Ninth Circuit rules Prop 8 unconstitutional.

[Landslide Lyndon]

http://tpmmuckraker.talkingpointsmemo.com/2012/02/ninth_circuit_rules_prop_8_is_unconstitutional.php

A federal appeals court in California has upheld a lower court’s ruling that Proposition 8, the state’s ban on gay marriage, is unconstitutional.

In a 2-1 decision, a three-judge panel of the Ninth Circuit announced its long-awaited ruling on Tuesday.

Proposition 8 was a 2008 ballot measure, approved by voters, that amended the state constitution to ban same-sex couples in California from getting married.

In 2010, U.S. District Court Judge Vaughn Walker, presiding over a challenge to the law by two gay couples and the American Foundation for Equal Rights, ruled that the law was unconstitutional. Walker wrote that “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

[greenforest32]

Can the marriages continue now or is there a stay? I'm kinda disappointed too, I was hoping they would strike down the state bans in every state in the 9th circuit.

[All Along The Watchtower]

Awesome. Take that, bigots.

[Landslide Lyndon]

Can the marriages continue now or is there a stay?

Court leaves stay in place, pending further appeal, so same sex marriages do not resume in California.

[True Federalist (진정한 연방 주의자)]

Can the marriages continue now or is there a stay?

Court leaves stay in place, pending further appeal, so same sex marriages do not resume in California.

Which makes sense, since if the Supreme Court does reverse, have people marry in the interim, only to have the marriages go poof would be far more problematic than a stay.

[CaDan]

This was actually a HUGE loss for the homosexual activists.

The decision was extremely narrow. Which is shocking considering that Reinhardt wrote the opinion and his sock puppet was on the panel.

It applies ONLY to California and the unique circumstances in which Prop 8 was passed. It does not apply to any other State in the Ninth Circuit.

They rejected Judge Walker's (a homosexual himself) "reasoning" that there is a fundamental right to same-sex "marriage". Thus, this is actually a devastating loss for homosexual activists, because the reasoning in the only opinion to lay out "heightened scrutiny" related to this issue is no longer good law.  

Judge Smith's reasoning in the dissent was impeccable and should SCOTUS review this, this will likely be overturned based on the reasoning in his opinion. I suspect that Reinhardt crafted this extremely narrow opinion hoping that SCOTUS won't review it, he may be right on that, but this was actually a step back for homosexual activists in the way that he went about the opinion.

[Swing low, sweet chariot. Comin' for to carry me home.]

yo, it's the 9th

[CaDan]

Hilariously, the media and many internet blowhards who have no legal training don't understand how this was actually a step back for homosexual activists on the marriage issue.

I am actually beyond shocked that it turned out this way considering the makeup of the panel. The only possible explanation is that Reinhardt is scared to death that SCOTUS won't accept the Fundamental Right argument, and he cowered knowing that Walker's "reasoning" was a non-starter.

He's betting that SCOTUS won't want to review such a narrow decision that won't affect the marriage laws of other States and that really doesn't advance the arguments that homosexual activists have been making.

I find it amusing how ignorant people who think they know the law always chime in about things that they can't understand.

[Landslide Lyndon]

[CaDan]

Did you read the opinion genius? Where did you get your J.D. from?

How about you actually read it rather than post slogans and random talking points that demonstrate you are utterly devoid of reason? I'm sure you'd rather listen to idiots in the media tell you what to think, but the plain reality is everything I said was correct.

The activists were hoping for an affirmation of the very broad ruling that the homosexual judge Walker made.

They didn't get it.

The decision is extraordinarily narrow, which in itself is amazing considering that Reinhardt wrote the opinion.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Misha, you are aware that the sexual orientation of judges is irrelevant to whether or not their rulings are good law, right? Further, you know that narrowing the scope of an originally sweeping decision on appeal while upholding it substantively is an entirely normal and in some cases entirely expected thing for a court to do?

[Phony Moderate]

Awesome. Take that, bigots.

[Bacon King]

This was actually a HUGE loss for the homosexual activists.

The decision was extremely narrow. Which is shocking considering that Reinhardt wrote the opinion and his sock puppet was on the panel.

It applies ONLY to California and the unique circumstances in which Prop 8 was passed. It does not apply to any other State in the Ninth Circuit.

I'm reading through the decision now, so I can't say any about the rest of your post, but regarding the limits of the decision, Reinhardt made it fairly clear he would have more broadly allowed marriage equality if the facts of the case permitted.

You must be logged in to read this quote.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Exactly. Judge Walker's ruling used very bold (although, I think, sound) constitutional argumentation, which there's certainly something to be said for. Judge Reinhardt's is by contrast rather parsimonious, which there's also something to be said for (from the perspective of a judge) in delicate and often highly emotional cases like this.

I'm not sure how exactly Misha squares saying that this ruling is itself a 'defeat for the homosexual activists' with saying that it will also be overturned because EWW GAY PEOPLE, but that's Misha for you.

[CaDan]

This was actually a HUGE loss for the homosexual activists.

The decision was extremely narrow. Which is shocking considering that Reinhardt wrote the opinion and his sock puppet was on the panel.

It applies ONLY to California and the unique circumstances in which Prop 8 was passed. It does not apply to any other State in the Ninth Circuit.

I'm reading through the decision now, so I can't say any about the rest of your post, but regarding the limits of the decision, Reinhardt made it fairly clear he would have more broadly allowed marriage equality if the facts of the case permitted.

You must be logged in to read this quote.

Oh, I'm sure that Reinhardt wanted to go further. I said as much. He desperately wanted to. However he didn't. He couldn't. The fact is, this is an extremely narrow decision, and the Walker (the homosexual judge) opinion reasoning was not accepted.

Homosexuals were hoping for a sweeping decision declaring a new fundamental right. They had every reason to expect it considering the panel that they drew. They didn't get it.

Reinhardt also didn't deal with the Baker decision, which despite the tantrums of those on the left is still the law. Judge Smith eloquently pointed that out, and it won't be lost on the Supreme Court if they decide to review the case. 

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Misha, please explain why Walker's orientation is relevant to the merits of the case.

Also, Baker was dismissed for want of a substantial federal question, forty years ago. The Perry appellate ruling is actually quite similar to Baker in terms of its parsimony. And marriage as a fundamental right isn't new, it goes back to Zablocki v. Redhail.


Actually, wait, no. Don't explain or address any of these things, please don't. Carry on spinning this as some kind of victory. This is amazing work, seriously well done.

[krazen1211]

Reinhardt is among the most overruled judges in history due to things like this. Garbage in, garbage out.

[TJ in Oregon]

I've never felt there is a positive right to marry in the US constitution. Government recognized marriage is more of a subsidy, an incentive to engage in a particular lifestyle of commitment that has some social benefit and will demand some sort of streamlined method of entering into contracts, from shared property rights to guardianship over children. Society may at any time demand legal recognition of whatever type of relationship it wants and called it whatever it wants (and as sure as the Browns missing the playoffs again, gay marriage will be legally recognized in most of the US very soon) but in my eyes "marriage" will always be between a man and a woman. Men and women are created different, with parts that fit together in a particular way and for a particular purpose. Marriage is the framework for this, a union of committed love and procreation. No matter what the government decides and no matter what society demands.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I've never felt there is a positive right to marry in the US constitution. Government recognized marriage is more of a subsidy, an incentive to engage in a particular lifestyle of commitment that has some social benefit and will demand some sort of streamlined method of entering into contracts, from shared property rights to guardianship over children. Society may at any time demand legal recognition of whatever type of relationship it wants and called it whatever it wants (and as sure as the Browns missing the playoffs again, gay marriage will be legally recognized in most of the US very soon) but in my eyes "marriage" will always be between a man and a woman. Men and women are created different, with parts that fit together in a particular way and for a particular purpose. Marriage is the framework for this, a union of committed love and procreation. No matter what the government decides and no matter what society demands.

Always good to hear from you, TJ.

While I probably disagree with your thoughts on the religious character of marriage more than your thoughts on its legal character--one of the few subjects on which this is true--I respect your convictions and especially your ability to calmly and reasonably articulate them even at times when it might be understandable for people who take your position on this to be freaking out and comporting themselves more like Misha up there.

[CaDan]

"marriage" will always be between a man and a woman. Men and women are created different, with parts that fit together in a particular way and for a particular purpose. Marriage is the framework for this, a union of committed love and procreation. No matter what the government decides and no matter what society demands.

You are actually correct on this, and it isn't just "in your eyes". Government simply doesn't have the power to change marriage. Government can counterfeit marriage, and issue pieces of paper to people to make them feel good about playing house, but government doesn't grant marriage or have the power to alter it.

Where the problem is going to come about is when government attempts to initiate force to force you to play along with the charade.

Government initiated force always causes problems.

[Sam Spade]

Yep, the decision is very narrow, which suggests that Reinhardt doesn't want the Supreme Court to weigh in right now on these facts.  We'll see whether he gets his wish.

[J. J.]

Ironically, I was listening to Diana Ross's Upside Down while reading the decision.  

The decision does seem fairly narrowly tailored, leaving open the possibility that there isn't a Federal constitutional right.  It went far below that standard.  

I agree that the judge's orientation is irrelevant.  

I tend to think it will ultimately be a states rights issue (as is cousin marriage and age of consent).

[Okay, maybe Mike Johnson is a competent parliamentarian.]

"marriage" will always be between a man and a woman. Men and women are created different, with parts that fit together in a particular way and for a particular purpose. Marriage is the framework for this, a union of committed love and procreation. No matter what the government decides and no matter what society demands.

You are actually correct on this, and it isn't just "in your eyes". Government simply doesn't have the power to change marriage. Government can counterfeit marriage, and issue pieces of paper to people to make them feel good about playing house, but government doesn't grant marriage or have the power to alter it.

Then where does civil marriage come from? Remember, civil marriage is what we're discussing. (There's an argument to be made for 'Boston marriages' or certain types of romantic friendships back in the day having comparable spiritual validity to standard marriage--granted, one I'm reasonably certain TJ wouldn't make--but they were certainly not civil marriages.)

You must be logged in to read this quote.

...

...I'm trying to think of a way to respond to this but the only things that come to mind are disgusted lines delivered to Doctor Who villains by Tom Baker. (That and 「世界を革命する力を」 but I'm afraid that would be lost on you.)

[TJ in Oregon]

Where the problem is going to come about is when government attempts to initiate force to force you to play along with the charade.

That's an argument for a 2nd Amendment veto.

It depends what you mean by force. If the government decides that gay marriage should receive the same subsidies as normal marriages then I will likely just vote against those that have imposed such a restriction and sign petitions and vote in referendums to change that law. If the government decides to force the Church to participate or me to enter one myself, then yes, I might engage in civil disobedience but I doubt it will come to that in my lifetime.

Misha, please explain why Walker's orientation is relevant to the merits of the case.

Isn't it obvious? Of course a gay judge would be almost certain to rule in favor of gay marriage! In every wedge issue case like this that serves as some kind of landmark, the judge's personal opinion is of utmost importance in determining which way he will rule.

[Brittain33]

Having this ruling restricted to California could be considered a tactical defeat but is definitely a strategic win for us. I don't think it makes sense for this ruling to legalize SSM in, say, Idaho.

I don't want universal same-sex marriage legalization going to the Supreme Court. We'd probably lose. Where we can win is on federal recognition of legal state marriages and in protection from unpopularity contests like Prop 8 in state decisions.

We've come so far in 8 years that the outcome is no longer in doubt.