Legal summary of the Prop 8 decision

John Culhane has authored a great piece on what the decision means.

If this court’s decision is ultimately upheld by the U.S. Supreme Court under the same legal theory, the result would be limited to California. Prop 8 would be thrown out and same-sex couples would be able to resume marrying there – but nowhere else.  Why so narrow? Once again, it’s all about trying to get the vote of Justice Anthony Kennedy.

This line made me smile.

The crazy attempt to have Judge Walker disqualified because he’s a gay man in a long-term relationship received the backhand it deserved.  The court telegraphed its view of this position during oral argument. Judge Smith (who dissented from today’s decision on the central constitutional issue) couldn’t see any difference between booting a gay judge in a relationship and disqualifying a straight, married judge from deciding the case if he had an interest in maintaining “the definition of marriage as it applies to his marriage.” And should judges married to someone of a different race not have been able to rule on anti-miscegenation laws? No one expected this argument to have any traction, and it didn’t. If the Prop 8 proponents are smart, they will leave this inane argument out of their expected appeal to the Supreme Court.

There’s plenty more, but I’ll skip to the good news and let you go read the whole thing.

But the true genius of Judge Reinhardt’s approach is in the appeal to Justice Kennedy, the swing vote needed to affirm the appellate court’s holding. By giving the Supreme Court a narrower ground on which to affirm – and by using Kennedy’s own logic and language from Romer – the appellate court just gave the Supremes a way to avoid deciding the global issue of marriage equality – at least for now. They have only to decide that once the right to marry exists (and perhaps especially if it exists as a matter of state constitutional law), then a pretty damn good reason is needed to take it away.

Will this work? Who knows? But the odds of success just went way up – if only for Californians. The rest of us would benefit from the demise of Prop 8, though, too. About one in nine Americans lives in California. If the tipping point wasn’t already reached with the marriage equality victory in New York, a win in California should pretty much seal the deal.


About JT Eberhard

When not defending the planet from inevitable apocalypse at the rotting hands of the undead, JT is a writer and public speaker about atheism, gay rights, and more. He spent two and a half years with the Secular Student Alliance as their first high school organizer. During that time he built the SSA’s high school program and oversaw the development of groups nationwide. JT is also the co-founder of the popular Skepticon conference and served as the events lead organizer during its first three years.

  • Rieux

    Hey, the “FTB Recent Posts” tab shows a crowd of us all saying pretty much the same thing now: Culhane and JT here, moi at Ophelia Benson’s FTBlog, plus a shout-out in comments to Dahlia Lithwick and Garrett Epps; and Orrin Kerr, Lyle Denniston, and Ed Brayton agreeing with them.

    So the chorus grows: quitcher pessimism, suckas! Stephen Reinhardt FTW!

  • Zinc Avenger

    If the Prop 8 proponents are smart, they will leave this inane argument out of their expected appeal to the Supreme Court.

    Yes. If they’re smart.




  • Peter N

    “About one in nine Americans lives in California.”

    Does anybody happen to know what percentage of Americans live in states with marriage equality? That’s Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia; and soon to be Washington and presumably California? If you add the state which allow “marriage lite” domestic partnerships, that’s got to be quite a lot.

  • Midnight Rambler

    Including California and Washington, it’s 79M, or about 25%. California is 37M of that though, nearly as much as the others put together. If New Jersey and Maryland join in as well, it goes up to 30%.

  • TerranRich

    According to 2009 statistics, the populations of CT, IA, MA, NH, NY, VT, DC, and CA add up to 63,752,884, which is 20.77% of the U.S. population.