Federal appeals court says Prop 8 unconstitutional, says no to vacate

Proposition 8 is unconstitutional, said a divided federal appeals court panel in San Francisco Tuesday (February 7).

The highly anticipated ruling also rejected a motion from Proposition 8 proponents to vacate the district court ruling of former Chief Judge Vaughn Walker because he had not disclosed, prior to presiding over Perry v. Schwarzenegger, that he was in a relationship with a man.

And, as expected, the three-judge panel of the Ninth Circuit U.S. Court of Appeals agreed with a California Supreme Court ruling that Yes on 8, the coalition which successfully campaigned for the ban on same-sex marriage in 2008, did have legal standing to appeal Walker’s decision, even though state officials chose not to.

The 2 to 1 majority opinion was written by Judge Stephen Reinhardt and joined by Judge Michael Hawkins. A partial dissent was registered by Judge Randy Smith.

The court will almost certainly be asked to issue a stay on its ruling, pending further appeal. In the meantime, the ruling is a relatively narrow one, said an attorney on the American Foundation for Equal Rights’ legal team—one that would affect only same-sex couples in California, not the entire Ninth Circuit.

The majority opinion upheld Judge Walker found Proposition 8 to violate the U.S. Constitution’s guarantee of equal protection and due process.

The Ninth Circuit panel heard oral arguments concerning these key issues in the case in December 2010.

Yes on 8 attorneys argued during the January 2010 trial that the ban on same-sex marriage was justified because same-sex marriage would make children “prematurely preoccupied with issues of sexuality.”

Conservative icon Ted Olson, arguing against Proposition 8 at the oral argument before the panel called the reasoning “nonsense” and said, “If believed, that would justify the banning of comic books, television, video games, and even conversations between children.” And during their 2008 campaign to pass Proposition 8, said Olson, Yes on 8 claimed the ban was justified to protect children from the idea that marriage between same-sex partners is OK.

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