9th Circuit's Gay Marriage Decision

We considered trying to make sense of today’s nonsensical Ninth Circuit decision striking down Proposition 8, California’s voter-approved ban on gay marriage, but quickly realized that was futile. Instead, we decided to peek behind the nonsense and figure out what really goes on in the minds of Ninth Circuit judges. With quotes from today’s opinion, here’s our best guess at what the 9th Circuit was really thinking when it struck down Prop 8:

What the 9th Circuit said today:
There is no “legitimate reason for the passage of” Proposition 8.

What the 9th Circuit was really thinking:
If California voters don’t agree with us, they must be irrational.


9th Circuit: “Proposition 8 serves no purpose … other than to lessen the status and human dignity of gays and lesbians in California.”

Really thinking: Not only are the California voters who approved Prop 8 irrational, they’re also mean and homophobic.


9th Circuit: “Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions [narrowly].”

Really thinking: Let’s face it, this is all we can get away with for now. Even Justice Kennedy isn’t willing to pretend that there’s a broad constitutional right to gay marriage hidden in the Constitution.


9th Circuit: “The People may not employ the [ballot] initiative power to single out a disfavored group for unequal treatment.”

Really thinking: Yeah, we know that the people of California singled out only the wealthiest 0.1 percent of Californians for a tax increase when they passed Proposition 63 in 2004, but it’s okay to single out bad people.


9th Circuit: Denying marriage to gay people is obviously bigoted because “under California statutory law [governing civil unions], same-sex couples had all the rights of opposite-sex couples.”

Really thinking: Heads we win, tails you lose. If the California statute hadn’t given same-sex couples “all the rights of opposite-sex couples,” we’d have struck that down too.


9th Circuit: “The Constitution simply does not allow for ‘laws of this sort.’”

Really thinking: When discovering new constitutional rights not grounded in the text or precedent, it’s always a good idea to cite nebulous propositions as support.


9th Circuit: “Were we unable, however, to resolve the matter on the [narrow] basis we do, we would not hesitate to proceed to the broader [gay marriage] question.”

Really thinking: We realize that the Left was hoping for broad gobbledygook, and we hope they don’t think less of us for giving them narrow gobbledygook.


9th Circuit: Before the passage of Proposition 8, “the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike.”

Really thinking: Let’s hope no one notices that 1) the only thing the California Constitution has ever said about same-sex marriage is that it’s prohibited, and 2) the court-invented “guarantee” to the contrary lasted only the few months until the next election.


9th Circuit: “[T]he right to be granted marriage licenses … symbolizes state legitimization and societal recognition.”

Really thinking: So we’re essentially holding today that the state has no business deciding what gets “state legitimization.” It’s a good thing judicial activists don’t have to make sense.