http://www.scribd.com/doc/245769180/Federal-appeals-court-gay-marriage-ruling
I have read the opinion, and I do not know who is worse. The Majority goes on and on about the changing status of same sex marriage, but given the decisions of the US Supreme Court, to permit or ban same sex marriage is something reserved to the state. That statement could have been made in two to three pages with citations. The biggest Citation to the dissent in the California case. In that US Supreme Court Case, the majority DISMISSED the case on grounds that the only people who had to right to defend the law was the Governor and Attorney General of California and when they did not no one else had standing to defend the law.
The dissent objected to that position on the grounds it undermine the whole concept of the Initiative concept, that the voters can put something on the ballot and vote it into law even if the Governor, the State legislature and the Attorney General opposed that law. Under the Majority ruling if the voters vote in such a law against the will of the Governor, the State legislature and the Attorney General, those parties can permit someone to challenge that law is such a way to get it ruled as being unconstitutional and then NOT appear that decision, thus killing that law that the voters wanted but they did not.
Anyway the dissent made it clear they would have upheld the law banning same sex marriages in California for it was a product of state law and marriage is something reserved to the states to decide. i.e. states can make same sex marriages legal or illegal, it is up to each state. That was consistent with the ruling on DOMA, for the US Supreme Court in DOMA did rule that who can marry is solely up to each state to decide NOT the Federal Government and DOMA violated that CONSTITUTIONAL Rule. Between those two cases, it is clear the Federal Constitution do NOT come into play on the issue of same sex marriage.
Instead of a nice short opinion, the Majority goes on and on about the history of marriage without actually going into that history. The reason for that is marriage has evolved over the last several thousand years and is still evolving but has more to do with who inherits what and who has a duty to support whom then who has sex with whom. Sex is an important part of any marriage, but if you look at any married couple, it is a very minor part. Who support whom, how much support are you to give to which of your spouses's relatives (which is more a working class and poor person concept then a concept for the upper middle class).
As to the Upper Middle Class, the issue who inherits what from whom. It is for this reason the Catholic Church in the Council of Trent outlawed what we call "Common Law Marriages". Such marriages where two people say to each other they were married, was the most common form of marriage prior to the Council of Trent. It remain part of rural life in Europe (and in the poor parts of most cities) till the 20th Century. This was true in Protestant Countries as while as Catholic Countries.
In the US, marriages increased as income increased in the 1940s and 1950s. Marriages stabilized and started to decline in the 1960s, as the economy went down hill. This was another factor the Majority did not want to get into, as people's economic prospects increase, the rate of marriage goes up, as their economic prospects goes down the benefit of marriage disappear and the rate of marriage decline (as has been the case since the 1970s).
These are factors in how marriage has evolved but they were factors the majority did not want to address for that meant viewing marriage as an economic partnership as opposed to a sexual relationship (it is both, but the economic part of the big part).
As to the dissent, it kept looking at the people involved and how NOT being married affects them. That is good, but how does that address the legal issue of the constitutionality of same sex marriages. I can bring in a bunch of homeless people and demand that the Constitution requires the state to give them housing for otherwise they being sleeping in the snow. The courts will say that is terrible but the Constitution contains no provision as to a right to housing, so my clients get to sleep in the snow.
My point is just because something is bad, does NOT make it unconstitutional. You need more and the decisions from the US Supreme Court are NOT that favorable to a ruling that State laws banning same sex marriage violate the US Constitution. The Dissent wanted to avoid the DOMA case, for to do so meant addressing the issue that marriage is reserved to the States.
In my opinion two badly worded decisions, where is a short concise ruling on this issue. To many judges have access to computers and law clerks and thus write these tomes.
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