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The 9th Circuit Court of Appeals has predictably upheld the district court decision declaring California’s Proposition 8 invalid.  Given the composition of the three-judge panel (a Carter appointee, a Clinton appointee, and a Bush 43 appointee), this outcome was never in doubt.

I haven’t yet read the whole decision (which includes a dissent), but will only note, as have others, that it is drawn quite narrowly, restricting itself tot he circumstances created by California’s facts. In that state, the legislature had already given same-sex couples all the rights and privileges of marriage and judges had already required that the label “marriage” follow the substance. Voters then took away the label, leaving intact the substance.

Proposition 8 had one effect only.  It stripped same-sex couples of the ability they previosuly possessed to  obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of “marriage” to describe their relationships.  Nothing more, nothing less.  Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise choldren or on the procreative practices of other couples.  Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education: it could not have been enacted to safeguard these liberties.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of “marriage,” which symbolizes state legitimization and societal recognition of their committed relationships.  Proposition 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.

I’ll not here rehearse the arguments made over and over again in the past, and that will be repeated endlessly in the coming days. But I will not two points. First, the majority opinion concedes that one purpose of law is to signify “state legitimization and societal recognition.” Does this not amount to moral approval, and does the opinion thus not imply that someone has a right to my moral approval? Or is it possible to argue that law can convey moral disapproval as well? If it can, then using law to convey disapproval is hardly necessarily irrational. Law can certainly tolerate while disapproving, can it not?

Second, the willingness of California voters and legislators to grant civil union status  is turned against them . Once you have gone that far—out of some combination of toleration, generosity, and solicitude for the needs of children—you have no basis for resisting the last step. This is certainly an invitation to litigation—if any were needed at this point—in states which have adopted civil unions. And it’s an incentive for defenders of tradition marriage to take a hard line: any concession will be turned into a legal weapon directed against their position.

For more (and better) analysis, keep an eye on Bench Memos .

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