Proposition 8 Overturned

Well, yeah. As the federal court of appeals panel noted, “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.” And that’s not a nice thing to do.

I’ll have more thoughts on this in a bit, when I get caught up on the details. In the meantime, here’s the actual text of the ruling for you to peruse.

Update: Okay, just read the ruling. As I read it, this basically boils down to something I’ve noted before, which is that Prop 8 existed for the sole purpose of taking away from a particular group of people a right they already had (and which, in the case of the state of California, 18,000 couples availed themselves of), and that’s pretty easy to mark as a violation of the Constitution.

The ruling also takes a bat to what passes for the justifications the pro-Prop 8 had for keeping Prop 8 on the books; the court says two things, which are “You guys aren’t actually aware of California law, are you?” and also “If the text of law doesn’t say it, than the law doesn’t do it,” the latter being a response to the idea that Prop 8 was designed to put a pause on same-sex marriage when in fact the text makes it clear that a “pause” was not part of the plan.

Upshot: You can’t withdraw from people a right they already have just because they’re getting their gay cooties all over the institution of marriage. As I said earlier: well, yeah.

I’ll additionally note the judges did a fine job of keeping the ruling as limited as they possibly could, passing up every opportunity to widen the scope of the ruling or make larger constitutional pronouncements. This might disappoint folks who were hoping for a grand gesture that said “same sex marriage for all!” but I think the court recognized that this ruling would almost certainly be appealed all the way up to the Supreme Court, and wanted to give the SCOTUS as much of a reason as possible not to take the appeal, or if they do take it up, to let it stand. A narrow ruling dealing only with California is better likely to achieve that than a wider ruling. Thus, the focus on California law, dropping in federal law only when necessary and studiously avoiding any larger constitutional implications. I think it’s probably a smart way to go but I also acknowledge it’s not my ability to be married that’s up for discussion here.

In sum, I am (not surprisingly) pleased with this ruling. I hope it sticks.

163 thoughts on “Proposition 8 Overturned

  1. Look! Another comment thread in which the Mallet of Loving Correction is pre-warmed and ready to go.

    Let remember to keep the conversation focused on Prop 8 and the issues surrounding today’s ruling and try not to drift away from that, please.

  2. The reasoning of the decision seems odd to me. Basically Gays did not have a right to marry under California Constitution, but once the CA Supreme Court gave them the right, taking away that right again is a 14th Amendment violation? This seems a bit too recursive to withstand scrutiny.

    But lost in the hoopla; it seems the 9th Circuit affirmed the defendants standing in the case.

    So I expect next will be an en banc hearing by the 9th Circuit followed by Supreme Court appeal next year.

  3. It’s a blow, but not a total overturn. From the chron.com (Houston Chronicle):

    The court said gay marriages cannot resume in the state until the deadline passes for Proposition 8 sponsors to appeal to a larger panel of the 9th Circuit. If such an appeal is filed, gay marriages will remain on hold until it’s resolved.

  4. Frank:

    Actually, the CA Supreme Court held that same-sex couples did have the right under the law. The court itself did not give the right; it did recognize that it existed and had been incorrectly denied. There’s a difference there, which your attempted framing elides.

  5. Uh, Frank, what decision are you reading? The court said that the California constitution *did* guarantee gays the right to marry until (guess what!) Prop 8. The CA Supreme Court did not give them anything–that’s not what courts do, right wing fantasies aside–it simply outlined the rights present in the CA constitution.

  6. Several of my friends in same sex relationships were married multiple times in CA because of legal wrangling. It’s nice to see that future couples will have the same rights granted to them by the state as well.

    Next up, Washington by legislative vote!

  7. Just to get it out of the way:

    If courts support gay marriage, it’s judicial activism.
    If legislatures support gay marriage, they’re not representing their constituencies.
    If governors support gay marriage, it’s executive overreach.
    If the people support gay marriage, it’s the liberal media and the rich bribing the masses.

    When you change “support” to “oppose” then none of that is true.

  8. The state-by-state overturning of discriminatory laws is great, and long may it continue, but what we really need is DOMA overturned. The dual system set up under DOMA whereby a couple who is legally married under state law is not legally married under federal law is absolutely absurd, not to mention the difficulties involved in pensions et al. if you work for the federal government.

  9. I don’t think DOMA will be overturned any time soon. Too many state legislatures and governors are run by conservatives, as is the Supreme Court. The will of the majority of Americans as a whole isn’t enough just yet.

  10. Frank:
    I think you’re misreading how Romer v Evans got applied. Romer basically says you can’t pass laws just to be a dick. The majority held (as far as I can tell; I haven’t read all of the majority opinion yet) that because all Prop 8 did was take away the term “marriage” from gay couples without affecting substantive rights, the people of California were
    1) totally being dicks; and
    2) can’t claim that it supports their yay-married-heterosexuals idea because they can’t plausibly claim it affects them.

    The dissent more or less says that, well, Romer isn’t a very high bar, and even if the people of California were
    1) totally being dicks,
    2) don’t have any good evidence for their whole yay-married-heterosexuals idea, and are
    3) pursuing their whole yay-married-heterosexuals idea in a way intentionally dickish to gay people rather than a way intelligently aimed at supporting their ends
    the yay-married-heterosexuals idea is at least in some way plausible and connected to limiting the term marriage to heterosexuals, and that’s all they need.

  11. I did. And perhaps I embellished a little. But I think the underpinning of such a “right” based on equal-protection is bogus. I mean it’s not like the law discriminated against Gay males or females: no male or female was granted the ability to marry.

    So the “right” was made up to being with.

    That said, I wish people would just come to their senses and give Gays the right to marry. DOMA being repealed would go a long way to doing that in my opinion.

  12. Jesse @2:08, the political make-up of state legislatures and Governors has no bearing on DOMA, which is a Federal law.

    Granted the Senate and House of Representatives are a bit too conservative right now for a legsilative overturn, especially this year. But the courts may do it, I hope. It’s making a mockery of the 14th amendment.

  13. Frank:

    “But I think the underpinning of such a ‘right’ based on equal-protection is bogus.”

    Well, but, Frank, it’s not given to you to make that decision in a legal sense, it’s given to the courts. So your interpretation, while your opinion, is not a matter of law, and thus your encapsulation of the issue at hand is factually in error.

  14. It is 2012 for crying out loud!!!! All consensual adults should be allowed to marry. As a boring straight and married individual I would be sooooo upset if my ability to legally bind myself to my awesome hubby was decided by lobbyists, judges, and idiots on 24/7 news. So, thanks to the judicial system for stretching to decide on rights that no one should even have to argue for. Someday our poor grandchildren will have to learn about this case like the Loving vs Virginia case. Now…it is 2012, only 3 more years to hover boards.

  15. Frank, we’ve been here before. The “but we discriminate against everyone!” argument didn’t fly in Loving v Virginia either.

    If your gripe is that there is no right to gay marry then you didn’t understand the opinion, bluntly. The legal question isn’t “gay marriage: a natural right?” but “is there a legal justification for saying only a woman can marry a man and vice versa”?

    I mean, I think we would all agree there is no right to “sinister marry”, yet I hope we would also agree that it would be unconstitutional to have a law saying two left-handed people can’t marry.

  16. Frak @ 2:23 wrote: “But I think the underpinning of such a “right” based on equal-protection is bogus.”

    I utterly disagree.
    Cast your mind back to one weekend in May 2009.

    On Saturday, a couple was married in a Christian ceremony at a Christian Meeting House. They had paid for a Marriage License at the Town Clerk’s office. They were legally married before friends and family.

    On Sunday, a couple was married in the [i]same[/i] Christian ceremony at the [i]same[/i] Christian Meeting House. They had paid the [i]same[/i] amount of money for a Marriage License at the [i]same[/i] Town Clerk’s office. They were [i]also[/i] legally married before friends and family.

    One couple hs over 300 rights under Federal law that the other couple does not have. How is that equal protection?

  17. The defendants’ standing in the case basically boils down to a legal fiction of gay cooties — the idea that if you treat *them* like people, then they infect everything they touch.

    Alternately, and only slightly less stupidly, the argument is that diff-sex married couples will be harmed by their legally-privileged status being changed to equal treatment under the law. In the sense that it means diff-sex married couples will be somewhat less discriminated *for*, that’s arguably true, but not really something that gives me a sad.

  18. @Jesse — I’m not entirely sure that “the will of the majority of Americans” is necessary or, frankly, that relevant. It’s certainly arguable that Brown vs. the Board of Education and Loving vs. Virginia were against the will of the majority of Americans; that doesn’t make them any less valid or just. Civil rights laws often precede public consciousness in the US, not follow. The point that the will of the majority can be used as a tool to oppress a minority has long been made on more hallowed forums than this.

    That said, I do believe that the will of the majority of Americans is turning, much as the will of the majority of Americans turned over the issue of racial civil liberties (especially as the older generations *ahem* go the way older generations go). My grandparents’ generation was unapologetically racist, my parents’ generation is often unapologetically homophobic (although I am personally fortunate enough to not include my parents in that), and my generation generally doesn’t give a damn. Despite the increasing vitriol of the right, I am confident that sexual orientation civil liberties will follow in the way of racial civil liberties.

    Even if I’m not holding my breath until DOMA is repealed. It took until 19-effing-67 to overturn miscegenation laws, seriously.

  19. DOMA offends comity and the Full Faith and Credit clause. You don’t even need to get to that liberal pinko 14th Anendment to find a huge problem.

  20. First, let me say that this is in my opinion the correct decision, and I personally wish that marriage were legal across the country. That said, I think this opinion will be overturned in a hot minute by the 9th, en banc, or failing that, by the Supremes. The opinion’s discussion of standing (pp. 22-31) is just going to be curb-stomped by someone like Scalia.

  21. Mythago @2:47
    The Full Faith and Credit clause also says “…Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Since DOMA is a Law enacted by Congress, this makes me want to rely more on the 14th Amendment than Article IV, Section 1.

  22. I’m absolutely bloody thrilled that this particular battle in the War On Love has gone to the forces of freedom. How anyone really gets their jollies by hating love – I mean, how do you even *DO* that? – is beyond me. Whilst I dislike Partisan politics more than there is space to write here, the concept of Republicans being the Party of Government So Small It Fits in your Bedroom is just plain horrid. Yay for the death of Prop (H)8!

  23. @Ultragotha: I agree it’s not either/or, but that clause is more procedural than substantive.

    @Jason: why do you think the 9th would accept en banc review and then reverse? I know certain Justices would love to be activist on this issue, but not sure if that is enough to get cert.

  24. And to get it further out of the way, as we see here in NJ:

    If the courts decide that marriage equality is a right, it should be left to legislative action.
    If legislative action decides that marriage equality is a law, it should be left to public referendum.
    If public referendum decides that marriage equality should be a law, it will undoubtedly be taken to court.

    Goalposts on hoverboards.

  25. This sums in up nicely, in my arrogant opinion.

    Ding! Problem solved. Let’s try to pass legislation that actually helps folks instead of bringing the jackboot of theocracy down on peoples’ throats, hmmm?

  26. Frank: “But I think the underpinning of such a ‘right’ based on equal-protection is bogus.”

    I think the comet Kohoutek is made of delicious chicken liver pate.

  27. I’m really interested to see how this decision will play out in Washington state, which is also in the Ninth Circuit (I believe), also has equivalent rights civil unions, and (checks wristwatch) should have same-sex marriage with the threat of a revoking proposition to follow in about a day.

  28. Thanks, John, for posting a link to the full opinion. I’d heard that the 9th Circuit’s server crashed due to all the traffic it was handling, and I was wondering where I could snag a copy. News stories will give you spin and sound bites, but if you want to know what the Court really said, it’s best to read the opinion yourdamnself.

  29. I suspect that a lot of people will misunderstand this ruling. It seems to say that once gays and lesbians acquired the right to marry (or rather, were determined to have had it all along) that you’d need serious cause to take the right away. Prop 8 just said “Because we want to” and that’s not enough.

    This may be the gay-hugging-pinko in me, but that seems pretty reasonable. It’s one thing to, for example, want to make polygamy legal. It’s another thing entirely to have it be legal and then try to take the right away. I guess the Ninth and/or SCOTUS will decide this one (does anyone have any feeling for whether it will go to the Ninth or jump straight to the big house?).

    Let’s assume for the sake of argument that they have it right – that the Prop 8 argument is just bogus. What next? My finely tuned non-legal mind sees two approaches that the opposition could take:

    The “Prop 8 II – Electric Boogaloo” Approach: A “better” Prop 8 that actually comes up with a good and proper reason to take that right away rather than the “gay cooties” reason presented earlier. Legally I suppose this is possible, but actually coming up with something that works as a practical matter might be hard.

    The “The Law is an Ass” Approach: You could also argue that the original legal decision that said that gays and lesbians had the right to marry was a flawed decision. Prop 8 then becomes moot. I suppose the California Supreme Court could reverse itself or (is this possible?) the Federal Government could weigh in here (blah, blah, states’ rights, blah).

  30. @ AlanM: In terms of blocking state recognition of same-sex marriages, the US federal govt is pretty much limited to DOMA — and maybe not even that, eventually — unless there’s a Constitutional Amendment. Which is looking less and less likely all time, thanks be given.

    Ob:I am not a lawyer.

  31. if this discision does get appealed to SCOTUS the narrowness of the ruling (IMHO) lends it to be upheld by even more conservative judges (who like to call themselves constructionists) – however doesn’t that open a broader issue of if DOMA is constitutional? (again IMHO, but I believe that the more conservative judges are not ready/willing to strike down DOMA- but staranger things have happened)

  32. Great piece, John. But for readability’s sake, I wonder if the next to last sentence “In sum, I’m not surprisingly pleased” would have made more sense with some additional punctuation. For example, “In sum: I’m, not surprisingly, pleased.”

  33. I suspect that a lot of people will misunderstand this ruling. It seems to say that once gays and lesbians acquired the right to marry (or rather, were determined to have had it all along) that you’d need serious cause to take the right away. Prop 8 just said “Because we want to” and that’s not enough.

    Let’s not forget that Prop 8 did not affect the marriages of gays done prior to its passage.

    They were legal before, they were legal afterwards. Equal protection would apply in that instance, I think. Not being a dick also applies.

  34. I have a proposal for a bill that would encourage the right-leaning politicians to denounce this interference in our private business.

    I call it “Republicans Stand Opposing the Defence Of Marriage, Instead Trust Everyone” bill.

    So stand with me, people. It’s time we pushed for Republican SODOMITE.

    *waits for the mallet, smiling beatifically*

  35. gwangung:

    “Let’s not forget that Prop 8 did not affect the marriages of gays done prior to its passage.”

    Unless my memory fails me, a court had to decide that; the text of the proposition itself would have invalidated those marriages. Moreover, I strongly suspect that was the intent of Prop 8.

  36. John,

    I don’t see how the intent of Prop 8 can be seen as anything but a brutal grab at the rights of fellow citizens in the name of a theocratic, authoritarian agenda. A deliberate snipe at the rights of people to love their way, based only on the religious tenets of a political group which are specifically and entirely meant to be sidelined by The First Amendment of the Constitution.

    Am I in some way in error here? Open question to the Internet, there.

  37. It is amazing how progressives will casually discard the will of the people when it does not suit them. So… what does justify the authority of government if not the will of the governed? Does it worry you at all when the government sends a big fuck-you to the majority of its citizens?

    The people of California obviously want to reserve the word “marriage” to heterosexual marriage. But they were tolerant (see footnote 22), and willing to extend to progressives everything else they demanded on behalf of homosexuals. The very fact that the people asked for so little is used to reject their request. (We see who are really sovereign.)

    The court arrogantly dismisses the people’s arguments. Both sides agree that this is about the status — not legal rights — accorded by the word “marriage”. The court recognizes such status as worth overriding the will of the people for. That is, it must be highly important. On the other hand, the court treats this status as negligible: “Whatever sense there may be in biological parents over other couples — and we need not decide whether there is any — California law clearly does not recognize such a preference, and Proposition 8 did nothing to change that.” (my emph) Nothing! Obviously, Proposition 8 did seek to change that, albeit negligibly, by reserving the “marriage” status to heterosexual marriages. Status is very far from nothing.

    So, the court’s argument in a nutshell: Initiative 8 changed nothing, so it could not have had any positive purpose, but it did change something negatively, which is invidious and wrong, and so we override the people.

    Next up: polygyny polygamy. What’s the over/under on its recognition as a living Constitutional right, for so long denied unjustly by the evil white men? Is there even a single progressive on this site who thinks polygamy should not gain Constitutional imprimatur under “equal protection”?

  38. OK, I am a little confused by this statement
    You can’t withdraw from people a right they already have

    People get rights taken away all the time. 18 year olds used to have the right to drink in Oklahoma, now you have to be 21. The patriot act took away a lot of rights of privacy.
    I am aware of no constitutional ban on removal of rights.

    Don’t get me wrong, I like the ruling but I just question the above.

  39. It is amazing how progressives will casually discard the will of the people when it does not suit them. So… what does justify the authority of government if not the will of the governed?

    So, you were for concentration camps for Japanese Americans in World War II? That, certainly was the will of the people.

  40. Man, I remember the good old days, when “judicial activism” meant a court ignoring the law in favor of a legally wrong but popular result.

    Leonard, could you enlighten us as to the legal principle that if enough people like a law, the Constitution doesn’t apply? Because I’m thinking we could solve the court-funding crisis by getting rid of judges and just having people text in how they want a case to turn out.

  41. Leonard, if you had put segregation to a vote in 1954, it would have been passed. (Whites outnumbered blacks in Kansas, and most whites preferred segregation.) If such an amendment had been passed, would you argue against the validity of Brown vs Board of Education?

    The will of the majority cannot be used to discriminate against a minority. It makes a mockery of justice.

    And, for the record, I happen to be in a multiple-partner relationship. (Although it’s polyandrous, not polygynous.) I would dearly love to be able to marry both my partners, but alas, that’s way farther off than them being allowed to marry each other.

  42. It is amazing how progressives will casually discard the will of the people when it does not suit them.

    “Will of the people” is not a trump card. Constitutional limits exist to establish when the will of the people should be discarded in favor of broader principles.

    Next up: … polygamy.

    There’s a huge difference between two-person marriage and multi-person marriage, at least from a legal perspective. Legally, marriage is in large part about establishing a huge set of default rules: inheritance rules (who takes in case of intestacy, when there can be forced shares); rules regarding who gets to make medical decisions in case of disablement; rules regarding how to treat property acquired as a couple; rules regarding who gets custody of children when one spouse dies; and a whole host of other rules. Extending these rules to same-sex marriages is trivial; extending them to multi-person marriages is problematic at best — in some cases you need one person to hold the power at issue (such as with medical decisions), and it’s unclear how a default rule should address that in case of polygamous marriages.

  43. Leonard:

    “It is amazing how progressives will casually discard the will of the people when it does not suit them.”

    One doesn’t need to be a progressive to understand that laws should not violate the Constitution, and that the courts exist in part to ensure that laws, popular or not, adhere to the supreme law of the land.

    Other than that, Leonard, your argument suggests that you believe that popularly-voted initiatives are somehow accorded special status and are (or should be) supreme above all other aspects of government. I suggest you go back and try to understand the Constitution and the concept of “separation of powers” a little bit harder.

  44. David: I believe that your statement should probably be reworded:
    “You can’t withdraw from people a right they already have *for no other reason than to withdraw it*” (or something — the wording is a little tricky in this construction).

    The difference between same-sex marriage in CA and the drinking age restriction is that the drinking age restriction serves a purpose such as saving lives (because 18-year-olds who have been drinking are more likely to be in fatal accidents than 21-year-olds who have been drinking).

    I think part of the issue here is that the pro-Prop 8 side was never able to prove that there was any harm to anyone at all when same-sex marriage was allowed.

    I am by no means an expert in this field, and I am ready to stand corrected if I am off-base.

  45. I am pretty sure that the constitution is completely clear on same sex marriage.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

    Therefore, if someones religion allows and performs gay marriage, any law not recognizing that marriage is unconstitutional. A law which recognizes some religious marriages and not other religious marriages clearly selects a “state” religion.

  46. Peter, I assume you were being tongue-in-cheek there. Establishment Clause law is a little more complicated than “if my religion allows it then it’s legal.”

  47. It is amazing how progressives will casually discard the will of the people when it does not suit them. So… what does justify the authority of government if not the will of the governed? Does it worry you at all when the government sends a big fuck-you to the majority of its citizens?

    What’s amazing is how you can’t seem to grasp that the framers of the CA State Constitution and US Constitution designed them to work exactly that way – if a statute is found to be unconstitutional, courts are obliged to overturn it.

    This is how government works. We’re supposed to discard a simple majority in cases of unconstitutional laws. Why were you unaware of that fact, but thought you had some sort of valid opinion on this issue? It’s like being unaware of basic biology, and insisting that the earth is 6000 years old and there’s no such thing as evolution.

    Oh, wait, we’ve seen people think like this before. Riiiight. And they’re usually the same ones who oppose same sex marriage. Notice a trend?

  48. Besides, legal marriages are not a religious contract but a civil one, hence your ability to get married (and divorced) by a judge.

  49. That ruling is 128 pages of well-reasoned smackdown. I hope that even if I weren’t please with their decision, I would still have the integrity to admire their work. My favorite part is where they observe that previous courts have held that “rational” must have some contact with reality.

  50. Cherry:
    “I think part of the issue here is that the pro-Prop 8 side was never able to prove that there was any harm to anyone at all when same-sex marriage was allowed.

    I am by no means an expert in this field, and I am ready to stand corrected if I am off-base.”

    I am definitely not a lawyer, but that notion definitely came up in the decision. Important note – Prop 8 addressed only the name of marriage.

  51. @Leonard

    First – for the record, as a progressive, I actually lean heavily towards being anti-state-sanctioned marriage on any level. I think the government has no business legislating relationships. Specifically, I think marriage should be a contract between consenting adults – as many who want to join that particular contract (very important – fully informed and consenting adults) – just like any other legal contract. All the automatic laws which currently go with marriage would be written into that contract (heck, have a standard language version which is essentially what current legal marriage is for people who want it but give me the option of writing my own contract). The exception would be related to paternity/maternity and legal and financial responsibility for children but those laws could be separate laws with no mention of marriage. I also think a whole slew of benefits (and costs – it cost me $2000 in additional federal income tax to get married rather than just live with my partner*) should not be connected to marriage in any way. Make them connected to a legally executed contract … that’s fine. But let me set the terms of that contract, not the government (including if I want to be married to 5 people, I can name those 5 people as my beneficiaries for SS … but the amount doesn’t change. They get a certain amount which is split between the 5 of them just as if my contract was with 1 person that person would get all of it). So to answer your straw man question – I have no problem with polygamy being allowed under the conditions I’ve listed.

    Second – you clearly don’t understand what it means to be progressive. One of the core values of progressives is that the majority rule cannot be allowed to trump the rights of minorities – PERIOD. Believe me, I’d be happy to see the Westboro Baptist Church silenced by the government and I think that probably the majority would agree with me … but the right to free speech is not just about speech I like – it is about all speech. I subject to the will of the majority despite disagreeing with it quite frequently (I live in one of the red-dist of red states – frequently is an understatement) as long as it does not infringe on the rights of the minority.

    *And, yes, I recognize the irony of being anti-marriage and being married … since I don’t have the legal contract option I want, I have to accept the legal contract option I do have. There were potential “move across the country because of a job” issues and my partner, who also reads this blog, will confirm that once the job move issue went away I tried to weasel out of the whole thing :)

  52. You could probably get a large majority vote in several states to forbid citizenship to people born in the US unless other conditions are met — for instance, one or both parents must be citizens, the person must remain in the US until reaching some specific age, etc. Regardless of the will of the people agreeing to this provision, the federal court could and should invaidate it on the basis of the constitution. (Amendment 14, paragraph 1) The will of the people is not supreme, and never has been. The constitution is supreme. All laws, passed by legislatures or popular vote, must pass constitutional muster.

  53. @MasterThief: more the “Orin Kerr really hates Reinhardt” view. I mean, FFS. It’s one thing to be amazed that a judge you dislike and think is usually wrong got it right for once. It’s another to say that we should ignore the fact that the judge was, on this rare occasion, correct, and focus on reading the judge’s mind.

    I guess it’s a change from Volokh’s usual pretzel logic about SSM.

  54. Bearpaw, no.

    The “Judge Walker should recuse himself” issue was a legal fiction of gay cooties.

    But the standing issue was an important constitutional issue in California under its own right: do the authors of an initiative have the power to take legal action to appeal adverse court decisions when all of the officers of the state refuse to do so?

    The California Supreme Court said yes, about a month ago, and the Ninth Circuit simply said that since California law gives this right, in the context of this kind of case, we’re bound by that.

  55. People get rights taken away all the time. 18 year olds used to have the right to drink in Oklahoma, now you have to be 21. The patriot act took away a lot of rights of privacy.

    The ruling is much narrower than that. It says: “You can’t take away rights from others for no reason other than to take those rights away.” If you have a reason, such as homeland security (in the PATRIOT ACT) case or highway safety (in the OK drinking age case) you can take rights away provided that they’re not explicitly protected ones.

  56. Although, as a liberal, I disagree with Frank and Leonard in most discussions here, I’m generally grateful that they choose the Whatever to share their views instead of in a heavily conservative sounding room. It keeps challenging us liberals, and I’m sure it challenges them, too.

  57. Leonard: Is there even a single progressive on this site who thinks polygamy should not gain Constitutional imprimatur under “equal protection”?

    Why, yes, yes there is. Maybe because I’ve seriously considered it.

    I am going to reply anonymously, because unfortunately I can’t afford to have this Google-searchable, but: I am not only a “progressive”, I am part of a polyamorous family who are getting “married” (in a legally-irrelevant commitment ceremony, of course) next month. I would love to have that relationship legally validated.

    And, despite all that: No, I don’t think that multi-person marriage should simply be ruled constitutional under the “equal protection” clause. Not now. It is, as others have noted, quite a complex issue to expand the legal concept of marriage beyond exclusive pairs of people, and you can’t just say that it applies to larger groups until you’ve defined what that means. The government has “compelling reasons” (in legal terms) for not wanting to extend things like “you can’t be compelled to testify against your spouse” and married-couple tax codes and so forth to more than two people, that extend well beyond wanting to express private disapproval of in a law (as the court found was the reasoning behind Proposition 8).

    There are certainly a lot of rights that are part of marriage, such as parenting rights and required rights of hospital visitation, that I think would be reasonable to declare as constitutional rights, but that’s not about “marriage” but about practicality and a belief that people should be able to say who is in their family in a much broader sense than marriage alone allows. And I don’t think that’s “equal protection”, so much as just good law.

  58. Pardon me, I should have written “80 pages of well-reasoned smackdown”. I had been looking at the N pages of 128 for so long while reading that “128” was burned into my brain.

  59. disclaimer – I support equal right, which does include gay marriage (or lack of marriage for all actually but that’s a whole other topic) and I did vote against prop 8.

    Other disclaimer – I also think the whole proposition system is insane. Allowing the mob to make law is crazy and it’s killing us here in CA.

    That said, I’m not sure what to think of this. As much as I believe in equal rights, if a prop amends the constitution to make unequal rights illegal (and I believe props are actually CA constitutional law, but please correct me if I’m wrong), how can that prop be unconstitutional? However, I’m guessing the CA supreme court is far more knowledgeable than I am about constitutional law so yah. I guess we’ll see what SCOTUS says.

  60. First read this:

    http://goo.gl/HMFBp

    It seems to say that the ruling in Perry v. Brown is a very narrow one. We should probably limit our enthusiasm here.

    I do not think the First Amendment is necessarily the relevant one in the gay marriage issue. Clearly the 14th Amendment is the most applicable:

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Amendment 14, Section !)

    I don’t understand how anything could be more clear than this. Or, how any federal judge could interpret these words to mean anything other than what they say> You cannot deprive any group of people the rights adhering to all.

    Equal protection means equal protection. Doesn’t it?

  61. Leonard: what does justify the authority of government if not the will of the governed?

    Wait, the courts defending the rights of a minority is reframed rather menacingly into “authority of government”?

    For you to do such violence to the facts, I can only assume you either hate gays or government.

    Does it worry you at all when the government sends a big fuck-you to the majority of its citizens?

    Not when that majority specifically wanted to send a big fuck you to a minority group who had committed no wrong but be in a minority.

    So, either you don’t care about this particular minority (gays) or you don’t like the govenrnment overriding mob rule. An easy way to determine which:

    Can you think of a single case where the government can legitimately step in to protect a minority group from a majority? If yes, please provide a historical example. Then explain how this case is different.

  62. As much as I believe in equal rights, if a prop amends the constitution to make unequal rights illegal (and I believe props are actually CA constitutional law, but please correct me if I’m wrong), how can that prop be unconstitutional?

    No state law or constitution is allowed to trespass against the protections provided in the federal constitution. The US Constitution is the Supreme Law of the Land, and nothing passed by Congress or any other legislative body may violate it, except through amendment.

    Prop 8 amended the California constitution, and was held by the District and Circuit courts to violate the Equal Protection Clause of the US Constitution.

  63. I am not a lawyer, nor do I play one on TV. That said, it would not surprise me at all if the Supreme Court refused to hear this one.
    All the courts below them have ruled the same way.
    There’s not another circuit court out there, like the 5th or the 11th, ruling the opposite way (ie, no “jurisdictional split”).
    Marriage is a state issue, not a federal issue. Federal courts hate hearing state issues and will only do so when they’re forced. (This is why the Federal courts refused to hear the Terri Schaivo case even after Congress told them that they had to; they basically answered, “No, we don’t, and y’all can f____ off.”)
    So, anybody hoping to have a big legal-eagle smackdown in front of John Roberts and the Supremes may be disappointed. I’m just sayin’.

  64. “Is there even a single progressive on this site who thinks polygamy should not gain Constitutional imprimatur under “equal protection”?”

    Yyyyyyeah, no.

    Same-sex marriage and polygamy aren’t the same thing, as Davis pointed out. And just not in a hypothetical, it’s-never-been-tried sense. A couple of months ago, the British Columbia Supreme Court ruled that Canada’s current anti-polygamy laws did not, in fact, violate the Constitution and Charter of Rights and Freedoms. This is a jurisdiction in which same-sex marriage has been legal since 2003. Sorry, Leonard, it turns out your slippery slope has some traction, after all.

  65. You cannot deprive any group of people the rights adhering to all.

    Certainly you can. But it depends on (a) what the rights are; and (b) who the people in the group are. A court considers those two things, and then decides what level of scrutiny to apply to the question.

    If the rights are fundamental, like the right to exercise one’s religion; or if the people are a “suspect class”, like a particular nationality, religion, or race; then the court applies Strict Scrutiny to the question of whether the state had a compelling justification to take away that right.

    In this instance, the Circuit & District Courts applied the lowest level of scrutiny, called “rational basis review” (avoiding a finding that gays and lesbians are a suspect class, or that the right to same-sex marriage is fundamental), and still found that there was no rational basis to take away a right recognized by the state of California.

    Let’s put it this way: if the question at hand were not that of same-sex marriage, but instead the right to get a permit to put a second floor on your house, the legal analysis would be the same. Prop 8 defined a group of people and took away something that they had legal access to, and were exercising, and did so for no provable benefit to either the proponents or anyone else in the state.

  66. @Cofax
    Ahh, that makes sense. I didn’t realize they had ruled that it violated the federal constitution, I thought their ruling referenced the CA constitution. That’ll teach me to comment without reading the full text.

    Thank you,
    Gal

  67. It is amazing how progressives will casually discard the will of the people when it does not suit them. So… what does justify the authority of government if not the will of the governed? Does it worry you at all when the government sends a big fuck-you to the majority of its citizens?

    Personally, Leonard, I’m rather more worried when a candidate for the Republican presidential nomination can muse about Congressional interrogation of uppity judges who don’t toe the ideological line and not get a “bitch, please – put down the crack pipe!” slap in the head.

    Sadly, it no longer amazes me when faux-conservatives show their increasingly naked contempt for the very idea of a politically independent judiciary and all that wet liberal separation of powers bullshit in the Constitution. Unless the judges follow the party line, of course.

  68. John, and all those other concerned about the Constitution:

    I am willing to regard the Constitution as supreme. But this idea is utterly unrealistic and impractical, what with the Constitution having been killed as the source of law these ~80 years. (Not to mention the overarching problem, that texts do not interpret themselves.) We are now in the regime of “Constitutional law”, a Talmudic exercise in tortured exegesis, in which Footnote Four is the law, along with Wickard v. Filburn, and a host of other such decisions hostile to anything like the original intent of the Constitution. Indeed, I find modern Constitutional law hard to square with any honest reading of the Constitution, but then super-smart people are amazingly adept at interpretation.

    The idea that those who wrote the Constitution, including the 14th Amendment, had any idea at all that it would be used to argue for gay marriage is risible. If they had even a hint of such, they would have changed their text to make it clear what they were talking about. Of course, they didn’t. As such, you are left arguing that original intent is either meaningless or at best, unimportant. Or perhaps that they “wrought better than they knew”, which strikes me, at least, as ridiculous. A “living Constitution” is a meaningless one. “Living” means whatever is popular with the elites who sit on courts, who argue to courts, and who write about the entire affair. The common people are naturally excluded completely, and can thus express themselves only electorally. And we see what regard they are held in, all over this thread. California voters are a mob, because they don’t want to call gay marriage “marriage”. A distinctly unfrightening mob, that.

    By contrast (and answering to Sarra Bess’s question), Brown v. Board of Education was decided directly on the grounds of the original intent of the 14th, as well as (IMO) the text of it. That intent was, indeed, subverted for half a century, but it was clear: blacks should be equally treated, including by the several states, which are expressly mentioned in that amendment. (And to Greg: Brown was obviously different because protecting the particular minority in question was the clear original intent of the 14th Amendment.)

    But to drmeow and others: the idea that progressives are always for minorities? Ha! Gun control ring any bells? You still fight that one, 2nd Amendment notwithstanding, even though the origins of gun control in the USA were thoroughly racist. Smoker’s rights? Drug rights? Where does the Constitution allow the USG to regulate drugs? And what of property rights? Do landlords have the right to refuse to rent property to blacks? Of course not. Yet landlords are the smaller minority. Does the Catholic Church or the government determine what kind of healthcare plans the Church should offer? The truth here is that progressives champion some particular minorities, and not others.

    Mythago wonders how a state law could possibly be seen as superior to the Constitution. The answer to this is simple: federalism. See also: the 9th and 10th Amendments.

    gwangung wonders if I voted for the internment of Japanese Americans in WWII. The answer is no, I did not vote for that. I was not alive at the time. (Then again, nobody else voted for it either. It was not a referendum, you know.) I am sure he is really trying to suggest that I would have; and to that I can say, firmly, with hindsight: I would not. It served no real purpose other than possibly to keep those citizens out of the hands of lynch mobs. If I had been there, though… then I would be different. Thing is, it probably would have been me objecting to the thing, on Constitutional grounds, and y’all standing with the progressive President who ordered it. Not to mention the activist Supreme Court, in Korematsu v. United States, endorsing it. The same Supreme Court which had switched in time to save nine, rolling over for the progressive champion FDR. So, you know, I don’t think you can blame this one on me.

    So far I have seen two objections to polygamy (from Davis and B.) on strictly operative grounds: it involves figuring out some new law! Seriously, guys: this is supposed to trump a Constitutional right? Cannot the Court simply create some new law (they do all the time!) to cover any new contingencies? Or just order the legislature to create said law? Or just adopt religious marriage laws? — I am sure the Muslims, after 1000 years, have figured out laws to regulate polygamy.

    Stephen McNeil doesn’t think it will happen, because as of right now it has not yet happened in Canada. Perhaps in 10 years or 15, whenever it happens, he will recall this little argument.

    Drmeow, on the other hand, expresses a view of marriage similar to mine. Keep the state out of it, then it doesn’t matter that polygamy will become the law of the land. (As it will. Conservatives, alas, will never understand this. The state which is powerful enough to give you all you want is powerful enough to take away all you have.)

  69. gwangung wonders if I voted for the internment of Japanese Americans in WWII.

    I think you miss the point, in that the camps were vastly popular on the west coast and there was considerable pressure to move Japanese Americans off their property more quickly than they did. The will of the people would have voted to yank the Issei and Nissei off their land so fast that they wouldn’t have had time to pack even one suitcase. And there’d be no appeal to the Constitution that’d be respected. An appeal to the will of the people is just as empty as the appeal against the state.

    What you ignore is that power is inherent in sheer numbers and that creating a collective like a nation out of millions on individuals is going to create a powerful entity just by existing. The only way NOT to have such power is to break down the units to sizes smaller than towns.

  70. Well, folks, I suppose we should be grateful that Leonard didn’t leave that as a drive-by. He’s certainly committed to whatever the hell it is he’s committed to.

    (No, Leonard, please, don’t explain. I’m fine living in ignorance of your profound wisdom.)

  71. @Leonard: you are willing to regard the Constitution as supreme, yet you argue that the Constitution is in fact not supreme because “federalism”. Which of these is true? And what is your basis for believing that the United States Constitution is not the supreme law of the land, to which the states must defer? Or is it your believe that if the people of California amend their state constitution to abolish the right to bear arms, that the Second Amendment is meaningless and “federalism” makes this action entirely legal – as well as perfectly appropriate, in your view, because it is the will of the people?

    The “Framers never knew about….” argument is not originalism nor concern about belief in a ‘living’ Constitution; it’s just dumb. This is obvious when you apply it to other Constitutional issues:

    “The Framers never knew or contemplated the existence of Wicca or Palo Mayombe, therefore there is no right to practice these religious free of government interference!”

    “The Framers only had muskets and flintlocks, so the Second Amendment does not apply to your Glock!”

    “The Framers could not possibly have foreseen wiretaps, so it’s legal if the police listen in on your phone calls without any reason!”

    I worry about anyone who takes those arguments seriously. I would imagine that you, too, would roll your eyes (perhaps with some force, in the case of the Second Amendment) at anyone who makes them. Why, then, are you claiming that the Fourteenth Amendment only applies to same-sex marriage if the Framers were aware of and blessed it?

    If you had bothered to read even the summary of the decision, which you clearly haven’t, you’d see that your real beef ought to be with the very concept of equal protection analysis – which wasn’t invented in Perry. If you’re going to accept the rational basis test, it’s pretty dishonest to complain when somebody applies it to the gays, ew, because yo, Framers weren’t down with that.

  72. DR:

    I think I can distill it down to “the Founders (peace be upon them) wouldn’t have recognized gay marriage as being worthy of protection, so we shouldn’t either[1]“, along with the JUDICIAL ACTIVISM and STATES RIGHTS canards.

    That was a little snarky and possibly unfair, but eh.

    [1] society not having progressed since then.

  73. Leonard @ 9:47 pm:

    I am willing to regard the Constitution as supreme. But this idea is utterly unrealistic and impractical, what with the Constitution having been killed as the source of law these ~80 years. (Not to mention the overarching problem, that texts do not interpret themselves.)

    So, it sounds like you’re only willing to regard the constitution as supreme provided everyone agree with your interpretation of it.

    “Living” means whatever is popular with the elites who sit on courts, who argue to courts, and who write about the entire affair. The common people are naturally excluded completely, and can thus express themselves only electorally.

    Common people are not excluded completely. First of all, they are often the plaintiffs who bring the suits challenging the constitutionality of laws in the first place. Second, the people’s authority to “express themselves [. . .] electorally” is very powerful, since that means electing the people who write the laws, appoint and confirm the judges, and propose and ratify amendments to the constitution.

    And we see what regard they are held in, all over this thread. California voters are a mob, because they don’t want to call gay marriage “marriage”. A distinctly unfrightening mob, that.

    If you really think that the idea that an uncheck public can become a mob is a new idea, you need to read some of the Federalist papers. Also, while you are at it, maybe read Plato’s Republic. The idea that pure democracy, with no checks and balances, is dangerous is older than the republic itself. It was held by the people who wrote the constitution, and is reflected in how it was written.

    Gun control ring any bells?

    Yes, if only those elites on the Supreme Court would step up and overturn the gun bans in Chicago and Washington, D.C., even though they were passed by duly-elected councils in those cities. My guess is that they don’t want to give “a big fuck-you to the majority of [those cities'] citizens”.

    Seriously, though, this is the biggest flaw in your argument. As the gun control cases show, the courts act in both ways that annoy conservatives and ways that ignore progressives.

    Thing is, it probably would have been me objecting to [the internment of Japanese citizens], on Constitutional grounds, and y’all standing with the progressive President who ordered it.

    I’m trying really hard to put this politely: exactly how do you know this? I’d wager most of us weren’t born, let alone voting age, when the Japanese internment happened. It’s very rich of you to assume we’d be in favor of the internment if we were magically transported to the 40s.

    By the way, tarring all progressives by one (unprogressive) policy enacted by a progressive President 70 years ago is pretty weak sauce.

    Mythago wonders how a state law could possibly be seen as superior to the Constitution. The answer to this is simple: federalism. See also: the 9th and 10th Amendments.

    Federalism doesn’t mean that the state, or the people in it, get to violate the Constitution. That certainly wasn’t the intent of the framers, who prohibited the states from doing certain things (e.g. coining money or granting titles of nobility) in the original Constitution.

  74. Leonard? You do realize that your last reply derided attempt to interpret the intent of the Constitution and then proceeded to do just that, yes? So answer me this – why is your interpretation correct and those of various judges not?

  75. I would presume that Leonard also believes Loving v. Virginia was wrongly decided, since the progressive elites on the Supreme Court overturned the will of the people of the state of Virginia and their view of what their states’ marriage laws should reflect.

  76. Leonard:

    “I find modern Constitutional law hard to square with any honest reading of the Constitution”

    And? This doesn’t change the role of the judiciary, which is to decide the constitutionality of the laws of the land, regardless of whether they are created by the legislature or by popular vote. Your opinion of the state of Constitutional law is noted, and is also irrelevant, because it is neither here nor there with regard to the right of the courts under the Constitution to engage in judicial review.

    If you agree that the Constitution is supreme, then you should also agree that your kvetch about progressives ignoring the “will of the people” is completely aside the point with regard to whether the court acted within its purview under the Constitution, regardless of whether one agrees with the outcome. You appear to be annoyed that “progressives” sought recourse in the courts, but as you agree that the Constitution is supreme, I’m not sure why that should be so, as the courts are meant to be an avenue of recourse to all, regardless of their political persuasion. I doubt that you are serious about criticizing anyone for pursuing their Constitutional prerogatives.

    Basically, Leonard, if you hold the Constitution is supreme, then I think you have to have to admit that your kvetch is without Constitutional basis, and thus can be safely dismissed as nothing more than griping. Which is fine; gripe away. Just don’t pretend that it’s about anything other than you griping.

  77. …and a host of other such decisions hostile to anything like the original intent of the Constitution.

    There are numerous problems with making claims as to what the “original intent” of the Constitution was. Whose intent? If we say the framers, we face the problem that they were not of one mind on the meaning of the document; if we say the ratifying conventions, then this problem becomes worse — a group of people of any given size does not have a single identifiable “intent”. Even if we overcome this problem, what is the original intent of the Fourth Amendment when it comes to searches of computers, and the use of GPS tracking devices? And what if some of the framers thought they were enacting principles — flexible enough to respond to changed circumstances, but still retaining a core meaning — rather than their specific interpretations of those principles? Finally, if the Constitution does not explicitly state that we are to interpret it by considering original intent, why should we even care if that’s what the framers intended?

    Seriously, guys: this is supposed to trump a Constitutional right? Cannot the Court simply create some new law (they do all the time!) to cover any new contingencies?

    Neglecting the error that the court “create[s] some new law” all the time (the Court simply does not have the authority to enact a whole new body of law such as would be required to recognize polygamy, and has never done so), you are misunderstanding the decision in this case. The Ninth Circuit emphatically did not hold that there is a constitutional right to marriage. Rather, the court applied the “rational basis” test — a long-standing tool of Fourteenth Amendment jurisprudence — to Proposition 8, to determine whether there was any legitimate reason to selectively take away a right that same-sex couples previously enjoyed under the California state constitution. The court held that there was no legitimate purpose in stripping same-sex partners of this right.

    If you really want to make the polygamy argument work, you need to start by showing that the Fourteenth Amendment even applies. First, what is the identifiable class of persons targeted by restrictions on polygamy? Without that, you don’t even get to employ the Fourteenth Amendment’s rational basis test, as that requires differential treatment of identifiable classes. Assuming you can identify a legitimate class, how do you overcome the argument that the difficulty in devising and administering a separate system of polygamous marriage (with its own set of default rules) constitutes a rational basis for not allowing polygamy?

  78. I don’t think it’s entirely unrelated that Rick Santorum looks to be taking MN and MO this evening. I think the Prop 8 reversal might have added some urgency to some of the Senator’s anti-gay platform planks.

    I swear, it’s been SchadenFriday every day for me these last couple of weeks.

  79. The Ninth Circuit emphatically did not hold that there is a constitutional right to marriage. Rather, the court applied the “rational basis” test — a long-standing tool of Fourteenth Amendment jurisprudence — to Proposition 8, to determine whether there was any legitimate reason to selectively take away a right that same-sex couples previously enjoyed under the California state constitution. The court held that there was no legitimate purpose in stripping same-sex partners of this right.

    Quite – and the 9th Circuit, like the ruling by Vaughn Walker being appealed, did some pretty impressive pin-head jitterbugging to make clear that their argument was as tightly focused as it was argued. Pardon my French, but if that’s “judicial activists” pulling fresh law out their arses some folks on the right either need to take remedial civics classes or get their meds checked.

  80. But to drmeow and others: the idea that progressives are always for minorities?

    I’m not the one who gets to call “derail bullshit bingo” around here but in this specific context the only planet on which folks like Ted Olson and Vaughn Walker are ‘progressives’ (by which I presume you mean left-wing/liberal Democrats) is so far to the right of the multiverse it’s about to fall off the edge.

  81. John, I do not hold that the Constitution is supreme. It would be nice if it was, but it isn’t. It isn’t in two related, but distinguishable senses. It is a mere bitstring, and as of yet there is no machinery that can run it. So interpretation must be done by humans; as such, it is these humans, not the bitstring, that are de facto sovereign. If the men in black decide that growing wheat on your own land for your own consumption is “interstate commerce”, then so be it. Second is my complaint that original intent is long gone, and the judiciary has stood aside as the USG has burst practically every restraint except democracy itself. As such, the Constitution is not supreme because our government bears almost no relationship to that of 1789, or 1868, or even 1933.

    Yes, the role of the judiciary includes judicial review. And that is one point in which there is continuity almost to 1803 if not earlier, although a state’s constitution would have never been so reviewed until the 14th Amendment. My gripe is not that they reviewed the initiative. I have two related gripes. The first is a mere gripe: that the court are using the modern living Constitution interpretation, not mine, which is quite dead. This gripe is what you seem to be responding to, and yes, I don’t pretend it is anything other me than me griping. I do reject your assertion that my kvetch is “without Constitutional basis” — it is. I can read what the Constitution says; it does not take a genius. And I do not doubt that in this forum, my opinion will be “safely dismissed” as you suggest.

    My second point, however, is about the decision itself. It was illogical. This, I argued in my very first comment, but nobody noticed, or perhaps nobody has a response to my criticism, since responding probably would actually require reading the decision (as I did) to see what I am whining about.

    Perhaps I should not have made my separate-but-related comments (about progressives and democracy, and about progressivism and polygamy) in the same post.

  82. Drmeow, on the other hand, expresses a view of marriage similar to mine. Keep the state out of it. — Leonard

    Unless GLBT activists want to see their version of Roe v. Wade under perpetual siege from traditionalists, I agree — keeping the state out of “marriage” altogether is the way to go. And I have said so many times before. Remand “marriage” to the churches and/or secular officers of matrimony. No religious (or non-religious) ceremony need be acknowledged or honored by any other religious (or non-religious) body of citizens. Everyone gets a “union license” or a “partnering contract” from the state — which is gender and/or sexuality neutral. That way everyone’s partnerings are considered legally equal, and nobody can accuse the state of “ramming gay marriage down our throats” though you will pardon me if that bit of hyperbole has always made me chuckle.

    Of course, staunch traditionalists and aggressive GLBT activists alike would attack such a solution. They know it’s not just a war for rights. It’s a war for moral equality too. He who claims the word, claims the moral high ground — and the right to vigorously shell the enemy from that high ground.

    Or perhaps I am being too cynical and there would be enough support from practical folk interested in a long-term solution? A solution that has a chance of resisting perpetual appeals and/or legal maneuvering? I’d like to think so.

    Because I believe in equal protection under the law. As a uniformed servicemember, I told the Pentagon people I wanted DADT repealed, every time they asked. And I was glad to see DADT repealed, too. And I would like my gay/lesbian friends to have what I have, in terms of legal status and protection. Because they deserve it.

    I am just not prepared to call it marriage per se, if only because I think a wife (female) implies a husband (male) and while I know this makes me thoroughly not-hip, not-cool, not-with-the-times, I think there’s something to be said for those of us who don’t consider marriage to be a legal word only. It’s much more than that.

    Of course, it would be easier to take the arguments of traditionalists seriously if straight folk had not been using marriage as a urinal for the last 70 years. Rampant divorce and rampant infidelity are not exactly the best ways to demonstrate that a thing is sacrosanct and inviolate. Ergo, you can’t spend your afternoon running a carpentry blade along the shiny side of a CD and then, when someone comes to borrow it from you, declare petulantly, “You can’t have this album, it’s my most favorite ever!”

    In fact, it would be a strange sort of cosmic justice if, having secured marriage in form as well as word, gays wound up treating it with more respect and dignity that straights have. I would find that very interesting indeed — a karmic comeupance for the faux-pious hand-wringing of the Newt Gingrich (and Bill Clinton) set.

  83. It was illogical. This, I argued in my very first comment, but nobody noticed, or perhaps nobody has a response to my criticism, since responding probably would actually require reading the decision (as I did) to see what I am whining about.

    Dude, I read the opinion. It’s not illogical merely because you disagree with the result. It is, in fact, a very closely-tailored, conservative opinion, limited to a narrow question: is it a violation of Equal Protection under the US Constitution to remove from a specific and identifiable group a right which they have been recognized to hold, and which they have been exercising, when the group is one which has been subject to (at the least) public disapproval and (at the worse) legal and social oppression, and when the removal of the right results in no benefit to the state?

    One might be dissatisfied with the end result of the ruling, but one thing it isn’t, and I can say this with some confidence, having put in my time reading case law, is illogical.

    It’s about as narrow a holding as one could hope for under the circumstances: it applies only to California, and only under the fairly unique set of circumstances of the California marriage-equality battle in the last 8 years. I’m sure plenty of activists are upset with it, but I’m not: I’ll take my victories in tiny increments, if it means fewer catastrophic losses along the way.

  84. Unless GLBT activists want to see their version of Roe v. Wade under perpetual siege from traditionalists, I agree — keeping the state out of “marriage” altogether is the way to go.

    And you know why John keeps calling this a de-rail on discussions of this nature – because we don’t live in some purist Objectivist/Libertarian utopia but a real world where the state is very much in the “marriage business.” Which is why we’re here in the first place.

  85. I am just not prepared to call it marriage per se, if only because I think a wife (female) implies a husband (male) and while I know this makes me thoroughly not-hip, not-cool, not-with-the-times, I think there’s something to be said for those of us who don’t consider marriage to be a legal word only. It’s much more than that.

    But this implies that GBLT people/Whatever readers do consider it to be a legal word only, and I don’t see how you can definitively state that’s the case. The fight they’re having–and winning, slowly–is about their legal rights, because among other things, it’s being fought in court. It says nothing at all about whether or not they consider marriage a “legal word only”. That’s an emotional response, and as such hard to quantify.

    I am cis-gendered, and in an entirely heteronormative marriage. I don’t consider marriage to be a “legal word only”, and I am perfectly happy to use it in an entirely gender neutral way. I believe ‘spouse’ works if wife/husband implies gender (I admit that it does, for me). I don’t think this is a case of being hip or non-hip or too old or uncool. I am happy to be married, marriage is much more than a piece of paper to me, and I do not feel that the word itself, or my identity as half of a marriage, is lessened in any way if same-sex marriages exist.

    That’s the thing I honestly don’t understand: I don’t see how my marriage is in any way lessened, tarnished, changed, or transformed because other people get married. I’m not part of their marriage, and they’re not part of mine. I understand that this is an emotional issue and that it’s hard to quantify and make explicit emotional reactions, but… it seems to me that people are saying “I just don’t like it” and “I’m sorry, but that’s the way I feel”, which is not very heavy on non-individual content. I just don’t see what’s lost in allowing people to marry.

  86. The first is a mere gripe: that the court are using the modern living Constitution interpretation, not mine, which is quite dead. This gripe is what you seem to be responding to, and yes, I don’t pretend it is anything other me than me griping.

    Except that wasn’t your original gripe! Your original gripe was that the courts overturned the voters of California, which you characterized as “casually discard[ing] the will of the people when it does not suit them” and “send[ing] a big fuck-you to the majority of [the nation's] citizens”. Are you now saying that it’s okay to “discard the will of the people” and “send a big fuck-you to the majority of [the nation's] citizens”, as long as it’s to uphold your personal interpretation of the constitution, instead of today’s modern interpretation? Are you saying you don’t consider any judicial review legitimate unless it’s done by people who think like you?

    Today, we have a Supreme Court and a federal court system made up of judges appointed by presidents of both parties, and confirmed by a Senate in which party control has changed seven times in the last three decades. I think that’s a pretty fair system for getting a cohort of judges that reflects the diversity of opinion that exists on how to interpret the Constitution. I think that’s better than expecting all judges to share your opinion.

  87. Happily, Brad, nobody will make you call it “marriage per se”. Just “marriage” is fine. I assume you’d be pretty pissed if somebody told you that you weren’t reeeeaaaally married because your wife is a fire-breathing feminist and a true marriage is one where the wife graciously submits to the leadership of her husband in all things. Consider extending the same, I’m-not-the-boss-of-you courtesy to others.

    Also, really, you’re married, right? In the eyes of the law and everything? Because I’m a little confused about this whole notion that government should get out of the marriage business when it’s said by married people. Especially since it only comes up in the context of trying to shut down those gays who want in.

    @Leonard: well, do you hold the Constitution supreme, or don’t you? You’ve told us both. As for the decision, you’re not Mr. Spock. Declaring it “illogical” is not the same as explaining why it is illogical, and that you did not do in your first post, or any other.

  88. Craig, color me unconvinced. 100 years ago you could just have easily argued that “queer marriage” was thorough fantasyland, and that no serious person would even entertain the discussion because it was so absolutely out there. And yet, here we are. I see my solution as no more disruptive nor unrealistic than the current trajectory which will lead to a supreme court ruling, which will result in additional decades of legal contests and/or wrangling, similar to Roe v. Wade.

    Besides, I’m a science fiction writer. I get paid to play with outside-the-box solutions and what-if social scenarios. If I encounter a loudly-binary situation, I tend to drop into the mode of: what haven’t we thought of trying yet?

    Michelle, at the risk of sounding supremely corny, I think half the problem for church-prone fuddy-duddy types like me — we who cling bitterly to our gospels — is that we simply can’t take gay marriage seriously on a day-to-day level. We encounter sentences like, “This is Bob and his husband Bill, they’re married!” and we go, “What?” That just never sounds right. I could live with spouse even more than I can live with ‘partner’ because I hear partner and I think something else again — a business association, not two people of the same gender living as if married.

    So for me it’s not that gay marriage steals anything from me or somehow devalues my own marriage — I am technically sealed to my wife, in the nomenclature of the LDS church — it’s that my brain is simply trained to think certain words mean certain things. And while I am all for elasticity of language and new ideas for new times (again: writer) I think too much elasticity and too much arbitrary redesignation lends itself to solopsism. Ergo, the language becomes so divergent with so many individuals inventing their own definitions for themselves — and demanding that everyone else accept these definitions at face value — that overlap of understanding is lost, thus the communications value is also lost.

    Of course, being a science fiction writer I must concede that in a potentially very short span of time such arguments as mine will be blown away like sand from the peaks of desert dunes. My interracial marriage was an off-limits and bothersome idea to my grandmothers’ generation — well, some of them, anyway — yet here I am, living with the “negro” against all logic, decency, and common sense. Or so Grandma might have thought.

    And so might it be with me and mine. Even my little 8 year old daughter is proving to be more like her mother than she is like me, at least on socio-political issues. She declared Prop. 8 “stupid” without any prompting from Mom, other than a very brief explanation of what it was. She also has a very positive same-sex relationship in front of her all the time, in the form of one of her favorite teachers who is in a lesbian relationship. My daughter may well come to me as a teen and declare, “Oh Daddy, you just don’t get it do you?”

    No my dear, I guess I don’t. =^)

  89. Mythago, see my response to Michelle. Guilty of fuddyism, yes. Guilty of wanting to deny gays and lesbians equal rights? No. But then, maybe that’s just not good enough for you? As PrivateIron noted on another thread, you sometimes seem to be engaged in a battle for my soul. In the words of Scott Glenn, playing Al Shepard, playing Bill Dana, playing José Jiménez: oh I hope not!

  90. @ mythago

    Because I’m a little confused about this whole notion that government should get out of the marriage business when it’s said by married people. Especially since it only comes up in the context of trying to shut down those gays who want in.

    What some people, myself included, mean when we say that is that we don’t think it’s the just role of government to require licenses for the sorts of agreements married folks are “allowed” to enter into. Personally I couldn’t care less what anyone calls it; I simply object to the government regulating who may or mayn’t have the rights of free association it currently takes a “license” to obtain. For me the argument is not about semantics; it’s about rights.

    @ Brad R. Torgensen

    That just never sounds right. I could live with spouse even more than I can live with ‘partner’ because I hear partner and I think something else again — a business association, not two people of the same gender living as if married.

    Please define living as if married. Me and my partner refer to each other precisely so because it perfectly describes what we have, a partnership. Why should partnerships be solely for business purposes?

  91. Gulliver, I think you’re drawing up a good example — partner means several different things, but up until a few years ago it wasn’t being used in reference to anything amorous or of an amorous, same-sex nature. Of course, now that gay marriage is here — get used to it! — I expect ‘partner’ to rapidly fall out of favor. “husbands and husbands” and “wives and wives” seems to be the destiny of this evolution in legal and social coupling. Regardless of whether or not fuddists like me frown at the usage.

  92. Fortunately, Brad, our bewilderingly complex, evolving, and contradictory polity dooms “it just don’t sound nat’ral.” And “I guess I just don’t get it” sounds like “I don’t want to get it (with a side of smug sauce.)” Frankly, while I rarely agree with you about anything, usually you’re better than this.

    More generally, I wasn’t going to comment on this thread, and now I’ve done it twice. I’m pleased by the ruling, and what I understand of the reasoning (IAMNAL), but I’m a lot more interesting by the objectively speedy, but subjectively endless, move towards marriage equality up here in Twin Peaks-land. I worry that today’s decision will galvanize the more conservative elements, here, although maybe not. Maybe they’ll be completely demoralized and the necessary signatures won’t get raised, and I won’t be waiting another 10 years for the wife and I to be able to don funny hats as a legal, social, and economic contract.

    If any of us old-school activist types are still alive when marriage equality becomes the law of the land, on the Federal level, we probably won’t believe it. We’ll live out our last days as a sort of Flat Earth subculture that thinks it was all a trick, and we’re still illegal. “Closeted” will have faded out of the vocabulary, the Vice President will be a gay-married Republican observant Jew, and we’ll be too old and slow and creaky to be able to use a jet-pack. We’ll be standing in the front yard, waving our fists, and yelling “you damn kids, get off my roof!” while all around us folks are marrying each other, regardless of gender, and no one will even remember Prop 8, because the whole thing will seem like a silly little footnote about a quaint and outdated prejudice, like believing tomatoes are poisonous, or that reading made women’s ovaries shrivel and fall out.

  93. I have bad news for you, Brad. Your daughter will likely come to you and declare that you don’t get it no matter what your political beliefs are. Because teenagers.

    As for your soul: it’s pretty poor form to post arguments in a discussion, and then affect surprise or offense or “gosh, are you that interested in *me*?” when people actually respond to those arguments, particularly if they respond with something other than wholesale praise for your brilliant and devastating counterpoints. It’s not about your soul; it’s about what you say. Nobody is forcing you to announce that you think people like Del and Phyllis were never really married, even though the law said they were as married as you or I. (And really, would you truly prefer that nobody responded to you at all, instead treating you as if you were daft old Great-Grandpa Abner spouting off about the New Deal every holiday meal: you can’t change him, dear, he’s set in his ways, so just ignore him?)

    @Gulliver: I’m fine with people who are opposed to civil marriages refraining from marrying, or working actively for domestic partnerships or an expansion of benefits and liabilities traditionally reserved for marriage. Heck, I (and possibly you) know plenty of LGBT folks who are radically opposed to civil marriage. But as our host has repeatedly pointed out, when this gets dragged up in discussions of whether same-sex couples deserve marriage equality, it’s a derail.

  94. @ Brad R. Torgensen
    I suppose I just don’t care very much about who uses what words. Words are subjective. Rights shouldn’t be.

    @ Constance

    If any of us old-school activist types are still alive when marriage equality becomes the law of the land, on the Federal level, we probably won’t believe it. We’ll live out our last days as a sort of Flat Earth subculture that thinks it was all a trick, and we’re still illegal. “Closeted” will have faded out of the vocabulary, the Vice President will be a gay-married Republican observant Jew, and we’ll be too old and slow and creaky to be able to use a jet-pack. We’ll be standing in the front yard, waving our fists, and yelling “you damn kids, get off my roof!” while all around us folks are marrying each other, regardless of gender, and no one will even remember Prop 8, because the whole thing will seem like a silly little footnote about a quaint and outdated prejudice, like believing tomatoes are poisonous, or that reading made women’s ovaries shrivel and fall out.

    That gave me a good laugh. Thanks :)

    @ mythago

    I’m fine with people who are opposed to civil marriages refraining from marrying, or working actively for domestic partnerships or an expansion of benefits and liabilities traditionally reserved for marriage. Heck, I (and possibly you) know plenty of LGBT folks who are radically opposed to civil marriage. But as our host has repeatedly pointed out, when this gets dragged up in discussions of whether same-sex couples deserve marriage equality, it’s a derail.

    Fair enough. And I only ever bring it up myself if it actually is the topic, which it isn’t here. I merely wanted to explain that not everyone who says it are anarchists pinning for the Old West (though I’m sure plenty are). Anyhews, my general objection is to “traditional” marriage being the standard under which citizens are allowed to exercise basic human rights/liberties. That said, me and my partner have been talking about the possibility of having a humanist ceremony, so maybe we’re mellowing in our old age :P

  95. Mythago: indeed, teenagers. In this regard, as in many others, my daughter is ahead of the game. She is 8 going on 15. (I am so effed!)

    And indeed, nobody forces me to post anything on Whatever, at all. I do it because it’s fun. Or because I am stupid? Or maybe — as someone else noted — because engaging in these debates keeps me sharp and thinking beyond myself and my own viewpoint? Much as I defend my own viewpoint with words and enthusiasm?

    Of course, one of these times, I really do believe my gas gauge is going to hit E and then you won’t have Dick Nixon-errrr Brad Torgersen to kick around anymore.

    Now, what I meant with the soul comment is that it really does seem like this: even when I am in nominal agreement on an action — supporting pro-choice, or perhaps equal protection for law-abiding citizens — yourself and a few others seem to want to pick at me anyway, as if to say, “Not good enough, Brad, you’re still doing it wrong!”

    As if the action itself — the support — is not sufficient? You want purity of heart and thought as well? (shrug)

  96. You want purity of heart and thought
    I think we’d all just be happy with excellence of argument, Brad.

  97. Gulliver, I think you’re drawing up a good example — partner means several different things, but up until a few years ago it wasn’t being used in reference to anything amorous or of an amorous, same-sex nature.

    Yeah, I preferred the old fashioned nomenclature for straight folks cohabitating without benefit of clergy – “fornicators” was my Grandfather’s especial term of disapprobation with “whore-monger” and “slut” coming a close second. None of which, by the way, I’d throw around my social circle unless I wanted a smack in the chops.

    It’s great fun play semantic bingo, but here’s the thing. I have a very good heterosexual (feminist) friend who is legally married but prefers being referred to as a “partner” not “wife”. Since I’m not a complete douchebag, I respect her clearly expressed preference and keep my opinion to myself. Like so much in life, it’s only as complicated as you choose to make.

  98. What Kathleen and Constance said. I’m not sure where you’re getting ‘purity of thought’, unless by ‘purity’ you mean ‘not making bogus arguments’. Nobody is saying that you are a bad person if you are a little discombobulated when you meet Mr. and Mr. Stolzfus – we all have family and friends and neighbors who are trying to do their best but are clearly a little weirded out – but people are pointing out that it is, most charitably, a little rude to refuse to recognize a marriage because of that discombobulation. Works, not faith alone, here.

  99. [Derailing religious slam deleted. Rens, you have a point but you've made it in a particularly ball-kicking manner. Please try again without making a gratuitous personal dig -- JS]

  100. Brad R. Torgersen:

    “Unless GLBT activists want to see their version of Roe v. Wade under perpetual siege from traditionalists, I agree — keeping the state out of ‘marriage’ altogether is the way to go.”

    Damn it, Brad: I toss out out this stupid fucking piece of shit derail every time it comes up in a same-sex marriage thread because “the state should get out of marriage” is simply code for “let me take this opportunity to haul up a favorite fantasy of mine that is completely aside the point and never going to happen.” As a longtime reader and commenter, you should know that I’ve posted in other same-sex marriage threads about this. I’m tired of having to post warnings about not bringing up this particular hobby horse.

    This thread is NOT about the state getting out of marriage. It’s about what’s going on in the real world, right now.

    Leonard:

    “My second point, however, is about the decision itself. It was illogical. This, I argued in my very first comment, but nobody noticed, or perhaps nobody has a response to my criticism, since responding probably would actually require reading the decision (as I did) to see what I am whining about.”

    As noted elsewhere, the decision isn’t illogical; you just don’t agree with it. You find it illogical based on your own unique formulation of what’s Constitutional and what’s not, but your particular interpretation on that score is both novel and not widespread. None of us are required to agree with your interpretation; nor are we obliged to have the discussion with you about your interpretation, even if we have read the ruling.

    Beyond this, as noted, your reasoning behind why the Constitution is not supreme is certainly interesting, but I’m not inclined to agree with your ground assumptions, and even if I were it is a separate matter from whether “the will of the people,” expressed directly via referendum, is the best and wisest default position (I’ll note the US Constitution, prior to its apparent lamentable fall, constructed a distinctly republican form of government, which shielded the workings of government from the immediate passions of the people).

    It does appear that you are railing at “progressives” for actions that are in fact reasonable and Constitutional everywhere other than in your own unique formulation of how things should be. Which is again an argument you may certainly make, but not one that any of the rest of us need to give any credence.

    Which is to say we should agree to disagree and probably wrap up this particular discussion.

  101. [[Fair enough, John. I'll try again.]]

    Brad, we’re not asking you to personally reconcile the concept of two guys calling one another their husband with your worldview. We are however expecting you to respect their philosophy and love for one another just as much as you would want us to respect yours. “Sorry, I just can’t take the concept of XXXX seriously” isn’t a safe argument to make from a religious standpoint.

  102. I’m a little late to the party, but note that the 9th Circuit based its opinion on Romer v. Evans, an opinion authored by Justice Kennedy. The 9th Circuit were very aware of the possibility that this would go before SCOTUS, so it appears they were trying to sway Kennedy (a likely swing vote). Smart move.

  103. Leonard, you are using the constitution the way the Wizard used his big screen TV with fire: as a smoke screen to draw attentiin away from yourself. Pay no attention to me! Look what the constitution says! listen to the big powerful almighty constitution!

    What is your dog in this fight? And dont tell me the constitution, cause thats just more smoke and mmisdirection. What do you personally think of gay marriage? You. Personally. Because in this conversation we are having, of everything you said, which included going into excruciating detail of your opinion of constitutional history, you never once said a single peep about what you think of gay people or their right tot getmarried.

    And I get the distinct impression that youre not stupid. Iget the distinct impression that you did not simply forget to place all that you wrote into context. I get the distinct impression that you have a dog of some kind in this fight and you have avoided saying what that dog is.

    so, I am not particularly interested in your legal interpretation of the constitution. I have the internet for that. I can find legal experts. I dont think you are a legal expert. but I wouldnt mind getting to know you a bit more. so perhaps you could step out from behind the curtain and say what it is that you personally want outof this?

  104. Though I support gay marriage (I cheered when we passed our bill in NY, and if I’m still here for the next gubernatorial election Andrew Cuomo is likely to be the first Democrat I vote for for a major office in significant part for that reason), I don’t like this ruling.

    First, while narrowly phrased, as Volokh correctly notes, it validates the social conservative point about a slippery slope to gay marriage. The first set of opinions hold that same-sex relationships must have the same substantial rights as heterosexual marriage, but they’re not going to force anyone to change the definition of “marriage.” Then, the Court in Perry v. Brown holds that if same-sex relationships were ever called “marriage,” removing the name while retaining all other substantial rights is irrational and can’t be done. There’s no significant logical gap from there to holding that it doesn’t matter whether those same-sex unions were ever called “marriage,” there’s no rational basis for having different names, so civil unions must become “marriage.” Combine those three opinions and you establish a right to gay marriage using a rational basis test

    The meat of the opinion holds illogically that the name “marriage” is meaningless when the public decides to withhold it from same-sex domestic partnerships, but has great meaning when same-sex domestic partnerships want to have the name. That doesn’t make a whole lot of sense; the fact that the word “marriage” has meaning is a rational reason that the majority of California voters may have wanted to reserve the term for heterosexual relationships that have the possibility of natural procreation. Is it a good reason? No. Is it the actual reason? Probably not. But that’s not what the rational basis test measures, and as the dissent notes, there are rational reasons to withhold the term “marriage” from same-sex domestic partnerships. Even the bizarre reason Eugene Volokh gives (to encourage bisexuals to form heterosexual partnerships rather than homosexual partnerships) is a rational basis; rational basis review is deferential to even stupid reasons.

    The reason this is a problem is because of what cofax wrote earlier in the thread:

    “Let’s put it this way: if the question at hand were not that of same-sex marriage, but instead the right to get a permit to put a second floor on your house, the legal analysis would be the same. Prop 8 defined a group of people and took away something that they had legal access to, and were exercising, and did so for no provable benefit to either the proponents or anyone else in the state.”

    The rational basis test is used for such mundane things as, well, permits for second floors on houses. The test is not about “provable benefit,” it’s about whether any rational basis exists for the law, and according to Perry v. Brown, “animus towards the discriminated against group” alone is not a rational basis. If logically applied, this means that a ton of normal government policy can be challenged–such as the zoning ordinances being pass in some New York neighborhoods right now prohibiting banks and chain stores from taking up significant space at the street level of buildings. Or NYC’s refusal to allow Wal-Mart to build, largely based on hatred of Wal-Mart. Applying the Perry v. Brown test, the courts would actually scrutinize the bases for these policies rather than deferring to the legislature/initiative as is usually done under the rational basis test.

    The result is a big power grab by the judiciary, which now takes the power to scrutinize the decisions of the legislature even when no suspect class is being discriminated against (remember, under Supreme Court precedent, sexual orientation is not a suspect class like race or religion). If you support Perry v. Brown, ask yourself if you would want a conservative court overturning a city’s refusal to give a building permit to Wal-Mart (or whatever your hated business is here) for lack of a rational basis, because it would be the same ruling.

    I would, if I were a Supreme Court justice, hold that sexual orientation is a quasi-suspect class like gender, requiring heightened scrutiny for laws banning gay marriage, and then find that there is no compelling interest for gay marriage bans. That would be a solid, logical way to analyze the issue. But the 9th Circuit can’t do that; it’s held to a rational basis test under Romer v. Evans. And under that test, you have to defer to the legislature/initiative if you can conceive of a rational basis. Under that test, the 9th Circuit majority was wrong, and the dissent was correct.

  105. Rens, a very small nitpick: I said I couldn’t take the phraseology seriously. The concept? I can absolutely take it seriously. It’s the words that make my brain go, “Huh?” I suspect this is true for many, many people.

    John, I thought I’d already pointed out how reality turns “never going to happen” into “wow, it’s happening,” sometimes before we ever suspect it could. But it’s your blog and your rules and I won’t belabor the point any further in this thread if it perturbs you that much.

    Mythago, if by ‘recognize’ you mean my supporting and honoring a person’s legal rights to be with another person? I’m there. If by ‘recognize’ you mean the abolition of the invisible scare quotes that appear in my mind when I see the phrase, Dave and his husband Robert, I’m not there. May not ever be there? But since those scare quotes don’t stop me from supporting equal rights and only ever appear in my head and do not in fact impact negatively on the exterior world — unless you think this thread somehow impacts negatively on the exterior world, which I don’t — then I don’t see what the point of a continued, “You’re doing it wrong,” argument is? I’ve come down on the ‘right’ side of this thing, though perhaps not 100% in the manner you’d prefer.

  106. Brad, I’m sure you don’t intend it, but scare quoting “husband” is incredibly effing offensive. People who are legally married are spouses i.e. husband(s) or wife(ves). Kudos to you for admitting that instinct in public, but it’s just kind of depressing to read a good news decision as a gay person and then see straight people (who are only marginally affected, if at all) saying how icky they find it. In the end, this really isn’t about you.

    Or from another perspective, forgive me if I’m wrong on this but I’m pretty sure I remember from something you posted here or on Tor.com that you and your wife are not of the same ethnic group? If the internet existed in its current for 40 years ago, it’d be your marriage people would be putting in scare quotes.

  107. Brad R. Torgersen:

    “John, I thought I’d already pointed out how reality turns ‘never going to happen’ into ‘wow, it’s happening,’ sometimes before we ever suspect it could.”

    i.e., “It’s different because I am bringing it up.” Surprise! It’s not. Your argument on the score is no less improbable (and thus no less irritating and completely aside the point) than anyone else’s.

    “I won’t belabor the point any further in this thread if it perturbs you that much.”

    Brad? That thing you do where you let your own cluelessness and/or arrogance cause you to look obnoxious? You’re doing it again, right there. See if you can figure out how. Avoid it in the future. I cut you a lot of slack here but sometimes I despair over your learning curve.

  108. John (and mythago): I see that Brian sees the same illogic I see: the name “marriage” is meaningless when the public decides to withhold it from same-sex domestic partnerships, but has great meaning when same-sex domestic partnerships want to have the name. This is what I said in my first post.

    Greg, you wonder what my dog in this fight is: I am against judicial activism. I am for originalist Constitutionalism and a limited government of enumerated powers. Gay marriage has never been the law of the land. Fortunately, we have a venue for changing the law when it is outdated: the legislature. Gay marriage should not be foisted upon the American people in this underhanded manner. It should be done the way New York did it, by the legislature.

    I don’t see what my position on gay marriage matters to my ability to criticize a ruling. However, since you ask, I support gay marriage. Here in Maryland, it looks like this year may just be one in which we put it over — the right way, via the legislature.

  109. Brad: ” unless you think this thread somehow impacts negatively on the exterior world”

    I am not sure here, but it appears as if you are suggesting that words don’t matter. If not suggesting then at the very least I get the impression that if one could manage to drill down through your statement and gwt to its underlying principle, it would look an awful lot like ‘words dont matter’.

    putting scare quotes around something that other people on this thread cherish, and then pondering how it could possibly negatively impact someone on this thread, is certainly an interesting way to approach conversation with people you have some familiarity with. I mean, its not like we’re all a bunch of Eliza programs here running on a server for your entertainmemt.

  110. Gay marriage should not be foisted upon the American people in this underhanded manner. It should be done the way New York did it, by the legislature.

    In California, they already did it via the legislature. Twice, I think, and the governor vetoed it both times, explicitly stating that he wanted the courts to take it up. Then there was a court ruling. Then there was a referendum, which wouldn’t have happened had it not been ridiculously easy to pass state constitutional amendments by initiative in California. Then there were more court rulings. Now the guy who was governor back then says he’s in favor of legalization.

    At this point, the California legislature, I believe, can’t legalize same-sex marriage by statute because Prop. 8 wrote the ban into the Constitution. There actually has to be another referendum. Which there undoubtedly is going to be, if the federal court system doesn’t knock this down first. But characterizing the California situation as judicial activism is a gross oversimplification. Even what I just wrote is a gross oversimplification. It’s so complicated that a synopsis of what happened would probably take a book.

  111. Leonard, judicial activism is more smoke screen. ultimately, anything anyone cares about eventually reduces to people, either themselves or others. and if judicial activism is the threat, then it is a threat you worry about because you see it threatening *people*. What people are threatened by judicial activism that you took up the cause to defend them?

  112. …Meanwhile, in New Hampshire they did enact legal gay marriage via the legislature, and then the Tea Party happened, and now the legislature is set on repealing it, even though it’s even more popular now than it was then. Going the legislative route has its own hazards.

  113. @ Leonard

    Gay marriage should not be foisted upon the American people in this underhanded manner.

    Setting aside for the moment your…interesting legal reasoning that the courts shouldn’t do their job of interpreting the law per their mandate as outlined in the…what’s that thing called again…oh, yeah, it’s in the U.S. Constitution…setting that aside, let’s get one thing crystal clear: ensuring that all citizens enjoy the same rights and liberties ain’t foisting jack on anyone else. Extending the right to marry to LGBT citizens. Does. Not. Curtail. Anyone. Else’s. Freedom. It’s not complicated. It’s not magic. It’s called Cause and Effect. Yay for logic!

    ‘K then, y’all have a nice day now ;-)

  114. @Greg: anything anyone cares about eventually reduces to people, either themselves or others. and if judicial activism is the threat, then it is a threat you worry about because you see it threatening *people*. What people are threatened by judicial activism that you took up the cause to defend them?

    The quote from A Man For All Seasons is appropriate here:

    William Roper: So, now you give the Devil the benefit of law!
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    William Roper: Yes, I’d cut down every law in England to do that!
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    We have a separation of powers in this country where the state legislatures are generally free to pass whatever laws they want unless they violate the federal or their state’s constitution. Judges are not supposed to interfere with that absent a constitutional violation. A judiciary strong enough to strike down the laws you dislike is one strong enough to strike down the laws you like.

    The broad misapplication of rational basis scrutiny in Perry v. Brown gives the judiciary unprecedented levels of control over legislation. It is a judiciary that can strike down anti-tobacco regulations after finding that the only basis for them is animus towards smokers. It is a judiciary that can strike down city planning laws because the only basis is animus towards big business. It turns our government from a democracy limited by the Constitution into an oligarchy with limited representation, as democratic governing bodies can only take action if a court agrees that there is a rational basis for it under the new, nondeferential rational basis standard.

    So yes, I would keep the law even where the immediate result harms myself. Because protection against judicial tyranny in the long run is more important than securing the right to call same sex domestic partnerships “marriage” today.

  115. Then there was a referendum, which wouldn’t have happened had it not been ridiculously easy to pass state constitutional amendments by initiative in California.

    This is a nitpicky and jargony point, but it’s an important one, because it explains why (for example) the decision handed down yesterday may not apply in Washington state.

    Proposition 8 was not a referendum.

    A referendum, under California law, is the voters voting to approve or disapprove of a law passed by the legislature. Once a law is passed by the legislature, opponents have so many days to gather petitions to force a public vote on the law. If they do so, then the law is suspended – it never goes into operation – until the next election, when the people can vote to approve or disapprove the law.

    Proposition 8 was a constitutional amendment. It was put together and petitions were circulated independently of the legislative or judicial process, and it changed the constitution as interpreted by the courts.

    Why does this matter, to anyone other than a law geek?

    Because the core of the holding in the Perry decision yesterday was that what California did was it revoked a legal right (the use of the name marriage) in a way that was motivated by nothing other than animus against a particular group. Crucially, this argument depends on the fact that gay marriage was already legal in California, and that then the initiative constitutional amendment revoked it.

    If WA passes gay marriage today and it is then subject to a referendum, the situation is different. Washington’s gay marriage bill _will not have gone into effect_, and the referendum will be a confirmation or denial of the legislation rather than a revocation of the legislation.

    This is nitpicky procedural nonsense, but it matters, and it’s very easy to imagine a different panel of the ninth circuit upholding the defeat of Washington’s gay marriage bill, via a referendum, under these grounds.

  116. Brian: the thing is that yesterday’s decision didn’t invent either the animus reasoning or the application of rational basis. The animus reasoning came from _Romer v Colorado_, which also used rational basis in very similar ways.

    (_Romer_ was the case where Colorado voters passed an initiative prohibiting localities from adding sexual orientation to the list of things the localities wouldn’t discriminate against; the 5-4 opinion in that case held that doing so excluded gay people from the general application of the law based on nothing other than an animus towards gay people).

  117. @Gulliver: Extending the right to marry to LGBT citizens. Does. Not. Curtail. Anyone. Else’s. Freedom. It’s not complicated. It’s not magic. It’s called Cause and Effect. Yay for logic!

    Please be less glib and listen to your opponents.

    The right to marry does not curtail anyone else’s freedom. But, striking down a duly passed state constitutional amendment absolutely curtails the People of California’s power to make law through democratic action. If a court is going to do that, its opinion needs to be solidly based in the law, and the 9th Circuit’s opinion here was not. Under existing and binding precedent on the rational basis standard, there was a rational basis for Prop. 8. Until the Supreme Court changes its interpretation of the law to apply heightened scrutiny to discrimination based on sexual orientation (which it should), laws declaring that same sex domestic partnerships cannot be called “marriage” should not be struck down.

  118. they did enact legal gay marriage via the legislature, and then the Tea Party happened

    Oh my God, gay marriage *is* ruining the country.

  119. @aphrael: The problem is that unlike in Romer, there were a number of reasons for Prop 8 put forward that were rational, under a properly deferential standard. The 9th Circuit’s reasoning here made little sense; they held that even though the term “marriage” was so important that it deprived gays of a substantial right, it somehow was irrational for voters to think that changing the meaning of this important term could affect behavior. The court then dismissed a number of rationales that boiled down to slippery slope type arguments, while holding that the previous creation of gay marriage by the CA court created a new federal prohibition on removing that right! (by saying that rationales about childbearing or education of children were irrational because laws about childbearing or education were unchanged). The dissenting opinion got it exactly right here–rational basis is deferential, and the majority opinion was not.

  120. @Brian: Volokh and his other bloggers have an interesting legal perspective on many issues, but on same-sex marriage, his posts are disingenuous, poorly reasoned and frankly embarrassing. If what you’re quoting is indeed his perspective on the matter, his pattern hasn’t changed. Heck, Oren Kerr though the decision was appropriate, and he thinks Stephen Reinhardt ought to be dragged off the 9th Circuit at pitchforkpoint.

    Rational basis is deferential, but you will notice that the test is “rational basis”, not “stupid basis” or “whatever the heck we want basis”. The lower court (which reviewed all the available evidence presented by the parties) and the appellate court agreed, relying on Supreme Court precedent, that the Prop 8 folks had not managed to show there was any rational basis that would allow Prop 8 to survive scrutiny.

    You and Leonard have the illogic backwards here. It is Prop 8’s backers who argue that the term “marriage” is meaningless window dressing for same-sex couples, who get separate and perfectly equal treatment in the form of domestic partnerships and thus have no need for the label; but “marriage” is so important and hallowed that we must never, ever use it for anybody except committed heterosexuals so they can breed.

    And no, this isn’t a “power grab”; this is an application of existing law (Romer) to a particular legal situation at the state level. Why do you believe that is an inappropriate action by the court? Where is the flood of Romer-based litigation regarding building codes that you gloomily predict? Oh, wait, it doesn’t exist and never will – because “we just don’t like these people”, by itself, isn’t and really never has been a rational basis for the government to do anything.

    @Leonard, I too, am in favor of judicial restraint and opposed to judicial activism. You seem to be making the common error of thinking “judicial activism” is “a court striking down a law I favor”. And as Scalzi has pointed out, you also seem to think that in weighing the constitutionality of a law, courts should consider how popular that law is and whether it was passed by referendum. That would be judicial activism, but such doesn’t seem to bother you when it gets you a result you like.

  121. Ah, but there were rational reasons for the law in Romer, too – the foremost among them being a concern that nondiscrimination laws entail enforcement and administrative costs and that there’s therefore a state interest in limiting the number of different criteria which should be used in nondiscrimination laws. A deferential court would have accepted that reasoning, as distasteful as the law was.

    It seems pretty clear from Romer that, allegations of use of rational basis notwithstanding, what the Supreme Court actually used was something above and beyond rational basis which nevertheless didn’t amount to heightened scrutiny. Since Justice Kennedy is terrible at explaining such things, though, it’s unclear what the bounds are on what gets you into that category, and how you tell what is or isn’t ‘rational’ when you’re in it.

    I think the Supreme Court could use this case to cabin Romer to cases which exclude minorities from processes. That is, hypothetically speaking, Romer would apply to the situation where a state allowed cities to decide what the rules for marriage were but prohibited cities from deciding to allow gay marriages, but *not* to the situation where the state just outright prohibited gay marriages. (If I were trying to persuade Justice Kennedy to uphold Proposition 8, this is one of the arguments i’d use).

  122. @mythago:

    Here is a link to the opinion in Romer v. Evans The majority does not analyze rationales to find fault with them; rather, it points out that no rationale other than animus towards gays was put forward.

    The analysis of the 9th Circuit majority on pp. 55-74, dismissing a number of reasonable rationales based on the Court’s subjective beliefs about their rationality, is something new. For example, the majority states that the “interest in promoting responsible childbearing” rationale is irrational because laws related to childbearing were unchanged. This assumes that changes in terminology in law cannot affect behavior, which is obviously wrong as a general principle. Now, does evidence show that changing the meaning of the term “marriage” is likely to cause this harm? No. But that’s not a rational basis test, that’s a heightened scrutiny test.

    There’s no flood of Romer based litigation because Romer never intended to allow a court to scrutinize potential reasons for a law in the depth that the Perry majority does. For example, prior to Perry, a city defending denial of a building permit to a Wal-Mart can say, “our rational basis was that we don’t want big chains to crowd out local businesses.” After Perry, the court can dismiss that by saying, “That’s not a rational basis, because there’s already a Target in town, so it must be OK to crowd out local businesses.” That’s what the Perry majority did; it used the fact that law is a mishmash of policies, often with contradictory rationales, to claim that all the rationales for Prop 8 were irrational as contradictory to other California law. And that’s something entirely new to rational basis jurisprudence.

  123. If logically applied, this means that a ton of normal government policy can be challenged–such as the zoning ordinances being pass in some New York neighborhoods right now prohibiting banks and chain stores from taking up significant space at the street level of buildings. Or NYC’s refusal to allow Wal-Mart to build, largely based on hatred of Wal-Mart. Applying the Perry v. Brown test, the courts would actually scrutinize the bases for these policies rather than deferring to the legislature/initiative as is usually done under the rational basis test.

    Brian, you’re missing a piece–the flaw you see in the reasoning is only a flaw if you leave out the fact that the right was removed from an identifiable group subject to varying levels of private and public disapprobation and oppression. That is the Equal Protection violation–the removal of the right to marry someone of one’s own sex constitutes no burden to heterosexual individuals, but is indeed a noticeable (if not precisely quantifiable) burden to gays and lesbians.

    One needs both elements–the removal of the right, and the impact of the removal on an oppressed minority–to violate the Equal Protection clause under the analysis in Perry v. Brown.

    You are making a big fuss, but you’re wrong about the judicial over-reach. We’ve always had to keep an eye on disproportionate impacts on particular groups, even if they’re not, technically, suspect categories under Constitutional jurisprudence.

    Let me put it this way: if the state legislature passed a law forbidding everyone from putting a second floor on their house, that would not be an EP violation on the face of it. One could argue that home-owners would be adversely affected, but there is no history of oppression against home-owners, and they wouldn’t be losing a right that renters possessed and exercised. Now, it might be a stupid law, passed for no good reason, but it wouldn’t be an EP violation. (Possibly it’s a regulatory taking, but let’s limit our Constitutional seminar to the issue at hand.)

    You see the difference between removing the right to marry a member of one’s own sex and removing the right to put a second floor on one’s home, correct? In one of those two cases there is a clearly-defined minority class of individuals who will suffer by comparison with the general population; the other case affects all homeowners identically (with the possible exception of those who already have two-story homes).

    … I admit the analogy isn’t perfect, but it was quite late when I wrote it, and since you picked up on it, I figured it was worth running with it.

  124. @cofax–You’ve identified exactly the reason sexual orientation should be a suspect class:

    In one of those two cases there is a clearly-defined minority class of individuals who will suffer by comparison with the general population; the other case affects all homeowners identically (with the possible exception of those who already have two-story homes).

    The proper comparison is more to a zoning law that would forbid building a second story to those in historic neighborhoods, because the issue is laws that are discriminatory in some way. But to quote from the case that created the idea of suspect classes:

    [discussing use of rational basis review for economic regulation]: “Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Carolene Prods. at n. 4.

    Sexual orientation discrimination should be subject to heightened scrutiny because it is a case of “prejudice against a discrete and insular minority,” and it’s time for the Supreme Court to recognize that. But until it does, the lower courts shouldn’t be butchering rational basis review to reach their desired result.

  125. @Brian: Do you believe an appellate court should not limit itself to reviewing whether the trial court made a legal error, and thus should utterly ignore the trial court’s findings of fact? That strikes me as judicial activism. As noted at p. 17 of the opinion, those arguing in favor of Prop 8 had a full opportunity to present evidence that there was a rational basis behind Prop 8. They failed to do so, and their opponents presented evidence at trial that the real motivation behind Prop 8 was anti-gay animus.

    Regarding your analogy, why is the city forbidding Wal-Mart from building when it happily embraces a Target? The different standard does rather suggest that wanting to keep out big-box stores is not the real motivation. (Particularly if the court were presented with evidence that various city council members argued at public meetings that “we don’t want those Republicans from Wal-Mart in our town, we need to find some way to keep them out.) You seem to be arguing that it’s perfectly okay if the ‘rational basis’ offered is transparently false or an after-the-fact rationalization; in other words, that the ‘rational basis’ standard shouldn’t even exist.

  126. Brian@11:38, “A Man For All Seasons” Wow. Really? Did you even read the question I asked Leonard? I asked him to stop with they smoke screens and get some honesty in what it is that has him invested in this conversation. Really invested.

    No one gets invested in hypotheticals like “Judicial Activism”. YOu don’t care about judicial activism. Really. You don’t. But there is something you do care about it, and rather than just come out and say it, you tell me some story about the devil.

    Just so you know, the “devil” is the most popular smoke screen in the world. Don’t like something? Then just demonize it. Like you did.

    I asked Leonard to drop the hypothetical issues and make it real for himself. And you tell me a fable about the devil.

    I ask Leonard to stop making smoke screens and you amass a pile of tires and set them on fire.

    Brian@11:47: Please be less glib and listen to your opponents.

    Well, you certainly didn’t listen to what I asked of Leonard. And when I asked Leonard for a straight answer about his personal stake in the issue, you come back with hypothetical fables about the devil himself, which is about as *glib* as one can get.

    Simple question: Do you take issue with the morality of gay marriage in and of itself, regardless of how the law may arrive at legalizing it or outlawing it?

    And remember, this is for posterity so be honest.

  127. @ Leonard

    So… what does justify the authority of government if not the will of the governed? Does it worry you at all when the government sends a big fuck-you to the majority of its citizens?

    Not when it’s on behalf of a minority the majority is shitting on. That’s why I do not and never will support direct democracy.

    The people of California obviously want to reserve the word “marriage” to heterosexual marriage. But they were tolerant (see footnote 22), and willing to extend to progressives everything else they demanded on behalf of homosexuals. The very fact that the people asked for so little is used to reject their request. (We see who are really sovereign.)

    Separate but equal. How magnanimous.

    Is there even a single progressive on this site who thinks polygamy should not gain Constitutional imprimatur under “equal protection”?

    You say this is about semantics, not rights, but then you turn right around and raise the specter of polygamy. You say it’s about constitutionality and the balance of power, but then you say Constitution is trumped by the will of the majority. So are you saying you’d be fine with legalizing polygamy as long as we called it something other than marriage? Otherwise you’re being disingenuous is asserting that your “defense” or marriage is for the word only.

    @ Brian

    Please be less glib and listen to your opponents.

    I did. Leonard moved the goalposts so often I thought it was an earthquake.

  128. Brian@11:38:So yes, I would keep the law even where the immediate result harms myself.

    Woah? Wait a sec. Really? You’re gay?

    Either that, or everything you’re saying is so deeply couched in hypotheticals and smoke screens that you lost track of the fact that there really are *real* *people* who are being harmed here.

    Which would mean that you’re throwing someone *else* on a sword here, but you’re portraying it as an act of self sacrifice.

    This.

    This is exactly why I ask for specifics. This is exactly why I ask for why this thing is an issue for *you*. Because if left to hypotheticals and smoke screens and all that other nonsense, people will portray themselves as sacrificing themselves to be nailed to a cross when in fact they’re the one holding the hammer.

  129. “The People” are also free to amend the United States Constitution to narrow or eliminate the Fourteenth Amendment, or to otherwise change the law to limit the scope of the Equal Protection Clause. The Constitution did not fall on our heads out of a clear blue sky. It is the ultimate expression of the will of the people, and it’s rather dishonest to pretend that a popular ballot in California is will-ier than the Bill of Rights.

  130. @mythago: Do you believe an appellate court should not limit itself to reviewing whether the trial court made a legal error, and thus should utterly ignore the trial court’s findings of fact? That strikes me as judicial activism.

    The question of whether the lower court applied the correct standard is one of law, to be reviewed de novo. Note that in the pages of Perry I cited, the majority did not primarily rely on the lower court findings of fact to dismiss the purported rationales for Prop 8.

    You seem to be arguing that it’s perfectly okay if the ‘rational basis’ offered is transparently false or an after-the-fact rationalization; in other words, that the ‘rational basis’ standard shouldn’t even exist.

    The case law says it is. See the dissent at pp. 10-12 (100-102 of the combined opinions), citing Heller

    @Greg:No one gets invested in hypotheticals like “Judicial Activism”. YOu don’t care about judicial activism. Really. You don’t.

    Don’t tell me what I do and don’t believe. And try reading and understanding your opponents’ post first. My quote was there to illustrate the importance of protecting the law even where we don’t like the immediate result. I’m sorry you couldn’t comprehend that.

    No, in this case I’m not being personally harmed, Friends are, or they would be if they lived in CA. My personal interest in this is as a lawyer and hopefully a judge. I’m in this because I don’t want to see the judiciary become imperial or lose legitimacy through poorly reasoned, results-oriented decisions. I realize the concept of objective law restricting the power of a branch of government seems to confuse and infuriate you, but try giving it some thought.

    And if you read my posts, you’d see that I support New York’s gay marriage law, and would support the Supreme Court correctly defining sexual orientation as a suspect class subject to heightened scrutiny. Ideally I would hope the Supreme Court takes the case, delivers the verbal smackdown to the Ninth Circuit it deserves, and then affirms on the alternative ground that sexual orientation should be subject to heightened scrutiny and as per Judge Vaughn’s findings, the defendants have not shown a compelling government interest supporting Prop 8.

  131. @Brian: indeed, the question is whether the trial court correctly applied the appropriate standard of law; and, unless we are arguing that the court should have made the activist step of treating sexual orientation as a category required heightened scrutiny, it held that rational basis was correct. (I, of course, am still bewildered why the issue of gender got dropped, and none of the folks I know more hands-on involved with the marriage equality movement have managed to explain why either.)

    I’m not sure where you’re getting “legislatures may lie and retcon” out of the dissent (which is, after all, the dissent). As it concedes at p. 12, some things simply are not legitimate government interests, and animus is not one of them. (The dissent also gets cute by arguing that it’s OK for government to regulate morals, and then quoting Scalia’s dissent in Lawrence. The strong implication there is that it’s perfectly OK for the state to limit the rights of LGBTs precisely because they’re queer.) The dissent acknowledges that the mere existence of animus will not destroy an actual, legitimate rational basis for a law. But I see nothing that says it is OK to use a fake “reason” for a law as a figleaf for animus.

  132. @mythago: I’m on an iPad, so quoting from the PDF is hard, but the key quote is, “The measure at issue ‘is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or data.'” Also the following sentence about how a rational basis may exist even when there is an imperfect fit between means and ends.

    Looks pretty clear to me that the court shouldn’t be looking at fact finding as to the validity of a rationale, but as to whether the rationale has some conceivable reason related to a legitimat government interest (and as per Romer, animus towards a group is not a legitimate government interest).

  133. @Brian: which means that, at the trial court level, the Prop 8 proponents needed to show that it was not motivated by animus towards same-sex couples, and was actually motivated by a legitimate state interest. They did not do so. Therefore, I’m a little baffled at the notion that the appellate court should re-insert itself into that factual finding. The dissent is particularly activist on this issue, simply re-arguing things that were presented and rejected for lack of evidence in the trial court.

  134. @mythago:

    which means that, at the trial court level, the Prop 8 proponents needed to show that it was not motivated by animus towards same-sex couples, and was actually motivated by a legitimate state interest.

    You have the burden of proof wrong; plaintiffs trying to strike down a law have the burden of proof. Again, this is right in the dissent at 11–the burden is on plaintiffs to “negative every conceivable basis that might support it.” Also, “the government ‘has no obligation to provide evidence to sustain the rationality of a statutory classification.'”

    As a general rule, the standard for review of any issue not requiring fact finding is de novo, which is why the 9th Circuit didn’t focus on the lower court’s findings of fact. And it the Prop 8 opponents who needed to show that the only possible motivation was animus towards same-sex couples. The analysis used to reach that point goes beyond a proper rational basis review, for the reasons discussed in my earlier posts.

  135. @Brian: No, they did not need to show “the only possible motivation was animus”. “Possible” is, as you know, not a legal standard, not even for rational basis review. The existence of animus does not destroy a legitimate purpose, but it certainly goes to whether that claimed legitimate purpose is, in fact, what’s going on.

    And as you know, once the plaintiffs have shown that a law is discriminatory, then the burden shifts to the State to prove there is in fact a legitimate basis for the law. That’s exactly what happened. At the trial court level, the opponents of Prop 8 (despite the mighty efforts of the other side to keep it out) showed that the measure was strongly motivated by anti-gay animus, and that there was no factual support for the claimed goals of Prop 8 (for example, that it would benefit children). They did, in fact, negate every conceivable basis that might support Prop 8. I did look at the dissent you cite; you are taking a selected quote out of its context and ignoring the further discussion at page 12.

    The dissent is the dissent for a reason, and I think it’s an error to overlook its activism, or to assume that because we like its result it must be legally correct.

  136. John, it’s absolutely true that you have shown a lot of patience with me — as a resident political troublemaker. And this is to your credit. No question about it. I’ll just offer an apology for any cluelessness or arrogance displayed, and close out my participation in the thread. I also sent you e-mail.

  137. Brian@1:23And try reading and understanding your opponents’ post first.

    Well, I read this:

    Brian@11:38:So yes, I would keep the law even where the immediate result harms myself.

    And understood it to mean that keeping the law harmed you in some way. But that was just smoke, right? A way to portray yourself as martyr sacrificing himself for a righteous cause. But apparently, when prodded,you replied with this:

    No, in this case I’m not being personally harmed

    That sort of changes things, don’t you think? It means what you *actually* said is not connected in any way with what is *really* happening. And my question to Leonard was, at its most fundamental, about him getting real.

    I’m not being personally harmed. Friends are

    Oh, well, I’m sorry for your friends then.

    or they would be if they lived in CA.

    Wait. So, when you say you have friends who are being harmed by this law, that’s actually a hypothetical as well?

    Do you understand what it meant by “real”? Either you really have friends who are really being harmed, or you really don’t. Either you are being personally harmed, or you are not.

    My personal interest in this is as a lawyer and hopefully a judge.

    See? That wasn’t so hard, was it? Now we’re starting to get to your own dog in this fight.

    I’m in this because I don’t want to see the judiciary become imperial or lose legitimacy

    Ah, well, that sort of changes things, doesn’t it? You present yourself as the self sacrificing martyr. You said “I would keep the law even where the immediate result harms myself.”, but the fact is, keeping this law isn’t something you view as a sacrifice at all. In fact, you want to keep this law for your benefit: to keep the judiciary around and protect your future dream job.

    Remember when I was talking about keeping it “real”? This is real. This is why you’re in this fight. You portray it as a sacrifice, but the reality is you’re in it for your own benefit.

    Its perfectly fine that you’re in it for your own benefit. My only problem was pretty much everything you said that pointed at motivation was a smoke screen to mask that you were in it for your own benefit. It doesn’t harm you. It doesn’t harm your gay friends who aren’t in California. It isn’t something you’re doing as a sacrifice. It’s somehting you’re doing for your own benefit.

    I realize the concept of objective law restricting the power of a branch of government seems to confuse and infuriate you, but try giving it some thought.

    In the same post where you chastize me for telling you what you believe, here you are mind reading all sorts of things about me that completely missed the mark. That’s kind of funny.

    you might review this thread and re-read my posts and note that I didn’t say anything about separation of powers, or about objective law restricting a branch of government, or how it confused me. The only thing that “confused” me was that you presented yourself as doing this out of sacrifice but my spidey sense kept smelling smoke. Now that we’ve had a bit of a conversation, it appears there really is no personal sacrifice on your part, its more out of self interest. Which, again, is fine, but the initial presentation was certainly not entirely honest, which I think justifies my initial confusion.

    In short, you weren’t being entirely honest. Perhaps you might try giving it some thought next time.

  138. Rens, a very small nitpick: I said I couldn’t take the phraseology seriously. The concept? I can absolutely take it seriously. It’s the words that make my brain go, “Huh?” I suspect this is true for many, many people.

    And as I said upthread, Brad, that’s fine but your semantic comfort zone is really really not the issue here. It’s like derailing a thread around the status of women into how weird you find the use of “Ms.” as a honorific.

    I’ve said this before, but it bears repeating. There’s plenty of things about my parents’ marriage that made a lot of people’s brain go “Huh!” (and “Ewww!”): A black Protestant man marrying a white Catholic woman, twenty six years his junior, around a year after the death of his first wife. The law, however, had nothing to say about it.

  139. Mythago: I, of course, am still bewildered why the issue of gender got dropped, and none of the folks I know more hands-on involved with the marriage equality movement have managed to explain why either.

    YES, this. I have never understood why the challenge to Prop 8 wasn’t founded on the idea that it is based on the gender of the participants. I may love a man, and marry; but if I love a woman, I can’t, and therefore the amendment is gender-based discrimination.

    @Brian: you are correct in that sexual orientation should be a suspect class (or at least semi-suspect–isn’t there an intermediate category?); but the S Ct in Romer clearly chose not to go there, and thus the 9th Circuit was bound to use rational basis review instead.

    Certainly it would have been much easier to overturn Prop 8 using heightened scrutiny–the proponents would never have been able to meet the “compelling interest” test. But I’m quite sure that the Supreme Court would have struck that down: it conflicts with Romer, and it could cause no end of collateral political problems if orientation gets classified nationwide the same as race, gender, nationality, or religion. I can see why the 9th Circuit would have avoided going there.

  140. Slightly off topic; but can I just say that watching you guys and gals argue court opinions and precedents is completely fascinating (if a bit over my head at times), and I mean that in the most flattering way possible to all involved, (even those I adamantly disagree with with no more rationale to me — and hence no comments – than “You’re Wrong!”)

    From Cofax to mythago to Greg and Leonard and onward down the line, seriously, folks, this is awesomesauce — and John, thank you once more, for taking on the task of hosting some of the most interesting conversations on the web.

    I’m very much for gay marriage in all 50 states, but I have a hell of time being able to articulate that in discussions in my reddest of red states, and you people very often gives me the tools I need to not come across as an emotional 5 year old stomping her feet and squalling about how unfair it is I can’t marry my sweetheart.

    so just, Bravo, to all involved. Even if you are never able to convince one another of the merits and mechanisms of the case, you are all doing an excellent job of explaining it to the rest of us.

  141. maygra said:

    Slightly off topic; but can I just say that watching you guys and gals argue court opinions and precedents is completely fascinating (if a bit over my head at times), and I mean that in the most flattering way possible to all involved, (even those I adamantly disagree with with no more rationale to me — and hence no comments – than “You’re Wrong!”)

    As another person who’s gotten a lot more out of this thread than I’ve contributed to it, I want to echo this sentiment. Especially regarding the legal discussion between Brian, mythago and cofax. It reminds me of the law classes I sat in on when I was in high school and my dad was working on his J.D. at GWU.

  142. Indeed. These discussions are why I’ve been reading this blog for years, even though I pretty much never actually participate in them. I even go back and reread them, and continue to learn from them.

    Well, there are other reasons too, of course. But it was this sort of thing that hooked me.

  143. All the wrangling about the intent of the founders and judicial interpretation, etc. leaves me wondering what the current conservatives think about how the Commerce Clause is used. That’s been interpreted so broadly for so long that most people don’t even notice; we are fish in that water. I’m surprised that the anti-TehGay people haven’t come up with a commerce-based argument against sex-unspecified marriage yet.

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