The court crafted a narrow decision that applies only to California, even though the court has jurisdiction in nine western states.posted by davidjmcgee at 10:39 AM on February 7
We need consider only the many ways in which we encounter the word 'marriage' in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are "single" or "married." Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, "Will you marry me?", whether on bended knee or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution... but who wants to live in an institution?" would lack its punch if the word "marriage" were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that's marr'd," Lincoln's "Marriage is neither heaven no hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.Perry v. Brown, No. 10-16696, slip op. at 38-39 (9th Cir. Feb. 7, 2012).
"The other issue on everyone’s mind is, what comes next in terms of appeals? The losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the 3-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case."posted by ericb at 11:31 AM on February 7 [3 favorites]
... There were two money quotes in the ruling. First, this: “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.” And second, the court shot down the reprehensible effort by Prop 8 supporters to argue that the Judge on the case was biased because he is gay, claiming there is no evidence for the claim.posted by ericb at 11:45 AM on February 7 [2 favorites]
So here’s an interesting angle on the decision: Gay rights advocates are hoping that this increases pressure on Obama to come out and unequivocally declare his support for gay marriage. He has said his position on it is “evolving.”
But one expert I spoke to points out that in fact, Obama has caught a pretty big break on this topic. That’s because the court’s ruling was narrow, and in effect actually affirms Obama’s position.
According to Richard Socarides, a prominent gay rights advocate, the key to the ruling is that it didn’t pronounce gay marriage a right under the U.S. Constitution. That broader ruling is what advocates had hoped for — and Obama would have been expected to declare agreement with it.
Rather, Socarides notes, the court today simply affirmed that you can’t take away by referendum a right to marry that citizens already enjoy under state law. And this is consistent with Obama’s position on Prop 8.
“We were hoping for a very broad ruling that held that there was a right under the Constitution to same sex marriage,” Socarides tells me. “If the court had ruled on those grounds, there would have been more pressure for him to move forward with his evolution on this.”
“The decision today is fully consistent with the president’s previously stated position that states should not take away rights by initiative,” Socarides continued. “He can continue to say, `my views are evolving but I completely agree that states should not take away rights by initiative.’ On this decision, he caught a break. Whether he will be able to continue avoiding the issue is still to be determined.”
Socarides says he doesn’t expect the decision to come before the Supreme Court this year.
Obama has done a great deal for the cause of gay rights, and he has left the clear impression that he fully supports gay marriage, even if he has not been willing to say so out loud. This has only stoked a desire among gay rights advocates for Obama to come clean about his true beliefs. But even if today’s decision doesn’t put any more pressure on him to do this, Obama can point to it to reaffirm, with real conviction, his oft-stated position that the arc of history bends slowly, but it bends towards justice.
"We are not surprised that this Hollywood-orchestrated attack on marriage–tried in San Francisco–turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court. Every pro-marriage American should be pleased that this case can finally go to the U.S. Supreme Court. The ProtectMarriage.com legal team’s arguments align with every other federal appellate and Supreme Court decision on marriage in American history."posted by ericb at 11:52 AM on February 7
- Brian Raum, Senior Counsel for Alliance Defense Fund.
"This ruling substitutes judicial tyranny for the will of the people, who in the majority of states have amended their constitutions, as California did, to preserve marriage as the union of one man and one woman. However, we remain confident that in the end, the Supreme Court will reject the absurd argument that the authors of our Constitution created or even implied a 'right' to homosexual 'marriage,' and will instead uphold the right of the people to govern themselves. Voters in 31 states have voted to uphold the historic and natural definition of marriage as the union of one man and one woman. Twenty-nine, a majority of American states, have actually inserted such a definition into the text of their state constitutions."posted by ericb at 11:54 AM on February 7
- Tony Perkins, head of the Fascist Research Council.
"We always knew this case would be decided by the U.S. Supreme Court. Now that the Ninth Circuit has rendered its decision, the case can finally move to the U.S. Supreme Court where it will be decided on sound legal arguments rather than the emotional appeals by those trying to obliterate the only institution that unites children with their moms and dads. It is outrageous that judges continue to disregard the will of 7 million voters who voted to protect the centrality and integrity of marriage for children and society. Failing to disclose that the judge himself was similarly situated as the plaintiffs (in a long-term committed relationship with a same-sex partner), Walker could find no rational reason for the voters to define marriage between a man and a woman and concluded they were bigoted and discriminatory."posted by ericb at 11:56 AM on February 7
- William May, head of Catholics For The Common Good.
“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.” “Never before has a federal appeals court – or any federal court for that matter – found a right to gay marriage under the US Constitution,” said constitutional scholar John Eastman, who is chairman of NOM.posted by ericb at 11:59 AM on February 7
“The Ninth Circuit Court of Appeals is the most overturned circuit in the country, and Judge Stephen Reinhardt, the author of today’s absurd ruling is the most overturned federal judge in America. Today’s ruling is a perfect setup for this case to be taken by the US Supreme Court, where I am confident it will be reversed. This issue is the Roe v Wade of the current generation, and I sincerely doubt the Court has the stomach for preempting the policy judgments of the states on such a contentious matter, knowing the lingering harm it caused by that ruling.”
Press Secretary Jay Carney was asked if the White House had any official response to today's ruling upholding the strikedown of Proposition 8.posted by ericb at 12:15 PM on February 7 [1 favorite]
Said Carney:“I don’t have a comment on litigation in general and in this litigation to which we are not a party.. Beyond that, I can say that the President has long opposed, as you know, divisive and discriminatory efforts to deny rights and benefits to same-sex couples.”*
Wait, I missed it. How will that weaken individual marriages? There seems to be something unspoken that I'm missing. Let's keep reading.
“Public schools will teach young children that two men being intimate are just the same as a husband and wife, even when it comes to raising kids.”
“When the idea that children need moms and dads get legally stigmatized as bigotry, the job of parents and faith communities trying to transmit a marriage culture to their kids is going to get a lot harder.”Okay, so it's harder to teach your comes something you believe. But what if the thing you believe isn't true? What if it's just bigotry. The actual social science on the subject indicates that children in two-parent same-sex households do just as well children in two-parent opposite-sex households.
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.It didn't give women any more rights than men had. Now some people's revisionist granddaddy might say they were against it because there wasn't specific language keeping women from the draft, but in reality, it was all about keeping women in their place. Others argue we didn't need such an amendment because women are have equal rights already which is bullshit. This was an amendment that simply asked that women be afforded the same rights as men. But it literally doesn't say women in it. It says you can't discriminate by sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of gender, sexual orientation, race or ethnicity, religion (or lack thereof), national origin or physical disability.Then again I'd like an amendment that explicitly gives us a right to privacy. I'd also like the 2nd amendment rewritten to be less ambiguous.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
“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.”posted by ericb at 2:16 PM on February 7
It is crystal clear to me that Obama, like me, supports gay rights. It is also crystal clear that there would be a significant political cost to him were he to speak out on this issue.
Obama's cognitive dissonance on the issue — I think only heterosexuals should get married, but I don't support laws that say only heterosexuals should get married — seems like an attempt at walking a tightrope on a divisive issue, an effort to avoid alienating gays and gay-rights advocates as well as socially conservative Democrats and Independents.One thing you have to keep in mind is that someone can dislike something but still be in favour of it.
It’s not yet clear whether the proponents of Prop 8 will appeal today’s decision to a larger panel of the 9th Circuit, or directly to the Supreme Court. In the meantime, supporters of gay marriage will certainly benefit from a few more years of shifting public opinion in favor of gay rights, and more states like Washington poised to legalize gay marriage. All in all, today’s ruling amounted to decidedly undramatic drama. It was about the furthest thing from a Hollywood ending ever to come out of California. But then again, it could be shrewdly setting the stage for an awesome sequel.posted by scody at 7:02 PM on February 7 [1 favorite]
Remember September 2008, when it looked like McCain was going to win
"Today, Feb. 21, marks a big deadline in the Prop 8 case that those of us who have been counting the days since the Ninth Circuit's decision have been eagerly anticipating: the last day that the proponents of Prop 8 can file a petition for rehearing with the 9th Circuit. The proponents have 14 days from the initial decision to do so, meaning that if they do not request an en banc review of the Feb. 7 decision with a larger panel of the appeals court, the three-judge panel's ruling will be the last word at this level of appeal.posted by ericb at 2:21 PM on February 21
At this point, there's no reason to speculate on whether or not the proponents will actually file for a rehearing today, as they may be waiting until the last moment to do so. One question that is probably on many minds, though, is what happens to the stay depending on the proponents' actions today. ..."
Maryland's governor has signed a measure legalizing gay marriage, joining seven other states and the District of Columbia ... However, opponents are expected to petition the law to a referendum on the November ballot.(AP, via TheAtlantic)
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posted by Ironmouth at 10:17 AM on February 7