A narrow ruling with broad implications

The Ninth Circuit Court declared the Calif. ban on gay marriage to be unconstitutional and, yeah, they did it yesterday. It was widely reported in the news (though I don't read conservative news sources), but I didn't have time to do any writing yesterday. The delay allowed me to read analysis from several of reliable and trusty gay blogs. You can read about it from these sources:

The actual text of the ruling is posted here, some 130 pages. I haven't read it.

Ari Ezra Waldman of Towleroad. He is a lawyer and explains things in an understandable way. Waldman also had a review of the important issues that he posted the day before.

Timothy Kincaid of Box Turtle Bulletin probably has a more straightforward analysis and includes a section on the judge who dissented and why he did so.

Rob Tisinai of BTB covers just the basics.

Jim Burroway of BTB on why it applies only to California.

The basic argument goes like this:

* California has Domestic Partnerships that are very close to marriage, though they don't use the word.

* California did have same-sex marriage for five months.

* Taking away the right of gays to use the word marriage was only about the use of the word. In our society, that word means a lot (and a lot more than the words Domestic Partnership).

* The use of the word marriage, because of DPs, doesn't change the law about responsible procreation, adoption, the best way to raise a child, who makes a fit parent, parental rights, religious rights, and what children are taught in schools.

* Therefore, the only reason for denying the use of the word marriage to gay people is that the majority didn't like gay people. That is unconstitutional. The equal protection clause says that laws can't declare a particular right is unavailable to a particular class of people unless there is a very good reason.

Since the ruling was about a right that was taken away, the 9th Circuit pointedly said this ruling only applies to Calif. They clearly said they were not taking up the question of whether banning gay marriage is in general unconstitutional.

The dissenting judge (a Mormon) said there didn't have to be a good reason to ban gay marriage, it was enough for voters to think there was.

Even though the ruling was narrow, the implications could be broad. The ruling says a lot about the nature of gay relationships that can be applied to other cases, such as those attempting to repeal the Defense of Marriage Act.

There is another more immediate implication. Though the GOP in New Hampshire left gay marriage repeal off this year's agenda, many legislators are still itching to vote for repeal. But that would put NH in the same situation that the 9th Circuit said is unconstitutional. The ruling may make enough GOP legislators hesitant enough that the repeal bill won't pass.

Gay marriage won't start in Calif. anytime soon. The anti-gay crowd has said they will appeal and the ban will remain in effect until that has run its course. Appeal may be made to a larger panel at the 9th Circuit and then on to the Supremes, or may now go directly to the Supremes.

Jim Burroway (link above) says that because the ruling affects only Calif. the Supremes may decline to hear the case. There is no federal question for them to resolve. So, the anti-gay crowd might go for the larger panel at the 9th Circuit simply to delay the time when marriage equality returns to Calif.

The reactions -- on all sides -- were predictable. Gay groups praise the ruling. Anti-gay groups vow to soldier on (send money!) and note that the lead judge is the most overturned. Prez. candidates fume over "activist" judges.

Alvin McEwen notes all the whining from the anti-gay crowd and sees hypocrisy. The cry is that 7 million voters lost their rights in the decision. But in the original trial (two years ago!) only two people testified that banning gay marriage is a good idea. Out of 7 million Californians, and armies of national groups pushing to ban gay marriage, they could only find two people to defend it in court? You had your chance. You didn't take it. So shut up already.