9th Circuit Declares Prop 8 Unconstitutional
 

9th Circuit Court of Appeals upheld the district court ruling that Prop 8 was in violation of the 14th Amendment. Here is the text of the decision:

Ninth Circuit Prop. 8 decision

"Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in CA."


Definitely a great day for equality.

And a sad day for both decency & the rights of the voters.

edit: And now it's on to the Supremes, where this was going either way.

I'm surprised it only took Jon 3 minutes to respond.

Random act of timing, if I hadn't seen it when I probably wouldn't have seen it for several hours (about to be AFK).

More of a {shrug} than you'd probably suspect though, I don't get particularly high or low on lower court rulings when an appeal seems likely.

My sister-in-law is gonna be pissed!

Decency? Must be tough not liking "them gays".

I'll reiterate my stance that we need to separate religious marriage from legal marriage. Religions have the right to determine what marriages they see as legitimate. But everyone should have the right to enter into a legal partnership to spend their lives with a loved one, a natural progression in the human condition.

That is why I support the concept of civil unions.

Agreed that this is definitely headed to the Supreme Court.

Long overdue.

I have a feeling that the SCOTUS will rule that appellants don't have standing so they can avoid ruling on the heated central issue, just like they did with the pledge ruling a few years back.

Hooray!! As I agreed with Judge Walker's decision entirely, I am glad the 9th Circuit affirmed it.

Religions won't be forced to marry anyone. The state will have to treat gay marriage equally.

Exactly. You're free towards your marriage, and your church can recognize what it chooses to; but your church should not determine that of others.

Fundementally, I'm convinced gay marriage is a conservative belief - the idea and faith in the institution of marriage being extended out to gay people. Why is that a bad thing?

Its the easy way out, no? I don;'t think they want to rule on gay marriage before the 2012 elections.

I'm fine with civil unions if there's no marriage for anybody, but I don't think that's a realistic path. Legalizing gay marriage doesn't force churches to do anything. however, banning gay marriage discriminates against churches that do perform gay marriage ceremonies. As long as marriage is recognized by the government, it is unconstitutional to arbitrarily deny it to a group of people without a compelling interest.

It's still easiest just to have the government recognize "civil unions" as a status with a basic set of laws, tax code, guidelines, etc and if something fits that definition, they are a civil union. Government should be out of marriage

SI

I agree that SCOTUS would rather not reach the merits. I wonder if it might just deny cert.

If the Court does reach the merits, I think that it upholds the decision 5-4 with Kennedy writing the majority opinion joined by the four liberals.

That's complicated because the Loving v. Virginia decision that overruled bans on interracial marriage declared marriage as a fundamental human right.

It is nice to see that common sense rules when it should. Yes, the majority of the voters voted for this. However, the majority was wrong. That is why we have our constitution and our system of checks and balances. This is basic US Government 101 people. If you don't get it, go back to school.

In theory maybe, but the same people against gay marriage would never tolerate the name change. Discrimination is the point for most of these people.

+1

It must really suck to be so very attached to the white, heterosexual, christian, patriarchal society that is disappearing before our very eyes.

Actually California needs to get out of the "citizen" initiated propositions entirely. They have almost single-handedly destroyed the state's economy.
Proposition 13: War by initiative | The Economist

Possible en banc in Ninth Circuit first?

With the reputation the 9th Circuit has, I think in the interests of expediency they would go straight to the Supremes, rather than wait to see if the entire panel would hear the case and decide any differently.

Good article.

Wow, now that's a blast from the past. :)

I don't think it should be eliminated, but, I think it needs a serious overhaul. One, it needs to be much much more difficult to get a measurement on a ballot and the second one needs to be, full disclosure of where the money is coming from.

Yep. Anytime you can pass a spending measure without funding it by a simple majority, but require a super-majority to raise taxes, that doesn't bode well.

That would be nice but with Citizens United I think you can just setup a corporation (or non-profit organization) to funnel the money and disguise your individual identity.

This is fantastic news. A victory for common sense and decency.

That entire issue of The Economist was all about California. There were maybe 10-20 articles in total - some with good things to say about the state, some bad - but all of them insightful.

Despite the Ninth Circuit's reputation, it has some pretty heavy-hitting conservatives on the bench--see, e.g., Kozinski, O'Scannlain, Bybee. En banc in the Ninth Circuit draws 11 judges at random--not the full panel--so might get lucky (which the supporters of Prop 8 certainly didn't get on their first go-around, drawing Stephen Reinhardt).

The problem with the Christian Right and other groups is that they want to make legislation based on something only they believe in. That's great that it works for them, but how about the rest? It's like trying to get a Bears fan to wear a cheesehead. I even say this as a Christian. It's interesting reading a book about Chrisitanity and the government and the author even admits if someone is a Christian politician they are either really good at one or the other.

That is a very good point. If I had to pick one of the two, I'd pick making it harder to get something on a ballot. Maybe also having something along the lines of having to have a super majority as well, if it does make it onto a ballot.

True, but if they conclude that the case will go to SCOTUS no matter what, then there's no point in delaying as all a reversed ruling would do is switch the plaintiff and defendant.

From what I am reading, this was a pretty narrow opinion--based more on discrimination against homosexuals by changing a law already on the books than on the fundamental right to marriage.

If that is the case, the odds of a cert grant go down a bit, IMHO.

Seth MacFarlane makes a hell of a point - every civil rights battle is always won by the people oppressed.

Oh god yes. This isn't a liberal or conservative thing - the proposition system is idiotic.

Dola, this is a no-brainer. The same people were on the wrong side of civil rights, on the wrong side of female suffrage, on the wrong side of slavery... and they will continue to be on the wrong side.

Apparently the 9th Cir ruling is VERY narrow - seemingly only applying to California and, apparently, tailored by Judge Reinhardt to Justice Kennedy.

I've read the ruling and it is very narrow. They said all Prop 8 did was deny gay couples the word "marriage", but left in place the other benefits that married couples enjoy. Thus the Prop 8 supporters could not argue it harmed the family, since Prop 8 didn't stop gay couples from starting a family. They did add that the ruling didn't mean Prop 8 would be Constitutional if other factors were in play, just that they didn't need to consider those other factors to reach their decision.

In theory, that should be the case. In practice? I really wonder. I do think that in a "free" country, the government should not be defining what in essence is a religious sacrament. Civil marriage is more a contract between two people, whereas religious marriage is a sacred act defined by the religious beliefs of the individual. Having the government define it instead of the church/synagogue/temple/whatever, is in essence an infringement on the freedom of religion. It is sad to me that many right-wing Christian groups don't recognize that, and instead want to use the government as their own personal strong arm, forcing all to act in the way of their beliefs at the point of the gun. What they don't seem to recognize is that gun can be turned back at them when prevailing winds shift against their beliefs.

Absolutely. The rights of a bigoted mob to suppress the rights of a minority group shall not be infringed!

Keep fighting the good fight Jon, even as your kind rightfully goes the way of the dodo.

Right, if laws against gay marriage are allowed, I'd love to see some more laws, prohibiting inter-religious marriages, only allows virgins to be married, etc. Maybe then they'd get the idea. Many religions have differing rules about marriage, we're not going to start picking one's rules and all going by them.

Its surprising to me that these churches don't discriminate against atheists or other religions marrying, but they have such a problem with gays marrying. If its such a religious institution, why allow it to be tainted by non believers and people worshipping other gods?

I mean marriage happens everywhere, no matter what the chosen religion of anyone involved is, so I have a hard time seeing it as anything but a union between two adults which is basically a pledge of monogamy on legal paper. The fact that getting married changes so many things legally is weird to me, but I don't see any reason why it should matter.

In theory I'm fine giving government recognition to civil unions and letting churches determine who is and isn't married. In practice, though, the same people fighting against gay marriage would be firmly opposed to the government changing marriage to civil unions. Discrimination is the point, and that's why over the long haul they're going to lose.

The prevailing opinion that I'm getting from some legally minded friends is that this isn't as good as first read for proponents of gay marriage in the short term as one might think.

Because they only ruled on a very limited part of the appeal (and decided since the issue was decided on the limited part, the rest didn't need to be added), the likely path for this is for the full 9th Circuit to affirm the decision, but then the conservative leaning Supreme Court to decline to hear it, and as such not cause binding precedent.

This does mean that gay marriage will be legal in California, which is a laudable goal.. but it will not be the short term fix to overturn all the OTHER states laws.

If you'll forgive the tortured analogy.. in the dam against preventing gay marriage, this is a sizeable leak. 29 million people is a sizable chunk of people. However, this is not the catastrophic "break the dam" moment that proponents of gay marriage were hoping for, nor the dramatic "bulwark the dam" moment that the defenders of prop8 were hoping for. Instead, the dam will continue to crumble, and deteriorate slowly in the natural course of history, before it fails. That is slow, but inexorable (Think of it this way, in the context of a civil rights issue this is moving rather quickly)..

The victory in the long term is all but certain for proponents of allowing gays to marry.. The key words being the long term.

While this is somewhat true, denial by the Supreme Court to may not be binding, but will still be cited by courts in other states and circuits and I think it will lead to justices being more likely to take that next step. It may be long term before gay marriage is legal everywhere, but I do think this ruling will speed up the process.

Also I think the Judge writing the opinion wrote it narrowly so IF the Supreme Court picked it up, Justice Kennedy would be likely to rule against Prop 8 instead of being more queasy in affirming an equal protection arguement. This will allow for more normalization for the practice, as the most populace state in the union allows for homosexuals to marry.

Out of curiosity...what if the Supreme Court refuses to hear it? Is it kicked back to the state or is Prop 8 officially dead at that point?

If SCOTUS refuses to hear, then Prop 8 is dead.

If SCOTUS denies cert, my guess is the previous ruling handed down takes effect. That could be the Ninth Circuit en banc overruling the decision handed down yesterday, or it could be the current decision standing up. What I don't know is whether the losing side could initiate a new case on different grounds or if that's all she wrote.

Oh ok cool. Thank you.

Ah ok. I'm sure there is still plenty of money in the coffers if the losers wanted to try a different angle, so I wouldn't be surprised by that move.

If they bypass the en banc and go straight to SCOTUS, then it won't go back to the en banc. A whole new case would have to be initiated in district court on completely different grounds, but the injunction would almost certainly be lifted while the new litigation proceeded as plaintiffs would not be able to meet one of the main burdens for having an injunction imposed, which is likelihood of winning on the merits.

Yes, what I mean is that if the case proceeds to en banc before it then goes to SCOTUS (who would then decline cert), then if en banc overturns yesterday's ruling, Prop 8 could potentially survive.

If they skip en banc and SCOTUS denies cert, then yeah, Prop 8 is dead pending new litigation.

Nothing like making sure the breakup rate of gays goes up. Ah well, what's more work for divorce lawyers!

Exactly why I said they are fighting against their own interest. Infringing on the minority beliefs always seems great until the day your beliefs are the minority.

I'm often curious why religious groups are pushing for Constitutional amendments against gay marriage, but not for amendments against divorced people remarrying. I don't believe Jesus is said to have commented on homosexuality or gay marriage, but he did say that getting divorced and then remarried is adultery...which breaks one of the commandments. With the current divorce rate being so high, wouldn't you suspect that more divorced people are trying to get married than gay people? Wouldn't that make the divorced marriage issue a greater threat to the sanctity of marriage than gay marriage?

I'm actually asking these questions seriously.

You're trying to apply reason and logic to religion.

That NEVER works.

It can if you look at with an open mind and not with a closed mind (kind of ironic). Writing off everyone else's belief as a whole kind of sounds like the Republican approach to homosexuality.

(oh, snap)

SI

That's actually a great point.

I should have singled out christianity.

Eh, I think there's things you can learn from or be inspired by almost any religion. I mean, personally, when I think of Jesus, I don't think of a guy (or symbol) who had a lot of hardcore Republican ideas or anything. I think of him as the guy (or symbol), that cut through the bullshit of Roman politics and gave people an alternative way of seeing the world, through love and acceptance. I'm sure there's bible quotes that someone could throw out that could contradict that, but I could care less about that, it's what I take from it that matters to me. So I am inspired in a way, by Christianity, and can even "get something" out of going to church, or reflecting on that, but am still very much pro-gay marriage (as a policy issue, I'm on the fence on the constitutional side of it)

Thankfully I'm an open minded Christian who isn't bothered by this ruling in the slightest. Luckily we have Todd here telling us all how crappy Christians are, to keep us all from getting too self-righteous and uppity!

The whole thing is stupid. We all know where things are going. We all know how history will look back on this in 50 or 100 years. People trying to latch on to bigotry this hard are going to look the same as those who were for segregation, slavery, interracial marriage, and women not having rights. The world has progressed, just accept it and moved on. Regardless if the Supreme Court makes a ruling on it, it'll be legal in 10-20 years everywhere anyway.

Singling out Christianity for the views or actions of the ignorant is like taking it out on physicists when somebody uses a coupla tons of ammonium nitrate to blow a hole in a federal building.

Knowledge, whether empirical or of the faith-based variety, is always going to be subject to abuse by those who are willing to twist hard enough for personal gain. That's true of any field of human endeavor.

You know what the difference is between high-energy physics and religion, though? High-energy physics isn't typically boiled down once a week into easily digestible nuggets for people who basically just want to be reassured that their way of life is The Way to Live.

"Love the Lord thy God with all your heart" and "Love thy neighbor as thyself" are fantastically simple concepts, on the face of the matter. Those are the two things Jesus set paramount above the rest of the Law.

But it's really, really hard for people with societal insecurities to measure their faith journeys by those concepts.

On the other hand, it's a lot easier to look at the admonishment of Leviticus not "to lay with a man as with a woman" (while at the same time not paying attention to the proscription against eating of the cloven hoof, the shellfish, or wearing mixed-fiber clothing because 'what God has made unclean, He can make clean.').

It's easy to look at the story of Sodom and Gomorrah and take the lesson that God destroyed Sodom because of gay sex (and not because the people of the city tried to be seriously inhospitable to a man's guests).

Those are things the average Joe/Jane can cherry-pick out of the Bible to make himself or herself feel righteous in his/her faith, and to assure themselves that they're more special than "those people" in the eyes of God.

Which is fine. We've all got our foibles, and nowhere is it written that justice requires complete assent (and that's true whether you consider justice to be marriage equality or the defense of traditional marriage). Where the problem lies is that for the people whose faith is at the same time that strong and that simple, that's a big red button that anybody with a political agenda can push at need.

Abortion is the same way, albeit to a slightly lesser degree.

When I went canvassing in 2010 for my then-House representative, you wouldn't believe how many people I talked to who were politically in agreement with the Democrats on all but one or both of those issues, but that issue was enough to make them vote for somebody they wouldn't otherwise have touched. It wasn't about Christianity, you see. Not directly.

It was about a big, raw, pulsing nerve that keeps getting poked by people telling them that they should really be frightened about the ramifications of...something. Something that would be horribly, terribly bad in wonderfully non-specific ways. Something whose inexorable conclusion was bestiality on the part of their grandchildren.

I think, in some ways, it's more about paranoia than about faith. They're afraid that if society sanctions same-sex relationships, the world as they know it will irrevocably change. That instead of a plethora of open, heterosexual relationships being in public view, they'll find themselves surrounded by dude-on-dude and girl-on-girl action.

Which, the more I think about it, is a can of worms for a different time and thread.

But at the end of the day, it's less about what Christianity is and what it says than about how people use it (which is not all that different from the distinctions drawn between radical Islam and the non-self-explodey variety. Just differently applied).

Making up fake hypothetical conversations is a solid way of arguing a point.

I'm going to make a video where a cartoon Abraham Lincoln says he's for gay marriage. That way I'll win the internets.

The whole thing is stupid. We all know where things are going. We all know how history will look back on this in 100 or 150 years. People trying to latch on to bigotry this hard are going to look the same as those who were for segregation, slavery, interracial marriage, women not having rights, and gay marriage. The world has progressed, just accept it and moved on. Regardless if the Supreme Court makes a ruling on it, it'll be legal in 200 years everywhere anyway. Polygamy is here to stay!

:D

This is great, but what about weed!?!?!?

bring back stoning and concubines and lawful killin of da womenfolk for doin things we don't like

incidently gay marriage now legal here in the state of washington

You are from Washington?

This changes everything!

Not from here, but live here now. And I am wrong. Gregoire is announcing sometime today when she will sign the law. It's been through both Senate and House. And asshats a plenty are bitching. Get this that Kansas church group is going to protest the funeral of those two kids that were killed BECAUSE of the gay marriage thing.

We'll find other ways and reasons to be bigots and look down upon people. Look how some of the "tolerant" react to anyone with faith, or southerners, or the uneducated, or the rural. That can be disguised for a while as disagreements with particular issues, but it's often just phrased and blanket hate of groups.

Next thing you know people will be saying it's wrong to bang sheep!

Don't forget the ostentatiously contrarian.

*snicker*

SI

No, that's more your individual issue with me which I don't really understand, though I'm always curious about it when you pop in to express it, when I can't remember any interactions with you or anything that would have brought than on.

There's orange juice in the fridge.

Bigotry may always be with us, but we can stop institutionalizing bigotry in the law. Regardless of what happens in CA people will still be allowed to think gays are teh icky.

There'd be no limit to what we could achieve. But no...let's focus on what two consenting adults do in the privacy of their own bedrooms. That's somehow the most important issue facing us as a society, as a species.

FML

If there's any time-travelers out there reading this - can you please abduct me and take me to the future where humanity has gotten over this kind of petty shit and learned to focus on the real issues and is actually striving to reach it's potential?

Please...I beg you.

"Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them."
Karl Popper

I think I need to reboot my brain.

I told you NOT to pass me that. ;)

Quality stuff

SI

Isn't the real issue here that fact that a court decided to go against the will of the people? A referendum was held, and now the court just wants to dismiss the vote tally because it doesn't like it. Isn't this the real debate? Not weather you agree with gay marriage or not?

The "will of the people" in the South would have delayed civil rights 30 years - is that ok? Respect for minority rights is a bedrock value.

Pray, tell us what you really think.

I'm not overly abreast of the situation, but I don't think the courts dismissed the vote because they didn't like it. I believe they are saying the vote was not constitutional. As has been said numerous times in many threads, the will of the people is not a blank check. There is a judiciary system to make sure the will of the people does not violate the constitution, or at least some interpretation thereof. I mean, Georgia and most southern states would probably vote for the right to ban minorities from schools and work, but it doesn't make it legal.

But part of the duties of the court can be to stand up for minorities against the tyranny of the majority and this seems like a textbook case of that

SI

There is no debate. The will of the people (a little more than 50% of the people that actually voted in the state of california), violated the constitution of the united states.

The will of the people cannot violate the constitution. The court decided that the referendum violated the 14th Amendment.

The reason we are a constitutional republic and not a democracy.

Good point.