“Don’t be defeatist, dear, it’s very middle class.” (Episode 2.08)

“We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.”

I mean, we’ve got to have SOME standards. (I’m sure there’s a great quote from the dowager countess that would apply; can anyone help me out?)

Eh, that doesn’t sound great :/ I mean there’s still some states where Civil Unions are a possibility and Marriage isn’t (for the foreseeable future), I wouldn’t like them to now have this to throw against it :( Though I know CU’s aren’t popular anyway.

could also help with Maine, right?

but then maybe not, since i don’t think their domestic partnership law is as comprehensive as Cali’s.

The Prop 8 proponents surely left CA’s domestic partnerships in place b/c only they felt that they would lose if they eliminated all rights for gay couples. If they could have stripped us of everything, they would have.

Now they face the irony that they might have had a stronger constitutional case if they had eliminated all rights rather than make a linguistic change that furthered no legitimate state interest.

@Ted:

I am glad you aren’t practicing in this area. Your approach would be disastrous.

The case that this ruling was based on, Romer, was written by Justice Kennedy…who just happens to be the swing vote on the Court. It was purposefully written narrowly and catering to him just in case the Court grants cert, which it probably won’t because the narrow nature of the ruling keeps there from being a conflict with other circuits.

Kennedy wasn’t going to overrule his own opinion, but as a Catholic, may not be willing to support a broad based ruling that conferred gay marriage rights in every state.

I think the decision was cowardly. Kennedy is very historically conscious, and cares about public opinion. He has cited international law in a case where he struck down the death penalty on juveniles, and he also wrote the opinions striking down anti-sodomy laws and the Colorado constitutional amendment that did away with anti-discrimination laws against gays. If I were the Ninth Circuit, I would have forced Kennedy to make the decision: do what’s right, or be remembered as the guy who wrote the modern day equivalent to Dred Scott or Plessy v. Ferguson.

My understanding is that the Constitution does not grant rights, it recognizes them, which seems to me to be implicit in the California Supreme Court’s initial decision: the law arbitrarily withheld a right from a class of citizens for no rational reason. (And I daresay you’ll find that rationale at the core of every state court decision overturning existing marriage laws in favor of recognizing same sex marriages.)

By the time this case was filed, the context was different — the basis, as I recall, was Equal Protection — but it seems to me that the 9th Circuit could have broadened its findings if it had wanted to. For some reason, it just didn’t want to go there.

They may not have struck down bans throughout the circuit, but you have to wonder what might happen in Washington state now, which thanks to their lawmakers has a legal landscape just like California’s pre-prop 8.