California's Same-Sex Marriage Ban Is Unconstitutional, Court Says : The Two-Way The decision on "Prop 8" by the U.S. 9th Circuit Court of Appeals is now expected to be appealed to the Supreme Court.
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California's Same-Sex Marriage Ban Is Unconstitutional, Court Says

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California's Same-Sex Marriage Ban Is Unconstitutional, Court Says

California's Same-Sex Marriage Ban Is Unconstitutional, Court Says

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  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.


And I'm Robert Siegel.

California's ban on same-sex marriage, known as Proposition 8, is unconstitutional. That's the ruling today from a federal appeals court in California. It upheld a lower court decision.

CORNISH: State voters approved Prop 8 in November 2008. Opponents then challenged it in court. In 2010, a federal judge ruled that gays and lesbians have a constitutional right to marry the person of their choosing. But as NPR's Richard Gonzales reports, today's ruling won't be the last word from the courts on same-sex marriage.

RICHARD GONZALES, BYLINE: A three-judge panel of the U.S. 9th Circuit Court of Appeals split 2-to-1, saying that the U.S. Constitution permits communities to enact most laws they believe to be desirable. That was their acknowledgment that Prop 8 passed with 52 percent voter approval. But in their written opinion, the judges say there must be a legitimate reason for the passage of a law that treats different classes of people differently, and they conclude there was no such reason that Proposition 8 could have been enacted.

Lawyers for the same-sex couples who had challenged Prop 8 celebrated today's decision. Attorney Theodore Olson, a conservative lawyer who has nonetheless championed the rights of same-sex couples to wed, said today's ruling could bring the debate over same-sex marriage closer to a hearing before the U.S. Supreme Court.

THEODORE OLSON: From the very beginning, we have been planning to be in the United States Supreme Court, to vindicate for all Americans the right not to be discriminated against on the basis of their sexual orientation.

GONZALES: Prop 8 sponsors left little doubt they will appeal.

ANDREW PUGNO: Well, the ruling is disappointing, but it's not much of a surprise.

GONZALES: Andrew Pugno is general counsel for ProtectMarriage, the sponsors of Prop 8. He points out that the ruling was written by Appellate Judge Stephen Reinhardt, a well-known liberal.

PUGNO: I mean, this is the 9th Circuit that we're dealing with, and a narrow decision - just 2-to-1 - written by a judge that I think is the most often-overturned appellate judge in the country. So you have to look at this in that context, and realize that this is just one of many steps that ultimately lead to the U.S. Supreme Court.

GONZALES: Pugno says it's too early to say whether the sponsors of Prop 8 will request another hearing in front of all the judges on the 9th Circuit - known as en banc - or appeal directly to the U.S. Supreme Court. The 9th Circuit also rejected a bid by Prop 8 sponsors to have the lower court judge's decision set aside because of his personal life. Judge Vaughn Walker waited until after his ruling, and after his retirement, to reveal that he is gay.

Prop 8 sponsors argue that the judge was obliged to disclose this information earlier, and should have been disqualified from hearing the case. Andrew Pugno.

PUGNO: And that kind of disclosure is critical to preserving the public's confidence in the impartiality of federal judges. And it was the failure to disclose that, and kind of put that out in the open - that failure is really why this decision should have been vacated.

GONZALES: However, the court said there was no evidence that Judge Walker was biased. For now, the day has gone to the opponents of Prop 8 such as Kris Perry, one of the plaintiffs in the legal challenge to the measure. She spoke at a news conference this morning in Los Angeles.

KRISTIN PERRY: Very soon, Proposition 8 will be gone forever. When that day comes, we can all celebrate a victory for freedom, fairness and equality. We can't wait for that day. We can't wait.

GONZALES: The judges wrote their opinion in a narrow way so as to affect only California. They did not take on the issue of same-sex marriage in other states, and they said that such marriages cannot resume until the deadline passes for the supporters of Prop 8 to file their appeals. Even if an appeal is filed, same-sex marriages will remain on hold until the U.S. Supreme Court decides to let the ruling stand, or take up the case.

Richard Gonzales, NPR News, San Francisco.

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