The Ninth District panel ruled that taking away the existing rights of a minority is not kosher. Read the whole story at Prop8TrialTracker.
The ruling applies only to California’s special circumstances, but if it stands, it could put the kibosh on efforts in states like Iowa and New Hampshire to repeal marriage equality.
The proponents have a week to ask for an en banc review. If they don’t get one, they have 90 days to ask for a Supreme Court review.
Thank you, Ninth Circuit! I really needed some good news today.
[crossposted at Loudoun Progress]
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1 comment
Stevens Miller
February 10, 2012 at 3:17 PM (UTC -4) Link to this comment
Okay, I admit I have not (and most likely will not) read the entire 133(!) pages of the court’s decision. I will say that I believe the part of it most likely to have ultimate significance, however, is on Page 6. The first few paragraphs laboriously commit themselves to the assertion that the court is not considering the constitutionality of a ban on gay marriage. Rather, they say the court is only considering the constitutionality under the Fourteenth Amendment of the United States constitution of an amendment to the California constitution that would deprive a class of persons of a right previously extended to them by the California constitution. Applying the rational-basis test (generally the easiest test for a state to pass when its actions are reviewed for compliance with the United States constitution), the majority said the deprivation of the right to marry from same-sex citizens when that right was retained by opposite-sex couples did not pass the rational-basis test when that right had already been granted by the state’s constitution.
I assume the next 100-plus pages (there’s a dissent, which is also rather long) explain their reasoning, but the first few pages are pretty clear: California can’t amend its constitution to take away from its same-sex couples a right it granted equally to same-sex and opposite-sex couples.
Why is that significant? Because part of the point so laboriously made in those opening pages is that the 9th Circuit did not decide the question of whether or not same-sex couples have a right to marry under the United States constituion. They only considered the constitutionality of depriving some people, and not others, of a right they all had together under their state constitution.
Okay, so what? Well, I think it will be pretty easy for the United States Supreme Court to reverse this decision. Scalia will use his typical sophisticated approach and, without citation to authority, declare the 9th’s decision “nonsense.” (I’ll bet anyone a dollar that he actually uses that word.) The majority will simply say that states are free to write their constitutions as they see fit, giving rights and taking them away, so long as those rights themselves are not taken away in violation of any right extended by the federal constitution. There being no right to gay marriage asserted by the parties on this appeal, that question will not be before the court and, with no fundamental right to gay marriage having ever been found in the United States constitution, they will say this was California’s choice to make, and that’s that.
Now for the punch-line. After saying they are not deciding the constitutionality of gay marriage bans, the 9th Circuit add this:
I believe this is a warning to the United States Supremes: affirm our decision or, on remand, we’re going to find that gay marriage is a right under the federal constitution, and then you’ll have to decide The Big One. They are offering the Supremes a way out of what would otherwise be, potentially, the most divisive decision they could make for America today. If the Supremes affirm the 9th’s decision, gay marriage will be available in California, but the ruling won’t add gay marriage to any more states that don’t already have it. If the Supremes reverse the 9th’s decision, the 9th will (in all their liberal wisdom) find that gay marriage cannot be banned under the United States constitution, and the Supremes will have no choice but to make the final decision on that question for the entire country. You can imagine on your own time how various states’ citizens will react to either possible outcome.
This will be fascinating to watch. If I’m right, and the Supremes reverse, we are going to see the basic question of gay marriage in the United States headed their way real soon now. If I’m wrong, and they affirm, gay marriage will exist in California and it will be constitutionally protected, setting a precedent that makes it a one-way street for any other state where the top court finds the right to gay marriage exists in that state’s constitution.
Hang on to your seat. It’s gonna be some ride.