It’s kind of fun to read the reactions among the wingers over the ruling yesterday in California that struck down Prop 8 as unconstitutional. The way they tell it, a bunch of activist judges rode roughshod over the rights of 7 million Californians and in one fell swoop imperiled the laws in 43 states. While this kind of knee-jerk reaction is typical in cases like this, it might be a good idea for the pearl-clutchers to actually read the ruling itself before going off on their predictable fund-raising rants.
I’m not a lawyer, but I don’t think it takes a law degree to understand the ruling itself. Essentially the majority upheld the lower court ruling that Prop 8 violated the Fourteenth Amendment to the United States Constitution by depriving a specific class of people — gays and lesbians — the right to define their relationships with the word “marriage.” Since California already had domestic partnerships and afforded same-sex couples all of the same benefits of marriage without calling it that, taking away the right of same-sex couples to use the word “marriage” in describing their unions was a denial of equal protection. The court also went to great pains to cite another landmark case, Romer v. Evans, in which the U.S. Supreme Court held that Colorado’s Amendment 2, passed in 1992, unfairly targeted a specific group and deprived them of a right — in that case, the right of cities and municipalities in Colorado to pass anti-discrimination laws — without just cause: “[T]he amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” Yesterday the judges held that the voters of California did the same in passing Prop 8.
The court did not grant same-sex couples a “special right.” The court did not endanger the millions of straight couples’ marriages in the state of California. The court did say that Prop 8, which promised to protect and enhance the institution of marriage and the future of California’s children, did no such thing; depriving a class of people from using a word did not magically strengthen the family or prevent schools from discussing same-sex marriage. The court did not legislate from the bench, nor did it re-write the marriage laws of the state. All it did was say that the state, by legislation or referendum, could not take away a right from a group of people for no other reason than the fact that they are “disfavored” by a majority of the voters. The Fourteenth Amendment guarantees equal protection, and Prop 8 violated it.
All of that will be lost on the anti-gay crowd, and I fully expect to hear all sorts of carrying on from them about how the Supreme Court will strike this down once and for all and at last put those icky queers and whatever it is they do in their bedrooms in their place in Hell. But if the Supreme Court does hear the case — and there’s no guarantee that they will — it will be interesting to see how they could overturn a ruling that relies heavily on Romer v. Evans as precedent.
Meanwhile, Prop 8 still remains in effect: same-sex couples can’t get married again in California…yet. But it’s only a matter of time.
Attorney Ted Olson, former Solicitor General for the Bush administration and counsel for the winning side in today’s ruling, talks to Rachel Maddow.