Ninth Circuit's Prop 8 Ruling Obama's Worst Nightmare

Today, the 9th Circuit upheld the absurd ruling of Judge Vaughn Walker of the U.S. District Court of the Northern District of California, striking down Proposition 8, the voter-approved constitutional amendment that would uphold traditional marriage in the state. The ruling itself was highly political and in no way legally oriented. “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians,” wrote the Court, “and to officially reclassify their relationships and families as inferior… the Constitution simply does not allow for ‘laws of this sort.'”

This, of course, is blatantly false. To begin, the Constitution says nothing about marriage whatsoever, which means that its definition is left to the states to decide. Second, there are plenty of great reasons to uphold traditional marriage and to disapprove alternative forms of marriage, ranging from thousands of years of history to state interest in childbirth to state interest in child rearing. Thirdly, the notion that the “equal protection” clause of the 14th Amendment to the Constitution applies to homosexual behavior rather than innate distinctions like race is absurd. Marriage laws approve and disapprove behavior, not status. While gay rights advocates like to equate race and sexuality, the two are vastly different – you can’t shake your race, but your behavior can always change, no matter how unpleasant that change may be. Behavior is routinely regulated by the states and invariably affects people differently based on whether or not they engage in said behavior.

Leave aside the absolutely correct charges that this ruling is a legal abomination, and the fact that our judiciary wields far too much clout overall. Let’s focus instead, for a moment, on the impact this ruling will have on the presidential race.

President Obama has been able to elude the question of same-sex marriage overall. His slippery rhetoric indicates that he’s pro-civil unions but anti-same sex marriage but is “evolving.” This ruling will force him to take a side. He will likely attempt to suggest that this is a decision best left to the courts, but he’s never taken that position before – see, for example, campaign finance reform. It’s unlikely that the gay community or the religious community will allow him to get away with that.


If Obama is forced to answer for his position on same-sex marriage, he will be in serious trouble come election time. He is already suffering from low approval ratings among religious groups, and just this week he alienated Catholics with the Health and Human Services announcement that birth control coverage would be required from Catholic employers. Minority voters, especially Latinos and blacks, are anti-same sex marriage as a rule (which is why Prop. 8 passed in the first place – many blacks showed up to vote for Obama in California and voted in favor of traditional marriage at the same time).

While the press likes to complain about the right wing on social issues, the fact remains that same-sex marriage is not a popular movement in key states for Obama. In Florida, for example, 53% believe that same-sex marriage should not be legal, as compared to 37% who believe it should be; in Ohio, that split is 53% to 33%; in Pennsylvania, it’s 51% to 38%. Overall, Americans are moving in the direction of same-sex marriage (a Pew poll showed that Americans now approve same-sex marriage by a 46-44 margin), but older people and nonwhites are particularly against it (just 39% of nonwhites support same-sex marriage). In short, this is not a winning issue for Obama.

It becomes even more of a losing issue because it is being imposed from above by the courts. Obama has largely been able to avoid potential controversy arising from the fact that he will likely have two more Supreme Court nominees if he’s re-elected. With this issue making its way to the Supreme Court, there’s little doubt that this will now become a key campaign issue.


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