by Max Brantley
BREAKING: The 9th U.S. Circuit Court of Appeals says the California voter-approved ban on same-sex marriages violates the U.S. Constitution. The Odd Couple — David Boies and Ted Olson — will be heading to the U.S. Supreme Court with their monumental case for equal treatment under the law for gay people.
The decision was by a three-judge panel. Opponents of same-sex marriage can ask for a review by the full 9th Circuit or appeal directly to the U.S. Supreme Court. A lower court stay of the decision remains in place while the appeal continues.
Warning: That's a big opinion and the 9th Circuit website was slammed immediately after news of the opinion came out, so it could be a time before access is smooth.
The 9th Circuit said California's Proposition 8 took away equality that previously existed in the rights of same-sex and opposite sex couples. California has broad laws for domestic partners. Thus, it served no purpose "other than to lessen the status and human dignity of gays and lesbians in California" and to "officially reclassify" their relationships as inferior to those of opposite sex couples. This is unconstitutional, the court said.
The court said it would not reach the question of whether same-sex couples could ever be denied the rights to marry, though this was argued.
It leaves the next court the option of accepting this decision, perhaps even without review. That would avoid the necessity of ruling on the overall constitutionality of bars to same-sex marriage and the leave the rest of the country open to continue the state-by-state struggle for human rights. Except that states with domestic partner statutes would seem now to be unable to prevent those couples from marrying.
POLITICS: Mitt Romney is aghast, naturally. It will be a contest to see which Republican invokes the most colorful prediction of the apocalypse.