled that the proponents of Proposition 8 had standing to defend the law in court where state officials declined to do so, and that the district court did not abuse its discretion in refusing to set aside the judgment below based on the district court judge's undisclosed long-term relationship with another man.

Background to the Decision

In November 2000, California voters passed Proposition 22, an initiative measure that amended the California Family Code by providing that only marriage between a man and a woman is valid or recognized in California. In February 2004, San Francisco officials began issuing marriage licenses to same-sex couples. The California Supreme Court ordered the city to stop issuing such licenses in the absence of a judicial determination that Proposition 22 was unconstitutional. The court further ordered that the licenses that were issued and the marriages that were performed were null and void. In May 2008, the California Supreme Court held in In Re Marriage Cases that Proposition 22 violated the California Constitution by denying same-sex couples the fundamental right to marry and the equal protection of the laws and ordered local officials to issue marriage licenses to same-sex couples.

In November 2008, the voters passed Proposition 8, which became effective immediately and ended same-sex marriage in California. Opponents immediately challenged the initiative in the California Supreme Court, arguing that Proposition 8 violated the rules for amending the California Constitution. In May 2009, the California Supreme Court ruled in Strauss v...