9th Circuit Holds Proposition 8 Unconstitutional

The 9th Circuit Court of Appeals has ruled that California Proposition 8, which overturned court decisions permitting gay marriage in California via the initiative process, is constitutional. This was a 2-1 decision on the issue of whether Proposition 8 was unconstitutional in a Romer v. Evans analysis. The court was unanimous that the trial judge was not required to recuse himself and that the Proponents of Proposition 8 has standing.

If undisturbed this will restore same sex marriage to California, and will strengthen the hand of gay rights advocated in all of the 9th Circuit, although the holding, in the line of precedents from Colorado's Romer decision, does not itself mandate that other states in the 9th Circuit adopt same sex marriage laws.

But, since the California Supreme Court granted standing to the proponents of Proposition 8 to argue the case on the merits before the 9th Circuit Court of Appeals, rather than letting the trial court's ruling stand without an appeal, as California's elected official tried to initally, which would have had no precedential value outside California and would have escaped U.S. Supreme Court review, the stakes are now much higher.

The proponents may now appeal this ruling of the United States Court of Appeals for the 9th Circuit to the U.S. Supreme Court (assuming their ruling isn't overturned by an en banc panel of the 9th Circuit itself), and the resulting U.S. Supreme Court precedent could make law on the gay marriage issue for the entire United States. And, the U.S. Supreme Court as it is currently constituted, is a less favorable forum for Proposition 8 opponents than either the 9th Circuit Court of Appeals, or the group of judges who sat on the U.S. Supreme Court when the Romer decision was handed down.

On the other hand, the cultural understanding of gay rights, and the adoption of gay marriage in many states other than California, also provides context that helps Proposition 8 opponents before the U.S. Supreme Court, also makes the "no man shall be a stranger to the laws" justification of Romer, which also involved gay rights, and is echoed in the Proposition 8 case. Precedents aren't meaningless in the U.S. Supreme Court which is not simply a superlegislature.