slate gives a very shrewd reading of the narrow decision in the Circuit Court appeal of the Prop 8 case in California that just came out. Dahlia Lithwick does a nice job of reading the crystal ball of politics and gamesmanship that apparently went into writing the decision in Perry v. Schwarzenegger. In a 2-1 decision, the 3 judge panel upheld District Judge Vaughn Walker's lower court decision, but on much narrower grounds. Where Walker, in a widely-praised, broadly written decision struck down Proposition 8 with 80 findings of fact to ground his decision on the unconstitutionality of Prop 8, on both equal protection and due process grounds
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.The Court of Appeals, by contrast, chose to write a very narrow opinion upholding Judge Walker's decision, and making it very clear that the decision applies only to Proposition 8 in California. The opinion also prevents same-sex marriages from going forward until Proposition 8 backers have opportunities to either appeal to the full 9th Circuit or to the Supreme Court. We are all watching to see what will happen next.