[LINK] Ari Ezra Waldman on the Ninth Circuit and Proposition 8

[rfmcdonald]

Ari Ezra Waldman's analysis at Towleroad of today's American court ruling that California's referendum-induced ban on same-sex marriage was unjustified is worth reading, even for non-Americans. Waldman's summary makes the point that this ruling fits into the noble, if sadly necessary, tradition of rulings making the point that arbitrarily imposing hardships on a stigmatized population--here, revoking rights already granted--is wrong.

More than any single vote, more than any single veto, more than any single legislative majority, the Ninth Circuit's decision in Perry v. Brown is the most significant advancement in the fight for marriage equality in American history to date. Consider this: Never before has a federal appellate court affirmed any of the conclusions that the Ninth Circuit did today:

•that denying committed gay couples their right to marry cannot encourage opposite sex marriages;
•that when a state denies the right to marry while allowing gay couples all the rights and privilges of marriage, it cannot base the marriage ban on any rationale that denigrates gay parents;
•that domestic partnerships are unequal to marriage;
•that, as a matter of law, marriage rights do not hinge on natural procreative ability;
and, of course,
•that a ban on same-sex marriage unconstitutional.

Today's opinion was both broad and narrow, with wide implications and constrained effects. In 76 pages, Judge Reinhardt and Judge Hawkins affirmed the district court's opinion that Proposition 8 was unconstitutional, but its decision hinged on the fact that Prop 8 effectuated a taking away of rights previously existing in California per In re Marriage Cases. That denial of an existing right violated due process and equal protection. The court declined to decide whether due process or equal protection would invalidate all bans on same-sex marriages, especially in those circumstances where no such right existed before. This is the narrow part of the decision. The court also used a rational basis standard of review, granted Proponents standing as a matter of federal law, and affirmed the denial of the motion to vacate. But, in so doing and by savaging the legitimacy of the Proponents' proferred reasons for Prop 8, the Ninth Circuit gave us a remarkable statement of gay rights, one that will have an enduring future regardless of the end result of Perry v. Brown.