The U.S. Ninth Circuit Court of Appeals has declared California's voter-approved ban on same-sex marriage unconstitutional in a 2-1 decision, though a stay on same-sex marriages in the state remains in place.

In its ruling [PDF], the three-judge panel had to decide:

• whether Prop 8 supporters have a legal right to defend the ballot measure since state officials have refused to defend it.

• if Judge Vaughn Walker, who struck down Prop 8, should have recused himself from the case because he was in a long-term relationship with a man.

• if Walker was correct when he ruled that Prop 8 is unconstitutional or whether the state had a rational or compelling reason to limit marriage to heterosexual couple.

In its ruling, the majority says that "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 decision also said Walker was not obligated to recuse himself.

Prop 8 backers plan to appeal to a larger Ninth Circuit panel and then to the U.S. Supreme Court if they lose in the intermediate court. Marriages would likely stay on hold while that process plays out.

The court took a narrow stance in its ruling, striking down Prop 8 as written in California. It does not necessarily change what other states do, or invalidate the laws other states have set in place.

Rick Jacobs, founder and chair of The Courage Campaign, told AirTalk’s Larry Mantle that it’s a landmark decision anyway. “If for now the only affect is people in California can marry the people they love ... 38 million people having that right on a federal constitutional level is something great,” he said.

Chairman of the National Organization for Marriage John Eastman said on AirTalk that the push for uncoupling marriage and procreation makes it even more important to stick to traditional understandings of the institution.

“If you remove that connection, then society ought to just get out of the marriage business entirely and society should just have a free for all,” he said.

The dissenting Ninth Circuit judge, Randy Smith, said governments have an interest in “a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples."

On the contrary, Jacobs said, allowing same-sex marriage would strengthen the institution of marriage. “One of the things I took away from [being at the trial] was the value that Americans place on the institutions of marriage,” he said. “The point that I don’t quite grasp from the other side [is] if it is indeed so cherished that people are willing to fight to enter it, why would anyone want to oppose it?”



Slate’s legal affairs correspondent Dahlia Lithwick said many potentially precedent-setting cases involving gay marriage have been burbling up across the states.

"At this point, we’re almost in a foot race as to which one gets to the Supreme Court first,” she said on the Madeleine Brand Show. “It’s fair to say both sides do eventually want this to get [there].”

The Ninth Circuit ruling comes 18 months after federal judge Vaughn Walker struck down the ban. Walker found Prop 8 violated constitutional rights under two provisions: the equal protection clause and the due process clause of the constitution to marry.

"One ... which says you can't discriminate against one class of citizens over another unless you have a good reason for it," she said. "The other is that ... that marriage is itself a fundamental right that is protected and you can't take it away."

Walker tore apart Prop 8 proponents' argument with his 136-page ruling, which listed 80 findings of fact that repeatedly said "there are simply no harmful consequences to gay marriage, that this entire initiative was really animated by prejudice and bias and the determination to create a second class of citizens," Lithwick continued.

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:

"Even the most conservative judge ... Randy Smith, kept asking the attorney who was defending Prop 8, 'Please give me some legitimate government interest for why you want to prohibit gay marriage,' and didn’t seem to get any from him," she said.



But the judges put off a decision so they could seek guidance from the California Supreme Court on whether Prop 8 sponsors had legal authority to challenge the trial court ruling after California's attorney general and governor decided not to appeal it.

In April 2011, now-retired judge Walker revealed his decade-long relationship with another man. Prop 8 backers have argued that Walker's relationship posed a potential conflict-of-interest and that he should have revealed it before he declared the measure unconstitutional in August 2010.

California voters passed Prop 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.

Correction: An earlier version of this story incorrectly identified Biola University as Viola University.