The core of the Prop 8 ruling is fairly standard by now, since state judges have repeatedly decided that the fundamental right to marriage cannot be denied to same sex couples. The Massachusetts DOMA ruling showed that this includes federal district judges as well. The most impressive part of this ruling is the facts, which are quite detailed, quite important since they are presumed true on appeal. A taste:
1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.
2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.
3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.
4. California has eliminated marital obligations based on gender.
5. Same-sex love and intimacy "are well-documented in human history."
The Bush v. Gore twins had a field day here since the other side basically didn't put on a factual case, resting on the law. Citing forty year summary judgments like Baker v. Nelson, which can be disposed of by any number of means (e.g., Prop 8 is different from some ancient marriage law), is not really a good alternative. Bowers v. Hardwick did not rest on the summary judgment on sodomy a decade before, did it? The merits were addressed. And, when they are here, it's an epic fail for the discrimination side. And, much changed since then, including as a matter of Supreme Court precedent.
Orin Kerr, who still can be a bit of an ass at times, cites the core statement of law:
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Plaintiffs seek to have the state recognize their committed relationships, and plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States. Perry and Stier seek to be spouses;they seek the mutual obligation and honor that attend marriage, Zarrillo and Katami seek recognition from the state that their union is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold, 381 US at 486. Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
Various others analyze the opinion, such as here, but again, some nice turn of analysis or not,* the basics are fairly familiar by now. This can be applied to New York without much trouble. I'm a bit troubled by this, though find the basic logic great, since it seems going it slow is the best path here. The key gay/lesbian litigation groups tended to agree. The decision will be stayed and be left to the court of appeals (or beyond). Would not a narrower ruling based on Prop 8 and its animus, animus in a state that already broadly recognized same sex rights via domestic partnerships (cf. the rationality of the state interests in some state where this does not exist) make some sense? At least, as a lesser reason for judgment?
[Reading Slate's account, the findings of facts can to a degree be tied this to this state's practices, such as encouraging same sex adoption. But, same sex adoption is allowed and "promoted" in some way nearly in every state. The arguments applicable across the board would do the job. And, the lack of a factual case by the other side is compelling. Rachel Maddow noted how the ruling in effect ridiculed the two witnesses put up there by the defense. But, the findings of law are written quite broadly, leading to more knowledgeable of the subject and supportive of equality wary. Others are supportive, but again, don't take "California only" from the ruling. With reason, I think.]
But, the duo asked for this and the defense case was so weak, that it is not too surprising that this is the result. To be continued. One day, however, this will truly be the law of the land:
Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”
It is just a matter of how long.
[This is but a part of a journey as the ACLU noted today:
Today's ruling shows that we can stop extremist forces who want to impose their own narrow view of morality on the rest of us.
But we must do more than that. We must demonstrate that there is a national consensus in support of marriage and other relationship protections for same-sex couples in states across the country. Every step forward will make it harder for the Supreme Court to rule that Prop 8 and similar exclusions from marriage are consistent with the Constitution.
That's why it's so essential to win more victories as critical same-sex marriage bills and relationships lawsuits are decided in New York, New Jersey, Rhode Island, Maryland, Montana and elsewhere. The ACLU is centrally involved in each of these efforts—and we need you to stand with us.
This is how the definition of marriage truly develops and how Lawrence v. Texas determined "liberty" includes same sex relationships.]
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* The TPM link links things to both race and gender, the former underlining how marriage is a fundamental right, a privilege or immunity of citizenship secured by the Fourteenth Amendment:
He also notes that slaves were unable to marry.
"The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained," he wrote.
Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman's identity is subsumed by her husband's.
The coverture part underlines how much the institution of "marriage" changed over the years, equality eventually being understood to cover the new understandings.