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View Diary: The Ninth Circuit's restrained decision on Proposition 8 (141 comments)

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  •  hmmm (1+ / 0-)
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    Aunt Pat
    The narrow grounds are the ones I suggested: that there is no rational basis for a state to take way the label "marriage" and only the label, not the rights from same-sex couples.
    I know the panel claims the decision is "narrow" in that they decided only whether it violates equal protection to ban one group, but not another, from marrying.

    But the idea that such a "narrow" holding is in reality any different than a holding that gays and heteros have the same right to marry is kind of silly.

    It's really a distinction without a difference. Even if there was no overt ban, how is it any different to have marriage laws that expressly permit hetero marriage while being silent as to gay marriage? Either the statute permits gays to marry or it doesn't. And if it doesn't, this panel just said that violates equal protection.

    There is no principled way to distinguish these two supposedly different issues.

    •  I don't characterize it like that (6+ / 0-)

      Because even under Prop 8, same-sex couples had all the same substantive rights as opposite sex. They just couldn't call it the same thing. And when it's taken away contemporaneously, it's easier to see it as motivated by animus than when you're looking at a historical ban where same-sex marriage was never even considered when the law was passed.

    •  It's not. (4+ / 0-)

      The difference is that in California the domestic partnership law did everything it could at a state level except say "married" and make it part of the same group.

      Furthermore, there is a huge difference between taking away a right that has been given and not giving it in the first place, especially if you're taking an "either it says it or it doesn't" approach to things.

      My hope is that Kennedy sees it your way and makes it legal nationally, but I don't believe that will happen so I'm hoping for the best outcome in the realm of the possible.

      GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

      by Attorney at Arms on Tue Feb 07, 2012 at 03:59:17 PM PST

      [ Parent ]

    •  It is "narrow" because it only states that once (1+ / 0-)
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      you pass a law giving certain rights to a group (and that law takes effect) you can't undo it. As long as the other states don't make gay marriage legal in the first place (or put in enough of a delay so that it can be put on the ballot) then it would not affect them.

      There is no saving throw against stupid.

      by Throw The Bums Out on Tue Feb 07, 2012 at 04:28:27 PM PST

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      •  it's the name (1+ / 0-)
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        The California Supreme Court decided that Prop 8 did nothing more than take the word 'marriage' away from same sex couples. Considering that domestic partnership in California had already been enacted by the legislature to include all the state-granted rights of marriage and that the drafters of Prop 8 decided to address nothing more than the word (not explicitly revoking a single marriage-like right from registered domestic partners) the Supreme Court of California said, OK, get rid of the word, but that's just a label anyway, the contents of the package are unchanged.

        Today's decision seems to do one thing - disagree with the Supreme Court of California that the word is ultimately insignificant.

        Under the US Constitution, Reinhard says, voters can't take the word away merely out of a desire to voice disapproval.

        That's a narrow decision.

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