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Gay Marriage Ban Unconstitutional, Rules 9th Circuit

The 9th Circuit Court of Appeal’s argument wasn’t a defense of gay marriage, per se, but it did find the gay marriage ban passed by California voters was unconstitutional. Law Professor William Jacobson explains the Court’s decision was based on the prior right to same-sex marriage in the state, and its opinion that there wasn’t a compelling state interest in outlawing it:

The Court essentially used a bootstrap argument — that since there was a prior right to same-sex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment. Judge N.R. Smith filed a 39-page dissent from this finding.

The Court also held that (i) the supporters of Prop. 8 did have standing to defend the law, deferring to the Certified Opinion of the California Supreme Court, and (ii) trial court Judge Walker did not have to recuse himself based on his own longterm same-sex relationship. These two findings were unanimous.

In other words, the ruling only applies in California, and has little impact on the rest of the country – though it’s likely an appeal could have national implications. Opponents of gay marriage can decide whether to appeal the ruling at an en banc hearing (a panel of 9th Circuit judges) or try to take it up with the Supreme Court. The Proposition 8-supporting National Organization of Marriage vowed to appeal the decision today, and the group’s president said he was eager to take the gay marriage fight to the Supreme Court:

“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the U.S. Supreme Court, where we have every confidence we will prevail.”

Incidentally, the ruling doesn’t mean gay marriages will start up again in California right away. The verdict won’t take effect for at least 14 days, and could be delayed further by the appeal, according to the Wall Street Journal.



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