There are already some excellent diaries on the Prop 8 decision, what it means, what it doesn't mean, and the possibilities of where we go from here. What I do not see, however, is the following analysis:
This decision kicks ass all across the United States.
Oh, but the decision is so narrow it only applies to California? Yes. And no.
Follow me below the fold for the great news.
Please note: I am not a lawyer, nor did I sleep in a Holiday Inn last night.
(Quick PS or pre-amble or some shit: I type too slow for my brain, and leave words out all the time. If a word is left out, I'll try to catch it an update the diary. Until then, I hope you can read and understand it, but don't be surprised if I leave a word or two out. Thanks!)
Today's decision was carefully crafted to only apply to California. Much has been made of that, and I'll defer to lawyers on that note who know better.
So why does this kick ass and apply elsewhere?
First, let's look at how the decision is structured, and what the opinion said:
Because this third argument [that being the removal of an existing right] applies to the specific history of same-sex marriage in California, it is the narrowest ground for adjudicating the constitutional questions before us, while the first two theories, if correct, would apply on a broader basis. Because courts generally decide constitutional issues on the narrowest ground available, we consider the third argument first.
(Bracketed comment mine)
OK, let's break that down a bit. Judges have rules they typically follow. One such rule is reviewing a case on the narrowest basis possible. In this case, that's the removal of an existing right. This is where the "it's so narrow" comes from.
However, let's look at two important parts of that same quote, this time bolded for your viewing pleasure:
Because this third argument applies to the specific history of same-sex marriage in California, it is the narrowest ground for adjudicating the constitutional questions before us, while the first two theories, if correct, would apply on a broader basis. Because courts generally decide constitutional issues on the narrowest ground available, we consider the third argument first.
Catch that? They know the ramifications of forming a decision on the other two arguments (and we'll get to those). That would mean much broader application. What's the second bold? Oh, they aren't throwing out those arguments entirely, they are merely
starting with the first!
So this whole first argument really only applies to California, and probably won't apply anywhere else, ever. So we're going to skip this first argument entirely, as it supports the "narrowness" of the decision.
Tell me you didn't fall for that crock of shit.
Money shots from the first argument:
Proposition 8 "leaves intact all of the other very significant constitutional protections afforded same sex couples..."
Those bastards judges and their narrow opinion! How dare they add a quote from another court ruling and emphasize the significance of the protections awarded simply by being married??? Granted, this is only regards to the California constitution, but think in terms of the application to other states. An appellate court has now held that the protections and benefits awarded via marriage are "significant".
By emphasizing Proposition 8's limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of 'marriage.'
This paragraph on page 37 goes on and on about how special marriage is, the term, it's importance in society, and even
quotes a case out of Connecticut. These same principles apply everywhere, and the judges emphasize that point by quoting from outside their district. Put that in your "narrow" pipe!
Nevertheless, Proposition 8 works a meaningful harm to gays and lesbians, by denying to their committed lifelong relationships the societal status conveyed by the designation of 'marriage,' and this harm must be justified by some legitimate state interest.
(Emphasis mine)
We'll come back to this in a moment.
Little side trip before we move on. At this point in the decision, the majority addresses the issue of a fundamental federal right. Essentially, in drawing comparisons to Romer, they say the issue doesn't have to deal with a fundamental federal right to qualify as an equal protection issue. In doing so, the 9th Circuit tip-toed around the issue of whether same-sex marriage is a fundamental right per the US Constitution. However, it's quite the crafty sidestep. In a footnote, the majority explains that sidestepping issue dismisses the applicability of Baker, a case in which the Supreme Court issued a summary dismissal (did not even review the appeal) because the state (Minnesota) ban on same-sex marriage did not address a substantial federal question. Importance here? That's the very case that Smith used in his dissension to say the case shouldn't have been upheld.
Back to the analysis. At this point, the Court considers whether there is "legitimate interest" in taking away to marry. But wait, that's still narrow, right? I mean, we're talking about taking away a right still, as opposed to having the right in the first place. Fuck that. Let's see why that's bullshit to call this "narrow."
The Court considers 4 points, offered by proponents and amici (briefs on behalf of others who support Prop 8, but aren't parties to the actual case):
1 - Furthering California's interest in childrearing and responsible procreation;
2 - Proceeding with caution before making signification changes to marriage;
3 - Protecting religious freedom; and
4 - Preventing children from being taught about same-sex marriage in schools.
OK, we all know this is ignorant bullshit. But come on, we're looking at a legal opinion on the merits of the asswipes "rationale" for being homophobic, discriminatory asswipes.
Money shot from the Court on the rules here:
To be credited, these rationales "must find some footing in the realities of the subject address by the legislation." (Citation) They are, conversely, not to be credited if they "could not reasonably be conceived to be true by the governmental decision maker."
So, shit's gotta be reasonable. Let's all laugh for a minute.
The first has two issues: First, kids are better off in bio-homes with bio-parents, and the second is that marriage reduces the threat of "irresponsible procreation" by encouraging pregnant couples to marry. Yeah....
On the first point, there's really no rational basis for thinking kids are better off in bio-homes with bio-parents. The vast majority (all? Seriously too lazy to Google this) of states permit adoption by a step-parent. And a quick Google shows that about half the states allow same-sex couples to adopt. (Please correct me if I'm wrong!) As such, this "justification" for banning same-sex marriage is easily dismissed in at least half of the states. Not perfect, but this lays out how to dismiss the bullshit in at least some other states.
In regards to the second half of the first issue, the majority simply write that same-sex couples, as a matter of biology, can't irresponsibly procreate. There goes that argument that the homophobes love to use. Again, more groundwork to dismiss the BS arguments to support these bans in other states.
These first point in support of a "legitimate state interest" was summarily dismissed, as Prop 8 only removed the name 'marriage' and left intact the ability to raise children together, to adopt, etc. If those principles exist in other states (and they do), banning same-sex marriage on these grounds is BULLSHIT. Groundwork to throw it out, folks.
Before we move on to the second point, more money from the opinion:
It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.... Here, the argument that withdrawing the designation of 'marriage' from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.
Oh snap. There goes that argument from the right. They're laying out the groundwork, step by step, and we're calling this masterpiece "narrow"?
This is getting too long, so I'm going to speed it up a bit. The second point, pausing before changing marriage, is bullshit as well. The Court points out that there is no plan to study the effects, there is no time limit on a ban, there is no "pause". A flat out ban is not a "Let's slow down and think this through" moment. More BS, more groundwork to toss out similar homophobic theories in other states.
Protecting religious freedoms....the Court called this BS as well. If no religion is required to change their policies or practices, who gives a fuck? And other states have religious exemptions to statutory bans on discrimination, so this is even less relevant of an argument outside of California. Religious freedom is NOT an issue for same-sex marriage.
What's taught in school.... The Court here simply states that school's control what is taught. There is no mandate being sought to require schools to teach about marriage equality. The Court notes simply the irony of it: Schools teach what they teach, and as the world changes, so do the lessons in school. Money shot on this:
But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office...
LOL! The Court dismisses this argument by showing it for what it is: absurd, at best.
The Court did NOT dismiss the above points based upon rational basis of review. The Court simply said that Prop 8 did not serve to further those four points. This is pretty key here. While keeping the decision "narrow" to apply to California, the Court pointed out specifically how to dismiss these 4 points. Only the first point holds SOME merit in SOME states (being those states that deny adoption to LGBT couples).
As the Court went on, they left a few parting shots:
Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself. (The Court here went on to quote Lawrence v. Texas and Loving v. Virginia)
...so too does the elimination of the right to use the official designation of 'marriage' for the relationships of committed same-sex couples send a message that gays and lesbians are of lesser worth as a class - that they enjoy a lesser societal status.
Replace "elimination" with "prohibition" in the above, and see if that argument can't be used elsewhere for marriage equality.
The Court went on and on, before, in between, and after all of the points I've outlined above. All that I have hoped to do is encourage you to read this thing for yourself. The Court carefully crafted a decision that applies to California. Yes, in that sense it is a bit narrow. However, the Court painstakingly stepped through arguments they didn't have to, and the manner in which the majority wrote their opinion lays out the groundwork for challenging similar laws in other states.