Court says rights for some, but not others, is unconstitutional

Court says rights for some, but not others, is unconstitutional February 7, 2012

The 9th Circuit Court of Appeals today struck down California’s Proposition 8, which forbid legal recognition for the marriages of same-sex couples.

Judge Stephen Reinhardt wrote:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.

And you’re not allowed to have a law that “serves no purpose, and has no effect, other than to lessen the status and human dignity” of a given minority. It’s easy to pass such laws, given that minorities, being in the minority, are easily outnumbered. But this is what the Constitution and equal protection and the rule of law are for — making sure that the majority can’t pull stunts like that just because there happen to be more of them.

This is something that New Jersey Gov. Chris Christie failed to grasp recently when he said that the rights of minorities should be established in the voting booth. Newark Mayor Cory Booker explained why Christie was wrong:

“Equal protection under the law – for race, religion, gender or sexual orientation – should not be subject to the most popular sentiments of the day,” Booker said. “Marriage equality is not a choice. It is a legal right.”

If equal protection under the law were dependent on polls, then it wouldn’t be equal protection under the law.

I haven’t read the ruling on Prop 8 yet. Rob Tsinai’s take is that it’s a very narrow decision that bars this particular proposition, but does not speak more broadly to the matter of marriage equality. Jim Burroway thinks it may be such a narrow ruling that the Supreme Court of the United States may opt not to argue it further. I doubt it, but even if it’s not this particular ban, the top court will eventually hear and decide on the constitutionality of some state’s same-sex marriage prohibition.

Burroway also explains what this means right now:

The current stay on Judge Walker’s original ruling remains in effect for at least another week. Prop 8 proponents are almost certain to file a motion to extend the stay, and that motion is likely to be granted pending further appeals.

This is a good decision from the 9th Circuit Court. It’s very good news for California.

It’s even good news for Prop 8 supporters, who are fuming and raving in response to the decision. But don’t worry too much about them — they enjoy fuming and raving. It’s kind of their hobby. This ruling neither picks their pocket nor breaks their leg. It doesn’t harm or inconvenience them in the least. But today’s ruling provides them another excuse to pretend they’re put-upon and persecuted, so right now they’re as close to being happy as they’re still capable of being.

 

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  • Noirceuil

    Wow… the very first paragraph is “if you’re so tolerant, how come you don’t tolerate my intolerance? Gotcha, ya hypocrite!” It just goes downhill from there.

    And then I read the comments… God, why do I always read the comments?

  • Lori

     
    I know that I got taxed at 35% + work men’s comp + insurance for my employees. At least 50% of what I made went to the govt/ benefits for o…thers before I ever got paid.  

     

    Workman’s comp and employee insurance are not “benefits for others” unless he also thinks that his employees’ salaries are “benefits for others”. Workman’s comp and insurance are not gifts he gives his employees, they are part of his employees’ total compensation. 

  • Daughter

    I had already written a few responses before seeing yours. Here is what I wrote:

    “A few more thoughts: you mentioned that you’re already contributing to the govt through what you pay for workers’ comp and insurance for your employees (I assume you’re talking about unemployment insurance, bc liability insurance is probably being paid to a private company). I generally have funds deducted from my paycheck for workers comp and unemployment–not sure if it works like SS and Medicare, where 50% comes from the employee’s salary/wages and 50% from the employer. But in any case, you’re not paying 100% of that–your employees are paying part of it.

    “Second, back to the analogy: the equivalent might be that the family’s health insurance premiums are coming from the dad’s salary. Great! Does that absolve him from contributing to the household expenses in other ways, or for expecting his wife to cover the lion’s share of them? I don’t know your earnings relative to [your wife’s], but if you’re making a lot more than she is, I don’t think you’d treat her that way.

    “Final thought: you asked about my thoughts re: the nature and benefits of capitalism. I think it’s great that start business, invest and earn profits. But I also think that people should contribute to the greater good of society–and not simply through giving to charity. (I have worked for nonprofits for years, including in fundraising, so I know very well why charity, while important, is inadequate to meet the broad-based needs of society. If you’d like, I’ll share some of that with you).

    “Oh, one more thing: the people not paying taxes in this analogy might be the children in the family–who aren’t paying any of the bills because they have little or no income. But in a family, we don’t demonize children for that–instead, we prepare the for a future in which they can be contributors.”

  • Anonymous

    Another blogger on Volokh’s website suggests that it’s not as simple as that.

    Thoughts on the Road from Walker to Reinhardt to Kennedy

    Most agree that both opinions were written solely for an audience of one, Justice Kennedy. In both cases, a lot of the reactions focus on whether the opinions successfully figured out a clever way to get Kennedy’s vote…

    [M]y own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices…

    Second, … the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren’t dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring.

  • Lori

    Based on his writing I really don’t see why any weight should be given to  Volokh’s opinion. 

  • Lori

    The president of NOM displays the kind of dishonesty that is the hallmark of the haters:

    http://www.youtube.com/watch?feature=player_embedded&v=rA_w747adCA

  • Tricksterson

    I wish I could say you’re right but it’s likely to be a 5/4 vote and those can never be considered sure things.  Alito, Thomas and Scalia have already made up their minds.  Roberts will might (although I may be optimistic there) at least listen but will probably side with them.

  • Tricksterson

    Thank you, I couldn’t remember if it was kennedy or Souter who was the usual swing vote.

  • Tricksterson

    Considering that exactly this is what happened in LDS’ early history you’d think he would be a bit more sensitive.

  • FangsFirst

     

    Wow… the very first paragraph is “if you’re so tolerant, how come you
    don’t tolerate my intolerance? Gotcha, ya hypocrite!” It just goes
    downhill from there.

    Yeah, like I said…not even a paragraph before I gave up hope that he would be revealed to be as described rather than as I tentatively suspected.

    And then I read the comments… God, why do I always read the comments?

    Sometimes…SOMETIMES…I curb this habit…

  • Lori

    The Washington House has now passed their marriage equality bill. The next stop is the Governor’s desk, where it will be signed into law. It’ll be interesting to see how the Prop 8 ruling influences the (inevitable) attempt to overturn the law by popular vote. 

  • Tricksterson

    I’m just surprised (or maybe he did I haven’t bothered to read the article) he didn’t somehow link it to the inevitable Muslim takeover of the world by means of outbreeding the West, which is a serious obssession with Steyn.

  • FangsFirst

     I suppose that was the thing I’d read about him as an obsession, and I never knew enough to just say he was wrong.

    Did think he was, but didn’t know how to prove or suggest it other than “That sounds like a stupid conspiracy theory,” which isn’t the best proof in the world.

  • Tonio

    “the constitutional right of the people to make judgments about the definition of marriage” – No and no. The definition of marriage is however the individual couple chooses to define it. Newt, you don’t get to decide who an individual should marry, and neither do I. I’ll make you a deal – I’ll agree to let the voters decide whether gays should marry if you agree to let them decide whether straights should marry.

  • Tonio

    On other boards I’ve declared that there’s nothing innately immoral about homosexuality, and some posters acted like I was from Neptune. Most of this group posted the expected non-rebuttals about biblical authority, or offered implicitly theological arguments involving nature, but a few seemed to treat “homosexuality is immoral” as self-evident. It doesn’t make sense to me why anyone would care so much about another person’s sexual orientation. Unless the first person is romantically interested in the second, it should matter as little as the second person’s preferences in pizza toppings.

  • FangsFirst

     

    It doesn’t make sense to me why anyone would care so much about another person’s sexual orientation.

    My mom has always been convinced that it boils down to “ew, anal sex.”

    Unless the first person is romantically interested in the second, it
    should matter as little as the second person’s preferences in pizza
    toppings.

    I am totally justified in being grossed out by anyone liking fungus on their pizza, thanks. And I have every right to work to ban it from all pizza establishments.
    BECAUSE THE CONSTITUTION!

  • Tricksterson

    More like “Ewww, guy-on-guy anal sex”.  Now I’ll admit, the idea of watching a couple of guys have sex (I’ve become aclimated to kissing nowadays) squicks me a tad.  so you know what?  I DON’T WATCH GAY PORN!  That’s it.  And those of you who are squicked by male-on-male oral or anal should do the same and stop having anxiety attacks about what they might be doing in the privacy of their own homes or wether they are doing so with or without the benefits of marriage, because it’s none of your damn business.

  • Tonio

     Heh. You’re not the only person I know who has that reaction to mushrooms.

    I suspect for many homophobes, it’s really, “ew, gender ambiguity.” At least that’s how they perceive homosexuality, as a confusion of gender.

  • Lori

    I’ve said many times that the difference between someone who is socially Liberal and someone who is socially Conservative is not squicks*, it’s how the person reacts to the squick. A Conservative sees something that makes her uncomfortable and says, “Stop doing that! It’s grossing me out.”. A Liberal sees something that makes her uncomfortable and says, “Not lookin’ over there any more.” 

    *Squicks = strictly personal preferences and issues. For example, I consider them entirely separate from issues of consent. 

  • Tonio

     Do you suppose that social conservatives are unable to distinguish squick from the feeling they would have if they saw someone kick a puppy? Or are they too focused on self-righteousness, such as certain legislators who can’t recognize Onion satire? Or some of both?

  • FangsFirst

     

    More like “Ewww, guy-on-guy anal sex”.

    Absolutely.
    My mom usually follows it with, “When plenty of heterosexual couples do it, so that’s still not even a reason.”

    Personally, I’m not interested in the idea between *heterosexual* couples either, so two men doesn’t quick me out any more or less–mostly it just does nothing for me, and in the contexts in which I could actually stumble across visible anal sex, it means I click a little “X” and move on. Seems like it would be a lot of effort to stop other people from engaging in a sexual activity I don’t want to be involved in.

  • FangsFirst

    Heh. You’re not the only person I know who has that reaction to mushrooms.

    And with good reason!

    I
    suspect for many homophobes, it’s really, “ew, gender ambiguity.” At
    least that’s how they perceive homosexuality, as a confusion of gender.

    Good point, actually. I don’t know–I try to get into the heads of people with differing views, but this one is difficult for me. Of course, I’ve had enough conversations that just became “the Bible says so,” in ways that made it seem that that was actually the ONLY reason, that I don’t expect I will ever get it.