Federal Appeals Court Invalidates California Ban on Same-Sex Marriage

Narrow grounds of decision do not affect other states’ restrictions on same-sex marriage

On Feb. 7, 2012, the U.S. Ninth Circuit Court of Appeals upheld a 2010 U.S. District Court decision that declared invalid Proposition 8, a California initiative that disallowed same-sex marriages. 

The 2-1 decision reinstates the right to marriage for same-sex couples in California, but the decision has no effect on laws in other states that restrict same-sex marriage. The decision will not take effect in California at least until the Proposition 8 proponents decide on an appeal. The decision is likely to be appealed to the U.S. Supreme Court. The Supreme Court could decline to hear the appeal, overturn the decision and reinstate the ban on same-sex marriage, uphold the decision on narrow legal grounds that affect only California, or uphold the case on broader grounds that raise questions about the other states with restrictions on same-sex marriage.

Proposition 8 was proposed in response to a California Supreme Court decision in May 2008 that declared that the statutory definition of a valid marriage as only between a man and a woman was contrary to the California Constitution. The Court ordered California officials to recognize marriages between same-sex couples. Proposition 8 added language to the California Constitution that provided that “Only a marriage between a man and a woman is valid and recognized in California.” Proposition 8 left in place a 2003 California law providing for “domestic partnerships” that provided the full set of legal rights accorded married couples to other couples, including same-sex couples, that registered a domestic partnership. Only the official recognition of “marriage” was withheld.

Proposition 8 was passed by 52.3 percent of the voters on Nov. 4, 2008, and became law the next day. The 18,000 same-sex marriages that took place between the May court decision and the November election remained valid.

Same-sex couples challenged Proposition 8 on both state and federal constitutional grounds. The California Supreme Court denied the state challenge. After a 12-day trial, a federal judge declared Proposition 8 unconstitutional as no “compelling state interest” justified denying same-sex couples “the fundamental right to marry” and because there was no rational basis for limiting the official designation of “marriage” to opposite sex couples. The appeals court postponed the effect of the decision until an appeal was heard and decided, so the restriction on same-sex marriages remained in place.

The district court decision was based on broad constitutional grounds that raised questions about the validity of restrictions on same-sex marriages in other states.  The appeals court decision in the California case upheld the district court’s decision to invalidate California’s ban on same-sex marriages, but narrowed the legal basis substantially. The appeals court ruled that the restriction of the right of same-sex couples to marry that had been established by the 2008 California court decision was a violation of the U.S. Constitution’s Equal Protection clause because the court found no rational basis for eliminating that right just for same-sex couples (and leaving it in place for opposite-sex couples). Because the legal arguments apply only to states that granted and then restricted same-sex marriage, it applies only to California.

The Ninth Circuit Court of Appeals has refused to rehear the case.  Proponents of Proposition 8 are almost certain to appeal to the U.S. Supreme Court. The Supreme Court could take one of several actions. It could decline to hear the appeal, as it does with the vast majority of cases that come before it. Declining to hear the appeal would leave the decision disallowing the ban in place, but it would not require a decision about whether the U.S. Constitution allows restrictions on same-sex marriage. The Court could overturn the decision and reinstate the ban on same-sex marriage in California. It could uphold the decision on narrow legal grounds that affect only California. Or it could uphold the case on broader grounds that raise questions about other states’ restrictions on same-sex marriage.

NCSL continues to track developments in this case and other state actions on same-sex marriages. Contacts:

Jack Tweedie   303-856-1546             jack.tweedie@ncsl.org

Rochelle Finzel 303-856-1552             rochelle.finzel@ncsl.org

NCSL's Same-Sex Marriage Overview