The Gay-Marriage Decision: Is It Too Narrow to Reach the Supreme Court?

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Opponents of Proposition 8 celebrate outside the Ninth Circuit Court of Appeals in San Francisco on Feb. 7, 2012. A three-judge panel of the court ruled that the voter-approved Prop 8 measure violates the civil rights of gay men and lesbians

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That's because the case is narrowly tailored to the situation in California, where gays were given the right to marry and then only months later had that right taken away. The dissent argued that California had sufficient grounds to restrict marriage, noting that unlike the California high court, the U.S. Supreme Court has never declared that laws discriminating on the basis of sexual orientation are subject to additional legal scrutiny.

The majority decision nevertheless represents a "monumental loss" for opponents of gay marriage, says Chad Griffin, the board president of the California-based American Foundation for Equal Rights, which has raised the money to finance the case. The decision means that in states across the country, it will be more difficult for opponents of gay marriage to roll back what progress has been made in places like Iowa, Massachusetts and — perhaps as soon as this week — Washington State.

If Tuesday's opinion is not appealed, or if it is left standing after those appeals, it would change the law only in the jurisdiction of the Ninth Circuit. But supporters and opponents alike say that given that the circuit's decisions are binding on all of the West Coast, it will have a huge impact on decisions — and public opinion — elsewhere too.

The Rev. Al Mohler tells TIME this is worrying. "On its face, this puts things back to status quo ante before Prop 8, with California back on the map legalizing same-sex marriage," says Mohler, president the Southern Baptist Theological Seminary in Louisville, Ky. "You are looking at a very significant portion of the American people who are living under the status quo where gay marriage is legal, especially with Washington State also perhaps coming on in a matter of days."

If that happens, he says, "Out of intellectual honesty, I have to say, that brings an enormous amount of momentum [to gay marriage] nationally. My concern is that would be something that is harmful to human beings and the nation and those who enter into those unions."

But for many, including Mohler, the worst aspect of the case was the sweeping language with which Reinhardt dismissed the gay-marriage opponents' reasons for passing Prop 8. The judge called it little more than bigotry. "The most important issue for me, the most troubling," Mohler says, "is the conclusion that anyone who wants to defend traditional marriage does so out of animus against others. That is neither true nor fair. And it's the kind of judicial reading of motivations that leads to courts ruling on areas outside their area of knowledge or expertise."

Indeed, Reinhardt stated throughout the ruling that California voters are in most cases free to amend their constitution as they see fit, provided that they do not single out a group for no "legitimate reason": "Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of the law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted." And later in the opinion, Reinhardt wrote, "By withdrawing the availability of the recognized designation of 'marriage,' Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class."

Olson seized on that language too, but in order to hail its power. "This case was about marriage and equality and about the right of gays and lesbians to marry," he said just after the decision. "This decision today affirms importance of right to marriage, the same importance that our opponents have attached to it. The difference is," he said, "they wanted to keep it to themselves."

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