9th Circuit's Gay Marriage Decision
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.