The Ninth Circuit has just ruled that Proposition 8, the California marriage amendment, is unconstitutional. Presumably to try to make review by the U.S. Supreme Court less likely, the majority’s 80-page opinion claims to be unique to the circumstances of California. Specifically, Judge Reinhardt says that because same-sex couples had already been allowed to marry in California and California law allowed them all the benefits of marriage, it was necessarily the case that the only reason voters in California passed the amendment was animus towards gays and lesbians.
Why is this ruling so implausible? First, the Fourteenth Amendment was not intended to, and cannot reasonably be understood to, mandate a redefinition of marriage. Second, the actions of California voters in defining marriage as the union of a man and a woman while allowing same-sex couples all marriage benefits actually suggest the opposite conclusion — that voters wanted to preserve marriage without doing anything to harm tangible benefits already enjoyed by same-sex couples, hardly an act of hatred. (The court has ironically provided a disincentive to pass laws extending benefits short of marriage redefinition and invited litigation in every state that has.)
Remember that the only reason California had same-sex marriage at all was a state court ruling. So today’s decision, in effect, says that only courts can be trusted to handle the sensitive issue of marriage and that they can do so utterly without regard to settled understandings of the Constitution, of what marriage is and is for, and of the respective roles of citizens and judges. This decision is a threat not only to marriage but to republican government.