Going to the Chapel……..

[youtube]http://www.youtube.com/watch?v=fwaxzf_SUY8[/youtube]

Well, in less than six months time, the gay community has scored another victory. In a 2-1 decision, the Ninth Circuit Court of Appeals ruled that Proposition 8 was unconstitutional. It also upheld a decision that the original trial judge was not biased in deciding the case because he is gay.

Same-sex marriage moved one step closer to the Supreme Court on Tuesday when a federal appeals court ruled California’s ban unconstitutional, saying it serves no purpose other than to “lessen the status and human dignity” of gays.

The dissenting judge, sounding as if he was channeling Antonin Scalia, said “the ban [on same-sex marriage] could help ensure that children are raised by married, opposite-sex parents.” Of course, his statement was not supported by anything introduced during the original trial.

Same-sex marriages are still on hold, however, as the appeals court gave the bigots plaintiffs who oppose marriage equality time to appeal the decision.

It’s interesting to note that the court relied on the SCOTUS decision in Romer v Evans [517 U.S. 620 (1996)] which held, by a 6-3 decision, that Colorado’s Amendment 2, passed by voters in 1992, was unconstitutional.

Justice Anthony M. Kennedy’s majority opinion supported the Colorado Supreme Court in striking down Amendment 2. Kennedy turned to two sources to make his argument. The first was Justice John Marshall Harlan, whose famous dissent in Plessy v. Ferguson (1896) held that “the Constitution neither knows nor tolerates classes among citizens” (p. 625). The Colorado amendment, Kennedy continued, had no rational or proper legislative purpose; instead, it was designed to “make them [gays] unequal to everyone else” (p. 646). Kennedy, however, avoided establishing homosexuals as a specially protected class, similar to the status accorded blacks. He did so by relying on a brief filed by Harvard Law professor Lawrence Tribe, who had a decade before unsuccessfully argued the case of Bowers v. Hardwick. Tribe told the Court that it did not need to address the issue of special status for gays, since Amendment 2 was a rare example of a per se violation of the Equal Protection Clause of the Fourteenth Amendment. The fact that the other justices in the majority signed on to the opinion, rather than writing concurring opinions, underscored the effort by the majority to demonstrate a unified front over a contentious issue.

So where do we go from here? The plaintiffs will more than likely ask the entire Ninth Circuit to hear the case en banc. My bet is that the court will turn down that request and the plaintiffs will seek SCOTUS review. Even though Scalia and Thomas dissented in Romer, Scalia does believe in stare decisis, a legal principle by which judges are obliged to respect the precedents established by prior decisions. So it will be interesting to see how he decides this case, if it makes it that far. Thomas is a potted plant and does whatever Scalia tells him to do. In the 20 years he’s been on the bench, he has asked very few questions during oral arguments.

BTW – the video is also a celebration of the repeal of DOMA.