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Ted Olson and David Boies
Ted Olson and David Boies
I told you so.

Back in May 2009 when Ted Olson and David Boies filed the AFER complaint challenging the constitutionality of Prop 8, I told you not to dwell on its efforts to establish a freestanding right to same-sex marriage under the Equal Protection Clause, but rather to focus on Paragraph 43's allegation that "The disadvantage Prop. 8 imposes upon gays and lesbians is the result of disapproval or animus against a politically unpopular group."

This, I explained, set the case up to fall under a clear line of Supreme Court precedent (Romer/City of Cleburne/Moreno) standing for the principle that, as Justice Brennan put it in Moreno, "[I]f the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Or as Justice Kennedy wrote in Romer, concerning Colorado's anti-gay Amendment 2, a law which "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else" cannot stand. And, so, I said back in May 2009:

[C]onsider the Prop. 8 question this way: is there a rational basis for the citizens of a state to withdraw the term "marriage" from its legal description of same-sex unions -- and only from same-sex unions -- when such a move seems solely to be motivated by the desire to stigmatize such couples compared to straight couples? In a way, Prop. 8 would have been more constitutional had it withdrawn more than the name "marriage" from same-sex unions and withdrawn concrete rights as well -- because then the state could argue for some cause-and-effect linkage in the amendment in demonstrating its preference for opposite-sex unions. Now, it's only about stigma and animus.
When Judge Walker struck down Prop 8 as unconstitutional, he went beyond this point, not only holding that Prop 8 had been based upon animus but that there was no rational basis whatsoever for denying anyone in America marriage equality, period.

Continue reading below the fold.

Today's Ninth Circuit decision walks back from that perch. Instead, writes the Hon. Stephen Reinhardt, it's not a necessary question for today's purposes:

Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already committed to same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.
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. It's a decision that applies to Prop 8 only, and not to other states where marriage equality was never the law in the first place.

As I suggested before, the Ninth Circuit recognized the irony that if Prop 8 had been broader—had it taken away substantive rights from same-sex couples—it might have been more constitutional, because at least then the Court could consider proponents' arguments regarding procreation and childrearing. Instead, they wanted to take away the word, a word that deprived no same-sex couple of any rights in those areas, and it's a word that matters:

We are excited to see someone ask, "Will you marry me?", whether on bended knee or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution... but who wants to live in an institution?" would lack its punch if the word "marriage" were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that's marr'd," Lincoln's "Marriage is neither heaven no hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie.
What's in a name? A lot:
By emphasizing Proposition 8’s limited effect, we do not mean to minimize the harm that this change in the law caused same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couples desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.

It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.

This is a decision which the Supreme Court—if it hears the case at all—will affirm. It's written in Justice Kennedy's sweet spot, and I would not be surprised to see the Chief Justice and even Justice Alito potentially adhering to a precedent that said that if Romer remains good law, Prop 8 cannot stand.

Am I disappointed this panel didn't go further? Not really. No one knows where the Supreme Court as a whole is on marriage equality. And, in particular, we can't be sure just where Justice Kennedy on marriage equality, and on this he is the key vote. He has made clear that he believes in the role of the Supreme Court to be a leader on issues of social justice—whether in expanding gay rights or in looking to international norms to scale back America's death penalty—and in this case Kennedy's grandiosity could be marriage equality's best friend.

But I wasn't willing to take that chance. For all we know, Justices Breyer and Ginsburg might not be ready to go that far. Moreover, you can't always rely on Justice Kennedy, who is a conservative, after all. Maybe he recoils from changing the national definition of marriage.

In truth, however, if the Court takes this case on appeal then they could Go Big, as it were, regardless of what the Ninth Circuit decided today. But today's decision gives them an easy route to a 5-4 affirmance (or more), and to allow the issue of equality to be sorted out through the political process for a few more years. No, same-sex couples shouldn't have to wait, but make no mistake: equality is winning.

Originally posted to Adam B on Tue Feb 07, 2012 at 03:12 PM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  Jeffrey Rosen, 2007 (73+ / 0-)

    link

    From the beginning, Kennedy’s performance on the Court has been defined not by indecision but by self-dramatizing utopianism. He believes it is the role of the Court in general and himself in particular to align the messy reality of American life with an inspiring and highly abstracted set of ideals. He thinks that great judges, like great literary figures, have both the power and the duty to “impose order on a disordered reality,” as he told the Kennedy Center audience. By forcing legislators to respect a series of moralistic abstractions about liberty, equality, and dignity, judges, he believes, can create a national consensus about American values that will usher in what he calls “the golden age of peace.” This lofty vision has made Kennedy the Court’s most activist justice—that is, the justice who votes to strike down more state and federal laws combined than any of his colleagues.

    Kennedy often complains about the “loneliness” of his position, which stems from the fact that he has no reliable public constituency: Both liberals and conservatives tend to view him as a self-aggrandizing turncoat. “Oh, I suppose everyone would like it if everyone applauded when he walked down the street,” he said in an interview. “There is loneliness.”

    But, when it comes time to hand down decisions, Kennedy shows little ambivalence about the centrality of his role in our national drama. His opinions are full of Manichean platitudes about liberty and equality that acknowledge no uncertainty. “Liberty finds no refuge in a jurisprudence of doubt,” he wrote in his decision in Planned Parenthood v. Casey, the 1992 opinion upholding the core of Roe v. Wade. “Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality,” he intoned in a 2003 dissent from the Court’s decision to uphold affirmative action in law schools. Kennedy does indeed agonize before reaching his decisions, and he has dramatically switched his vote in high-profile cases. Yet he seems to agonize not because he is genuinely ambivalent or humble but because he thinks that agonizing is something a great judge should do, to show that he takes seriously the awesome magnitude of his task.

  •  I like this narrow decision (14+ / 0-)

    It's the other Same-Sex marriage case (the one from Boston) that I hope will provide the platform for a broader decision.

    State laws allowing same-sex marriage are great in their way, but they're small potatoes compared to the federal issues. If we can get the Defense of Marriage Act overturned, then we've really gotten somewhere.

    "The smartest man in the room is not always right." -Richard Holbrooke

    by Demi Moaned on Tue Feb 07, 2012 at 03:22:59 PM PST

  •  It also allows them NOT to grant cert (21+ / 0-)

    Romer is good law, as you say, and so is the rationale for the limited opinion which could not be more tied to Romer. I don't see a problem with California being restored to June 2008, and I think this decision should send a chill to the people preparing the referendum in Washington State if the legislature gives Gov. Gregoire a bill to sign.

    All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Tue Feb 07, 2012 at 03:25:37 PM PST

    •  After this (2+ / 0-)
      Recommended by:
      lostboyjim, Aunt Pat

      esp if they decline an en banc request, there ought to be a request to the feds strike down "vetos" of duly enacted laws, if WA fundies file such a petition, as being the same as taking away granted rights.

      The dissenter agreed "in part" with the ruling - can some legal eagle clarify exactly on what his dissent was based? Thanks!

      •  It's a real dissent (13+ / 0-)

        Rick Hasen explains:

        Just as Judge Reinhardt was smart and savvy in writing his analysis striking down Prop. 8 on the narrowest grounds possible, Judge Smith’s dissent is similarly crafted to be appealing to a swing Justice. Rather than a full-throated defense of traditional marriage (a la Justice Scalia), Judge Smith hangs his hat on two fundamental, almost procedural points: first, that the 9th Circuit is bound by an earlier summary affirmance of the Supreme Court in the Baker case; and second, that rational basis review is exceedingly deferential. On this second argument, Judge Smith says that even if the people of California were ‘erroneous’ in believing that Prop. 8 could further procreation and optimal parenting goals, and even if there was some bias in making that determination, under the exceedingly deferential “rational basis” review standard, the law should stand. While the majority opinion is meant to appeal to the anti-animus Kennedy, the dissent is meant to appeal to the judicial restraint Kennedy. My guess is that the majority would be more persuasive to Justice Kennedy, but that’s by no means certain.
        •  Hasen (6+ / 0-)
          Recommended by:
          Adam B, Aunt Pat, lgmcp, celdd, elfling, madhaus

          Has a good point, but judicial temperament isn't limited to whatever the rationales for his writings are.

          Those who know the man know that Kennedy wants to be an historic person as well as one who has been less legally speaking "pro gay"--and I think this is what Olson and Boies are counting on.

          Kennedy doesn't want to be remembered as "Mr. Judicial Restraint."

          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 03:54:43 PM PST

          [ Parent ]

        •  I felt Baker (0+ / 0-)

          was his better point. The majority dismissed rational basis much better than Reinhardt supported it.

          •  Smith echoed the Prop 8er who said (1+ / 0-)
            Recommended by:
            SoberGuy

            We don't need any evidence! All we have to do assert something, even if that assertion is contrary to the facts. A "rational basis" can be completely contrary to the facts and still justify a law, even when that law works counter to the very rational basis claimed.

            Me now: I still have a hard time believing this has ever won a case - but it has.

            •  I meant Smith.... (0+ / 0-)

              Sorry about that.

              Yeah, I'm not a lawyer at all, so I have no idea. I guess we'll see what happens at the next step.

            •  I can give you 4 rational basis arguments (0+ / 0-)

              for the ban.

              1. Comity with other states that do not permit SSM. If California has civil unions other states can decide whether or not to recognize them. But other states recognize California marriages by default. If California permits SSM then those other states must deal with the issue and if they do not want to recognize SSM they must pass special laws, etc.

              2. Comity with the federal government and DOMA - Californians may not want to deal with issues with marriages that are recognized by California but not by the federal government.

              3. Caution - whatever the arguments for and against SSM, why not let another state go first, get 5 - 10 years experience with several tens of thousands of same sex marriages, and then decide if California should allow SSM?

              4. Teaching the California Supreme Court a lesson - that it should leave issues like this up to the legislature and the people rather than recognizing previously undiscovered rights in the California State Constitution.

              You don't have to agree with any of these arguments - the question is whether or not they are rational.

              I think they all are.

              •  flawed premises (0+ / 0-)

                lead to flawed results.

                Garbage in, garbage out.

                If there is no check on rationality with real world evidence then "rational" is the wrong word. Just because you "think" something doesn't make what you "think" a good basis for law, especially when your law limits the liberties of other citizens. Unless you are Judge Smith, I guess. Or Wham Bam.

                •  Well, as was previously noted, "Rational Basis" (0+ / 0-)

                  is a very deferential analysis.

                  Note that it is "rational basis", not "correct basis".

                  In short, if the voters have a rational reason for this law that's enough, even if the court thinks the voters are wrong.

      •  Would this apply to Maine too, perhaps? (1+ / 0-)
        Recommended by:
        Aunt Pat

        A right granted, but never able to be acted upon?

        Minority rights should never be subject to majority vote.

        by lostboyjim on Tue Feb 07, 2012 at 03:50:46 PM PST

        [ Parent ]

      •  Smith agreed on standing and recusal (4+ / 0-)
        Recommended by:
        Adam B, pico, Rolfyboy6, RainyDay

        Smith agreed with the court that the Official Proponents had standing to pursue the case in federal courts (deferring to the CA Supreme Court's recent ruling).

        And he agreed that Judge Walker had no reason to recuse himself from the case just because he is gay.

        He disagreed on the important central point of the constitutionality of Prop 8.

        This is my life. All the pain, all the joy it brings. All through the years, the blood, sweat, and tears, my hopes and my fears -- all that has led me to now. This is my life, and I wouldn't change a thing.

        by harrije on Tue Feb 07, 2012 at 04:01:34 PM PST

        [ Parent ]

      •  The dissent almost got there too (7+ / 0-)

        Basically the Court said that since Prop 8 took away the word "marriage"from gays wit all the freight that word carried, but did not otherwise change the law, it could only have been done to make straights feel special and gays be lesser people. They demolished, as did Judge Walker, all of the "rational bases" for the measure and said it was really just moral disapproval, which by itself isn't enough.

        The dissent went much of the way with them, but said that the idea that restricting marriage to straights would foster responsible procreation (push people to marry not just shack up) and optimal parenting (with two opposite sex parents) could have reasonably have been believed by the electorate even if neither was shown at trial to be true. Therefore, even though the electorate may have been misinformed about the effect of the measure, that was arguably something more than just trying to register disapproval of gays. And besides this, in 1971 the Supreme Court refused to hear a challenge to a MN law restricting marriage to opposites and so appellate courts should not stick their necks out now even though over 40 years have passed and we know lots of those prejudices are myths. Anyway he won't.

        The only way to uphold Prop 8 is either to say that moral disapproval is a sufficient basis tontake away important rights from a discrete group or that despite what the facts show, when it comes to homosexuality, the ick factor is so stromg that it doesn't matter what the truth is.

        The scientific uncertainty doesn't mean that climate change isn't actually happening.

        by Mimikatz on Tue Feb 07, 2012 at 04:12:22 PM PST

        [ Parent ]

    •  Yes. (1+ / 0-)
      Recommended by:
      fsbohnet

      I think this is a possibility that most people haven't talked about in the media. Very likely, actually.

      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 03:39:23 PM PST

      [ Parent ]

      •  But it only takes 4 to grant cert (0+ / 0-)

        Roberts, Scalia, Alito, and Thomas. Even if Kennedy and the more liberal 4 didn't want to, cert would be granted.

        Hard to believe any one of those 4 could deny cert and still face their bishops.

        The scientific uncertainty doesn't mean that climate change isn't actually happening.

        by Mimikatz on Tue Feb 07, 2012 at 04:18:00 PM PST

        [ Parent ]

        •  Why grant cert if you'll know you'll lose? (0+ / 0-)

          That's why those four may not vote for it.

          One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

          by AUBoy2007 on Tue Feb 07, 2012 at 04:42:59 PM PST

          [ Parent ]

          •  AUB - lots of reasons to grant cert (0+ / 0-)

            Those granting cert might feel that they convince a fifth to come to their side. They might also want to influence both opinions to make it harder for the next marriage equality case that comes before the Court.

            "let's talk about that"

            by VClib on Tue Feb 07, 2012 at 06:33:54 PM PST

            [ Parent ]

    •  Yes. (7+ / 0-)

      IANAL, but the decision read to me like it was structured specifically to give the SC an out. By building everything around Romer they're not raising any new constitutional issues, and since it really only applies to one state (at least at the moment), the SC can simply say that there is nothing for them to review.

      At least one can hope.

    •  Agreed- I predict cert denied. (0+ / 0-)

      I can't really see this being easily overturned, and, yes, while it "only" takes 4 votes for cert, I doubt Roberts has the appetite to take this case on. The ruling is exceedingly narrow, and does not contradict any precedent or cause a circuit split.

  •  I've been waiting for Adam B to weigh in on this (17+ / 0-)

    and he didn't disappoint. Very informative and thoughtful. Thank you. I'm concerned about the Supreme Court, of course. But I was very heartened by the decision today. I agree with you 100% on this: equality is winning.

    Score Card: Marriages won by me, 1. Marriages destroyed by me, 0.

    by Steven Payne on Tue Feb 07, 2012 at 03:29:30 PM PST

  •  Couldn't be happier to see your (8+ / 0-)

    "I told you so."

    Koch Industries, Inc: Quilted Northern, Angel Soft, Brawny, Sparkle, Soft 'n Gentle, Mardi Gras, Vanity Fair, Dixie

    by ChiTownDenny on Tue Feb 07, 2012 at 03:32:58 PM PST

  •  Not a good night to not have reservations for (6+ / 0-)

    a table in the Castro. If I still lived in the city I'd head down there just to enjoy the party.

    Once in a while you get shown the light, in the strangest of places if you look at it right.

    by darthstar on Tue Feb 07, 2012 at 03:36:07 PM PST

  •  which puts the RATS (1+ / 0-)
    Recommended by:
    Aunt Pat

    in the position of granting a review that may well go against them, or allowing marriage in California to proceed.

    Ask your barista what her degree is in.

    by happymisanthropy on Tue Feb 07, 2012 at 03:36:30 PM PST

  •  asdf (4+ / 0-)
    Recommended by:
    Seneca Doane, Aunt Pat, Mimikatz, Matt Z

    I think I told you so too.

    Anyway, also:

    There's one other possibility.

    If the conservative 4 think Kennedy might go against them, then they can just not vote for cert. They leave this narrower ruling intact and only legalize gay marriage in places where its already legal or in California. Why risk Kennedy going further and legalizing it in toto?

    Of course, they still have a chance that the en banc panel (in the 9th it's still a panel, just a bigger one) will modify or reverse the decision, but I doubt it.

    So, when everyone says blithely that it is headed to the Supreme Court, they're not really looking at the very subtleties that make this case procedurally different.

    Kennedy doesn't look likely to go back on Lawrence or Romer and Reinhardt served him up the justification why those cases support this one. Plus, I think Ted Olson had more than a hunch here.

    Knowing that, why vote for cert? Just to write a dissent? I guess. You could also write an opinion regarding the denial of cert (Roberts gets first crack, right?) explaining that this case can't be used in any other state. You limit gay marriage, put it back in Pandora's Box (California), give its opponents the "there's no going back" rhetoric they might need to defeat it elsewhere and don't risk a broader change.

    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 03:38:32 PM PST

  •  Well done and you were spot on (3+ / 0-)
    Recommended by:
    Aunt Pat, celdd, glorificus

    But, the wheels of Justice turn so painfully slow.

  •  hmmm (1+ / 0-)
    Recommended by:
    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-)
      Recommended by:
      RainyDay

      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

      [ Parent ]

      •  it's the name (1+ / 0-)
        Recommended by:
        lilnev

        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.

  •  But why is the decision stayed? (2+ / 0-)
    Recommended by:
    Tonedevil, glorificus

    Can't we have pre-Prop 8 marriage (i.e. marriage equality) in CA while the full Ninth or the Supremes consider whether this is their bailiwick?

  •  Thanks. (3+ / 0-)
    Recommended by:
    pico, Seneca Doane, glorificus

    This is what I've been waiting for all day.

    [insert pithy sigline here]

    by terrypinder on Tue Feb 07, 2012 at 03:41:28 PM PST

  •  I Agree with You (21+ / 0-)

    I thought that Judge Reinhardt did a brilliant job of crafting his analysis in a way that forced the Supreme Court's hand on the question of the validity of Proposition 8 - without regard to the larger principle we all hope will be self evident someday to everyone - based upon its own precedents. By doing so, he forces SCOTUS to either (a) uphold the ruling under the stare decisis created by the combined weight of Romer (with just a little Lawrence thrown in); (b) ignore the ruling by denying cert (making same-sex marriages legal in the largest state in the Union which when combined with New York, history confirms will dramatically accelerate the process of true cultural acceptance) or (c) take it up with the intent to reverse, an exercise that knowing the current state of the law would leave the court totally tied up in knots and truly vulnerable to arguments that we haven't really heard since Bush v. Gore, since it would require the court to violate the principal that SCOTUS doesn't reach a constitutional question if it doesn't have to and the principal of stare decisis, both of which this court has spoken of regularly as a justification for doing nothing to change the law.

    Not to mention they'd have to confront head on Scalia's presciently worded dissent in Lawrence, which may well cause him a coronary.

    Recognizing the brutal disappointment that some might feel that the courts have not yet all just screamed from the rafters the (in my mind) inarguable truth that equal protection demands no less than what was given today, today's ruling getting to the end game we wanted while minimizing the risk of reversal is one of the wisest, politically and otherwise, that I've read in a very long time.

    BTW, the quoted part you had about the meaning of the word "marriage" -- and especially the line about Marilyn Monroe - is one of my favorites. Put me in mind of the decisions of Justice Cardozo, another person with a wry wit as I'm sure you remember from law school. I love when judges are actually funny while making a deadly serious point.

    If you don't stand for something, you will go for anything. Visit Maat's Feather

    by shanikka on Tue Feb 07, 2012 at 03:43:52 PM PST

  •  Nicely put (2+ / 0-)
    Recommended by:
    Aunt Pat, glorificus

    I love reading your analyses.

    "The first rule of pillow fight club is do not talk about pillow fight club." --Keith Olbermann

    by Julie Waters on Tue Feb 07, 2012 at 03:44:38 PM PST

  •  I do have a question (5+ / 0-)
    Recommended by:
    Dallasdoc, GoldnI, Aunt Pat, Steveningen, celdd

    that may or may not be related.

    Does this narrow ruling also apply to Washington state, after it likely passes Marriage equality this week or next?

    I have another question relating to domestic partnership, but it's rather convoluted. basically my employer considers me in one, for health insurance purposes. i'm paid extra to cover my partner (and it's considered "non-cash income", for federal taxation purposes. Imagine my shock when I opened my paystub that week!) my state (Pennsylvania) doesn't recognize said relationship, of course, but my employer IS my state. So I'm all kinds of lost as to what this legally is all about.

    [insert pithy sigline here]

    by terrypinder on Tue Feb 07, 2012 at 03:46:26 PM PST

    •  I imagine it will only apply to (4+ / 0-)
      Recommended by:
      terrypinder, RainyDay, ebohlman, VClib

      Washington if the marriages begin before any referndum is passed. If, however, it is like Maine, where the law is on hold until the vote, then I don't think the same reasoning could apply.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Tue Feb 07, 2012 at 03:59:55 PM PST

      [ Parent ]

      •  True, because of the narrow ruling. (3+ / 0-)
        Recommended by:
        terrypinder, Rolfyboy6, bythesea

        But it may give opponents of WA's marriage equality (soon to be) law a reason to pause and consider whether it's worth it to put all the time and effort into putting an initiative on the ballot to see if the citizens will overturn such a law.

        And, WA citizens will see that judges are willing to uphold the equality law, so it may make them unwilling to vote for something that will waste time and taxpayer money that ultimately gets overturned.

        © grover


        So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

        by grover on Tue Feb 07, 2012 at 04:05:57 PM PST

        [ Parent ]

        •  They have pledged to put it on the ballot (0+ / 0-)

          and I cannot help but think they will go through with it.

          For the religious opposition, lgbt marriage is the equivalent to the "red line".

          They won't stop.

          202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

          by cany on Tue Feb 07, 2012 at 05:08:11 PM PST

          [ Parent ]

    •  Possibly, although since Washington's law (4+ / 0-)

      won't take effect until after the election (meaning that the referendum challenge would be decided first), it'll be a little harder to argue that it's identical to the California situation. No one's quite sure.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Tue Feb 07, 2012 at 04:01:10 PM PST

      [ Parent ]

    •  For the first question (1+ / 0-)
      Recommended by:
      terrypinder

      Yes, since Washington is within the Ninth Circuit. What this will do is provide a buffer against right-wing attempts to get marriage equality on the ballot to try and overturn the legislature. Such a ballot initiative would be held unconstitutional from the outset.

      •  I don't think it's that clear cut. (3+ / 0-)
        Recommended by:
        RainyDay, cany, VClib

        If the right isn't granted except for a positive voting outcome, then it's not the same as Prop 8.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

        by AUBoy2007 on Tue Feb 07, 2012 at 04:09:18 PM PST

        [ Parent ]

    •  Yes (0+ / 0-)

      in the sense that once it becomes law, voters can't rescind or the leg either. They are in the 9th circuit.

      The scientific uncertainty doesn't mean that climate change isn't actually happening.

      by Mimikatz on Tue Feb 07, 2012 at 04:29:01 PM PST

      [ Parent ]

    •  it might put the haters on notice (0+ / 0-)

      that if they are putting a measure on the ballot in a relatively pro-gay state they will have to make the measure less palatable by actually revoking family recognition from glbt people, not just the word 'marriage.'

      In most states such cruel measures have had no difficulty before the electorate. In relatively pro-gay California the Prop 8ers wanted to slap the gays but were afraid punching & kicking them would not lead to success at the ballot box.

  •  Great post Adam B (7+ / 0-)

    I too have been waiting for you to weight in.

    Can you give your thoughts on Smith's dissent? I was really hoping for a 3-0 ruling, especially if it were such a tightly written decision. I am very disappoint that this decision basically fell along party lines.

    Minority rights should never be subject to majority vote.

    by lostboyjim on Tue Feb 07, 2012 at 03:55:08 PM PST

    •  I can't speak for Adam, but (3+ / 0-)
      Recommended by:
      Seneca Doane, Darmok, LuvSet

      Smith's dissent is basically to give a high level of deference 1. to the state, when it claims a rational basis for its laws, and 2. to SCOTUS, who've not defended LGB rights along these lines before. He argues that the cases used by the majority are distinguishable from the CA situation, and that the judges should be wary of overstepping their boundaries.

      The most confusing part of his decision for me, although it's supported by E. Volokh in a very odd set of hypotheticals, is that one can have rational basis even when the law doesn't do what it purports to do and the proponents are fully aware of this fact. It leads Smith into some mighty contorted arguments, which he basically passes off with a shrug, that sometimes governments do weird things.

      I disagree with plenty in his dissent but I understand most of where he's coming from, especially if your judicial philosophy is based around deference. On this point, however, I'm confused. And a little angry that he thinks the optimal parenting thing is "at least debatable", which no, it isn't.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Tue Feb 07, 2012 at 04:07:11 PM PST

      [ Parent ]

      •  Forgot to add: (2+ / 0-)
        Recommended by:
        terrypinder, LuvSet

        the point about rational basis is especially bizarre because he uses the fact that the law is pointless to argue against animus, too! Unlike Romer, where the law put a broad burden on the LGBT population, the total pointlessness of Prop 8 defends it, in Smith's mind, against comparison with Romer on claims of animus. He twists into some fancy pretzels.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Tue Feb 07, 2012 at 04:17:43 PM PST

        [ Parent ]

  •  So is there any speculation... (1+ / 0-)
    Recommended by:
    Aunt Pat

    ...on how the supreme court will receive this? Considering it's almost a guarantee they will receive this.

    Also, what effect would a supreme court rulling have nationwide if they came to these same conclusions?

    Would states be required to offer homosexuals the right to marry? What about all those states that passed ammendments to their own constitution? Would those be struck down as well? What about states that passed laws but not constitutional ammendments?

    Intersting times.

    I started a blog. It's still a work in progress but if you're interested, come on by. Dawn of Ambivalence

    by DawnG on Tue Feb 07, 2012 at 03:56:18 PM PST

    •  If it's the same conclusions (2+ / 0-)
      Recommended by:
      DawnG, VClib

      It will have no effect outside California, unless other states with marriage equality change the label "marriage" for same-sex couples to something else.

    •  If the Supreme Court (3+ / 0-)
      Recommended by:
      Adam B, DawnG, RainyDay

      came to the same conclusion, it would mean gay marriage is once again legal in California. That's it.

      This is a narrow opinion speaking only to Prop 8 and the circumstances surrounding its existance. It might apply in states where gay marriage was legal but then taken away, but as of yet, that hasn't happened anywhere else. (I think Maine is a different category.)

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Tue Feb 07, 2012 at 04:03:33 PM PST

      [ Parent ]

    •  Majority explicitly says (0+ / 0-)

      that their decision is based on narrow facts. Not saying any state is compelled to grant equal marriage rights, and Supreme Court denial of MN case suggests not, although they could always change their minds in 10 years.

      The scientific uncertainty doesn't mean that climate change isn't actually happening.

      by Mimikatz on Tue Feb 07, 2012 at 04:32:25 PM PST

      [ Parent ]

    •  I'm sot sure the Supreme Court will (2+ / 0-)
      Recommended by:
      bythesea, TexasTom

      The issues in the case are specific and unlikely to reoccur. The ruling only affects one state. There's no circuit split. Better vehicles for the Court to consider the deeper issues are sure to present themselves within the next few years. It appears that there is a national consensus building on the issue of same-sex marriage, and the Court might want to put off the decision for a couple years to asses whether that is the case.

  •  I think this case is pitched to Kennedy's ego. (2+ / 0-)
    Recommended by:
    Adam B, Seneca Doane

    Not meant to be insulting or anything, but if he's a rational observer he knows that things are headed this way eventually, however long it takes. So long as he doesn't hold some serious ideological opposition to the idea of gay marriage (which he may, though his record on gay rights issues is excellent), he's essentially being offered a chance to write himself in the history books and be mentioned alongside John Marshall Harlan and Earl Warren.

  •  My problem with t he case decision (0+ / 0-)

    The language does nothing to advance gay rights outside of the narrow issue of marriage equality , and even there, just in California

    What about employment? What about housing?

    I don't see this ruling if I understand as helping in any of those battles. The value of the line of cases for Brown v Board etc was that by setting up race as a class deserving of higher protection under equal protection it then allowed all the other areas in which discrimination to happen to be addressed.

    How does this case help those gays who aren't trying to get married, but are just trying to keep their jobs, or their homes, or seeking social services from the government because they are old gay people?

    This is my problem with th elevel of scrutiny.

    Its not to know people can't use what I call the "filthy faggots" excuse as was basically the Pro-8 approach to the case, but it seems limited as far as gay human rights.

    •  The most obvious value to this decision (1+ / 0-)
      Recommended by:
      bythesea

      would be to weigh against attempts to repeal gay marriage in any of the states where it already exists.

      I agree that it's more limited, but this isn't the Supreme Court; they're cleaving closer to the centre in the hopes of minimizing the chance of being overturned.

      •  I understand what they are doing (1+ / 0-)
        Recommended by:
        Chitown Kev

        My concern is one of internal gay community politics. You got people like Dan Savage arguing on TV that the gay rights is "marriage equality." Let say we get a case that narrowly rules marriage equality should be the law. I doubt many will understand that this means that there may be yet more battles for employment and housing discrimination cases. I think this allows for a class based split later in the fight for equality for all gays rather than just on the issue of marriage if its not understood the class should receive heighten scrutiny.

        •  not many understand much, anyway (0+ / 0-)

          Large majorities in this country believe that discriminating against gays & lesbians is already illegal. You and I know it is as legal as anything needs to be.

          But as long as we're talking about things that are hard to understand - I have a hard time "understanding" the dissent's assertion that "rational basis" means a law is perfectly fine if you can come up with an argument that defends it - even if that argument is contradicted by the facts - even if in practice the law thwarts the goals you claim in your argument. Smith's dissent elevates know-nothingism to constitutional stature.

    •  I agree (5+ / 0-)
      Recommended by:
      terrypinder, pico, Darmok, lgmcp, bythesea

      It goes back to Lawrence, which only Justice O'Connor was willing to use as a vehicle for heightening the level of scrutiny due legislation which discriminated against LGBT Americans.

      The problem is that it's unclear how many of the Nine are presently prepared to go there.

      •  Part of my concern as I write above is political (0+ / 0-)

        My fear is that the n arrow approach will mean that once marriage equality happens people will go ho me thinking the battle for gay rights is over.

        •  Doubtful (1+ / 0-)
          Recommended by:
          VClib

          Let's not forget that military service and marriage represent(ed) areas of de jure discrimination (i.e. discrimination with the official imprimateur of the government) whereas employment, housing, etc. represent de facto discrimination. Historically, de jure discrimination had to be eliminated before much could be done about de facto discrimination; otherwise laws banning the latter could be struck down on the grounds that the government was trying to impose standards on the private sector that it wasn't itself willing to abide by.

          Banksters are harmful for the same reason neutrinos are harmless: neither are inclined to share what they've got (wealth and energy, respectively)

          by ebohlman on Tue Feb 07, 2012 at 05:13:37 PM PST

          [ Parent ]

        •  I'm not worried about this (1+ / 0-)
          Recommended by:
          bythesea

          The marriage equality fight is far from being over.

          Besides, people will continue to fight for what is right. Even fights that are "over" - like abortion or collective bargaining rights - are being fought daily.

          •  No they will not. The gay rights movement (0+ / 0-)

            right now is only together because the issue is seen as tying all gays together. Housing and employment discrimination for middle class and upper income gays is not a crucial issue. It is a mistake to think the gay rights movement is truly a monolith for all gay rights.

            •  monolith? (0+ / 0-)

              who said anything about monoliths?

              isn't there one floating around Jupiter?

              rich gays (Ken Mehlman, et al) seem to be perfectly happy selling out lesser gays in order to keep the richies in riches. that some rich gays have decided they want to be able to marry after all is kind of interesting. I wasn't so much being optimistic as figuring the struggle is eternal - a luta continua! we'll never completely win, there will always be battles to be fought. the AIDS crisis isn't really over, etc.

    •  It's one brick in the wall toward building (1+ / 0-)
      Recommended by:
      glorificus

      heightened scrutiny for sexual orientation (which I argue should be "intermediate.")

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

      by Seneca Doane on Tue Feb 07, 2012 at 04:09:48 PM PST

      [ Parent ]

    •  Even with the realm of marriage rights (0+ / 0-)

      or other adjuncts to recognized partnership ... the way this came down seems well-suited to incentize states to do away with ANY vestiges of civil marriage or legal standing for domestic partnerships. If granting some rights guarantess you can thereby be forced to grant all rights ... then areas where same-sex couples as yet have zero rights, are likely to be all the more hard-fought. It seems the trench warfare just got uglier, on that front.

      NM has never been able to quite pass a DP law. But, neither have we passed a restrictive DOMA law, though one is in the works right now and must be combatted. I fear with this ruling, the DP law just got that much harder to reach, and the DOMA one that much easier.

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Tue Feb 07, 2012 at 04:15:56 PM PST

      [ Parent ]

      •  yeah, that's why I am calling this (1+ / 0-)
        Recommended by:
        lgmcp

        the "you can't calling filthy fags" argument. Essentially, not only my chill those who were moving forward in other areas like NM, but it may also create sham reasons that while not being so blazen as yes on 8 is nevertheless targeting gays as a class.

    •  It does pretty well demolish the anti-gay biases (0+ / 0-)

      Granted it doesn't extend strict scrutiny to gays, and in a sense it makes it more dangerous to extend further rights to gays, but then that was true under Romer, and what they do do is say that opposition gays is really rooted in ignorance and prejudice, not that the right cares.
      I'd say it makes anti-gay prejudice less "respectable" and may widen the divide between tolerant and intolerant states temporarily.

      Gays already have full civil rights in CA. And in a way it validates a bit higher scrutiny in areas like employment discrimination in the way it talks about Romer. I think the importance is to make more people realize the myths on which Prop 8 were based are just that. Nothing will convince the Dobson types, but time is dwindling their ranks.

      The scientific uncertainty doesn't mean that climate change isn't actually happening.

      by Mimikatz on Tue Feb 07, 2012 at 04:41:10 PM PST

      [ Parent ]

      •  No, you are wrong (0+ / 0-)

        (a) rational basis is a standard that gays must prove rather than t he state. it doesn't change that regarding any laws passed against gays by the state

        (b) you have a misunderstanding of the law. gays are not going to be granted new rights if people can't kick us out of our homes or out of jobs, it would be including us in rights already enjoyed by others based on race and gender. one can't kick a white person out of his job for being white, but they can kick me ou t.

        (c) animus is a low bar. It essentially says you can't call me filthy faggot, but it does not prevent you from structuring a sham reason that creates the illusiuon of it not being about me being gay, but has that impact. This is well known in other aareas of equal protection scrutinty. Its not a concept thats debated by even conservatives that I know of. this does nothing to protect us against sham laws. And sham reasoing. what it says and all that it says is you can't be as blazen as the prop 8 people were who essentially put on no case at all other than faggots are filthy. Tht's agan a very low bar.

        (d) gays do not have full civil rights in CA. This is just factually false.

        I don't give a sh it what people think about me as a gay perosn a far as their false perception. Just like I do n't give a shit as a black person. THe difference is that the law says that people can't use those arguments as a basis to even create sham arguments that pretend not to be bout race, but have that impact. They can still do that with gay rights.

        (e) I am not interested in the political dimension other than the actual rights. Not perception of what's happening outside of that. People need to understand this is not a great ruling. Its just treading a s far as I can tell on existing ground.

    •  bruh - this case was never going to deal with (1+ / 0-)
      Recommended by:
      ebohlman

      gays as a class and having the same type of civil rights protection as race or gender. No one expected those issues to be addressed.

      "let's talk about that"

      by VClib on Tue Feb 07, 2012 at 06:41:51 PM PST

      [ Parent ]

  •  I'm betting (3+ / 0-)
    Recommended by:
    ebohlman, grsplane, bythesea

    That the SCOTUS will not grant cert for this, and will let the Ninth Circuit stand. This decision gave them an opening for just that outcome--it's narrow, it applies only to California, and it clearly falls within established precedent. There may not be a compelling reason (from the Justices' POV) to take it up.

  •  I agree with this narrower defined ruling. (0+ / 0-)

    Iowa, and other states, stand firmly with it. Let's hope it succeeds at the SC.

    Well...I'd rather live in Utopia


    by jim in IA on Tue Feb 07, 2012 at 03:59:41 PM PST

  •  I've been looking forward to Adam's analysis (3+ / 0-)
    Recommended by:
    AUBoy2007, Darmok, ebohlman

    I found it rather disappointing that the decision was framed in such a way that it affected only California's unique situtation. I wanted a broader decision.

    But I guess there's a lot to be said for a narrower decision that will stand.

    Those with legal expertise have been pointing out that precedent works best when it is built up incrementally. Acretion of layers like a pearl, as it were.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Tue Feb 07, 2012 at 04:03:41 PM PST

  •  Great discussion and I'm still married (2+ / 0-)
    Recommended by:
    RainyDay, LuvSet

    I am not a lawyer but this is a great discussion of the Propostion 8 dilemna. It is purely about punishing members of the LGBT community by religious bigots who put simply hate us and justify that hate using their narrow reading of the scriptures.

    Thank you 9th circuit. I am still married and hope that others in California can tie the knot too.

  •  Equal protection clause (0+ / 0-)

    I'm not a lawyer, not a liberal, not a conservative - libertarian comes closest - but I can't think of a constitutional provision that more blatantly violates the equal protection clause of the 14th amendment outside of the Jim Crow laws. If opposite sex partners can marry and receive benefits by so doing, I don't see anything that should prevent same-sex partners from doing the same.

  •  clarification question (0+ / 0-)

    would this decision, if upheld by the Supremes, mean that republicans in NH or IA can't undo marriage equality there? would it depend on how they do it, i.e. removing the label or removing other substantive rights?

  •  TY so much, Adam, for writing this. I always enjoy (1+ / 0-)
    Recommended by:
    glorificus

    your writing for its clarity and learn so much.

    202-224-3121 to Congress in D.C. USE it! You can tell how big a person is by what it takes to discourage them. "We're not perfect, but they're nuts."--Barney Frank 01/02/2012

    by cany on Tue Feb 07, 2012 at 04:56:04 PM PST

  •  This is a great ruling, if for no other reason (0+ / 0-)

    than the bigots' heads exploding all over the interwebs.

    "Everybody has won, and all must have prizes." - Lewis Carroll

    by Dave1955 on Tue Feb 07, 2012 at 05:10:30 PM PST

  •  Regarding Washington State... (0+ / 0-)

    I was reading the court opinion and thinking how it will affect Washington States marriage equality. Probably tomorrow, the Washington State House will pass a marriage equality bill that will signed by the governor. Within 90 days, a referendum will be filed to overturn the law. This ruling to me seems to indicate overturning marriage equality after its granted violates equal protection. A questions for the attorneys though...if the bill is signed into law, but never takes affect because of the pending referendum, do the arguments of 'withdrawing' rights apply?

  •  Hats Off to the Advocates Olson and Boies (0+ / 0-)

    Thurgood Marshall would be proud of the strategy they used.

    I would, of course, have preferred a sweeping decision that was quickly upheld by the Supreme Court. That would not be a likely outcome, though.

    So I'll take one brick at a time and be happy.

    This aggression will not stand, man.

    by kaleidescope on Tue Feb 07, 2012 at 05:18:57 PM PST

  •  I'm still scratching my head that Ted Olson, a (0+ / 0-)

    known conservative, argued for the good guys on this case. Whatever.

    I am deeply thankful to whatever gods may be that the right to gay marriage will be affirmed. I propose that when couples are able to marry in California again we send roses to all of them who are waiting in line at City Hall.

    What a wonderful day that will be!

    "Religion is what keeps the poor from murdering the rich."--Napoleon

    by Diana in NoVa on Tue Feb 07, 2012 at 06:46:05 PM PST

  •  Kennedy implies there could conceivably be a (0+ / 0-)

    law that specifically classifies homosexuals for unequal treatment but would have a proper legislative end. Can you think of any examples?

    Greed's self-regulation is collapse. So is delusion's.

    by Publius2008 on Tue Feb 07, 2012 at 07:01:15 PM PST

  •  I've occasionally wondered... (0+ / 0-)

    I've occasionally wondered why a ban on gay marriage wouldn't fail for being simple gender discrimination (or, if I'm being dense, perhaps that's what the jurisprudence is saying, just not quite in those words), in the sense that if it's legal for a woman to marry a man, then it's simple gender discrimination for a man to be prohibited from doing so for the sole reason that he's a man.

    Politico: Because Republicans need something to jerk off to.

    by Christopher on Tue Feb 07, 2012 at 09:51:39 PM PST

  •  Looking forward to Scalia's angry dissent. (0+ / 0-)

    It will be a pleasure to skim.

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