A.S. Haley: Ninth Circuit Rules Prop. 8 Unconstitutional

Tuesday, February 7, 2012

The opinion of the Court may be downloaded here (it's 133 pages). Judge Reinhardt (one of the Ninth Circuit's most liberal judges) wrote the majority opinion that holds California's people could not constitutionally take away the designation of "marriage" for same-sex unions once the California Supreme Court had declared that the State could not constitutionally ban them. Judge N. R. Smith dissented from that holding (his opinion begins at page 90 of the download), but concurred with the majority in finding that the proponents of Prop. 8 had standing to appeal, and in holding that Chief District Judge Vaughan Walker did not have to withdraw from the case because he himself is in a same-sex relationship.

It is difficult to stay detached when reading Judge Reinhardt's opinion, because he constantly claims he is sticking to a very narrow ground of decision, while he goes out of his way to make sweeping pronouncements:

By emphasizing Proposition 8's limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of 'marriage.' That designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not. . . .

There is nothing like assuming the very proposition that is to be decided, eh, Judge Reinhardt? ("'[M]arriage' is the name that society gives to the relationship that matters most between two adults -- sure.) Why not write: "'[M]arriage' is the name that society gives to the relationship that matters most between a man and a woman"? Is that because you could not then so easily jump to the conclusion which you assumed in your reasoning? the rest