Proposition 8 Struck Down–For Now

By Arturo R. García

The fight for marriage equality isn’t over yet. But Tuesday brought with it a huge win for opponents of California’s Proposition 8, as a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled the law was unconstitutional, possibly sending the case to the U.S. Supreme Court.

Prop 8, which had banned same-sex marriages, was approved by California voters in 2008, overturning a California State Supreme Court ruling. In 2010, U.S. District Judge Vaughn Walker ruled it was unconstitutional, a decision the panel upheld in a 2-1 vote. The panel also ruled Walker, now retired from the bench, did not have to vacate his decision for not revealing his own same-sex relationship at the time of his ruling. Walker’s decision to keep his ruling under a court seal was also upheld.

Despite the panel’s ruling, however, LGBT couples still cannot get married; the law will remain in place during a two-week period the law’s supporters have to determine whether they will appeal to a larger 9th Circuit panel, or go directly to the Supreme Court. Some legal experts have suggested the higher court might leave the case alone.

“The court applies general principles that apply across the United States,” CNN senior legal analyst Jeffrey Toobin wrote. “Because this case only deals with the unique circumstances in California, I think the Supreme Court is less likely to review it. So the good news for same-sex marriage supporters is this decision may mean that a conservative Supreme Court will decide not to take the case.”

In the majority opinion, Judge Stephen Reinhardt said Prop 8 “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Revoking same-sex marriage rights, he said, yielded no identifiable good, and represented an “impermissible preference” against same-sex couples.

“The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry,” Reinhardt wrote. The panel’s decision can be read in its entirety in PDF form here.

The panel’s decision touched off celebrations by opponents of the law–including the Stonewall Inn and Manhattan Supreme Court building in New York City, and in San Francisco:

The celebration began at the corner of Seventh and Mission streets in front of the federal courthouse, where the ruling was handed down. Led by a phalanx of ministers singing “We Shall Overcome,” rainbow stoles brightening their black robes, the party proceeded toward City Hall, where the fight for marriage equality began eight years ago, almost to the day.

That’s where then-Mayor Gavin Newsom began marrying same-sex couples in defiance of the law — until he was stopped by the California Supreme Court. That body later moved to dissolve every marriage that took place in the graceful Beaux Arts building here.

On Tuesday, city officials spoke glowingly of the latest ruling beside a heart-shaped sculpture inscribed with the names of the couples who were joined in matrimony one day, only to see their unions negated the next.

“I want to express gratitude to the 9th Circuit Court of Appeals for its ruling today, which strikes a devastating blow to the legal defense of Proposition 8,” said an emotional Dennis Herrera, who as city attorney has been involved in the fight for marriage equality since 2004.

“Their thorough and well-reasoned decision revealed marriage discrimination for what it is, discrimination,” Herrera said. “And it powerfully affirms the U.S. Constitution’s promise of equal protection under the law.”

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Racialicious is a blog about the intersection of race and pop culture. Check out our daily updates on the latest celebrity gaffes, our no-holds-barred critique of questionable media representations, and of course, the inevitable Keanu Reeves John Cho newsflashes.

Latoya Peterson (DC) is the Owner and Editor (not the Founder!) of Racialicious, Arturo García (San Diego) is the Managing Editor, Andrea Plaid (NYC) is the Associate Editor. You can email us at

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  • Kat

    Can I just express my general love for George Takei? :) And yes, very happy that Prop H8 is gone. If we could now also get some form of ERA, the other equality measure that a coalition of crazy right-wing, the Catholic and the Mormon church killed?

    • Super Amanda

      Beautiful!  Thanks!