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Proposition 8 (California)  
 
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Meanwhile, the proponents of Proposition 8 moved that Judge Walker's decision be vacated on the grounds that he should have recused himself since he is gay and in a relationship. That argument was rejected by the District Court, but was accepted by the Ninth Circuit panel and consolidated with the main case.

Finally, on February 7, 2012, in a narrowly focused decision, the three-judge panel ruled on a 2-1 vote that Proposition 8 is unconstitutional.

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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 relied 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 the 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 stressed 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 emphasized the importance of the name "marriage" and concluded 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 inferred, to express disapproval of homosexuals and their relationships.

The decision evaded the question of whether same-sex couples have a fundamental right to marry and purposely declined to address many of the questions raised by Judge Walker's more expansive decision. Rather, it focused 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 framed 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 made explicit the fact that the Court did 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."

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 evaded the question of whether sexual orientation discrimination requires "heightened scrutiny."

The biggest disappointment in the long-awaited ruling was 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.

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