Print

 Email

By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground.

9th Circuit Court Of Appeals Opinion Concerning California Proposition 8

San Francisco

This Transcript Is Largely Redacted To Focus On Findings
Link To Full Opinion
—-

Begin: Page 75

The “inference” that Proposition 8 was born of disapproval of gays and lesbians is heightened by evidence of the context in which the measure was passed.²⁶  The district court found that “[t]he campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships.” Perry IV, 704 F. supp. 2d at 990. Television and print advertisements “focused on . . . the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage” and “conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.” Id. These messages were not crafted accidentally. The strategists responsible for the campaign in favor of Proposition 8 later explained their approach: “‘[T]here were limits to the degree of tolerance Californians would afford the gay community.  They would entertain allowing gay marriage, but not if doing so had significant implications for the rest of society,’” such as what children would be taught in school.

²⁶ A contextual evaluation is both useful and appropriate as part of the “careful consideration” in which courts must engage when faced with “[d]iscriminations of an unusual character.” Romer, 517 U.S. at 633 (internal quotation marks omitted); see Moreno, 413 U.S. at 533-38. W hen a law is enacted by ballot initiative, we look to objective indicators of the voters’ motivations, such as campaign materials, to shed light on the “historical context.” S. Alameda Spanish Speaking Org. v. Union City, 424F.2d 291, 295 (9th Cir. 1970); see, e.g., Washington, 458 U .s. at 463.

Id. at 988 (quoting Frank Schubert & Jeff Flint, Passing Prop 8, Politics, Feb. 2009, at 45-47). Nor were these messages new; for decades, ballot measures regarding homosexuality have been presented to voters in terms designed to appeal to stereotypes of gays and lesbians as predators, threats to children, and practitioners of a deviant “lifestyle.” See Br. Amicus Curiae of Constitutional Law Professors at 2-8. The messages presented here mimic those presented to Colorado voters in support of Amendment 2, such as, “Homosexual indoctrination in the schools? IT’S HAPPENING IN COLORADO!” Colorado for Family Values, Equal Rights— Not Special Rights, at 2 (1992), reprinted  in Robert Nagel, Playing Defense, 6 Wm. & Mary Bill Rts. J. 167, 193 (1997).

When directly enacted legislation “singl[es] out a certain class of citizens for disfavored legal status,” we must “insist on knowing the relation between the classification adopted and the object to be attained,” so that we may ensure that the law exists “to further a proper legislative end” rather than “to make the[] [class] unequal to everyone else.” Romer, 517 U .S. at 632-33, 635. Proposition 8 fails this test. Its sole purpose and effect is “to eliminate the right of same-sex couples to marry in California”— to dishonor a disfavored group by taking away the official designation of approval of their committed relationships and the accompanying societal status, and nothing more. Voter Information Guide at 54. “It is at once too narrow and too broad,” for it changes the law far too little to have any of the effects it purportedly  was intended to yield, yet it dramatically reduces the societal standing of gays and lesbians and diminishes their dignity. Romer, 517 U.S. at 633. Proposition 8 did not result from a legitimate “Kulturkampf” concerning the structure of families in California, because it had no effect on family structure, but in order to strike it down, we need not go so far as to find that it was enacted in “a fit of spite.” Id. at 636 (Scalia, J., dissenting). It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and  their  relationships,  by  taking  away  from  them  the  official  designation  of ‘marriage,’ with its societally recognized status.  Proposition 8 therefore violates the Equal Protection Clause.

VI

Finally, we address Proponents’ motion to vacate the district court’s judgment. On  April  6,  2011,  after resigning  from  the  bench,  former  Chief  Judge  Walker disclosed that he was gay and that he had for the past ten years been in a relationship with another man. Proponents moved shortly thereafter to vacate the judgment on the basis that 28 U.S.C. § 455(b)(4) obligated Chief Judge Walker to recuse himself, because he had an “interest that could be substantially affected by the outcome of the proceeding,” and that 28 U.S.C. § 455(a) obligated him either to recuse himself or to disclose  his  potential  conflict,  because  “his  impartiality  might  reasonably  be questioned.” Chief Judge Ware, to whom this case was assigned after Chief Judge Walker’s retirement, denied the motion after receiving briefs and hearing argument.

The district court properly held that it had jurisdiction to hear and deny the motion under Fed. R. Civ. P. 62.1(a), that the motion was timely, and that Chief Judge Walker had no obligation to recuse himself under either § 455(b)(4) or § 455(a) or to disclose any potential conflict. A s Chief Judge W are explained, the fact that a judge “could be affected by the outcome of a proceeding[,] in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4).” Perry v. Schwarzenegger, 790 F. Supp. 2d 1119, 1122 (N.D. Cal. 2011); see In re City of Houston, 745 F.2d 925, 929-30 (5th Cir. 1984) (“We recognize that ‘an interest which a judge has in common with many others in a public matter is not sufficient to disqualify him.’”). Nor could it possibly be “reasonable to presume,” for the purposes of § 455(a), “that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceeding.” 790 F. Supp. 2d at 1122; see United States v. Alabama, 828 F.2d 1532, 1541-42 (11th Cir. 1987). To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts.

The denial of the motion to vacate was premised on Chief Judge Ware’s finding that Chief Judge Walker was not obligated to recuse himself. “We review the district court’s denial of a motion to vacate the judgment for an abuse of discretion.” Jeff D. v.  Kempthorne,  365  F.3d  844,  850  (9th  Cir.  2004). Our standard  for  abuse  of discretion requires us to (1) “look to whether the trial court identified and applied the correct legal rule to the relief requested”; and, if the trial court applied the correct legal rule, to (2) “look to whether the trial court’s resolution . . . resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247,

1263 (9th Cir. 2009) (en banc). Here, Chief Judge Ware did not incorrectly apply the law. He identified and applied § 455(b)(4) and § 455(a), the correct legal rules, as well as the relevant precedents. His application of the law, determining whether Chief Judge Walker was obligated to recuse himself, was discretionary. See United States v. Johnson, 610 F.3d 1138, 1147-48 (9th Cir. 2010). His resolution of the issue on the basis of the facts was not illogical, implausible, or without support in inferences that may be drawn from the facts in the record. Thus, we affirm Chief Judge Ware’s decision not to grant the motion to vacate.

VII

²⁷ The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.

By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground. We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry, nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts.  For now, it suffices to  conclude  that  the  People  of  California  may  not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.

The judgment of the district court is AFFIRMED.²⁷

Jeffrey Slee Processed And Formatted This Item