In the 2009 Digest of Legislation, mention was made of Proposition 8 under the Civil Rights section of the book. At that time, the question of the validity of Proposition 8 was in the United States Appellate Court. Judge Vaughn Walker, on January 10, 2010, held a non-jury trial in what became the case of Kristin M. Perry v. Arnold Schwarzenegger. The trial addressed issues as how same-sex parents affect children, whether same-sex marriages undermine opposite-sex marriages, the history of discrimination against gays, and the effects of prejudice against gays. The judge delayed hearing closing arguments in the case until June 16, 2010. On August 4, 2010, Judge Walker ruled in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clause of the 14th Amendment to the United States Constitution. Judge Walker concluded that California had no rational basis or vested interest in denying gays and lesbians marriage licenses. He further noted that Proposition 8 was based on traditional notions of opposite-sex marriage and on disapproval of homosexuality, neither of which is a legal basis for discrimination. He also noted that gays and lesbians are exactly the type of minority that strict scrutiny was designed to protect. Judge Walker also stayed the ruling and the instruction remained in effect pending an appeal. On August 12th, Judge Walker announced his decision to lift the stay (which could have allowed same-sex marriage to be performed) as of August 18, 2010. However, on August 16th, the United States Supreme Court of Appeals for the Ninth Circuit indefinitely extended the District Court’s stay, stopping new same-sex marriages pending appeal. The Appeals Court also scheduled an accelerated time table for hearing an appeal of Judge Walker’s ruling, and calendared oral arguments during the week of December 6, in San Francisco.
The merits will be heard by another three-judge panel for the Ninth Circuit. After the panel’s decision, the appeal may be reheard by an en banc court of 11 active judges, but only if a majority of all the active judges in the Ninth Circuit vote to rehear it. If the Ninth Circuit upholds Judge Walker’s decision, the Supreme Court is likely to take the case, although the process may take years before a final decision is made.