February 7, 2012 1:14PM # The Circuit Court Ruling on Proposition 8 By [David Boaz](https://www.cato.org/people/david-boaz) --- SHARE A three-judge panel of the Ninth Circuit Court of Appeals has ruled that California’s ban on same-sex marriage — enacted in 2008 in a popular vote on Proposition 8 — violates the constitutional right to equal protection. The court’s decision upheld a 2010 decision by former Judge R. Vaughn Walker, a [Reagan-Bush appointee](https://www.cato.org/reagan-appointed-judge-strikes-down-gay-marriage-ban/), that found marriage to be a fundamental right protected by the Constitution, and that the proposition “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” Proponents of Proposition 8 will likely appeal the decision either to the full Ninth Circuit or directly to the Supreme Court. The American Foundation for Equal Rights is the sponsor of the case, *Perry v. Brown* (originally *Perry v. Schwarzenegger*). Cato Institute chairman Robert A. Levy is co-chairman of AFER’s Advisory Board. He and co-chair John Podesta [wrote in the *Washington Post*](https://www.cato.org/pub_display.php?pub_id=11877) in 2010: > Nearly a century after the 14th Amendment was ratified in 1868, the Supreme Court unanimously affirmed that “marriage is one of the ‘basic civil rights of man.’ ” That 1967 case, *Loving v. Virginia*, ended bans on interracial marriage in the 16 states that still had such laws. > > > Now, 43 years after *Loving*, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law.… The principle of equality before the law transcends the left-right divide and cuts to the core of our nation’s character. This is not about politics; it’s about an indispensable right vested in all Americans. Levy and Podesta, along with AFER’s lawyers Ted Olson and David Boies, spoke at [this Cato Institute forum](https://www.cato.org/event.php?eventid=8015). And Levy also wrote about the case in [this *New York Daily News* column](https://www.cato.org/pub_display.php?pub_id=11112). In this 7‑minute video Levy, Podesta, Olson, and Boies make the case for equality in marriage law: ##### Related Tags [General](https://www.cato.org/general), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).