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Down with Prop 8 (again)
Feb. 7th, 2012 12:05 pmYay, 9th Circuit Upholds Walker's decision that Prop. 8 was unconstitutional!
No, you can't go out and get gay married in California yet because the stay is still in effect.
I had thought originally that if the 9th Circuit upheld Walker's decision, the appeal process would end, but it is not so. Apparently, this decision can also be appealed and bumped up to either what's called an en banc hearing of all the 9th Circuit or right up to the Supreme Court. Both would require those respective courts choosing to hear the case.
The 9th Circuit went with a narrow decision, meaning its opinion only applies to California, as far I can understand (though the circuit has jurisdiction over a bunch of Western states). What kind of makes me uneasy is that it was a split decision, 2-1. If people are saying that the 9th Circuit is a "liberal" chunk of the judicial system, I'm kind of nervous to think about the appeal and the issues going higher.
Here is the entire decision. I started reading but the legalese started making my eyes cross. I'm going to wait for some legal blog to break down the language and what it would mean as precedent. From what I can figure, Prop. 8 was unconstitutional because it was drafted with the sole purpose of taking away a right that the California state granted and is legal by the terms of the 14th Amendment--that is, proponents of Prop. 8 had no right to take away the right of marriage from gays. I'm not sure how the broader issue of gay marriage would play out in a Supreme Court battle but the 9th Circuit's decision is definitely conscientious about taking a narrow path even though they consider what factors and fact would apply to a broad decision.
But that could take yet more months and years, so keep an eye out.
ETA: So I was trying to read the decision (I got up to page 24, yo! Of 133.) and what I discovered in those first 24 pages was a surprisingly convoluted history of gay marriage in California. Thankfully, a newsletter provided me with a much more concise and clear (and legalese-free) version of the story. But, wow, I hadn't realized the rocky road had stretched back so far.
WSJ is surprisingly optimistic about an outcome in the Supreme Court, hinged on Justice Kennedy as the swing vote. What talk I see seems to be saying is that the narrowness of Reinhardt's wording of the decision in the Perry v. Brown case means that the Supreme Court wouldn't actually have to address the constitutionality of same-sex marriage in general should the case make it before them.
Aw, yeah, law blog breakdown! That was a much easier read than the decision itself, teasing out the relevant parts of the decision, what they affect, and the new grounding of legal facts. Sweet!
ETA 2: Rachel Maddow speaks with attorney Ted Olson, who is trying the case in favor of gay marriage, about the decision.
No, you can't go out and get gay married in California yet because the stay is still in effect.
I had thought originally that if the 9th Circuit upheld Walker's decision, the appeal process would end, but it is not so. Apparently, this decision can also be appealed and bumped up to either what's called an en banc hearing of all the 9th Circuit or right up to the Supreme Court. Both would require those respective courts choosing to hear the case.
The 9th Circuit went with a narrow decision, meaning its opinion only applies to California, as far I can understand (though the circuit has jurisdiction over a bunch of Western states). What kind of makes me uneasy is that it was a split decision, 2-1. If people are saying that the 9th Circuit is a "liberal" chunk of the judicial system, I'm kind of nervous to think about the appeal and the issues going higher.
Here is the entire decision. I started reading but the legalese started making my eyes cross. I'm going to wait for some legal blog to break down the language and what it would mean as precedent. From what I can figure, Prop. 8 was unconstitutional because it was drafted with the sole purpose of taking away a right that the California state granted and is legal by the terms of the 14th Amendment--that is, proponents of Prop. 8 had no right to take away the right of marriage from gays. I'm not sure how the broader issue of gay marriage would play out in a Supreme Court battle but the 9th Circuit's decision is definitely conscientious about taking a narrow path even though they consider what factors and fact would apply to a broad decision.
But that could take yet more months and years, so keep an eye out.
ETA: So I was trying to read the decision (I got up to page 24, yo! Of 133.) and what I discovered in those first 24 pages was a surprisingly convoluted history of gay marriage in California. Thankfully, a newsletter provided me with a much more concise and clear (and legalese-free) version of the story. But, wow, I hadn't realized the rocky road had stretched back so far.
WSJ is surprisingly optimistic about an outcome in the Supreme Court, hinged on Justice Kennedy as the swing vote. What talk I see seems to be saying is that the narrowness of Reinhardt's wording of the decision in the Perry v. Brown case means that the Supreme Court wouldn't actually have to address the constitutionality of same-sex marriage in general should the case make it before them.
Aw, yeah, law blog breakdown! That was a much easier read than the decision itself, teasing out the relevant parts of the decision, what they affect, and the new grounding of legal facts. Sweet!
ETA 2: Rachel Maddow speaks with attorney Ted Olson, who is trying the case in favor of gay marriage, about the decision.
