Federal appeals court to rule Tuesday on constitutionality of California’s Proposition 8


SAN FRANCISCO — The U.S. 9th Circuit Court of Appeals on Monday signaled the court is ready to rule on the constitutionality of Proposition 8, the 2008 voter approved ballot measure that banned same-sex marriage in California.

Legal analysts stated that the circuit court’s ruling — expected on Tuesday — undoubtedly will be appealed to the U.S. Supreme Court, which could decide in its 2013 session whether same-sex couples nationwide have the right to marry.

Legal experts also agreed that during oral arguments in the hearings, the three appellate court justices appeared to be leaning toward upholding the 2010 ruling by now-retired U.S. District Court Chief Judge Vaughn Walker, which struck down the marriage ban.

Walker, a conservative appointed by former President George H. W. Bush, ruled in August 2010 that Proposition 8 violated the due process and equal protection rights guaranteed in the U.S. Constitution.

ProtectMarriage — opponents of same-sex marriage, and the sponsors of the sponsors of Proposition 8 — had appealed his ruling to the 9th circuit. They argued that Walker should have recused himself from hearing the case because he is gay and has a long-time partner with whom he was not married at the time of his ruling.

The 9th circuit panel will also rule on whether or not ProtectMarriage has legal standing to appeal the case.

The appeals court last year deferred that question to the California Supreme Court, asking for clarification as to whether is not the proponents have the right to appeal a ballot initiative when the state’s constitutional officer’s named as defendants chose not to do so. The California Supreme Court responded that they in fact did, but that it was only applicable in state court actions. The California Supreme Court’s decision is in no way binding on the 9th Circuit, which must still decide independently if the proponents have standing under federal law.

Shannon Minter, Legal Director of the National Center For Lesbian Rights, who has been closely following the Prop 8 case told LGBTQ Nation on Monday that “its looking pretty good that the court will affirm the [Walker’s] ruling.”

“I’m pretty optimistic about the outcome,” Minter said, “it is very likely it could even be a unanimous decision in favor of upholding Judge Walker’s decision.”

The 9th Circuit Court panel’s decision is scheduled to be released Tuesday at 10 a.m. PST.

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