Yay!

[telepresence]

Prop 8 ruled Unconstitutional.

http://latimesblogs.latimes.com/lanow/2012/02/gay-marriage-prop-8s-ban-ruled-unconstitutional.html

“Proposition 8 served no purpose, and had no effect, other than to lessen the status and

Comments

[literalman]

Surprisingly, it wasn't unanimous, it was the narrowest ruling possible, and nearly all of the findings of fact from the bench trial were explicitly ignored.

On the other hand, I dislike the "equal protection" approach to marriage anyway...I think ultimately that a "privacy interest" approach is better. But I'll take a victory anyway I can get it!

[telepresence]

Yeah, they clearly wanted the narrowest ruling possible, so as not to start off a shitstorm outside of California, as if such a thing were possible. But a victory is a victory. Now months of stays and such bullshit, and we see if it goes to the Supreme Court.

[literalman]

Unfortunately, with a 2-1 ruling, it's possible that we'll be stuck in _en banc_ purgatory for another year or two before it even is heard by the SCOTUS.

[telepresence]

What do they need for that in the ninth circuit..ah, the internets say 11 judges, out of 29.

[cdk]

Yeah, and all that together adds up to the least-persuasive dicta imaginable. Unfortunately, a lot of people are REALLY latching onto that dicta. It's hard to emphasize enough just how narrow this ruling was. Even the "served no purpose, had no effect" has the HUGE qualifier that the 9th District was relying on a California Supreme Court that the ONLY effect of Prop 8 was to restrict the use of the word "marriage," which of course is not what anyone who gets their news from, you know, the news thought it did.

[literalman]

At least the much broader dicta and facts from the district court trial are not overturned ... the panel just said that you didn't have to go that far. As one commentator pointed out, they're still in the record and available for SCOTUS to address if they so choose.

[telepresence]

The sense I'm getting from commentators is that the ruling was tailor made for the Supreme court to not take up. Which may be for the best.

[cdk]

I'm thinking it's actually the best possible case to send to the Supreme Court from almost any perspective. If you're hoping that they'll leave it and let the states decide, it's a decision on such narrow grounds that they can safely leave it completely untouched without making any sort of statement that any other court could read into. If you're hoping that they'll take it up and find that there is no right to same-sex marriage, they can do so on extremely broad grounds that basically deny any hope of ever getting anything out of federal courts again (and if you're on that side, and thinking that Obama will outlast Scalia, you're probably desperately hoping for such a ruling). If you're hoping that they'll manage to take up a case that gives them a chance to rule in favor of same-sex marriage without giving anything for a lower court to sink its teeth into (which I'm guessing is the best we can hope for unless Obama outlasts Scalia), then this is the perfect opportunity. And then, it's possible for the Supreme Court to just reapply

[cdk]

(and by "traditional rational basis" I mean "whatever the state wants to do, it can, sucks to not be a protected class.")

[literalman]

I'm not sure who actually wants to lets the states decide ... until DOMA is replaced by FFACB (Full Faith and Credit, Bitches!), then unfortunately no same-sex marriage in any state is equal to the one I got by virtue of marrying someone of the opposite gender.

The 9th Circuit panel actually got it wrong when they said that Prop 8 doesn't have any impact other than pure opprobrium -- marriage is subject to FFAC in a way that domestic partnerships are not (since not all states have DP but all states have marriage). I understand why politically it was a good decision, but I wish it were a cleaner decision.

[cdk]

I'm not sure who actually wants to lets the states decide

People who still have "Impeach Earl Warren" stickers on the bumper of their Cadillac, I'm assuming. Less glibly, people who care more about "states rights" than this particular issue, and people who believe that the states would have eventually come to a reasonable decision about abortion if the fed hadn't intervened with Roe.

The 9th Circuit panel actually got it wrong when they said that Prop 8 doesn't have any impact other than pure opprobriumIt would be interesting to see if, by renaming "marriage" to some other term for all parties, a state could deny its residents the right to have those unions recognized by other states. They did pretty much jump from the California ruling that Prop 8 had no impact -in California- other than to remove the designation of "marriage" to a conclusion that it had no impact at all other than to remove that designation, you're right. I'm not sure that "attempt to deny the residents of this state protections under FFAC that they aren't

[literalman]

Well, the "let's get rid of 'marriage' for everybody" is the classic libertarian answer to hard social problems (e.g. they'd like to just get government "out of the business").

But I don't think that it would be constitutional ... the SCOTUS ruled in Loving that marriage was a fundamental right, so I don't think that a state could "unmarry" all of its citizens.

Federalism is hard :-)