Proposition 8 ruling signals new round in same sex marriage debate

February 8, 2012

Proposition 8, a California ballot measure that defined marriage as between a man and a woman was ruled unconstitutional by a federal appeals panel, potentially moving the case one step closer to the Supreme Court. As Robert Barnes reported:

The panel took a narrow route in knocking down California’s prohibition and did not address whether same-sex couples have a federal constitutional right to marry. Such unions are unlikely to resume in the nation’s most populous state until the appeals process is completed.

But it was a significant development in a contentious national battle over gay rights, including the ability to serve openly in the military. Besides California, 28 states have constitutional amendments that ban same-sex marriage, and 12 others have laws that restrict unions to one man and one woman.

Six states and the District of Columbia allow gay couples to marry, and three others are considering joining them. Polls show a striking generational difference in acceptance, with young people far more in favor of allowing same-sex unions.

There is a partisan difference as well. And if the issue reaches the Supreme Court, as opponents of same-sex-marriage want, the arguments could occur in the fall when the nation is consumed with a presidential election.

The ruling made waves on the presidential campaign trail, as some of the GOP candidates sought to use the ruling to rally their base. As Jonathan Capehart wrote, Mitt Romney was quick to weigh in :

A story I skipped over yesterday made for intriguing reading today, the day the Ninth Circuit Court of Appeals ruled that California’s Proposition 8 banning same-sex marriage unconstitutional.“Election pivotal for nation’s courts” was a story about how the 2012 election could either cement the Republican majority on appellate courts or tip the balance to Democrats in key jurisdictions. And it pointed out that the next president could have up to three Supreme Court vacancies to fill before the end of his next term in 2016. For those who placed their hopes in the Supreme Court to do what Congress won’t — repeal the so-called Defense of Marriage Act — the reelection of President Obama is paramount.

As Chris Geidner reports in MetroWeekly, lawyers for the “Perry” in Perry v. Schwarzenegger — Ted Olson and David Boies — differed on whether the Supreme Court would hear an appeal by those who want to maintain Prop 8. But they are certain of one thing. The nation’s high court will eventually hand down a ruling on same-sex marriage. The composition of that nine-person body will be determined by the next president of the United States.

For a whole host of reasons, Mitt Romney should not be that person. But the statement he issued this afternoon on the Ninth Circuit ruling is one more in the brief against him.

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

Polling has shown that millennials have very different attitudes from older people on the issue of same-sex marriage. As Alexandra Petri explained in her satire blog, ComPost:

Tell a Millennial that the U.S. Court of Appeals for the 9th Circuit ruled Prop 8, California’s ban on same-sex marriage, unconstitutional, and we will look at you as though you had just announced that the 9th Circuit had ruled that the sky was blue, that oxygen was pleasant to inhale or that texting was always preferable to talking.

Of course! The proposition simply acted to “lessen the status and human dignity of gays and lesbians”? That’s — well, as Thomas Jefferson would say — it’s self-evident.

We Millennials list among our hobbies texting, Facebooking, purchasing ironic merchandise with owls on it and waiting for the elderly to keel over so we no longer have to discuss social issues with them.

It’s like getting your great-aunts on e-mail. They persist in clicking the one thing that you obviously and blatantly would never click in your wildest dreams, the one icon that deletes your file and causes your computer to fold out into a biplane. It’s the same way with discussions like this. “I mean, of course,” we say. “I mean, it’s — everyone deserves the same rights. That’s mind-blowingly obvious. Even Thomas Jefferson knew it, and he was confused about a lot of things.”

“But why marriage?” they say. “Marriage, traditionally, is an institution that is between one man and one woman. . .”

“Are we really going with the [institution] is traditionally [something] argument?” we say. “The institution of doing laundry is traditionally accomplished by beating clothes with a mallet in a running stream — yes, that’s an imprecise analogy. But why is it that when an institution is suffering, your first response is to ban the people most excited about joining?”

More from The Washington Post

Proposition 8 and the new religious reality

Prop 8 unconstitutional: The sanctity of marriage equality

On gay marriage, Mitt Romney veers hard to the right

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