The Ninth Circuit panel's Prop 8 ruling says some great things, but not what many of us hoped -- or what some people THINK it says!

The Ninth Circuit panel says that legally established rights can't be taken away by ballot proposition just because the organizers don't approve of same-sex couples.

by Ken

Let's be clear at the outset what the three-judge panel of the Ninth Circuit Court of Appeals did and didn't decide in its ruling today on the constitutionality of California's ballot-approved Proposition 8, which you'll no doubt recall had the (intended) effect of overturning the state law, already in effect, that had legalized same-sex marriage.

(1) What the panel did decide

Yes indeed, the ruling -- written by Judge Stephen Reinhardt (appointed to the court by Jimmy Carter) on behalf of himself and Judge Michael Hawkins (appointed by Bill Clinton) -- says that Proposition 8 is unconstitutional.

(2) What the panel did NOT decide

The ruling goes out of its way to make clear that the panel is not saying that it is necessarily unconstitutional to legally ban same-sex marriage.

Are we all clear on that? Anyone who says, or imagines, that the Ninth Circuit panel ruled today that banning same-sex marriage is unconstitutional doesn't know what he's talking about, or perhaps is just fibbing for reasons you'll have to ask him to explain.

SO WHAT DID THE PANEL RULE UNCONSTITUTIONAL?

Glad you asked. What's unconstitutional, according to the ruling, is taking away rights that California same-sex couples previously enjoyed under state law -- rights that were the same as those enjoyed by, you know, other kinds of couples -- just because of their same-sexness.

THE RULING SPEAKS VOLUMES ABOUT THE BASIC
DIGNITY BEFORE THE LAW OF SAME-SEX COUPLES

Hey, now this isn't nothing. We're seeing stuff here that not so long ago we would have been astonished to find coming out of a U.S. Circuit Court of Appeals. The ruling goes to great lengths to establish: (a) the legal and social importance of the rights at issue, and (b) the absence in the legal record of any remotely valid argument against same-sex couples' entitlement to enjoy those rights, indeed no basis for the existence of Prop 8 except animus of the Prop 8 Propagators.

IN WHICH CONNECTION, I HAVE TO INJECT, IT'S

A SHAME THE VIDEOTAPES WILL REMAIN SEALED

It was just last Thursday, you'll recall, that the Ninth Circuit ruled, also in a decision written by Judge Reinhardt, that the videotapes of the district-court trial presided over by then-Chief Judge Vaughn Walker (now retired) will remain under seal, in accordance with the wishes of the Prop 8 Propagators and contrary to the ruling by Judge Walker's successor, Chief Judge James Ware.

I understand the legal ground, which was basically that there was never authorization to make the videotapes, and Judge Walker had assured all concerned that they would remain under seal. But there's a good reason why the Propagators' shysters wanted to keep those tapes under wraps, and it's not to protect any innocent right-wing thugs from intimidation or reprisals or whatever the legal gorillas were calling it. It's to protect both the lawyers and their so-called witnesses from the public humiliation of being seen presenting a "case" that contained not a single jot or tittle of argument that could be considered by the most wildly generous sane person as remotely relevant legally. It all came down to, basically: God, we hates us them gays and lezzies, and God does too, like it says in the Bible . . . oh wait, forget we mentioned the Bible, you God-hating heathens. Anyway, we're not asking permission to kill them, though if you could find it in your hearts . . . .

I know we have the trial transcripts, and they have been selectively dramatized, but that's not the same thing as allowing the American people to see for themselves the unrelenting emptiness and fraudulence of the Propagators' "case."

ENOUGH OF WHAT THE RULING DOESN'T
SAY. WHAT THE HECK DOES IT SAY?

Here are some chunks I picked out of the early part. (Apologies for typos. I was working from a PDF I couldn't copy and so had to type it out myself.)

Proposition 8 . . . could not have been enacted to advance California's interests in childrearing or responsible procreation, for 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 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." Romer v. Evans, 517 U.S. 620, 633 (1996).

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. . . . We need not ad no to answer the broader question in this case, however, because California had already extended to committed 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 limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.

THE PANEL DEALT FAIRLY EASILY WITH SOME ISSUES THAT
STOOD IN THE WAY OF ITS SUBSTANTIVE CONSIDERATIONS

(1) The Prop 8 Propagators do have standing to appeal, per California law

This mattered, because if they didn't have standing, there's no appeal, and the judges could go back to playing pinochle or whatever they would otherwise be doing. The panel accepted that the Prop 8 Propagators have standing under California law to defend their handiwork in the courts when the state officials who would normally be expected to do so, specifically the governor and the attorney general, refuse to do so -- in this case because they believed it to be unconstitutional.

In the appellate judges' minds, the standing issue is an issue of California state law. You'll recall that the panel specifically invited the California Supreme Court to rule on the question, which it did, in November, deciding in the Prop 8 Propagators' favor.

One can't help wondering when this will come back to bite a lot of exposed behinds, but the point is that they'll be strictly Californian behinds. Accepting the state Supreme Court's judgment was an easy matter for the panel, and meant that it still could (or had to) decide on the legal merits of the appeal.

(2) The attack on Judge Walker's impartiality is silly

This was the claim, you'll recall, that because Judge Walker was himself involved in a long-term same-sex relationship, he might have had a personal stake in wishing same-sex marriage to become legal. (This is, you see, so he could, you know, get married.) Of course none of the right-wing shysters working for the Propagators believe this for a wingnut second. It's just mildly ingenious legalspeak -- you know, the way it pretends to make the case that Judge Walker wasn't entirely impartial -- for what they really want to say, which is something like: Mother of Christ, we aren't gonna effin' let some goddamn effin' fairy decide whether all the other fags 'n' lesbos can get married, are we? This is effin' America -- eff you!

AND WHILE THE MAJORITY JUDGES TRY TO KEEP THE
FOCUS TIGHT, THE MINORITY LOON GOES HOG WILD

Having been duly warned, I didn't have the heart to wade into the dissenting opinion of "Chimpy" Bush appointee Judge Randy Smith, which can be important because it becomes available to any, er, higher powers that may find themselves looking at the case with a view to deciding it the other way. The report of colleagues who have read Judge Smith's opinion confirms my suspicion that while the majority was working so hard to keep the focus tight, the minority loon was going hog wild, in an orgy of legal straw-grasping, obfuscation, and mindless hysteria, stopping just short of advocating rounding up all them damn same-sex preverts and shutting them away in internment camps. Or maybe Guantánamo?

SO WHAT'S THE SITUATION NOW?

Buried in footnote 27 of Judge Reinhardt's ruling is a continuation of the stay already in place, ordered by the Ninth Circuit in August 2010, "remains in effect pending issuance of the mandate." Courage Campaign's Prop 8 Trial Tracker, which has been updating its post all day and will no doubt continue to do so, got this comment from Chris Stoll, senior attorney for the National Center for Lesbian Rights: "Mandate issues 7 days after the deadline for filing a petition for rehearing expires, or 7 days after petition for rehearing is denied, whichever is later. I expect that the proponents will ask for a further stay from 9th Circuit, and if that is not granted, they will ask the Supreme Court."

WILL THERE BE APPEALS, AND WHAT KIND?

Well, we'll have to see. Both sides insisted before the ruling was filed that they would appeal if they lost, and it's hard to imagine the hard-core California LGBT-haters sitting quietly by. They could ask for an en banc hearing by an 11-judge court chosen from the Ninth Circuit's 26 sitting judges, but the court itself would have to vote to authorize it, and that may be a tough sell.

Naturally, everyone is speculating about possible appeal to the Supreme Court. (Again, you'll find lots in the Prop 8 Trial Tracker post updates.) It has been pointed out that the narrow crafting of the ruling and Judge Reinhardt's written opinion seems to have anticipated the "thinking" of Justice "Slow Anthony" Kennedy, author of the most nearly relevant High Court decision, Romer v. Evans. I'm thinking that, given the very narrowness of the decision, and its applicability, basically, only to California, there may not even be any reason for the Supreme Court to accept the case -- it's not as if there's any immediate issue of its applicability to any other U.S. circuits. Hell, it doesn't even apply to the whole of the Ninth, just to California.

On the other hand, in my possibly paranoid scenario, the High Court's Rock-Head Five -- sneering at that dope Reinhardt's blithering about deciding on the narrowest ground -- may take the case for the purpose of redeciding it on the broadest possible grounds, taking this as an opportunity not only to kill same-sex marriage but to give the Prop 8 Propagators that permission to intern all known or suspected LGBT-ers, if not actually kill them. (Don't forget Judge Loon's Smith's dissent, sitting there like a ticking time bomb.)

Stay tuned for further developments, or at least fulminations.

OH WAIT, COULD WE LEAVE THE SUBJECT WITHOUT
HEARING FROM PRESIDENT-IN-WAITING WILLARD INC.?

TPM's got it, in "Romney Slams California Gay Marriage Ruling":

Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.

You were expecting maybe the yutz would keep his fool trap shut?


UPDATE: A Somwhat Different Reaction To The Ruling Than Willard's

Congressional Progressive Caucus co-chairs Reps. Raúl Grijalva and Keith Ellison almost immediately released the following statement praising the U.S. Court of Appeals ruling striking down Prop 8:

“Today the U.S. Court of Appeals upheld the best of America. We do not legislate our prejudices and discrimination should not be legal in the greatest country on Earth.

“Even if narrow special interest groups consider same sex couples second class citizens, the Constitution does not. Equal protection cannot be overturned by any vote or undermined by any amount of divisive rhetoric. This decision should serve as a warning to opponents of the freedom to marry across the country. 
 
“We stand shoulder to shoulder with gay and lesbian Americans in celebrating this triumph for justice and equality.”

They head Congress' biggest Democratic Party caucus and speak for most Democrats, if not the Blue Dogs.

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