Attorneys Theodore Olsen (left) and David Boies. Photographs by David Shankbone (CC BY 2.0).

On February 7, 2012, in a narrowly focused decision, a three-judge panel of the Ninth Circuit Court of Appeals ruled on a 2-1 vote that California's Proposition 8, which banned same-sex marriage, is unconstitutional.

In the majority opinion written by Judge Stephen Reinhardt, the Court declared, "All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the term 'marriage,' which symbolizes societal and state recognition of their committed relationships. Proposition 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. The Constitution simply does not allow for 'laws of this sort.'"

The Court rejected the claim that Judge Vaughn Walker should have recused himself because he is a gay man in a relationship and held that ProtectMarriage had standing to defend Proposition 8 when the Attorney General and Governor of California declined to do so.

The decision on the merits of the case relies heavily on Romer v. Evans, the landmark United States Supreme Court ruling in 1996 that invalidated a Colorado constitutional amendment that prohibited municipalities and state agencies from granting lesbians and gay men "protected status." In a decision written by Justice Anthony Kennedy, the Supreme Court concluded that the Colorado amendment "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else."

Justice Reinhardt's decision in the Proposition 8 case stresses the similarity between Proposition 8 and the Colorado amendment struck down by Romer v. Evans: both "single out a certain class of citizens for disfavored legal status" and both withdraw from that class of citizens an existing legal right.

His decision emphasizes the importance of the name "marriage" and concludes that the entire purpose of Proposition 8 was to deny same-sex couples the right to use that term to describe their relationships. Since Proposition 8 accomplished none of the ex post facto rationalizations of the initiative, such as encouraging childrearing and responsible procreation by heterosexuals, or even "proceeding with caution" in making marriage law or preventing children from being taught about same-sex marriage in school, it was enacted, the Court infers, to express disapproval of homosexuals and their relationships.

The decision evades the question of whether same-sex couples have a fundamental right to marry and purposely declines to address many of the questions raised by Judge Walker's more expansive decision. Rather, it focuses narrowly on the unique legal situation in California in which the right of same-sex partners was extended by the California Supreme Court and then rescinded by a plebiscite.

Judge Reinhardt frames the issue this way: "The Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. . . . Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place...The action of changing something suggests a more deliberate [invidious] purpose than does the inaction of leaving it as it is."

Judge Reinhardt makes explicit the fact that the Court does not address the question of a right to marriage: "We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions."

Moreover, by relying on the Romer v. Evans precedent, the Court was able to reach its decision by applying a "rational basis" analysis. In doing so, it evades the question of whether sexual orientation discrimination requires "heightened scrutiny."

Thus, this case may not be the vehicle through which the question of whether there is a fundamental right of same-sex marriage will be litigated.

The biggest disappointment in the long-awaited ruling is that it was not unanimous. Although he concurred with the two judges in the majority on the questions regarding standing and the recusal of Judge Walker, Judge N. Randy Smith, one of the most conservative judges in the circuit, dissented from the ruling on the merits of the case.

Judge Smith's dissent is weak and vacuous, saying in effect that almost any possible reason, no matter how implausible, would satisfy the "rational basis" standard.

Same-sex weddings will not resume in California immediately, and perhaps not for some time.

Although the Ninth Circuit has affirmed Judge Walker's landmark decision, a stay pending appeal remains in effect. The proponents of Proposition 8 have 14 days to decide whether they will seek an en banc review by the Ninth Circuit; they have 90 days in which they can appeal directly to the U.S. Supreme Court. If, as is likely, they launch an appeal, they will undoubtedly also ask for a stay of the decision.

The Joe.My.God website has a number of reactions from prominent individuals and groups to the decision. Among the comments collected there are those of California Lt. Governor Gavin Newsom, Kate Kendall of the National Center for Lesbian Rights, and representatives of the Human Rights Campaign, the Empire State Pride Agenda, Gay & Lesbian Advocates & Defenders (GLAD), Lambda Legal Defense and Education Fund, Freedom to Marry, Mayors for Freedom, and People for the American Way.

The video below is of the American Foundation for Equal Rights' post-verdict press conference featuring lead attorney Theodore Olson and the four plaintiffs, Kris Perry & Sandy Stier and Paul Kitami & Jeff Zarillo.