From The Nation: http://www.thenation.com/article/166127/proposition-8-unconstitutional-whats-next-anti-gay-law
February 7, 2012
Today’s decision overruling Proposition 8 is deeply satisfying. The randomly assigned three-judge panel for the US Court of Appeals for the Ninth Circuit Court went beyond finding, 2-1, that Prop 8’s amendment of California’s state constitution failed the rational basis test and violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Judge Reinhardt’s 128-page decision also skewers the claims of Prop 8’s proponents to be protecting marriage, revealing their alleged concerns as nothing more than sheer meanspirited prejudice tricked out as paternalism. To wit, “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.”
This is rousing stuff and one of the biggest losses that anti-equality supporters have ever suffered. “Even though this is a narrow decision that applies only to California, it will return us to same-sex marriage in an important state—one that has 40 million people and a disproportionate influence on the politics and culture of the country,” says Dale Carpenter, law professor at the University of Minnesota.
At the same time, the opinion does not break new ground legally. Significantly, says Jennifer Pizer, legal director at the Williams Institute on Sexual Orientation Law and Public Policy, “It does not decide whether anti-gay rules must undergo more rigorous constitutional review, as the United States Department of Justice has concluded. It does not decide whether LGB Americans have the same fundamental right to marry the person they love as heterosexual Americans enjoy.”
That said, I wish the story could stop here while everyone in California who wants to get gay-married does just that, making millions of people happy—especially caterers, florists and clothing stores—and giving the state’s depleted coffers a much-needed boost. But the decision has been stayed until the appellate process concludes. That may not be for some time. Prop 8’s proponents have until February 28 to appeal, as they swore to do if they lost. Meanwhile, the lawyers who brought Perry v. Brown, the unlikely power team of Bush appointee Theodore Olsen and the comparatively left-leaning David Boies, made it equally clear during today’s press conferences that they’ll ask that the stay be vacated and Californians allowed to marry during the ongoing appeals process. The only question regarding appeals, other than whether the stay will be vacated, is whether Prop 8’s proponents will ask first for a Ninth Circuit en banc hearing, or chase this puppy all the way up to the United States Supreme Court, where everything will depend upon Justice Kennedy’s swing vote.
Continue reading at: http://www.thenation.com/article/166127/proposition-8-unconstitutional-whats-next-anti-gay-law
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