Prop 8 Reax: “A Narrow Ruling”

Andrew Sullivan —  Feb 7 2012 @ 2:48pm


by Patrick Appel

The court has a useful summary of the ruling here (pdf). Orin Kerr helps decode the legal argument:

Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer [Justice Anthony Kennedy] a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case.

Rick Hasen concurs:

Judge Reinhardt wrote his opinion for an audience of one: Justice Kennedy.  This opinion is considerably narrower than Judge Walker’s opinion in the district court, and it relies very heavily on Romer v. Evans, an earlier gay rights case in which Justice Kennedy wrote the majority opinion. 

Lyle Denniston provides further analysis:

By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court.  However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.

Rob Tisinai is disappointed that the ruling only applies to California:

An existing comprehensive domestic partnership law, and the removal of an existing right: These two key factors don’t apply to most states, and thus the reasoning behind the Court’s decision (and, by extension, the decision itself) doesn’t either.

Kevin Drum is echos:

[T]his ruling has no impact at all in states where same-sex couples don't already have all the rights of opposite-sex couples, and the court declined to make a broader ruling that might have addressed that. 

Full ruling here.

(Photo: Same-sex couple Breana Hansen (L) and Monica Chacon kiss as they celebrate outside of San Francisco City Hall on February 7, 2012 in San Francisco, California. By Justin Sullivan/Getty Images)