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"The exclusion of same-sex couples from marriage 'exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage... That time has passed.'"

From the NYT editorial about Perry v. Schwarzenegger:

One of Judge Walker?s strongest points was that traditional notions of marriage can no longer be used to justify discrimination, just as gender roles in opposite-sex marriage have changed dramatically over the decades. All marriages are now unions of equals, he wrote, and there is no reason to restrict that equality to straight couples. The exclusion of same-sex couples from marriage ?exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,? he wrote. ?That time has passed.?

That is, the conventional idea that marriage is between a man and a woman rests on gender stereotypes about what men and women are like. Since the sex discrimination cases already reject laws based on gender stereotypes, that conventional idea can't be the basis for rejecting same-sex marriage.

To justify the proposition?s inherent discrimination on the basis of sex and sexual orientation, he wrote, there would have to be a compelling state interest in banning same-sex marriage. But no rational basis for discrimination was presented at the two-and-a-half-week trial in January, he said. The real reason for Proposition 8, he wrote, is a moral view ?that there is something wrong with same-sex couples,? and that is not a permissible reason for legislation.

?Moral disapproval alone,? he wrote, in words that could someday help change history, ?is an improper basis on which to deny rights to gay men and women.?

That is the Supreme Court case law. As Justice Scalia complained in his Lawrence dissent:

The Court embraces ... Justice Stevens? declaration in his Bowers dissent, that ?the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice?.... This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review....

It was no stretch to end up where Judge Walker did. Now, the 9th Circuit Court and the U.S. Supreme Court may struggle to find their way back from the routine legal reasoning that took Judge Walker where many people are unhappy he went. But to do that will require stretching for a preferred result, given the precedent.

Why not cheer yourself up by thinking about the boost this will give to conservatives in the upcoming election? And leave gay people alone.



Okay?

IN THE COMMENTS: garage mahal starts us off with a comment, that based on previous gay marriage threads, predicts where this thread is destined to go:

Great. Now now I can marry a desk. Or a freezer. Oh wait... 

Full post as published by Althouse on August 05, 2010 (boomark / email).