Ninth Circuit to 7 Million California Voters: You Are Irrational Bigots

by Maggie Gallagher

In a breathtaking exercise in ill-natured illogic, a divided Ninth Circuit ruled 2–1 that because Prop 8 does not take away civil-union benefits for same-sex couples, it’s an unconstitutional exercise in irrational animus towards gay people.

Dishonestly, the court claimed it did not require any heightened scrutiny to reach this result.

The very timid dissent (“please don’t go after me!”) points out that Baker v. Nelson is ruling precedent and that the differences between same-sex and opposite sex couples in terms of the state’s interest in responsible procreation could be rationally related to a legitimate state interest.

Back in 2004, when we fought about a Federal Marriage Amendment, gay rights advocates said we were alarmists for claiming that they would go to federal court seeking a right to impose gay marriage on all 50 states.

That was so last decade.