Conservatives Attack Court For Striking Down Anti-Gay Prop 8

Blog ››› ››› ADAM SHAH

Critics of the 9th Circuit decision striking down Proposition 8 have labeled the ruling "breathtaking," "absurd," and an act of "judicial tyranny." In fact, the decision is very restrained.

The majority opinion did not hold that the Constitution requires all states to allow same-sex couples to marry. Instead, the decision held that a law that has no purpose or effect "other than to lessen the status and human dignity of gays and lesbians" violates the Equal Protection Clause of the Constitution.

Indeed, even anti-gay rights zealot Matthew Staver has reportedly acknowledged that this is not a "broad ruling" and does not find that the Constitution mandates same-sex marriage.

The majority took great pains to explain the special circumstances in California that led to this decision. In California the state constitution previously allowed same-sex couples to marry. California then enacted a constitutional amendment that stigmatized same-sex couples by taking away the designation of marriage from their relationships, but the state -- by retaining a civil union law -- did not change any substantive legal rights involved.

From the decision:

All the 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 symbolized 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. The Constitution simply does not allow for "laws of this sort." Romer v. Evans, 517 U.S. 620, 633 (1996).

The 9th Circuit majority also pointed out that its decision was based on the Supreme Court precedent of Romer v. Evans, which binds the court.

As the 9th Circuit majority noted, "[i]n 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation." As the 9th Circuit also noted, the Supreme Court in Romer "held that Amendment 2 violated the Equal Protection Clause because '[i]t is not within our constitutional tradition to enact laws of this sort' -- laws that 'singl[e] out a certain class of citizens for disfavored legal status,' which 'raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.' "

The 9th Circuit majority added:

Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 "single[s] out a certain class of citizens for disfavored legal status . . . ." Like Amendment 2, Proposition 8 has the "peculiar property" of "withdraw[ing] from homosexuals, but no others," an existing legal right -- here, access to the official designation of 'marriage' -- that has been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place. Like Amendment 2, Proposition 8 denies "equal protection of the laws in the most literal sense," because it "carves out" an "exception" to California's equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee. Like Amendment 2, Proposition 8 "by state decree ... put[s] [homosexuals] in a solitary class with respect to" an important aspect of human relations, and accordingly "imposes a special disability upon [homosexuals] alone." And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it "only by enlisting the citizenry of [the state] to amend the State Constitution" for a second time. [citations omitted]

So this is what passes for "breathtaking" and "absurd" actions by the 9th Circuit: A limited decision that followed binding Supreme Court precedent and did not create a national right to same-sex marriage. It seems that conservatives' real complaint is that the 9th Circuit overturned a discriminatory law, not that the court acted lawlessly.

Critics Are Also Falsely Claiming That The 9th Circuit Is Overturned More Than Other Courts

Critics have also pushed the falsehood that the 9th Circuit is overturned more than other federal appellate courts, a talking point the right trots out whenever they are unhappy with a 9th Circuit decision. We have been rebutting this talking point nearly since our inception, and it has never been true in any of the years we have been rebutting it.

The Supreme Court reverses the large majority of cases it takes, and because the 9th Circuit is far bigger than the other courts of appeals, there are far more cases coming from the 9th Circuit than from other courts. But in terms of percentages, the 9th Circuit has not had a particularly high reversal rate when compared to other courts.

Here are statistics from SCOTUSblog showing that the 9th Circuit did not have the highest reversal rate in the most recently completed Supreme Court term, 2010-2011.

The same is true for 2009-10.

And for 2008-09.

And for 2007-08.

And for 2006-07.

And for 2005-06.

And for 2004-05.

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