December 14, 2010 By Paul Wallin

On December 6, 2010, the Ninth Circuit Court of Appeals heard oral argument on Proposition 8, the California voter initiative passed in 2008 banning gay marriage and ruled unconstitutional in federal district court.  For the first time in the Ninth Circuit, oral argument was televised and broadcast live.

Prop. 8 was passed in November 2008 by a coalition of religious conservative groups in response to In re Marriage Cases, a California Supreme Court case in May 2008 that ruled that gay marriage violated the California Constitution.  After Prop. 8 passed, gay marriage proponents filed suit in federal court arguing that the gay marriage ban violated the United States Constitution.

At oral argument, the three judge panel asked pointed questions of both parties’ counsel.  The judges asked the gay marriage proponents whether the failure of the California governor and attorney general to defend Prop. 8 was in direct conflict with their duty to uphold the law, even if they do not agree with the gay marriage ban.

For gay marriage opponents, the court asked whether the initiative process was subject to the U.S. Constitution.  At one point, a judge asked the attorney for the gay marriage opponents whether California could reinstate segregation in public schools via voter initiative.

The Ninth Circuit is expect to make a ruling in this case sometime next year.  Whichever party loses will likely appeal the decision to the United States Supreme Court

Despite the federal district court’s ruling that the gay marriage ban is unconstitutional, the Ninth Circuit has a stay on California gay marriages after Prop. 8 was passed pending the outcome of this case.

Though new gay marriages cannot be entered into pending the resolution of the Ninth Circuit case, same-sex civil unions convey similar benefits to marriage.  (Family Code sections 297 and 297.5.)  If you and your partner are thinking of entering into a civil union, contact a Southern California family law attorney to discuss the specific benefits and requirements of a civil union.

Wallin & Klarich has practiced family law for over 30 years, and we have a great deal of experience in a variety of family law matters.  Call us today at (888) 749-7428 or visit us at our website at We will be there when you call.

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