Fight Over California Same-Sex Marriage Ban Set for Higher Courts

California’s fight over same-sex marriage is headed to a federal appeals court, after the state’s top elected officials declined to defend a voter-approved ban that a federal judge struck down as unconstitutional last month.

A Sweeping Ruling, and a Governor Who Won’t Appeal It

Chief U.S. District Judge Vaughn Walker ruled in August that Proposition 8 — the 2008 ballot initiative amending California’s constitution to define marriage as between a man and a woman — violated the U.S. Constitution’s due process and equal protection guarantees. The ruling followed a lengthy bench trial in which two same-sex couples, represented by an unusual bipartisan legal team, presented extensive evidence that the measure served no legitimate purpose beyond discriminating against gay and lesbian Californians.

Then-Governor Arnold Schwarzenegger and Attorney General Jerry Brown, both of whom had declined to defend Proposition 8 in Walker’s courtroom in the first place, confirmed they would not appeal the ruling either, according to CBS News’ coverage of the state’s response. That decision drew immediate pushback from Republican state lawmakers: 27 members of the Assembly’s Republican caucus sent Schwarzenegger a letter arguing it was his responsibility to defend the wishes of the roughly seven million voters who approved the measure two years earlier. The state had until September 11 to file its own appeal with the Ninth Circuit Court of Appeals — a deadline both Schwarzenegger and Brown ultimately let pass without acting.

Proponents Step In Where the State Won’t

With state officials declining to appeal, the responsibility fell instead to ProtectMarriage.com, the coalition that had sponsored Proposition 8’s original ballot campaign and had already intervened directly in the case to defend the measure once state officials first refused to defend it at trial. That coalition confirmed it would carry the appeal forward to the Ninth Circuit on its own — an unusual arrangement that would later become legally significant in its own right, as questions about whether private ballot-initiative proponents even have standing to appeal a ruling that state officials accept would eventually work their way all the way to the U.S. Supreme Court.

A Case Already Being Watched Nationally

Walker’s ruling and its aftermath were being closely tracked well beyond California by the time the case headed toward appeal. Legal observers noted that his decision was considerably broader than many had expected — rather than ruling narrowly on California-specific grounds, Walker’s opinion engaged directly with the constitutional question of whether same-sex couples have a fundamental right to marry, a scope that made the case a natural candidate for eventual Supreme Court review regardless of how the Ninth Circuit ultimately ruled. That expectation would prove correct: the case would continue through the Ninth Circuit, which affirmed Walker’s conclusion on narrower grounds in 2012, before the U.S. Supreme Court ultimately took up the matter as Hollingsworth v. Perry in 2013.

For same-sex couples in California, the immediate practical reality in the meantime remained frustratingly unsettled: Walker’s ruling was stayed pending the coming appeal, meaning no new same-sex marriages could proceed while the higher courts worked through a case that, win or lose, both sides now expected to take years rather than months to fully resolve.

For related coverage of LGBT rights struggles internationally, see our piece on Uruguay’s gender identity law, or browse our full Policy & Rights archive.