Rainbow flags and corsages were waving high in front of the Stonewall Inn in Greenwich Village last night. There’s much to celebrate about the 9th Circuit’s ruling issued yesterday confirming the lower court finding that Proposition 8 was unconstitutional. As I noted yesterday and Nan Hunter pointed out as well in her reading of the opinion, the reasoning used by the court minimizes the likelihood that the Supreme Court will take it up on appeal.
But what’s even more interesting about the opinion, now that I’ve had overnight to think about it, is the degree to which the 9th Circuit’s ruling amounts to a pretty definitive slap down of the Boies and Olson strategy in litigating the case. Recall that one of the main approaches taken at the trial by the so-called “dream team” was to paint a picture of marriage as the most sacred, revered, mature form of adult coupling, thus denying access to marriage for same-sex couples is a constitutional injury because of the fundamental-ness and sacredness of marriage.
Constitutional Law | Law
Katherine M. Franke,
Court of Appeals Prop 8 Ruling: Treating Marriage as a License, not a Sacrament,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3274