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California's Prop 8 ban on same-sex marriage does violate the federal constitution, judges ruled. Read below for reaction and analysis as it happened and click here for the Guardian's main news story
That's it for today, thanks for reading. Here's a summary of the day's events.
A federal appeals court has struck down Proposition 8, California's state ban on gay marriage. In a 2-1 ruling, the Ninth Circuit appeals court ruled that the measure, introduced on the 2008 ballot and limited marriage to a man and a woman, violated the US constitution. "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California," the judges ruled.
The ruling opens the way for a protracted legal fight over the constitutionality of gay marriage. The decision can be appealed to a larger panel of Ninth Circuit judges, but it is likely to end up in the Supreme Court early in the next presidential term. Republican candidates Mitt Romney, Newt Gingrich and Rick Santorum have pledged to support a constitutional ban on gay marriage.
Today's ruling by the Ninth Circuit judges upholds a 2010 decision by retired chief US district judge Vaughn R. Walker, who ruled against the measure after an unprecedented trial. In another decision published today, the appeals court rejected a motion to rule Walker's judgement invalid on the grounds that he should have disclosed that he was gay and in a long-term relationship.
You can read Karen McVeigh's news story on today's events here.
The Huffington Post has accumulated a list of Californian celebrity-types responses to the Prop 8 verdict.
Lots of them are pleased, which is always nice.
Karen McVeigh has been listening in to a media conference call run by the American Foundation for Equal Rights.
One of the lawyers who represented the case for Afer in court, David Boies said: "There are days in our nation's history when we make genuine progress in our constitution's role in making a more perfect union. Today is one of those days."
On the question of whether the case would reach the Supreme Court, Boies said that there were many reasons why the court might not decide to take it.
"I don't know what they will do, obviously. Although given how reasoned the opinion is and the narrow grounds for the decision, they might well just accept the narrow grounds will make it less likely that they will take it.
"Technically, it just applies to California. Californian citizens were entitled to marriage equality but that was taken away."Boies added: "For all these reasons the Supreme Court might decide that this was not an appropriate case for them to weigh in on."
Mitt Romney wades in – according to Zeke Miller from BuzzFeed.
Romney: Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage.
— Zeke Miller (@ZekeJMiller) February 7, 2012
Gay marriage is one of the issues Romney's position has "evolved" on. At Politic365 Marvin King writes:
Romney did his best to appeal to social conservatives in Florida, Nevada, Colorado and elsewhere – and it appears to have worked. His family's foundation donates to the Mormon Church and to the Massachusetts Family Institute, both of whom actively oppose same-sex marriage.
Yet all of this obscures the fact that while governor, Romney issued at least 189 special-issue one-day marriage licenses. Romney had no legal obligation to issue any of these licenses, but he chose to do so. Of course, his political instincts told him it was the right thing to do given that during the 2002 gubernatorial election, his campaign team distributed pro-gay rights flyers. And, it was Massachusetts. Last year, early in the Iowa caucus campaign, Romney shrewdly rejected an anti-gay marriage pledge because it was "undignified." And, in 1994, he claimed that he "does not believe in discriminating against people based upon their sexual orientation."
It really makes the head spin trying to match Romney's current rhetoric with his past behavior and tastes. The reality is that no matter what Romney says today about gay marriage (or anything much else for that matter) it's hard for him to take it back.
In California, Andrew Gumbel has been speaking to Ted Olson, the former solicitor general who has argued dozens of times before the Supreme Court.
"This is a huge day," he said. "This case is about equality and freedom and dignity and fairness and decency... It is about us. It is about every one of us... Today we are more American because of this decision."
The moment was full of poignant contrasts. Here was Olson, the conservative jurist who argued on behalf of George W. Bush's in the 2000 presidential election, in lockstep with Griffin, a former Clinton White House staffer who worked for Bush's opponent, Al Gore, alongside David Boies, another super-lawyer who is now acting as Olson's co-counsel.
All of them chose as their celebration site the former Catholic cathedral in downtown Los Angeles, St Vibiana's, which is now a community arts center but once symbolised a religion that preaches that marriage is between a man and a woman only. "We had to have a news conference about marriage in a place where marriages have taken place," Olson quipped, in no mood to court controversy with the archdiocese.
Olson was undaunted by the fact that it was a 2-1 ruling, not a unanimous one. He felt the analysis was expertly crafted to give the Supreme Court in Washington as little room as possible to disagree, because it followed the precedent of earlier Supreme Court cases, especially Romer v. Evans, a Colorado case which similarly concerned the removal of rights already granted to gays and lesbians.
He said that even without the final imprimatur of the Supreme Court, the appeals ruling would serve as an important precedent in cases across the country and give those intent on denying same-sex couples the right to marry considerable pause before pushing for new ballot measures or filing legal challenges. He said opponents of gay marriage now faced an "insurmountable burden" to argue the case back in the other direction.
Nobody knows what the next legal steps will be exactly – whether gay Californians will be allowed to marry immediately, or if a court stay is in effect since the lower court ruled in favour of gay marriage will be extended until the Supreme Court has spoken. Similarly, it is not known if the Supreme Court will take the case, although Olson's expectation was that it will – because of the significance of the issue and because California is the largest state and constitutional questions there usually attract the attention of the justices in Washington.
"From the very beginning we have been planning to be in the Supreme Court," Olson said. Clearly, he is now relishing the prospect.
Constitutional law experts say the Prop 8 decision was heavily influenced by Romer v Evans, the first Supreme Court case to deal with LGBT rights since the 1980s, writes Dominic Rushe:
That case centered on a provision in Colorado's constitution, known as Amendment 2, that effectively repealed anti-discrimination laws in the state. It's advocates argued the provision merely blocked gay people from receiving "special rights".
The Supreme Court justices, led by Anthony Kennedy, ruled six to three against Amendment 2. Rejecting the state's argument Kennedy wrote: "To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint."
Kennedy is often the deciding swing voter in Supreme Court battles. Antonin Scalia, anchor of the conservative judges, came out against Romer accusing the court of "taking sides in the culture wars."
Kennedy will be the key decider again should this case end up before the Supreme Court.
Matt Wells has been watching an online press conference by the American Foundation for Equal Rights, the organisation which brought the case.
Paul Katami, a plaintiff in the case has been speaking. This is what he said:
As a gay American, I believe in our freedoms, I believe in the truth and I believe in our judicial system. The District Court Ruling was based on fact and truth and the he Ninth Circuit descision affirms that we were all born equally and all deserve equal rights. In the end, the truth wins.
Today's decision is important for us as a nation because it affirms that equal rights and fundamental freedoms should never be lobbied for, should never be voted for and should never be subjected to the whims of a political campaign.
The Guardian's Karen McVeigh, meanwhile, has been talking with John Lewis, legal analyst for MarriageEqualityUSA, who is on from the steps of the San Fransciso City Hall, where some 200 gay marriage supporters have gathered.
Lewis, who was one of thousands of same-sex couples who got married in California in 2008 during a four month window when it was legal, said: "I'm very pleased with the decision. It is a terrific result that sets forth a very important principle."
Speaking by telephone, where I could hear cheers in the background, Lewis continued: "That there is no justification for Proposition 8 other than to declare lesbian and gay people to be second class citizens."
The powerfully-worded ruling handed down by the panel of three judges of the 9th US Circuit Court of Appeals states: "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 reclassify their relationships and families as inferior to those of opposite sex couples."
"The Constitution simply does not allow for "laws of this sort."
Lewis said he hoped that the court's narrow ruling, which centred on the law on California, made is less likely that it would find its way to the Supreme Court. If the Supreme Court, which is under no obligation to take the case even if the losers request it, doesn't take the case then same sex couples could be free to marry in California within months, Lewis said.
"This ruling is focussed on the particular circumstances in California. They have decided the case on the most narrow points. We don't know what's going to happen but because the case looks at how, in California, the freedom to marry was taken away, and how that violates the constitution, it is possible the Supreme Court will decline to have the case and will wait until they can hear a case more broadly."
"It's possible that there will be no future appeals in this case and marriages in California between same sex couples could begin soon."
My colleague Dominic Rushe has been speaking to Kermit Roosevelt, professor of law and constitutional expert at University of Pennsylvania Law School.
Roosevelt says the verdict has narrowed the legal case in such a way that there is a good chance Prop 8's supporters have a less than 50% chance of winning an appeal and that the case will ultimately go to the Supreme Court.
But given the Supreme Court's full schedule Roosevelt believes it is unlikely that they would hear a case before the autumn and even less likely that they would make a decision before the November election.
Even if and when they do this will be a tightly tailored decision specifically about Californian law. "I think the chances are good that the Supreme Court would take this case," he said. "Ultimately the Ferderal courts will move towards same sex marriage but they would rather do it incrementally and this would allow them to do that."
Newt Gingrich is the first of our four presidential hopefuls to respond to the ruling – and there you all were thinking it would be Rick Santorum – tweeting from his @newtgingrich feed:
Court of Appeals overturning CA's Prop 8 another example of an out of control judiciary. Let's end judicial supremacy bit.ly/nyblQ7
— Newt Gingrich (@newtgingrich) February 7, 2012
FYI – Rick Santorum did retweet this chucklesome bit of commentary, but as we all know, RTs ≠ endorsements.
The National Association of Marriage claims in its press release that if the ruling is allowed to stand it could "invalidate the marriage laws of 43 states that define marriage as the union of one man and one woman", writes my colleague Matt Wells.
But in their ruling, the Ninth Circuit judges explicitly say that their decision pertains only to California – because an estimated 18,000 same-sex couples in the state had already been allowed to marry before the designation was ruled unlawful.
Whether under the constitution same-sex couples may ever be denied the right to marry, a right that has long-been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes, strongly. Of course, when questions of constitutional law are necessary to a resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial.
We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of "marriage", and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.
Reaction from Evan Wolfson, founder and president of Freedom to Marry, a campaign to win marriage for all across America:
Today's powerful court ruling striking down the infamous Prop 8 affirms basic American values and helps tear down a discriminatory barrier to marriage that benefits no one while making it harder for people to take care of their loved ones.
The Ninth Circuit rightly held that a state simply may not take a group of people and shove them outside the law, least of all when it comes to something as important as the commitment and security of marriage. We salute the American Foundation for Equal Rights, which brought this challenge to Prop 8.
The National Organisation for Marriage is, predictably, not pleased with the decision.
"As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game," Brian Brown, NOM's president, said in a statement.
"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 US Supreme Court, where we have every confidence we will prevail."
A press release from NOM says that if the ruling is allowed to stand it could "invalidate the marriage laws of 43 states that define marriage as the union of one man and one woman".
The ruling of the 9th US Circuit Court of Appeals was pretty conclusive when it came just before 10am this morning.
"Prop 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California," the judgement said.
Proposition 8 was an amendment to the California constitution that ruled people of the same sex could not get married. It was voted in by Californians in 2008.
Following an appeal by supporters of same-sex marriage, however, Judge Vaughn Walker ruled in the federal district court in 2010 that Proposition 8 was unconstitutional.
This morning, the three judges voted 2-1 that Judge Vaughn Walker's interpretation of Proposition 8 was correct.
The ruling said that Proposition 8 "had one effect only".
"It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right – the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less."
The verdict is unlikely to be the final say on same-sex marriage in California, however. Opponents of same-sex marriage now have 14 days to ask the 9th circuit to rehear the case but with an 11-judge panel. Failing that, its the US Supreme Court.
You can view the full text of the ruling here.
Here's a key couple of paragraphs from the top:
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
Although the Constitution permits communitities to enact most laws they believe to be desireable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right – the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less.
Hat-tip to John Aravosis for the link.
Full text of Prop 8 decision - UNCONSTITUTIONAL! gay.americablog.com/2012/02/appeal… via @AMERICAblogGay
— John Aravosis (@aravosis) February 7, 2012
Doug Sovern, political reporter for KCBS in Oakland, says that there was one dissenter on the three judge panel.
Breaking: federal appeals court rules #Prop8 unconstitutional, CA cannot ban same sex marriage. 2-1, Judge Smith dissents
— Doug Sovern (@SovernNation) February 7, 2012
Proposition 8 has been ruled unconstitutional.
Just 10 minutes to the ruling, and the ninth circuit court's website is, somewhat predictably, down.
Never fear though, we'll have the verdict RIGHT HERE almost the second we hear it.
Tuesday's ruling by the Ninth Circuit Court of Appeals on the constitutionality of California's ban on gay marriage "will not put an end to the argument about the rights of same-sex couples in the United States, but it will be a vital stepping stone toward the inevitable final showdown in the Supreme Court in Washington", writes Andrew Gumbel.
The only question is how long the process will take, and what risks are involved. That's true for opponents of gay marriage, who have lost every significant round of the battle so far and have struggled even to be admitted to the judicial process. And it's true, too, for the proponents, who have had mixed feelings about taking issue to federal court from the beginning and remain divided on the wisdom of leaving the final say with a highly ideological Supreme Court which could turn one way or the other on a single justice's vote.
Legal scholars are almost unanimous in their assessment of the merits of the case: there is no good argument to be made, they say, denying same-sex couples their equal protection rights under the U.S. Constitution. That is especially true because 18,000 gay and lesbian couples in California managed to tie the knot before gay marriage was halted by a popular referendum in November 2008 and are still recognized by the state as being legally married.
That view was certainly vindicated by Judge Vaughn Walker, who heard the case in federal district court and was very careful to gather evidence on every aspect of the case before declaring, in August 2010, that the constitutional imperatives clearly trumped the will of the voters.
Opponents of gay marriage complained that Judge Walker was biased because he is himself gay – as he acknowledged publicly following his retirement a year ago – but their efforts to have his ruling oveturned on that basis were unsuccessful.
Now the case rests with three appellate justices from the Ninth Circuit – one a solid liberal almost certain to uphold the right to gay marriage, one a centrist appointed by Bill Clinton and one a conservative appointed by George W Bush. The evidence they are considering swings heavily in the pro-gay marriage direction, both in quantity and, according to Judge Walker's previous rulings, in quality too.
One of the oddities of the case is that the named defendants – first Governor Schwarzenegger and now the new governor, Jerry Brown – have chosen to stay out of it. That has left the anti-gay marriage movement scrambling for lawyers, for legal funding and even for the standing giving them the right to fight their corner in court at all.
Mercury News has an excellent Q&A on what happens next after the ruling today.
Q What is likely to happen after the 9th Circuit rules Tuesday?
A The losing side can ask the 9th Circuit to rehear the case with an 11-judge panel, a process known as en banc review. A majority of the 9th Circuit's two dozen full-time judges must vote to rehear a case en banc, but this often occurs in high-profile cases where there is disagreement within the court. The losing side has 14 days to ask for such a rehearing. If the 9th Circuit refuses to grant the request, the next step is the U.S. Supreme Court.
Q How long will all this take?
A The legal fight over Proposition 8 isn't likely to be concluded anytime soon. If the 9th Circuit rehears the case with an 11-judge panel, that appeal is likely to stretch through this year. And whatever the outcome in the 9th Circuit, the U.S. Supreme Court is almost certain not to get a look at the case before the upcoming presidential election.
Q What would be the impact of a 9th Circuit ruling declaring California's gay marriage ban unconstitutional? Would it legalize gay marriage in all nine Western states covered by the 9th Circuit?
A It depends. The court can take a narrower approach and apply its ruling only to California, finding that Proposition 8 violates the rights of same-sex couples because it stripped away a previous right established in a California Supreme Court ruling in 2008 (Proposition 8 wiped that ruling off the books). Or the court can issue a more sweeping ruling that finds any such state ban unconstitutional, which would extend the ruling's reach.
Gay rights activists in California "are planning a day of either celebration or protest" in response to the Proposition 8 ruling, according to the LA Times.
The ruling is expected by 10am and events are planned from West Hollywood to San Francisco. Officials plan to gather at West Hollywood City Hall on Tuesday morning to await the decision, which will be posted online. At 10.30am, Mayor John Duran will hold a press conference.
The attorneys for the plaintiffs, noted lawyers Theodore B. Olson and David Boies, will hold a press conference in downtown LA. They have been leading the legal fight arguing that Prop. 8 is unconstitutional.
Various rallies are planned later in the day.
People in California will learn on Tuesday whether Proposition 8 violates the civil rights of homosexual men and women.
In 2008 California voters voted to ban same sex marriage under Proposition 8, however in 2010 Judge Vaughn R Walker ruled that the proposition was in violation of the constitution.
Since then Walker's decision has been held up by appeals, but today the three-judge panel of the US 9th Circuit Court of Appeals will rule on whether Proposition 8 is unlawful.
However even if the panel upholds Walker's ruling, it could be a while before same-sex couples can resume marrying in the state. Proposition 8 backers plan to appeal to a larger 9th Circuit panel and then to the US Supreme Court if they lose today. Marriages would most likely stay on hold while that process plays out.
The three-judge panel, consisting of judges appointed by presidents Jimmy Carter, Bill Clinton and George W Bush, heard arguments on the ban's constitutional implications more than a year ago.
It put off a decision so it could seek guidance from the California Supreme Court on whether Proposition 8 sponsors had legal authority to challenge the trial court ruling after California's attorney general and governor decided not to appeal it.
Follow here for live coverage of the ruling and reaction.
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