How the Ninth Circuit Decided to Overturn Prop 8

Wednesday, February 08, 2012

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.

Comments [33]

Can I marry a CORPORATION ? from Fun with Citizens United

Can a human marry a corporation ?
According the Supreme Court a Corporation is a PERSON,
and it has first Ammendment rights!
Does this mean I can marry a corporation ?

There is NO evidence that a marriage between a human and
a corporation causes any worse outcomes in raising kids
or other concerns...

It's not like one is asking if one could marry
MORE than one other person (at the same time),
or (as in the case of Donald Trump) that one
could Marry Oneself... (although perhaps
by some of the arguments here, plural or self
marriage might also offer acceptable alternative

Should a person also be allowed to marry other
individual(s) WITHOUT ANY sexual relationship ?

Is it right to restrict marriage to people who
are having sex with each other ?

This discriminates against the asexual and those
who have a long term commitment to another person
without an interest in having sex with them.

In light of this ruling and in light of Citizens
United, Are there any ethically and legally valid
restrictions on marriage ?

If there are, WHY are they justified, without
being discriminatory against those persons
who are excluded ?

Feb. 08 2012 09:10 PM
Margaret from UWS Manhattan

To the caller, Manuel("Marriage has always been defined in history as between a man and a woman"0): That's not true anway - see: 'Boston marriage' and 'berdache'. Even if it were, that something has always been the case isn't a reason for it to continue to be. They've always murdered women for bringing shame on their family by being raped in some places - should that be maintained in perpetuity?
To Kilroy Penzance: Gay marriage, as well as straight can include providing the benefit of parenting some of those who need adopting; and straight marriages aren't required to produce children.

Feb. 08 2012 06:13 PM
Sheldon from Brooklyn

And Martin - I have no idea what context Chuck meant by "strongly held beliefs." You implied that a couple of named judges will have a more "active" opinion on gay marriage because they may be gay - that may be the case, (that's like saying Thomas will likely support affirmative action because he's black.) However, by that standard, we should have nine robots on the court to avoid any possibility of "activism" or "identity politics"

Feb. 08 2012 12:19 PM
Martin Chuzzlewit from Manhattan


You should actually understand my posts before commenting on them.
Schumer thinks it's important and worthy of denial....I was just underscoring that this is an issue which we can't ignore invariably informs judicial opinions....whether we like it or not.
But, maybe that was over your head.

LOL...your personal attacks only encourage me.

Feb. 08 2012 11:50 AM
The Truth from Becky

Agreed Jack. If it is religious it should be performed in a place of worship but there are churches that won't perform the ceremony unless you are a member and others that will charge for the pleasure so the courthouse or the backyard becomes the alternative and so be it but, re-define marriage to include same sex unions, I don't agree with that.

Feb. 08 2012 11:46 AM
The Truth from Becky

That's just a stupid irrelevant statement, "separate but equal" is not applicable in this conversation. NOW, we don't need the word "Marriage" need a new word for the ceremony that joins a man with man and a woman with a woman to live together and share the same last name, address medical and life insurance benefits. That's what this is really about.

Feb. 08 2012 11:42 AM
Jack Jackson from Central New Jersey

@The Truth from Becky -

Churches could still refuse to allow marriage ceremonies to be performed. Their congregations may eventually diminish because of it but that doesn't matter. The only right that a law on same sex marriage enables is the right to sign the state-authorized marriage contract. (really the only one part that matters since all of that "I do" and "'til death do us part" stuff is for show.) Recognizing a right to same-sex marriage is about not having to re-litigate the entirety of matrimonial law to learn if civil unions are included.

The other way achieve the same end is to end all civil marriages and make only the civil union contract available for all couples.

Feb. 08 2012 11:40 AM
Sheldon from Brooklyn

Kilroy - what nonsense. Should we give people fertility tests? Are you saying that anyone over 50 should not be able to get married?

Feb. 08 2012 11:38 AM
Sheldon from Brooklyn

cmk - you are so right. Because of an accident of language, "marriage" got into the books of the State.

In a perfect world, the state should not recognize ANY marriage. Let people get "married" in their religious institutions, then go get a civil union from the state.

Feb. 08 2012 11:36 AM
Ed from Larchmont

But is it a civil right? Or is it a redefiniton of marriage?

Feb. 08 2012 11:33 AM
kilroy penzance from Malmö

The state gives benefits to marriage because it presumes that this leads to children which are essential to the perpetuation of the state. Gay marriage is unable to provide this benefit. The government should stay out of the question of marriage. The comparison to civil rights of african-americans is callous and indicative of the attitude of entitlement of the white and wealthy.

Feb. 08 2012 11:31 AM

marriage versus the civil unions
I don't want churches to feel forced or be accused of denying civil rights because they don't want to perform ceremonies for gay people. is it correct that civil unions do not require any participation from a church or clergy member? If that is true then I suppose that could be a reason to prefer the term civil union vs. marriage.

Feb. 08 2012 11:30 AM
Sheldon from Brooklyn

Well said Carolita, Martin is used to saying bigoted things: Under his logic Kagan should not be on the Supreme Court because she "found out" she was Jewish in collage, Sotomayor, because she is "openly out" Hispanic, and all the Catholic judges and Clarence Thomas, should resign because they have "strongly held beliefs" because of who they are.

Feb. 08 2012 11:30 AM

@Becky: because "separate but equal" has already been shown to be wrong.

Feb. 08 2012 11:27 AM
The Truth from Becky

There it is...I was wondering when the Black/white thing would be presented..Dahlia! THis is NOTHING LIKE the BLACK civil rights, segregated school issue sweetie!

Feb. 08 2012 11:27 AM
Jack Jackson from Central New Jersey

Anybody beginning their argument "Marriage has always..." loses me right there. Such an argument demonstrates that they don't know enough history and/or they don't agree that man's history on earth has been a march to greater recognition of individual human liberty and expression.

Feb. 08 2012 11:26 AM
cmk from Westchester

Why not make "marriage" a religious event as it should be and have all of us, heter or homosexual, be domestic partners with the standard rights that "marriage" bestows under the law. Marriage is about a religious event. Let's keep church and state separate.

Feb. 08 2012 11:26 AM
The Truth from Becky

This again? Really?? It is not that the word is so "beautiful" it has a meaning which includes MAN and WOMAN, why can't you all just be satisfied with a civil union????

Feb. 08 2012 11:26 AM

It is simply ridiculous for the caller to insist that "marriage has always been between a man and a woman" when, in fact, it has always been between two men: the groom (or his father) and the father of the bride. It has always been a real estate deal, not some romantic fluff or "god's plan." Please stop letting them make this specious argument.

Feb. 08 2012 11:25 AM
Jenna from LES

Your caller says it is the same as civil union, but it IS NOT equal.

I cannot sponsor my bi-national husband which is a Federal Right.

Feb. 08 2012 11:23 AM

Brian, thank you for this caller! He presents exactly the kind of "objections" that the courts just struck down!

Feb. 08 2012 11:23 AM
Gil from Montclair

What would happen to the Hawaii referendum that also 'took away' a right that the Hawaii Supreme Court announced. I think the same thing happened in Alaska and Maine.

Feb. 08 2012 11:18 AM
carolita from NYC

there's also that quote we all know that goes something like "first they came for the Jews..." and ends, "and then they came for me." That's what consensus can get you. If you can overrule the Constitution because of your religious beliefs, imagine what might happen if one day your own religion was the minority? This is a very dangerous way of thinking for conservatives.

Feb. 08 2012 11:18 AM
Sheldon from Brooklyn

The main issue here is: You can't have citizens vote to give or repeal the rights of fellow citizens, granted protection of the law.

Ina civilized country with the rule of law, if you want to take away the of rights of Gays, Blacks, Jews, Women, Catholics etc, you have to change the constitution, not simply put it to a referendum

Feb. 08 2012 11:16 AM
John A.

I punt on this for what is marriage anyway? People can have sex and even adopt kids in certain areas with or without marriage. The horse is seriously out of the barn.

Feb. 08 2012 11:15 AM
Jonathan from New York

On my understanding of the Constitution, the Federal Government may confer rights, but it cannot take them away.
Prohibition is the prime example of a failed Amendment. Unlike the others, it specifically took away liberties from the People.
Since rights were granted to the people of California, the Government may not retract them, in the name of "the tyranny of the majority" or any other tyranny.

Feb. 08 2012 11:07 AM
Jack Jackson from Central New Jersey

I see a big difference....California's Prop 8 took away the right to marriage from sub-group. Christie is seeking to use a referendum to grant members of that sub-group the right marry. Seems like semantics but that's what law often comes down to. The problem I see with Mr. C's position is that if marriage is a right of citizenry, what say can the majority have in the issue?

It wasn't so long ago that many considered sexual relations with people outside of your racial group to be bestiality. I think some still do.

Feb. 08 2012 11:07 AM
Sheldon from Brooklyn

Finally - the courts were brave enough to stand up for equality under law in spite of populous bigotry.

Feb. 08 2012 10:47 AM
Martin Chuzzlewit from Manhattan


Chuck Schumer thinks so. He famously opposed the appointment of judges with “strongly held beliefs” during the Bush administration.

Well, this case will probably go to the Supreme Court where we have Elena Kagan, an openly “out” lesbian while at Harvard Law School, and Sonia Sotomayor, rumored to be a deeply closeted one (see link below about a possible sham marriage and her public dating) sitting on the bench as Obama’s new appointees.

Whatever. (Their lefty politics and roles as judicial rubber stamps for Obama's policies are the real problem.)

But who has more “strongly held beliefs” about gay marriage than gays? Let’s get real here. It's a new world ... one of identity politics and rationalized activism.

Feb. 08 2012 10:27 AM
Tom from Manhattan

Can you address, or ask Dahlia (my law school classmate) to address the implications for New Hampshire? As I understand it, NH has had marriage equality for a time and there is a repeal bill pending in the Republican-controlled legislature. It is unclear that the repeal will pass (and the governor has said he would veto any repeal), but a referendum has been threatened if the repeal is unsuccessful in the legislature. That sounds like it could set up something much closer to the Prop 8 situation than seems likely to occur anywhere else. Thanks.

Feb. 08 2012 10:23 AM
carolita from NYC

I suppose it would be preferable to have a judge who is a "practicing heterosexual"? Besides the fact that there are plenty of those around (or so they say), we appoint judges based on their ability to be fair, and if sexual orientation were something that necessarily affected their ability to be impartial we'd have to have only machines as judges, since everyone has a sexual orientation.

Feb. 08 2012 10:17 AM

is that relevant?
maybe practicing catholic judges should be barred from ruling on abortion cases?

Feb. 08 2012 08:40 AM
Ed from Larchmont

Didn't one of the judges disclose that he was a practicing homosexual? Or am I thinking of a different case?

Feb. 08 2012 07:52 AM

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