The Ninth Circle

To the surprise of no one, yesterday, in a 2-1 decision, the Ninth Circuit Court of Appeals upheld the decision of Judge Vaughan Walker to overturn the voter approved Proposition 8, the California measure that prohibited same-sex marriage.  The good thing to remember in all this is that the decisions of Judge Stephen Reinhardt, author of the majority opinion in this case, are the most overturned decisions by percentage in the entire U.S. court system.  I will leave close examination of Judge Reinhardt's 77 page opinion to Ed Whelan at Bench Memos.  Among the highlights (or lowlights):

From the very first line of his opinion (“Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples” (emphasis added)), Reinhardt persistently conflates the California constitution with the state supreme court’s lawless misinterpretation of it. That trick is essential to his line of reasoning—including his extensive reliance on the inscrutable ruling in Romer v. Evans (1995)—for if one recognizes that the people of California, by adopting Proposition 8, exercised their sovereign power to correct the state supreme court’s misreading of the state constitution, then it follows that they didn’t take away anything that the state constitution ever really conferred.

And:

For Reinhardt, “‘marriage’ is the name that society gives to the relationship that matters most between two adults.” (P. 37.) The right to marry that the state supreme court conferred on same-sex couples “symbolize[d] state legitimization and social recognition of their committed relationships.” (P. 5.)

Notice what’s missing from Reinhardt’s description? Any recognition that the very institution of marriage arose and exists in order to encourage responsible procreation and childrearing.

And finally:

If one accepts Reinhardt’s reasoning that dismisses the core rationales for traditional marriage, I don’t see how traditional marriage laws could survive anywhere. In other words, the sweep of Reinhardt’s reasoning is far broader than his purportedly narrow holding.

Whelan rightly points out the obvious:  contra Reinhardt, the logic in his decision would affect the definition of marriage everywhere--not just in California.  There would be no reason why a court in another state would not be able to copy the arguments Reinhardt makes in his opinion.

In closing, Joseph Knippenberg at First Things points out something very important to keep in mind:

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?

If the law can approve, then, logically, it can also disapprove actions as well (e.g., child pornography, human sacrifices in religious ceremonies).  But Reinhardt openly suggests that all who oppose same-sex marriage are irrational bigots.  In arguing against these and like decisions, we must remember that all law has a moral foundation of some kind, no matter how obscure.