Reinhardt praised himself for overturning Prop. 8 on "the narrowest ground." It is also on the shakiest ground. The narrow ruling is based on the fiction that Prop. 8 eliminated a right without a legitimate reason. Prop. 8 was born of "animosity toward the class of persons affected," he wrote.
The worst part is that if it were not for political shenanigans and judicial activism, Reinhardt would not be able to reason as he wrote.
A quick history lesson: In 2000, 61 percent of Californians voted for Proposition 22, which prohibited same-sex marriage.
In 2004, then-Mayor Gavin Newsom decide to ignore state law and opened San Francisco City Hall to same-sex marriages. Later, the state Supreme Court ordered Newsom to stop the illicit nuptials and invalidated Newsom-issued marriage licenses. Some gay newlyweds appealed.
In 2008, in a 4-3 decision, the California Supreme Court found that marriage is a fundamental right for all. Some 18,000 same-sex couples tied the knot. And they are still married.
Meanwhile, that same year, opponents of same-sex marriage fought back by placing on the ballot a constitutional amendment to ban it. Some 52 percent of California voters approved the measure.
In 2009, the state Supreme Court upheld Prop. 8 and the right of the people to write their own state constitution, in a 6-1 decision.
"Prop. 8 didn't take away any right that the state constitution ever really conferred," noted Ed Whelan, president of the Ethics and Public Policy Center, an advocacy group. "By adopting Prop. 8, the people of California exercised their sovereign power to correct the state Supreme Court's misreading of the constitution."
Enter the federal court in 2010. Now-retired U.S. District Judge Vaughn Walker struck down Prop. 8. On Tuesday, Reinhardt upheld Walker's outcome.
Because Newsom had flouted state law, there was a hiatus between the decision that allowed same-sex marriage and the decision that banned it. That allowed the judges to maintain their construct that Prop. 8 took away something that only existed because Newsom had gamed the system.
Dissenting Judge N. Randy Smith was not impressed. As he pointed out, unless given no other option, federal courts should defer to state law.