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Susan Estrich
8 Oct 2014
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Chasing Equality

Comment

Tuesday's ruling by a panel of three judges of the United States Court of Appeals for the Ninth Circuit holding unconstitutional the California ballot initiative that aimed to take the right to marry away from same-sex couples is hardly the last word in the debate. The court's ruling, unlike that of the district court below, did not purport to decide whether states must, in the first instance, give marriage licenses to same-sex couples, but only that, once they do, they cannot take them away for no good reason. Even so narrowed, the proponents of the ballot measure (not the state, which at this point is not defending it) are likely to seek further review by the full panel of Ninth Circuit judges or by the Supreme Court, or probably both.

So no, this is not the end of the debate, not even close. But it's an important step, and the careful and constrained way that it was done is a study in how judging works.

For starters, there was the question of whether, since the state didn't want to defend the law, the proponents of the ballot initiative could step in and do so. The federal court asked the State Supreme Court to answer that question — since it involves issues of standing to defend state law — and they said yes. Federalism 101.

The next question was whether the district court judge should have recused himself from even deciding the case because he is gay and in a long-term relationship, facts not disclosed to the parties. The answer to that, hinted at in oral arguments and provided in Tuesday's opinion, was a resounding no. Imagine if black judges were not allowed to sit in civil rights cases if they had ever experienced racism, or if women judges who had had abortions were disqualified from abortion rights cases. Judges are human: multiracial and ethnic and, yes, also heterosexual and homosexual and bisexual. If you ask me, diversity makes a panel better, not weaker. The Ninth Circuit did not disagree.

Then there was the big question. Judge Stephen Reinhardt, one of the nation's leading liberal jurists, a man of courage and conviction and long experience, delivered the opinion for two of the three members of the panel.

You might have expected him to go big and broad, to try to "make law" not just for California, but for the country, and maybe not even just for marriage, but for all rights. But that would mean you don't really know Judge Reinhardt. He understands too well how law is done. When pushing the boundaries, you do it one step at a time. In the civil rights era, then-NAACP Chief Counsel (and later Supreme Court Justice) Thurgood Marshall understood that you don't start desegregating schools with elementary schools. You start with law schools and then work your way through to colleges before taking on the neighborhood schools.

And so Reinhardt, rather than trying to answer the big question, made a point of making it smaller. The court was not trying to decide whether denying same-sex couples the right to marry is unconstitutional, but only whether the act of taking it away is. That might sound like a lawyer's distinction to the lay reader, and by definition I guess it is, but it is still a significant one. The argument here was not that California had to change its law to accommodate the rights of gay citizens. It had already done so as a result of a state court decision. The question was whether that right could then be taken away. A state can only act based on a rational and legitimate purpose. It may not have to give you a benefit in the first place, but once it does, it needs a reason to take it away. That can't be done arbitrarily, for no good reason.

Of course, there is overlap between the narrower question and the broader one. My guess is that most of the people who are now nodding their heads in agreement would also agree with those court decisions that have held that, under their state's constitution, discrimination against gays in marriage is itself a denial of equality. And most of us, and I'm in this group, would reach the same conclusion under the U.S. Constitution.

But legal revolutions proceed in steps. One by one. That's how change tends to come, when it comes peacefully and with broad acceptance. Today the Ninth Circuit took the step of saying that California could not take the right to marry away from same-sex couples. Not too long ago, the very idea that any state would grant them such a right would be unthinkable. In the not too distant future, I trust, it will seem strange that it took us this long. Today was a step along the path, in the finest tradition of constitutional adjudication.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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Comments

10 Comments | Post Comment
So a court may decree that a right exists, and when overruled by the people by vote, another court can rule that rights can only be granted, not taken away. Whew! Just when did the people grant this right?

The effort in California and in the appeals court has been squarely aimed at keeping the citizens of the state from having a say in this matter.

I have a question: When did gay marriage become a right? Clearly, it wasn't at the founding of the country or at any time but recently? Aren't the people supposed to have some say with regard to when social changes are announced in law? Or, is this function only allowed to the courts?

I hope I live long enough to see this sort of legalistic legerdemain used against the left.
Comment: #1
Posted by: Stubbs
Tue Feb 7, 2012 6:17 PM
Don't forget that a judge earlier ruled for same sex marriage, then 1800 couples quickly got married. The new ruling states that once given a right people can not have that right taken away, but look who gave the right - why it was a court, not the people. Further, no where in the constitution does it mention this issue, so the matter should be up to states to decide. The Constitution means nothing to jurists, they just get what they want, and voters be damned. And no one will enforce any type of check on these mini-ceasars. When constitional law means nothing, lawlessness will prevail.
Comment: #2
Posted by: Tom
Tue Feb 7, 2012 7:53 PM
Let us hope that U.S. Supreme Court Justice Kennedy recognizes the bit of nonsense that two judges at the 9th just pulled off, because his vote will no doubt be the one to settle the issue.
Comment: #3
Posted by: Motley Wisdom
Wed Feb 8, 2012 4:54 AM
"When pushing the boundaries, you do it one step at a time"

So tell us, and the children, again how we should be an informed citizenry and it is our duty to vote. I guess votes don't count when pushing the boundaries. Golly, I can't imagine why people avoid jury duty and disdain lawyers and judges. It's all been one big set-up with voters the victims of a scam. All so big boys can feel accepted while enjoying sodomy. Really worth it, I mean from a constitutional standpoint.
Comment: #4
Posted by: Tom
Wed Feb 8, 2012 10:44 AM
.. This article, et al, is like a magician, believing that "the illusion" will not be diminished by explanation, explains his trick. ...
Maybe it's true ... Estrich, herein, thumbs her nose at those that have anywhere, in any way, opposed to homosexual and lesbian "marriage". She is even so proud and enboldened by this decision that she believes herself a prophet of the "finest tradition of constitutional adjudication".
It's her own attempt - while not breaking any new ground (she's obviously a follower rather than a leader) - to brag on the efforts and to prove that she knows "what's goin' on". She's the terrier bouncing around the big bulldog, but in her praises are strategies that should be noted and thwarted at every opportunity. This is not a war which we would ALL notice, but a very large number of very small and little-noticed battles.
We, the American society, are the frog and Estrich's cronies are clicking up the heat one very small notch at a time - AND, as here, bragging about in louder and louder voices.
Comment: #5
Posted by: Billy
Wed Feb 8, 2012 11:22 AM
Since we're broke here in California, why don't we save a lot of money and quit having elections? Twice, the voters in California have legitimately decided that they do not want same sex marriage in this state. And now, twice again, a court of politically appointed ultra-liberal judges have overruled the will of the people. If we abolished elections and just let the wing-nut judges decide who our representatives are, we could even save money because we would no longer need public employee unions whose sole purpose seem to be collecting money to support democrat leaders who have bankrupted our state giving outrageous health and retirement benefits to our public employees.
Comment: #6
Posted by: Lesley Barnard
Wed Feb 8, 2012 11:35 AM
Amazing how outraged you all sound. Me, I'm outraged that y'all think you're without sin, or that you think that what you do isn't as bad a what 'they' do. Well, what do they do that offends you so much? That they fall in love? You do. That they have sex? You do. That they want the best for their loved ones? You do. That they want to get married? You do. That they want to get married so their spouse can be on the insurance and have spousal rights? You do! What y'all so conveniently miss is homosexuals are guaranteed the same rights that heterosexuals and homophobes have always enjoyed, but they've been denied those rights and now they are fighting for them. The Constitution guarantees these rights to every American and we have the law and judges to ensure that people cannot by vote or any other action, deny or overthrow the rights of another citizen or citizens. The confusion comes in when you convince yourselves that your religion or your beliefs are more important than another American's right to equal treatment under the law. There are none so blind than those that 'will' not see.
Comment: #7
Posted by: demecra zydeem
Wed Feb 8, 2012 8:13 PM
demecra

"What y'all so conveniently miss is homosexuals are guaranteed the same rights that heterosexuals and homophobes have always enjoyed, but they've been denied those rights and now they are fighting for them

Then why aren't Catholics being allowed to exercise their religion if they work in the medical field? This is what is wrong, because if the government is the entity allowed to bestow rights they will quickly run roughshod over the rights of certain groups. The Constitution says nothing about gays and therefore those decissions are left up to the states. All of these replies are angry at the constitution being usurped and votes being denied. It actuallu has little to do with gays, it is about a form of government that worked being replaced by an experimental model that is dangerous. Eventually the vote would have caught up to the times, hell it lost by only 2% last go round. If you can get off your high horse you will see that forest through your blind eye. Any way you look at it honestly the rights of some (votes) were taken away in order to bestow a "right" to others. You coulod at lest be honest about that fact.
Comment: #8
Posted by: Tom
Thu Feb 9, 2012 5:12 AM
Re: demecra zydeem
Do whatever you want. Just don't call it marriage. It's not!
Comment: #9
Posted by: Early
Thu Feb 9, 2012 5:16 AM
I support gay marriage, but lets take away the issue and just look at this process. The people of California voted that they don't want this issue, its not for them right now. Here comes the state supreme court and says, "we don't care, we deciede whats best for you". This is taking away from the rights of the people to govern themselves. Battles like this should not be won in court, they should be won in the hearts and minds of the people.
Comment: #10
Posted by: Chris McCoy
Thu Feb 9, 2012 9:06 AM
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