The historic judgement handed down today was immediately politicized by four of the Ninth Circuit Court judges in their dissenting opinion, a portion of which is here:
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same- sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”1
Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012).
All the points made in the dissent parrot the supporters of Prop 8, and offer no real insight as to why the justices dissent except that they support Prop 8. But, here’s the problem. The Ninth Circuit was not really asked if it as a whole body supports Prop 8 or not. It was merely asked if it wanted to re-hear the appeal. The reason it would re-hear the appeal would be if, a majority of the judges felt that the both sides had not had a fair trail in the first appeal before the three judge panel. Today’s actions merely mean that the whole court, or a majority of the 26 justices believed that the three panel judgement was fair, reasoned and based on sound judicial principles.
Here is where I have a problem with the dissent:
The mention of Obama and State’s Rights
Prop 8 is a unique case where CA citizens had the right to marry, and then by voter referendum, that right was taken away. That is the issue being decided here. Not State’s Rights in the general sense regarding same-sex marriage, but can a state take rights away from people who already had those rights. The second part of this is that the Ninth Circuit is not a “State” court, but a Federal court. Why these four justices think they deserve to be a part of it using the President’s words as their justification is silly.
Silencing Respectful Conversation
This is really silly, but it has a ring to it that prompts a knee-jerk reaction, just like screaming “censorship!” My question is this: is an appeals court really all about conversation, or is it about answering very specific and detailed questions. A conversation of any type has not be silenced, and conversation will continue everywhere. But the court has said that it does not need to re-decide something. Passing a judgement/making a decision is not the same thing as having conversation.
The Definition of Marriage
This is the most boring and tired argument that they keep trying to trot out as if it holds any value. The definition of marriage has changed over time, and there is no one definition which has existed “for millennia.” The other problem with his is that if, these justices agree with the President that Marriage should be left up to the state, then how long a definition of marriage has existed, really doesn’t matter.
The rest of the document: http://coop.ca9.uscourts.gov/datastore/general/2012/06/05/1016696ebofinal.pdf