Gay Marriage Ban is Unconstitutional — For Now

A district court and now the 9th Circuit court have both ruled that California’s Proposition 8, which banned same-sex marriage, is unconstitutional. This is great news. However, I assume that it doesn’t really matter much since the case will now go to the Supreme Court, which has a history of not really caring about the opinions of the hippies on the 9th circuit. I further assume that the Supreme Court will be divided 4-4 on this question, with Anthony Kennedy providing the swing vote depending on his mood that day. Lately, though, his mood has been conservative, so the betting money says this will get overturned 5-4.

That’s pretty deflating, isn’t it? But who knows? Maybe I’m wrong. I’m sure serious court watchers will weigh in soon.

Also of note: this was a very narrow decision. Basically, the court said that California already provides same-sex couples with all the rights of opposite-sex couples, and Prop 8 does nothing to change that. All it does is prohibit same-sex relationships from being legally described as “marriage”:

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.

….All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.”

In other words, this ruling has no impact at all in states where same-sex couples don’t already have all the rights of opposite-sex couples, and the court declined to make a broader ruling that might have addressed that. (Though they say they wouldn’t have hesitated to do that if the narrower ruling hadn’t been available to them.)

Also of note: the court ruled that the backers of Prop 8 did indeed have standing to defend it in court. They lost on the merits, not because they had no legitimate right to defend Prop 8 after the State of California decided not to.

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