Comments

  1. TampaZeke says

    I’m very interested in reading the dissenting opinion, especially since the Pro Prop 8 attorneys were so abysmal in making their case. It’s concerning to me that one judge STILL sided with them.

  2. says

    ten bucks says the dissenting “justification” will be as willfully dishonest and evasive as Scalia’s “yeah, gay buttsex should be criminal” rubbish.

    this is good news. the decision was stayed, but this is good news.

  3. RyanInSacto says

    Just reading through the ruling, this is my favorite line so far:

    “The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”

    Bam! Take that!

  4. Jack says

    A great decision for CALIFORNIA, and CA only.

    The decision doesn’t hold that disallowing gay marriage is unconstitutional. It ONLY holds that once gay marriage has been ALLOWED, that *taking it away* is unconstitutional.

    So yes, it’s a good decision, but it is EXTREMELY limited in application. Enough to be happy about, not nearly enough to be thrilled.

  5. badlydrawnbear says

    @Thomas MC … before you go off on ‘conservatives’ remember that it is two conservative lawyers who are leading the fight against prop 8 for us.

  6. Keith says

    I concur with other posters about the dissenting vote by the Mormon judge. It just reinforces the liberal vs. conservative bias judgements by courts, and will give renewed hope (and activism) to those wanting to deny the LGBT community its full constitutional rights when they reach the much more conservative-leaning US Supreme Court. What did the dissenting judge base his decision on in the case presented before him? I’m really curious about how he justifies his opinion without using his predisposed religious bias considering it was his faith that basically bankrolled and pushed the proposition in the first place.

  7. TampaZeke says

    Let’s not get too excited. After reading the opinion it’s clear that this is a step in the right direction but a VERY limited and narrowly defined step. It isn’t nearly as far reaching as people might have hoped or thought. The way it is written it will have very little effect outside of California where the state gave the right and then took it away and then gave all of the rights but not the name. This narrow definition of why Prop 8 was unconstitutional will keep it from applying to the rest of the country or even to the other states of the ninth district since none of them have given the right of marriage and then took it away and then offered all of the rights but not the name. Not even Washington currently fits the bill. Even if this case is taken to SCOTUS and won it will probably still only apply to California.

    Rather a disappointing decision for those of us who aren’t Californian.

  8. MiddleoftheRoader says

    I posted a Comment yesterday regarding Ari’s on-line article. I noted that the 9th Circuit could issue a narrow decision that would apply to very few other states — i.e., a decision that California violated the constitution because it TOOK AWAY a prior right to marry that same-sex couple enjoyed under California law (and taking away a right is more serious than refusing to grant or recognize a right in the first place) AND ALSO that California had already given same-sex domestic partners the same rights as opposite-sex spouses (so that refusing to allow a same-sex relationship to be called ‘marriage’ had no compelling or reasonable basis in the record). This seems to be EXACTLY the analysis used by the 9th Circuit.

    Many will be understandably upset that the 9th Circuit ruling is so narrow. But I think it’s benefit is that it makes it less likely that the Supreme Court will reverse it, and more likely that a swing vote like Justice Kennedy might even agree.

    Oh well, lots will be written about this……..

  9. gr8guyca says

    The decision seems to say that because CA has a domestic partnership that is equal to marriage in all ways EXCEPT for the term, “marriage,” that term may not be denied simply based on sexual identity.

    By this standard, only states that currently have domestic partnerships that are FULLY equal to marriage will be impacted.

    To block this decision in other states, they need only make some difference between domestic partnership rights and marriage rights.

    I fear that this might create a drive to limit domestic partnership rights. The more the two are different, the more the CA ruling will not relevant.

  10. Jollysocks says

    The dissenting judge — the Mormon bigot appointed by Bush — predictably ruled against us. Just finished reading his dissent in which he goes to great lengths to explain his bigotry by “state interest” in procreation. There is literally so little in the trial for him to base his decision on that he continuously inserts old court cases that were not properly entered as evidence in the trial, as if he’s trying to save the Prop H8ers from their own incompetence. He cites Supreme Court Justice Scalia about 100 times — clearly his dissent is meant to serve as a guide for him and the anti-equality judges once / if this reaches the Supreme Court.

    It all comes down to Kennedy, just as we always suspected. Let’s see if the haters go straight to the Supremes or go for an en banc appeal.

  11. says

    We should all do well to remeber than in his dissent on Lawrence vs. Texas (the ruling that overturned “Sodomy” laws that made us a “suspect class” and quasi-criminals by definition) Fat Tony Scalia decared that if such laws were overturned same-sex marriage woudl be established.

    Att the time that seemed odd to me. But the old creep was absolutely right.

    Waiitng for Ezra’s word but I suspect he’ll agree with Jeffrey Toobin who just said in CNN that thinks the Supremes will pas on the prop 8 ruling — thus makign it applicable to California only for the moment.

  12. Jay says

    This ruling is bad because it puts the Supreme Court in the position to rule against it. They’re already miffed at Judge Walker for his procedural end-run to get the video of the trial publicly released, and they’re not fans of Reinhardt and the 9C — they’re the most overturned circuit in the country. But this is setting Kennedy up nicely for a ruling that says SSM is a state issue and Proposition 8 doesn’t actively discriminate against a class of people because it doesn’t allow gays to marry the individual of their choice.

  13. jamal49 says

    This is such great news and yet, I worry about this going to the Supreme Court. Those four reactionaries (Roberts, Scalia, Alito and Thomas) will NEVER let the Constitution decide that we gays and lesbians are truly equal citizens in this, the land of our birth. One can surely expect that those four judicial degenerates will pull something out of their collective hats to deny LGBT people equality under the law. I also fear that this will fan the flames this election year of right-wing reaction and help propel a Republicon to the White House. I worry too much, I guess, but in my years I never thought I’d see something like this victory. I heard about not too long ago and I wept.

    I immediately came here to Towleroad because hell we’re family in spite of our occasional differences and I needed to see that others are as happy as me and, hopefully, much, much more positive about where all this might end up.

    I think of all those friends I lost in the past three decades to that scourge of HIV and all the heartache and sorrow and I think of all of them and God! How elated they would be at this news!

    This victory is for you, Gary and Joey and Ritchie and Rafael and Miguel and Carlitos and Russ and Freddy and Ernesto and Chuck and Mark and John and David and Franklin and Enrique and Leo and Armando and Saul and Jose and Vinicio and Eddie and Paul and Lee and Michael and Ozzie and Marcos and Billy and Victor and Angelo and angel after angel, all those wonderful friends that could not be here for this wonderful moment in time.

  14. javier says

    For those wishing for a broader decision instead of a narrower one, you are essentially hoping for defeat at the US Supreme Court of the full panel of the Ninth Circuit. Narrow decisions are much less likely to be overturned on appeal or full panel review. Narrow views allow the Supreme Court to affirm it without seeming radical or going to far/broad. A narrow decision that says once gay marriage is legal, voters can’t take it away is a great holding that offers the US Supreme Court a narrower, less politically volatile way to uphold the Prop8 decision. This is brilliant.

  15. javier says

    “I fear that this might create a drive to limit domestic partnership rights. The more the two are different, the more the CA ruling will not relevant.”

    But that is being done. Anti-gay forces are (sometimes successfully) arguing that domestic partnership and civil union laws should not be passed because they form the legal and political basis to extend gay marriage rights. They even have made similar arguments about mere anti-discrimination laws, since courts have used them to say gays are a suspect class. So, anticipate all pro-gay legislation to be opposed on the grounds that it eventually leads to same-sex marriage.

  16. reacenyc says

    From someone who is “Gay” married..My Partner of 8 years and I were married here in NYC last July…I can tell you that, that little word, “Married” makes such a huge difference. As silly as it sounds, being asked a cocktail party if your married, and saying yes..matters..filing our taxes in the city and state of NY and getting money back, matters, saving money with our healthcare provider as a married couple..matters…going to bed every-night and sleeping next to someone who stood up and professed a love and commitment in front of friends and his mother..matters..

    I wasn’t sure that being married would make me feel that different. We had lived together for 3 years already. But it does. It makes me look at him differently, and makes me look at myself and my actions and how they affect both of us differently. That little piece of paper is one of the strongest bonds in society..and one worth fighting for.

    I fully believe in my lifetime, this will be as much as a non issue as an interracial marriage is now…

    Isn’t it exciting to be alive at this time and place in history?

  17. Eyes For Guys says

    1. Stop all hate. Comments about the Bush appointee who dissented are krap. Bush also appointed Walker, J. If we don’t like bigots we ot not judge others on artificial, irrelevant criteria.

    2. Hope this decision makes ppl think twice about contributing to support the upcoming challenge to Washington’s new law in waiting. Cheers.

  18. RonTEX says

    @REACENYC, couldn’t have said it better. My partner and I got married in NY (after 20 years) and we were both so overwhelmed at the significance that word carries when the Rabbi said it. Our kids were so funny and happy that their parents were FINALLY married. Can’t believe this is happening in my lifetime, the great battle of our LGBT lives.

  19. Mary says

    Congrats to the LGBT community on a big victory today. The comments of many here are very moving, whatever side a person takes on the gay marriage issue. It’s good to see someone finally happy about SOMETHING in American life. A welcome distraction from the political primaries and all the bickering going on among Republicans.

  20. says

    Congratulations all my American friends…..you have led the Battle for Equality…….
    As it was said of Brian Kinney; “You are saying the magic words; you are saying them for all of us “.

    And we do appreciate the great struggle in which you are engaged.
    For today we rejoice with you.

  21. anon says

    The issue becomes peculiarly convoluted because there are so many directions this could go. There are now two circuit rulings on this issue, with the first one (Nebraska) being ignored by SCOTUS. There is DOMA too. And we have completely untested cases for CA couples marrying in DC or NY and moving back to CA under Prop 8. For SCOTUS, the issue is going to be the use of the Federal circuit to resolve a state issue, and the most famous case like this would be both Lawrence v Texas and the NJ Boy Scouts case. None of these cases provide significant guidance. The stay is unfortunate, probably waiting for an en banc ruling.

  22. hightemp says

    Perhaps I’ve read the decision wrong…but it doesn’t really look like that strong of a win to me: Rational basis (no heightened scrutiny); Based on Romer and not Due Process/Equal Protection…i.e. a particularly narrow point of law (situation in which a right specifically provided for is removed); limited to California; AND a split decision. While I’m happy for the decision and proud of the legal teams…I’m not sure how this plays out down the road.

  23. Eric Payne says

    If I read this correctly… if the full 9th Circuit and then, later, the SCOTUS affirm this decision, then in states where same-sex couples were “found” to have the right to marry, then had that right removed by popular vote, that THAT was what was unconstitutional – the taking away of a “right” by voter mandate. So… would SCOTUS affirmation of this decision have any bearing in states where the right to marry was never, judicously, “found”? The Supremes, now, will, apparently have no choice but to decide the issue of Prop 8 by the end of next June (barring an emergency inclusion on this term’s calendar, of course). But the narrow scope, as defined by the 9th Circuit’s decideion, here, makes it seem even a decision affirming the 9th Circuit really will not have nationwide impact.

  24. MikeH says

    Hopefully Ari will comment on the dissent… and I agree with some of the other posters, this ruling is so narrow that SCOTUS will pass. Not as good as I had hoped, but we’re still trudging toward equality. What this will do however is help New Jersey, Washington State, New Hampshire and Iowa.

  25. MiddleoftheRoader says

    1) The dissent said there were two rational (reasonable) grounds to prohibit same-sex marriage: encouraging responsible pro-creation within the context of a man-and-woman (since only a man and woman can naturally pro-create without ‘other’ assistance), AND promoting the raising of children in a man-and-woman marriage, which is the “optimal” way to raise children. Although these ‘reasons’ seem irrational or not based on fact, the dissent argued that because “reasonable people” can disagree whether the facts support these ‘reasons’, then it is not the place of a court to decide that these ‘reasons’ are arbitrary or irrational under the 9th Circuit’s “rational basis” test (using Roemer v Evans).

    2) To support the above point, the dissent quoted from ex-Justice O’Connor who concurred in LAWRENCE v TEXAS when she wrote that “Texas cannot assert any legitimate state interest here [in criminalizing sex between two same-sex people], such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations — the asserted interested in this case — other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

    3) Keep in mind that Justice Kennedy — deciding vote — is LESS liberal than ex-Justice O’Connor. So even though the 9th Circuit ruling is very narrow, there’s no assurance that the Supreme Court would uphold it if it takes an appeal. One can see Justice Kennedy (along with the rapid conservatives like Scalia, Thomas, Alito and Roberts) deciding that the dissent is correct, just like ex-Justice O’Connor had suggested in LAWRENCE v. TEXAS.

    IN OTHER WORDS, although the dissent’s opinion is repulsive and based on myth rather than fact, there is no assurance that the Supreme Court won’t take the same approach as the dissent. Hopefully the narrowness of the 9th Circuit ruling, and the fact it would apply only to California (and maybe New Hampshire, if NH repeals same-sex marriage), will mean that the Supremes will stay away from this case.

  26. Rin says

    Baby steps forward may not be sprints but they still move you to the goal.

    Congrats everyone. Big hugs to all the GLBTs in Cali, now go get yourself legshackled!

  27. Zlick says

    Courts routinely rule on the most narrow avenue available to them. Truly, we wouldn’t want it any other way as a general practice.

    So this is more SCOTUS-proof, if you like. But it also makes the “Perry” effort no better than the effort to take this back to the ballot in California. The end result of both is not national marriage equality, alas. Just the restoration of California marriage equality – lacking many financial and other other benefits of marriages recognized by the U.S. government and the Internal Revenue Service.

    Still – the folks at AFER and their brilliant attorneys had to know this going in. If Romer were available to the court to find violations of the Equal Protection Clause, why would a court go further on a political hot button issue such as this?

    I’m pleased with the ruling, and it’s all I could have legitimately expected – – but I’m wondering whether now to throw my support behind Love Honor Cherish’s bid to put this on the ballot in 2012. If California marriage equality is the only possible end result, that would have marriages resume in California much faster than the Perry trajectory. Le sigh.

  28. Randy says

    While this is a win, reading the decision is not pleasant.

    The dissent suggests that there may be other justices in the 9th Circuit who may buy the argument that (a) sexual orientation discrimination doesn’t warrant anything more than a rational basis test and (b) procreation is a rational basis to carve out a marriage exception, even in the absence of evidence.

    Wasn’t Olsen supposed to win this judge?

    The majority opinion was decided very narrowly, based on the idea of taking away a right, based solely on animus toward a class. It specifically did not find a right to equal marriage, nor did it find that sexual orientation discrimination warranted heightened scrutiny. Indeed, they explicitly stated that they ignored the bulk of the facts in the case because they were irrelevant.

    There were some powerful statements, but the overall feeling I get is that this is teetering on the edge.

Leave A Reply