The Proposition 8 Ruling

by w3woody

Ban on gay marriage struck down

The panel unanimously ruled that the sponsors of Proposition 8 had a legal right to be in the appeals court to challenge a federal District judge’s ruling in 2010 striking down the ballot measure, but it also rejected the sponsors’ plea to wipe out that ruling on the theory that the trial judge had a conflict of interest because he is gay and is in a long-term relationship with another man.

The majority summed up its ruling this way: “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution]. We hold Proposition 8 to be unconstitutional on this ground.”

The biggest one that concerned me was the Article III (standing) issue, and it appears the Ninth Circuit unanimously ruled the sponsors did have standing.

On the rest, it’s interesting to see the Ninth Circuit attempted to thread the needle by declaring that while (a) there is no universal nation-wide right for homosexuals to marry in the Constitution, (b) California does not have a right to pass a law *prohibiting* homosexuals from marrying.

Apparently they managed to thread the needle by finding that homosexuals had a limited “right” (somehow–though it was never formally granted through the legislative process but instead granted by fiat by the courts), it was illegal to then take that right away.

Now, let me be clear: I believe homosexuals should have the nation-wide right to marry. However, overturning a properly passed California Constitutional Amendment strikes me as having other legal ramifications beyond just this one law.

For example, once permission is granted by a particular agency to do a particular activity, does this ruling means that it is now illegal to take that right away? For example, snake handlers have had their religious practices circumvented in several states: does this mean laws prohibiting snake handling are unconstitutional? (And don’t bother with a First Amendment argument; for the most part the courts have held that you can *believe* whatever you want, but you cannot *do* whatever you want. You may have the sincere and time-honored belief that sacrificing little boys on a pyramidal altar by ripping their hearts out is the only way to heaven–but this is not a license to murder little boys on an altar.)

Or hell, I’d be interested in understanding the Ninth Circuit’s thinking about the 18th Amendment: since it outlawed alcohol–a right previously recognized but then outlawed by that Amendment: would the 18th Amendment have been considered unconstitutional because it further restricted pre-existing rights?

I see this going to the Supremes, and I’m going to be fascinated as to how they rule–especially since the argument that you cannot take away the rights of a minority group–well, fuck; that’s what legislation is: finding things we don’t want people to do and outlawing those activities. It’d be funny if the legal principle struck upon could be effectively extended to–um, well–outlaw the process of making laws.