You can read the ruling (in pdf form) here.

On a first glance, I think there’s an aspect to this ruling a lot of people will misunderstand. People such as constitutional law scholar John Eastman, the chairman of NOM, who blustered that “Never before has a federal appeals court – or any federal court for that matter – found a right to gay marriage under the US Constitution.”

But the court did not find “a right to gay marriage under the US Constitution.” The decision is very explicit on this point, and as a law professor Eastman must know that what he’s saying isn’t true. From the decision (written by Judge Stephen Reinhardt):

We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.

NOM’s Brian Brown also lies about the stakes of this ruling (“But if we lose at the Supreme Court, marriage will be jeopardized not just in California, but in all 50 states”), and predictably ties it to a fundraising appeal.

In fact, the Court ruled on a much narrower question: Can a state pass a special law to eliminate an already-existing right for same-sex couples to have the legal designation “marriage” applied to their relationships, when the state otherwise makes no legal distinction between same-sex and opposite-sex relationships? And the Court’s answer is no.

The ruling relies heavily on the Supreme Court’s Romer v Evans decision, a 1996 ruling which overturned an anti-gay law in Colorado. Justice Kennedy was the author of the Romer decision, which could be relevant, since Kennedy is likely to be the swing vote if the Supreme Court accepts the inevitable appeal to the 9th Circuit’s decision.

From the Court’s decision:

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. Because under California statutory law, same-sex couples had all the rights of opposite sex-couples, regardless of their marital status, all parties agree that Proposition 8 had only one effect. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationship. Nothing more, nothing less.

Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, or it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education. It could not have been enacted to safeguard these liberties.

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 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.” (Romer v. Evans, 517 U.S. 620,633).

The Court specified that its ruling applies only to California. They also ruled that Protect Marriage had standing to appeal, and they rejected the argument that Judge Walker was required to recuse himself because he is gay and in a relationship. (I agree with the Court on both those decisions.)

I’m actually not disappointed that this ruling is so narrow; my suspicion is that a straightforward finding that same-sex couples have a constitutional right to marry would be overturned by the current Supreme Court, which would be a setback. This decision, because it’s so narrow, has a much better chance of remaining good law.

If you want to read more, Andrew Sullivan has a good collection of links.

UPDATE: Oren Kerr’s comment is worth quoting in full:

Based on a quick skim, [Judge] Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer [Justice Kennedy] a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker’s opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.

Although interesting, of course that’s just speculative. And just because a decision may be strategic doesn’t mean it’s incorrect on the legal merits, of course.

UPDATE 2: More links!

1. Liz Newcomb worries that the dissent could signal that this decision will be in trouble at the Supreme Court level.
2. Nancy Polikoff does a great job nutshelling the decision.
3. And David at the Debate Link is struck by the weirdness of this decision.

Categories: Marriage

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