Tuesday, February 7, 2012

Missing the golden opportunity

In a decision that surprises absolutely no one, the 9th Circuit Court of Appeals has ruled that voters in California do not have the right to stop the redefinition of marriage:

A U.S. appeals court on Tuesday found California's gay marriage ban unconstitutional in a case that is likely to lead to a showdown on the issue in the U.S. Supreme Court.

Proponents of the ban said they would appeal the ruling, and the Protect Marriage coalition that sponsored the ban called the judgment "out of step with every other federal appellate and Supreme Court decision." The appeal is likely to keep gay marriage on hold pending future proceedings. [...]

Opponents and supporters of same-sex marriage both have said they are ready to appeal the decision all the way to the U.S. Supreme Court.

Opponents of gay marriage have not decided whether to ask a larger 9th Circuit panel to hear the matter, or appeal directly to the Supreme Court, Andrew Pugno, general counsel for Protect Marriage and a lawyer on the team defending Prop 8, said by email.

The 9th Circuit Court apparently decided that the Equal Protection Amendment requires that marriage be redefined to include pairs it never actually included before; there's no word, though, on how the Court will sleep at night knowing they have still excluded the marriage rights of groups larger than pairs and of incestuous couples, who have yet to have marriage redefined to include them (though I'm sure California politicians are ready and willing to start issuing group marriage licenses in defiance of current law).

Like I said above, though, this decision surprises no one. Rumor has it that some members of the 9th Circuit have, indeed, actually heard of the Constitution; but that gratifying notion is depleted of its value somewhat when we consider that of the justices who have heard of it, two of them are rumored to think (incorrectly) that it might have been a cheesy prop in a Nicholas Cage movie, and the third, alas, even more confused, allegedly thinks it was a cheesy prop in The DaVinci Code.

Whether they've heard of the Constitution or not, though, the members of the 9th Circuit Court of Appeals seem to be unanimous in thinking that actually consulting it would be noxious to the liberty which Americans hold dear, at least if the general tenor of their decisions gives any clues as to their philosophy. So I'm more surprised that the 9th Circuit didn't take this golden opportunity to declare marriage itself to be unconstitutional as well as patriarchal and just plain not groovy than I am that they would side with those who seek to define it out of existence.


Siarlys Jenkins said...

I spent an hour or two reading the decision this afternoon. Its not exactly what the headlines say. Oh, they did find a way to rule Prop 8 in violation of the federal constitution, but they did it in a curiously narrow way. They explicitly said that they had NOT reached the question of whether it is a violation of the constitution to EVER deny the status of marriage to same-sex couples. They merely ruled that, given the fact that California had already given same-sex couples all the empirics of marriage, so that Prop 8 only denied them the name, and given that the only purpose of Prop 8 was to RESCIND something already given, well, a law has to have more purpose than that.

It was, I think, a deliberate sort of well-founded cowardice. Another appellate court could totally agree, and uphold a better worded amendment to another state constitution. Ironically, the decision offers a good argument that states would do well to pass constitutional amendments NOW, before their Supreme Court grants same-sex marriage as a matter of right, so that nothing will be RESCINDED.

The decision confirms my thought about the wording of Prop 8. It was very badly chosen. Something like this might have held up:

Definition: Marriage, as used in this constitution and all laws made under its authority, refers to a specific relation between a man and a woman. Statutes adopted by the legislature or by referendum regulating this relationship shall apply to all men equally, and to all women equally. No other human relationship shall be defined as, or defined in relation to, marriage.

(Unfortunately, existing California law provides that domestic partners have the same rights and responsibilities "as are granted to and imposed upon spouses," so denying them the name after giving them the game hardly seems fair...)

Its amazing how the actual judicial opinion differs from the the way the media present it, no matter which media.

(If this appears twice, erase one -- Blogger is acting wierd again)

Geoff G. said...

The 9th Circuit Court apparently decided that the Equal Protection Amendment requires that marriage be redefined to include pairs it never actually included before;

Once upon a time, Catholic education encouraged reading comprehension. O tempora, o mores!

From the summary [PDF] provided by the 9th Circuit Court:

The panel majority held that in this particular case it did not need to decide whether under the United States Constitution same-sex couples may ever be denied the right to marry because under California’s statutory law pertaining to “domestic partnerships” same-sex couples had all the rights of opposite-sex couples, regardless of their marital status.

Red Cardigan said...

And, Geoff, I take it you missed the "humor" tag at the bottom of the post, too. :)

Siarlys Jenkins said...

Geoff has been known to lean over backwards to give Erin her due, even on matters they sharply disagree over, in a number of forums where Red Cardigan is referenced. I think her initial presentation should be viewed in light of these paragraphs from the New York Times coverage of the story:

"LOS ANGELES — A federal appeals court panel on Tuesday threw out a voter-approved ban on same-sex marriage passed in 2008, upholding a lower court’s ruling that the ban, known as Proposition 8, violated the constitutional rights of gay men and lesbians in California.

"The three-judge panel issued its ruling in San Francisco, upholding a 2010 decision by Judge Vaughn R. Walker, ... The panel found that Proposition 8 — passed by a vote of 52 percent to 48 percent — violated the equal protection rights of two same-sex couples who brought the suit. The proposition placed a specific prohibition in the State Constitution against marriage between two people of the same sex."

THEN the article began to reveal that the appellate ruling was "more narrowly framed," which is an understatement.

I think the realpolitik is something like this: the judges sincerely believe that same-sex couples have been denied a right available to opposite-sex couples, and would like to unambiguously so rule. They know that the judiciary is not unanimous on this point, nor is the population at large. So they hedged their bets in both directions, which leaves a live controversy with several more years of life to it.

Siarlys Jenkins said...

Erin, Rod Dreher's post about Maggie Gallagher is becoming far too crowded to put this anywhere near your comments, but this is the most sensible and straightforward statement of state interest in marriage that I have seen:

It is, however, the business of the state to encourage couples who are or who plan to engage in the one type of sex act which may result in children, that is, sexual intercourse, to marry, and to create marriage laws which are designed in large part to protect those potential offspring. It is not particularly the business of the state to worry about, encourage, promote, sponsor, or otherwise interfere in what grendel calls “…a public and private committment of two people to live up to the highest demands of love…”

This could be accepted without prejudice to all kinds of human interests and pursuits, positive, negative, or nobody's business. It gets to the heart of why a government of limited powers would bother with marriage at all. It leaves various religious assemblies free to make of marriage what they believe God has called them to make it. And it cuts off a lot of nebulous word games.

Red Cardigan said...

Thank you, Siarlys!