U.S. appeals court strikes down California same-sex marriage ban

Why would they? Homosexuals are not a specially protected group under the 14th Amendment. You leap into intermediate scrutiny or strict scrutiny, then that's judicial activism.

 

It's judicial activism either way. Rational basis scrutiny is supposed to mean something.

 

The actual decision:

http://www.scribd.com/doc/80809524/Ninth-Circuit-Prop-8-decision

A lot of seems to come down to the unconstitutionality of disallowing two consenting adults of legal age to enter into a contract, merely on the basis of sexual orientation or some other discriminatory reason. After all, to the state, marriage is just another contract.

 

The decision is based upon the fact that the state has not presented a rational basis for the ban. The state has argued that the gay marriage ban is meant to funnel procreation an child-rearing into opposite-sex marriage, a situation that it finds "optimal." But the majority says that the fact that California allows gay couples to adopt and raise children, with no lesser rights than opposite-sex married couples, undermines that basis.

The dissent does not have a problem with that conflict between the two laws in California.

So that's where the battle ground was.

 

It does, but it's not a rubber stamp. You still have to reason through it.

Read the opinion before you cry "judicial activism." I'm not saying you'll change your mind - I'm sure you've thought it through. But I think that's a pretty big label to toss around without taking a look at the Court's reasoning. There's 133 pages there, with sound reasoning by both the majority and the dissent. This is a classic borderline case.

 

Does this have time to come up in the next Supremes session, i.e. will it be an active campaign issue?

 

The Ninth Circuit took pains to recognize that Prop 8 was similar to Colorado's Amendment 2 that the Supreme Court overturned in Romer v. Evans--and said wouldn't even pass rational basis test.

The Amendment in Romer was overturned because of "blind animus" so that the levels of scrutiny were not even reached. Or well, they were, just blind animus forecloses the possibility that the statute could even pass rational basis.

 

This whole issue will be to the Supreme Court one day...

 

That's true, but I'm thinking more along the lines of places like Ohio and Indiana in 2004 when "social conservatives" came out in full and unexpected force, lured to the polls by the specter of gay marriage and casting their vote for Bush since they were there anyway. With GOP primary enthusiasm being so low already, this could light a fire that Romney can't by himself.

 

I honestly don't think that you get too much traction on this issue in a general any more. Not in swing states and not in this economy. I reserve the right to be proven wrong.

 

I meant likely. Can't know for sure, and honestly haven't followed closely enough to knw - maybe the legislature wrote it sloppily & made it easy for them.

 

All good. It's just that sometimes, "judicial activism" is substituted for, "decision whose result I do not agree with."