Appeals court: Prop 8 UNCONSTITUTIONAL – full text of the decision

Holy cow.

So a few big questions, from friends I’m talking to.

1. Will this appeal now go to the full 9th circuit, en banc, or will it go to the Supreme Court?
2. If it goes to the Supremes, when would it go – as early as this fall?
3. If it goes to the Supreme Court, will the Obama administration be forced to take a position – will the President?
4. If the President demurs, gives his “I’m still evolving” answer, will that be enough to significantly damage gay support in the coming presidential election?

Okay, very interesting – on page 33 of the decision the court notes that it is only considering the argument that:

“Proposition 8 singles out same-sex couples for unequal treatment by taking away from them along the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protest minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”

Holy crap. This is very much Romer v Evans territory. Namely, that you can’t conspire to take away rights without a legitimate reason. This calls into question all of the anti-gay ballot initiatives, and even anti-gay legislation, nationwide. Many like in Maine are trying to take away rights without a legitimate reason. This decision might overturn those initiatives if the Supreme Court affirms.

Oh, and the decision actually mentions Amendment 2 in Colorado, aka the Romer v Evans case, and says that “Proposition 8 is remarkably similar to Amendment 2.”

Interestingly, the court echoes the Obama administration’s argument that supporting marriage and opposing Prop 8 are two different things. Greg Sargent at the Washington Post notes the same. Yes, but. It’s a court’s job to nitpick legal arguments and to give as narrow an answer as possible on any issue. It is not a Democratic politician’s job to nitpick our civil rights.

AFER Press conference about to start (it’s 1:46pm ET here) – the thing is posting live ads that are really obnoxious, so Im not embedding, you can go there yourself.

For some reason it’s not possible to copy and paste quotes. So here’s a summary as I go through it:

Prop 8 violates the 14th Amendment to the US Constitution.
No “legitimate reason” for Prop 8 to treat gays differently as a class.
Prop 8 had no effect on religious freedom or on parents’ right to control their children’s education.
“Prop 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.”
The official sponsors of Prop 8 are entitled to appeal the decision in court, they have standing to bring this case before the court.
“The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”
“We also affirm – for substantially the reasons set forth in the district court’s opinion – the denial of the motion by the official sponsors of Proposition 8 to vacate the judgment by former Chief Judge Walker, on the basis of his purported interest in being allowed to marry his same-sex partner.”
“The question we therefore consider is this: did the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of ‘marriage,’ and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of ‘domestic partnership’ for their relationships?”

Ninth Circuit Prop. 8 decision


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+ | LinkedIn. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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