SECOND THOUGHTS: 9th Circuit Court makes decision for justice
by Jon Mendelson/Tracy Press
Feb 10, 2012 | 2967 views | 12 12 comments | 13 13 recommendations | email to a friend | print
Four years ago, a slim majority of California voters chose to eliminate the right to marry for same-sex couples.

In a great reversal of justice, the 9th Circuit Court of Appeal this week decided those voters acted unconstitutionally. (Hip, hip, huzzah for the 9th District!)

Reading the entirety of the court’s majority decision, it’s clear the ruling was made on narrow ground, leaving up for debate whether states have an obligation to allow same-sex couples to marry or whether same-sex bans are themselves unconstitutional.

The court only stated a right can’t be taken away from American citizens unless there’s a damn good reason. That’s pretty solid ground.

According to judicial precedent cited by the justices, government — even a vast majority of the electorate — needs a legitimate reason to withdraw a right from one group of people but leave it intact for another. The 9th District majority found no such reason behind Proposition 8.

In other words, the sole purpose of Proposition 8 was to make same-sex relationships less legitimate in the eyes of the state — a goal plainly evident to those who remember the 2008 Prop. 8 campaign.

The court also found as spurious all the arguments presented by Prop. 8 proponents in support of the ban.

Of course, that hasn’t stopped some folks from raging about activist judges overturning the will of the people or making arguments about why the court should have upheld the Prop. 8 ban.

Too bad most of those assertions — in addition to having nothing to do with the rationale behind the justices’ decision — don’t hold water. Just for kicks, let’s consider a couple of the most popular arguments, one at a time:

The 9th Circuit court has subverted democracy

Only if you don’t believe in checks and balances.

In the American system, the courts have a responsibility to read and review the laws of the land and overturn those that are unconstitutional — even those passed directly by the voters, such as Proposition 8.

This function of the court could be seen on a superficial level as undemocratic, because it sometimes overrides the will of the people. In actuality, it embodies the republican spirit of our government, because it prevents a tyranny of the majority and ensures the protection of all people — not only those who happen to be in the majority.

To paraphrase the biblical Paul, what is popular is not always right, and what is right is not always popular.

I share the fear of a government that takes rights away from its people, especially when it comes to the vote. But I fear as much as a tyrannical government a tyrannical populace, willing to deny others rights based on gender, religious persuasion, race, sexual orientation, or any other difference that has no bearing on a person’s capacity as a citizen.

Ideally, the courts check both an overzealous government and an overzealous populace.

Religious people will be forced to accept something they find abhorrent

Remember, California is not a religious institution. With marriage — at least when it comes to the state — we’re talking about a contract between consenting adults, not a covenant with the Almighty.

At least in the United States, religions are left to deal with the sacred, and states are tasked to deal with the secular. They’re two separate things, and as far as I can tell, there’s nothing in this ruling that tells churches they have to change their canons.

I share the concern that religious organizations be allowed to practice freely and without government interference. The First Amendment is there to protect churches from government intrusion as much as it is to protect government from becoming an arm of religion.

So while I think the state has a responsibility to extend the same rights to same-sex couples that it does to heterosexual couples, churches should be free to grant sacraments as they see fit — including not extending the sacrament of marriage to couples who don’t adhere to their religious standards.

But these believers shouldn’t seek the enshrinement of their religious precepts in secular state law.

Instead, they should demand greater assurance from the Legislature that anti-discrimination laws won’t be wielded against congregations for exercising their consciences when it comes to same-sex unions being anointed by their sects.

That way, everyone’s rights are protected.

Children should grow up with a mother and father

First off, as the 9th Circuit court pointed out, Proposition 8 changed nothing about the right of gay couples to raise a child, so this argument has nothing to do with the initiative’s merit.

Still, it’s an important point to address.

I’d say letting the government into this aspect of life sets a dangerous precedent. Just because a mother-father combination is ideal (let’s concede the point for the sake of argument) does that mean the government outlaws other arrangements, such as single-parent households, grandparents who raise their grandchildren as their own kids, or godparents who take over when parents cannot handle the load?

No. The government has no business telling its citizens how to build their families (outside of setting base rules regarding neglect, abuse, etc.). That precept should apply to same-sex couples.

Furthermore, consider how many broken homes and abusive situations stem from heterosexual marriages. A child who has two loving same-sex parents committed to one another would be in a far more “ideal” situation than a child dealing with dysfunctional heterosexual parents.

I think it benefits communities when institutions encourage people who want to be parents to raise children as responsible citizens. And marriage — for all couples — can be just that type of stable, familial building block.

• Second Thoughts is a personal opinion column by Editor Jon Mendelson. Share your thoughts at
Comments-icon Post a Comment
February 11, 2012
Who really cares? Is it because folks like to argue these points?

Get political.

People are gonna do what they want anyway. They want access to the same medical, pension, whatever as straight people currently benefit from as married.So what?

Say ya' got a friend that is close. Not gay. It would leave it open for that too.

Social security, Pension plans, medical coverage,Etc.,. could be afforded, say, a friend of 30 years.

That's what they are worried about.

Has nothing to do with religion. They have taken the stand point of religion.

If ya' don't vote, ya' can't say anything about a President. If you don't go to church, Not in service, ya' got nothin' comin'. Did I swing either way? Nope! Why? Don't care! Just looking at these comments got me going.ppl.
February 11, 2012
(3. Cont.)

“What happens if gay marriage was approved by a majority of voters then struck down by 2 or 3 conservative judges?”

LOL Do you think that conservative decisions are never made? >>shakes head<< Look at the Citizens United case which SCOTUS just decided. Now look at the debacle it is causing with the GOP’s clown show race for president. Super Pac For The Win! Be careful what you wish for conservatives, you might get it!

Prop 8 is unconstitutional and this appeals court confirms that. I have a feeling the SCOTUS will agree. In the Loving vs. Virginia case, even though it was a liberal SCOTUS at the time, the country was definitely conservative yet the SCOTUS decision was unanimous.

February 11, 2012
(2. Cont.) This is the same garbage that was spewed out during the civil rights era where segregation and “Separate But Equal” laws were created for African Americans. This is exactly like the “Domestic Partner” benefit laws are being touted as…just the same as marriage rights. This is also the same garbage that was being spewed out to stop interracial marriages. Richard and Mildred Loving had to pursue their right to be married through the court system all the way up to SCOTUS, which… “did the right thing”. I am sure there are STILL people out there that resent African Americans being “allowed” (shoved down your throat) equal rights and still resentful that the Lovings were able to be married. Those people can take a long walk off a short pier.

If these resentful people really have an issue with sharing the designation of “marriage” with same sex couples, they can always disassociate and switch their designation to “Domestic Partner”, you know, because it is the same. (2. Cont.)

February 11, 2012
“Mendelson brings out the typical simplistic argument”

So Markj’s response to the proclaimed simplistic argument is to respond with the tired old claim of “activist judges” that override the will of the people, which was preemptively addressed by Mendleson. Way to go! I mean did you actually read the article? He very succinctly addressed that felonious claim. Moreover, did you read the Prop 8 decision? I suspect not.

“right thing to do”

Oh how subjective this claim tends to be. Creating a second class of citizens should never be up to a vote. The “right thing to do” would have never of let it get put up to a vote in which a mass of sheeple lured with carrots of evil religious money to be swayed with lies.

“Change is dangerous when it's shoved down peoples throats and can lead to resentment rather than support of the cause.”

Now this is the ultimate foot in the mouth sentence. Bring on the cries of “persecution of my beliefs” and you are hurting me and my family by allowing (shoving down your throat) others to have the same rights you do. Boo Hoo. (1. Cont.)

February 10, 2012
Eventually all of this will come before the Supreme Court in about two years with most likely another 5-4 decision and Justice Anthony Kennedy being the deciding vote once again if the same justices are still serving.
February 10, 2012
Like RJester, I was expecting to read something different from what I read. Admittedly there are some good points in here.

What I find amazing is how nobody has brought up the reason for Prop 8 or how all of this discussion and court proceedings are actually the result of a previous proposition and subsequent court ruling.

A judge decided that the CA constitution didn't adequately define the term "marriage" as it relates to the parties involved. Prop 8 defined the word accroding to the people. The ban on Gay marriage was a result of the definition of the word as used in the CA constitution. It closed the loophole that the previous judge used to allow same sex marriages to exist.
February 10, 2012
As I was scanning the articles today your opinion piece caught my eye. I saw it was a long opinion piece, saw the words reversal/justice and since this is Tracy, I walked over to my computer to refute what I expected to be another religious right attack.

I must say, after reading, I was pleasantly surprised. More like shocked. Kudos. Great opinion piece! You really got the gist of this decision quite well. I personally could have done without the biblical reference but, kudos anyway.

I mean really…just awesome. What is right, morally, always takes awhile and has to get past religion.

February 11, 2012
I agree with our jester. We need a lots less religion and more drive by shootings like the one we just had. And more wholesale theft and abandonment of ethics by our politicians.

we'll get there eventually, and without any religion at all, I suspect we'll all like what replaces it.

We encourage readers to share online comments in this forum, but please keep them respectful and constructive. This is not a space for personal attacks, libelous statements, profanity or racist slurs. Comments that stray from the topic of the story or are found to contain abusive language are subject to removal at the Press’ discretion, and the writer responsible will be subject to being blocked from making further comments and have their past comments deleted. Readers may report inappropriate comments by e-mailing the editor at