Learning from Gay Marriage

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http://www.newyorker.com/online/blogs/comment/2012/02/ninth-circuit-overturns-prop-8.html

One lesson of the breathtaking victory for the gay-rights movement in the Proposition 8 case is simple, if not immediately obvious: if you want to win something, you have to fight for it.

This was a controversial case, right from the start, and not just among opponents of same-sex marriage. As Margaret Talbot described in The New Yorker, many people in the gay-rights movement were worried that the case would fail and make bad law; others resented David Boies and Ted Olson, the superstar lawyers behind the case, for parachuting into a cause with which they had not previously been associated. But these worries, understandable though they might have been, proved unjustified.

Instead, the Ninth Circuit has now given Boies and Olson everything they wanted—and, importantly, no more than they wanted. The majority opinion holds that Proposition 8, which voters passed in 2008 to invalidate a California Supreme Court decision sanctioning same-sex marriage in the state, violates the United States Constitution. The decision, written by Judge Stephen Reinhardt, is an artful piece of work. Reinhardt is known as one of the most liberal appeals court judges in the country, but he crafted a narrow ruling, one that is unlikely to draw the attention of the Supreme Court of the United States.

Reinhardt tethered his ruling to the unique facts of the Prop. 8 case. He did not rule, as he was surely tempted to do, that there is a constitutional right to same-sex marriage, enforceable in every state in the union. Rather, the judge grounded his opinion in the “one effect” of Prop. 8:

t stripped same-sex couples of the ability they previously possessed to obtain from the State, or an other authorized party, an important right—the right to obtain and use the designation of “marriage” to describe their relationships.


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