How the Ninth Circuit Decided to Overturn Prop 8

Recap from It's a Free Country.

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, Dahlia Lithwicksenior editor at Slate, discussed the court ruling on the constitutionality of California's Proposition 8 and what might happen next.

Only in California

The legality of same-sex marriage may be on the long, slow road to the Supreme Court, but pro-gay advocates should temper their expectations for what yesterday's ruling in California means for their cause.

For one, the 9th Circuit Court's decision applied specifically to the situation in California, not the broader question of whether or not it was constitutional for any state can tell its gay residents that they can or cannot get married. Dahlia Lithwick pointed out that in 2008, the State Supreme Court overturned a ban on gay marriage, which was then reinstated by referendum, which became the Proposition 8 legislation. It's the process by which same-sex marriage became illegal (again) that's the focus of the court's ruling.

It really is about what it means to citizens to be given a benefit and then to have it retracted...It's really important to read [9th Circuit Judge Stephen] Reinhardt as saying this is only about states that do what California did.

The specious argument against 'marriage'

It's not just that the right was given and taken away, Lithwick said, but that under California law even before the original 2008 State Supreme Court decision, same-sex couples that had entered into civil unions had every single right under state law that was afforded to married heterosexual couples. They just couldn't call it "marriage."

Lithwick said the perceived sanctity of a word didn't make for much of a legal argument.

All of the consequences of banning gay marriage looked awfully specious...Same-sex partners could have done everything but use the word 'marriage,' and that's very offensive to the Court of Appeals.

A decision that's impossible to overturn?

The way in which the Ninth Circuit overturned Prop 8 was incredibly canny, according to Lithwick, for how conservative it was.

"The most liberal judges in the most liberal state could have made history," she wrote in her column for Slate. "Instead, they opted for much less."

In this case, less may have been the way to go. But Lithwick admitted her surprise at the fact that Judge Reinhardt—"arguably the most liberal human in America," in her words—exhibited such restraint in the scope of his decision.

Here's a guy in who's been waiting his whole entire life, I suggest, to write a full-throated endorsement of gay rights, which was the opinion handed up to him by [San Francisco Judge] Vaughn Walker...And yet, Reinhardt doesn't go there.

Judge Reinhardt writes an incredibly skinny little opinion that says, 'Look Justice Kennedy'—who is, I think we can agree, the deciding vote on issue when it gets to the Supreme Court—'this isn't about fundamental rights to marriage, this is about anti-gay animus that led California voters to take away a right they'd given before.'

Again, Reinhardt frames the issue as being about rights that were taken away by a popular vote, not about the morality or constitutionality of gay marriage itself. One of the questions asked of Prop 8 defenders in court was whether or not referendum on desegregation would have been permissible.

Lithwick said it would be much harder for the Supreme Court to overturn the Ninth Circuit's decision since it was made on these grounds.

[Reinhardt said] if the alternative was to hand the court a decision they'd overturn, I'm not gonna do it. Instead, I'm going to hand them a decision that's impossible to overturn.