More to follow. The decision is embedded below.
The Court essentially used a bootstrap argument — that since there was a prior right to samesex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment. Judge N.R. Smith filed a 39 page dissent from this finding.
The Court also held that (i) the supporters of Prop. 8 did have standing to defend the law, deferring to the Certified Opinion of the California Supreme Court, and (ii) trial court Judge Walker did not have to recuse himself based on his own longterm samesex relationship. These two findings were unanimous.
Here are opening paragraphs:
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, samesex couples had all the rights of opposite-sex couples, regardless of their marital status~ all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation~ for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other
than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).
The prior stay continues in effect, although the Court did not make clear if that would extend pending a request for the Supreme Court to hear the case.
Some other things of interest:
pp. 31-32 — Court appears to rely on fact finding by Judge Walker, saying that distinction between adjudicative and legislative fact finding was not significant in this case. Court says it relies on Walker’s specific adjudicative findings as to intent of proponents of Prop. 8.
pp. 33-24 — Court makes clear, again, that relying solely on taking away of prior right to marry.
p. 38 — Court applies great weight to use of term “marriage” and “marry” in society, and quotes Groucho Marx and Shakespeare, among others.
Starting at page 56 the Court analyses what it says were the four justifications given by the proponents, and then takes each one individually to find that it was not a rational justification because the individual element could apply to samesex couples. This is what I have termed previously Deconstructing Marriage, taking its parts rather than the whole. See also my prior post, Ted Olson May Be Too Smart By Half.
Of interest, I did not see the Court taking into account the circular nature of its argument. Prop. 8 was directed at the very judicial decision which gave rise to the right which the Court now finds cannot be taken away.
Elsewhere:
Lyle Denniston at Scotus Blog notes that the narrow ruling, which in theory only relates to California, was an attempt to insulate the opinion:
By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court. However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.
Orin Kerr at Volokh Conspiracy is not waiting for a cert petition to be filed, he’s already announced Supreme Court Grants Cert in Prop 8 Case, “Why bother with the headlines of today when you can offer the headlines of tomorrow?”
9th Circuit Decision on Merits – Perry v Brown
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Comments
One of the things I learned in law school: You can rationalize anything.
Heads we win, Tails you lose
…the people of CA lose again.
I imagine California’s majority Democrat voters who voted for Prop 8 -and also voted for Obama- will be quite upset by this ruling.
Had Democrat politicians, who for the last twenty years campaigned on the promise of delivering ‘gay marriage’, voted against their own legislation titled Defense of Marriage Act then the judicial system would not be in defiance of violating the rights of American voters.
For every Democrat politican there is big campaign cash for every campaign promises never kept.
Now that Judges are Legislators overturning the Rights of Voters, what new “rights to” will Lawyers and Law Professors invent in order to keep the politicians in the fabulous lifestyle they have grown accustomed to living?
That said; I am perplexed as to why California Teachers Association donated $1,300,000 to anti-Prop 8 coalition?
It is as if California teachers believe they should be involved in every issue on the planet EXCEPT their ever-increasing problem of pedophilic public school teachers molesting the kiddies.
We lost a long time ago, now they are dividing up the spoils.
The primary reliance on Romer is clearly an appeal to Justice Kennedy. What the ruling means is that, although California was not required to recognize same-sex marriage, once the state supreme court invented the right, the people of California are barred by the 14th amendment from undoing that decision. It’s the liberal ratchet effect — a decision not to allow same-sex marriage can always be reconsidered, but once it is in place it cannot be undone.
AKA the “one-way ratchet.”
As one of those CA losers :(, this gets harder and harder to take!
Then join us here in TX! We need you here!
I’m about as conservative as a Californian can be, but I have been told by more Texans than I care to recall to stay the hell out. They would be happy to have my job move to the Lone Star State, but not me. It’s as if we native-born California conservatives are responsible for what Northeastern Liberal transplants have done to my state since the 1970s…
Naw, come on down! We’ll see if we can figure out how to make room for you. How many thousand acres you need…???
I’ve never seen an invisible hedgehog before…
Ed Whelan at NRO’s Bench Memos explains how this ruling was expected, unfortunately. Ninth Circuit Judges Reinhardt and Hawkins are “arch-liberals.” So now onto the next step: the Supreme Court.
States Whelan:
“As I reported when the panel members were initially made public, a source I trust told me that of the nearly 50 active and senior judges then on the Ninth Circuit, there were only five or six other judges who were as aggressively and reflexively leftist as [Clinton-appointee Michael] Hawkins and his fellow panel member, the ultraliberal Stephen Reinhardt.”
http://www.nationalreview.com/bench-memos
You just KNEW those moonbats in the 9th circuit were gonna rule this way…..
Loony Moonbats on 9th Circuit release loony, moonbat decision! Film at 11:00…
Every time you read the words “The 9th Circuit is about to announce X decision…”,
1. don’t expect it to be in your favor, and
2. don’t be shocked about it.
“We don’t need no stinking voters”. (Or amendments)
That’s the Ninth Circus….
Ok, I can accept that the Ninth is a circus! But, where’s the bread? Don’t “They,” that’s nearly the opposite of LI’s “Them,” have to provide that bread for our souls?
Jeez, not “LI’s” but Victor David Hanson’s “Them.” Talk about mixed, and its metaphors, up.
This is the third nail in America’s coffin.
Nail #1 was Roe v. Wade, authorizing the killing of the unborn.
Obama’s shift of support from Israel to Muslim extremists hammered home Nail #2.
Judgement is here, America. Are you ready?
so is holder doj suing 9th for basically nullifying DOMA?
yeah thought so.
Stuff like this informed my decision to leave California for greener pastures several years back.
If you still live there, seriously, get out. Your tax dollars are helping support power grabs like this.
Wish we could escape from CA but we have aging parents we need to care for here. Is there any sane place left to escape to? Seems like the entire Western world has gone insane.
Ha. We are grandparents in California who don’t want to leave our kids and grandkids, else we would head for Texas, where I was born and where we lived several times while in the military.
We’re grandparents who fled CA for Idaho, figuring our kids may need an emergency refuge someday! We’re only an hour and a half away by plane!
Arizona
or Alaska : )
Scalia called this in Lawrence in 2003:
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead 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,” ante, at 17. 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.
and
The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it.
Scalia was 100% right.
The SC will uphold this given Kennedy’s votes in Romer and Lawrence
And yet the Libs tell us that there is no slippery slope.
They know damn well there’s a slippery slope. After gay marriage is fully realized and legal nationwide, up next is making pedophilia and bestiality.
Thank you for that Scalia quote in Lawrence. The campaign to redefine Rick Santorum’s surname as a scatological term was just beginning because he, like Scalia, saw the handwriting on the wall. So it has come to pass, not only with the upholding of the flushing of Prop 8 by the 9th Circus, but by the refusal to dismiss the Sister Wives suit by a Utah federal judge.
Indeed.
Lawrence opened the flood gates, as it was designed to do.
Whenever you find yourself asking “to what end…”
The answer is always the same.
To strip away and remove individuality, and replace it with the collective.
Legally removing “gender” is a huge step.
Hey Mr. Browndog. Greetings from the former Freepland. The group is now more important than the individual.
Signed,
The South African
[…] 3: (Jazz) For an ongoing analysis of this decision and what it portends, keep up with updates from law professor William Jacobson at Legal Insurrection. His initial analysis is that this is a “bootstrap decision” but he will do a far […]
Now we understand Newt’s views on judges. Impeachment proceedings should be initiated against the two judges in favor of this ruling. Early in the proceeding, they should be invited before the committee to explain and defend the ruling. Failure to appear would be considered heavily in the proceeding, indicating strongly that they should be removed.
The reasoning described above seems almost as circular as the NLRB vs. Jones and Laughlin that first perverted the commerce clause.
Horrible decision. But I would honestly take a trade of Kennedy’s vote upholding this for his vote overturning the individual mandate in Obamacare.
If he overturns the whole law, not just the mandate, that would be a good deal.
Agreed. I hereby amend my proposal to Kennedy.
Ha! All you pessimists don’t even see the opportunity here. I am going to make a fortune raising particularly attractive and willing sheep which, for a small fee, will enter into matrimony with anyone that can supply that aforementioned small fee. Ha!
Is there a way to tie this up in the courts until Kennedy can be replaced by a Republican president?
I’m going to copy from a comment I made on the other thread: I can’t stress enough the importance of appointing strict constitutionalists to all the Courts, including of course the SCOTUS. The Left uses judicial nominations to legislate from the bench and further their agenda.
Seems almost prophetic now.
This decision effectively nullifies the significance of marriage in human society. It promotes the normalization of a behavior which has no productive value for humanity or society. It confirms that the biological imperative (i.e. evolutionary fitness) is not a priority.
Oh, well. Now that homosexual coupling is considered normal. Now that productive physical intercourse (i.e. procreation) is no longer considered a relevant concern for society. There is no reason to continue the deception. The institution of marriage is dead. Long live the corporation and cooperatives generally. Nature’s order has been determined to interfere with the enjoyment of instant gratification and is therefore subject to shaming (and marginalization).
It’s a parody that people who claim an objective faith in the natural order are so challenged to affirm it. Well, dreams of instant gratification are clearly their principles.
Viva la Sexual Revolucion!
Let the grand biological and social experiment continue. May it experience the same success as other progressive experiments.
Yep the slippery slope.. what possible objection now to polygamy or marriage between sisters & brothers. Marriage has no particular meaning anymore.
35 years ago, my card-carrying Libertarian high school History-Civics-Modern Lit teacher warned us that Brave New World was a more accurate prediction of the future than Nineteen-Eighty-Four… all too accurate.
That’s a very cogent argument. Take away the most paramount reasoning for marriage, and then, at some point, the state will decide how many kids you can have, and with the sciences, what sex. It’s the logical progression of Statism.
I’ve been reading various blog comments where proponents of gay marriage are celebrating by stating to the effect that finally the gay rights are being realized and society will now continue to progress.
I’ve always been on the fence regarding gay marriage, especially because the leftists haven’t been able to explain why the state has to sanctify marriage in the first place. But I took issue with the whole “society will now continue to progress” comment.
How will society “progress” and in which way will it “progress”? From a biological standpoint, I agree with NN in that for the natural order of things to continue, the human race/society needs to procreate. Granted, the homosexual population is relatively minuscule, but let’s see how a society of homosexuals progresses if 250 same-sex couples, all aged between 24-36, were isolated on an island – they would be given everything they needed to survive, but could not have any outside assistance from the “world”. Take a look at that island in, say, 50 years or 100 years from now. How would that society progress if it cannot procreate?
There is insufficient evidence to outright ban homosexual behavior. However, there is no legitimate reason to normalize it.
The normalization of homosexual behavior is only incidental to what has occurred with relationships in general. The sexual revolution, which normalized promiscuity and other deviant behaviors, was arguably worse for the population. The effort to normalize abortion (i.e. premeditated, premature termination of human life) is arguably worse. Our dreams of physical, material, and ego instant gratification are the cause of our present crisis.
There are two orders which govern our world and lives: natural and enlightened. The first is principally concerned with procreation and long-term viability of life. The second is derived from consciousness and is the premise for the concept of individual dignity. The goal of normalization should be to identify and promote an optimal compromise between the two known orders.
Oh, and my suggestion that the institution of marriage be dissolved was not a joke. There is no credible argument which would distinguish between relationships based purely on physical gratification. There was a credible argument to distinguish between productive and unproductive relationships. Unfortunately, dreams of instant gratification seem to be the priority for a large minority of our society.
The progressive philosophy would dictate that all relationships be afforded equal merit.
Marriage has been dying since Moynihan wrote about the explosion of the out of wedlock birthdate, this is just another step downhill.
Constitutional right to “privacy”. Constitutional right to abortion. Constitutional right for the government what you can grow for your own consumption. What an amazing document. All these hidden rights!
Those are not rights afforded to us by the Constitution, but intrinsic rights guaranteed by the rule of law. However, the story does not end there. As a society, we have deemed it right to routinely curb our Creator given rights which are, ostensibly, harmful to other individuals or society. So, the question is of what constitutes “harmful”. And when the risk is unknown or uncertain can we afford to tolerate the behavior.
As science marches on, and it does, eventually science will discover the “gay” gene, or some other method for determining the propensity an unborn child will have toward being gay (just look at the advances that have come about in the last 50 years by a simple amniotic fluid test).
What happens when women start listing as their reason having an abortion that they don’t want to raise a gay child? Will we see a seismic shift in the opinion of the left that abortion should be easily available, low cost and at will? Will gay groups then be demanding that abortions not be allowed due to that excuse? Will they understand that if women can abort a child with a propensity to be gay their numbers will be absolutely wiped out within a generation, or reduced to not 1% of the population, but .0001% of the population? Will the gay movement then look to conservatives to save them from exinction?
For every action there is an opposite reactions. Science will eventually provide that opposite reaction.
No. To the Left at that point killing a fetus with a gay gene would be a hate crime.
Hollywood has already asked that question with the 1996 cable TV movie Twilight of The Golds, in which a couple in the future must decide whether they want to abort their unborn son after it’s been determined by such a test that he will be a homosexual.
Among the cast: Future star of The L Word Jennifer Beals, then still-closeted Rosie O’Donnell, out actor/director John Schlesinger, and Brendan Fraser (stay tuned).
I’m going to start calling my dog a cat now.
[…] 9th Circuit Court of Appeals ruled today that the referendum passed by California voters in 2008 that restored the definition of marriage in […]
From a Marxist website explaining the relationship of marriage under Marxism:
“It will transform the relations between the sexes into a purely private matter which concerns only the persons involved and into which society has no occasion to intervene. It can do this since it does away with private property and educates children on a communal basis, and in this way removes the two bases of traditional marriage – the dependence rooted in private property, of the woman on the man, and of the children on the parents.”
See, boys and girls, this political correctness movement is based heavily in Marxism. It abolishes traditional marriage, becomes the sole authority for the education (indoctrination) of children, and basically destroys the traditional family in the interest of the state.
Any questions?
You’re absolutely right that political correctness is rooted in Marxism. The entire body of “research” we call “social science” was invented to promote Marxism. Here’s the history (kinda long and starts out a bit slow – but it’s well worth the read):
http://www.academia.org/the-origins-of-political-correctness/
Over the past several years, discussing this topic on several blogs/websites, I have often posed this one proposition:
Define “gay”.
I have yet to have anyone–ever– reply (other than deflection and name calling).
It’s not a rhetorical question, and seems to be central to the issue.
*and often ends the discussion.
Gay =
1. Person having same-or bi-sexual attraction/desires/feelings and/or identity or sexual disorientation.
2. Identifying oneself with these strong sexual desires.
3. Having a goal to normalize these identities and present them as desirable alternatives.
4. Joining in a political agenda/action group to achieve goals.
Notes:
* About 1 and 2: These desires are often strong, intense and overwhelm judgment despite risks and dangers and are accompanied by a sense of rejection, shame, isolation, self-hatred, and fear…beginning so early in life that they feel like one’s own natural self and ‘identity.’ All our emotions, responses are ‘conditioned’ by our experiences, relationships, events, the presence of trauma or abuse or absence of nurture, support, positive connection in primary relationships and a host of other factors. We are complex human beings. Our brains are changed (structure, function, chemistry) continually, interactively and cumulatively by all we experience, ingest, even our thoughts, what we observe ( PTSD from seeing a murder, atrocity…).
* About 1- 4: Some persons with same-sex desires do not wish to join forces to achieve those goals, nor do they identify themselves with their feelings.
* About Therapy techniques that are the most successful, help the client learn to tolerate their own strong feeling, not fear them, not feel compelled to act on them…and examine them to remember how (when/where/with whom) they became conditioned to feel that way. In Christian settings, prayer is included. Support, mentoring, spiritual direction and accountability groups/relationships are recommended.
These are the very same steps that help an alcoholic, drug, porn, gambling, food, etc. addict, any other kind of conditioned compensatory response. Conditioned feelings and responses, impulses, compulsions, obsessions, etc. can be re-learned…otherwise we would not have sex therapists or therapists at all.
So, it appears you have omitted what everyone wants to omit-
the sexual act.
-a person having an attraction
-identifying oneself with desires
-having a goal
-joining in a political agenda
This is the criteria we use to create an new, Constitutionally protected class of citizens?
Well, I did mention acts twice, once by implication and once outright, but not clearly enough.
1. “desires are often strong, intense and overwhelm judgment despite risks and dangers (of acting on them). I should have added that, but there is no edit function for comments.
2. “help the client learn to tolerate their own strong feeling, not fear them, not feel compelled to act on them…”
Sorry I was not clear. I should mention the risks are very grave. A recent CDC report gives M/M acts a 44 times higher incidence of AIDS and the highest risk of all other STDs. This is higher than teen hook-up promiscuity…which is the next highest. An afternoon spent at the NIH published articles website reveals the correlation with addiction, mental health issues, domestic and date violence in the ‘gay’ population. This a set of feelings and conditioned responses that come from pain and distress, and tragically leads to more even greater pain and distress.
Harmful (sinful) things done to us, trauma/abuse/horror we observe, harmful things we do, change us. And as Jesus said, sin/lust we think, dwell and obsess on even that harms. (Matthew 5:27-28)
Jesus is the way out of that cycle of sin/pain/harm, and a giver of joy, freedom, peace. Sometimes healing is painful…like surgery, rehab and physical therapy, but it is worth it in the end.
Recovering from the wounds of childhood trauma or family dysfunction, battlefield trauma, or from any addiction is at times like giving birth to a 40 pound baby without anesthesia….it is hard work, strain, etc.
But afterward, there the gain of a bit more freedom, hope, and wonderful new life and vision. And the One True Friend, Father, Brother, Advocate who made us and really loves us, is always there to help.
You seem to want to ignore that it has been determined, by most legitimate sex therapists, that pedophilia cannot be cured. Or that until the ’70’s (I think) homosexuality was thought to be a mental illness.
You really should research how that change came about. It was pure “political correctness” in action.
What exactly does pedophilia have to do with anything that’s being discussed? Unlike the issue at hand, pedophilia involves sexual desires and actions on an individual who cannot consent.
Because pedophiles want to lower the age of consent and eventually eliminate it entirely using the same strategy that the homosexual activists have used (they were born that way, etc.). They are already working on changing the language by trying to get people to call them “minor attracted people” which is much softer than “pedophile”.
Conflating consensual homosexual relationships between adults with child abuse is why so many are repulsed by the traditional marriage movement, you’re doing your position no good by making such a clearly illogical argument.
[…] gay marriage ban passed by California voters was unconstitutional. Law Professor William Jacobson explains the Court’s decision was based on the prior right to same-sex marriage in the state, and its […]
That ruling just proved that the peoples vote in California means nothing …. The Progressive/Liberal Lords rule
someday
we
will
K… T… A..
The (California) Constitution is unconstitutional.
How long before the U.S. Constitution falls?
Ginsburg already says it’s obsolete, and Homeland Security says it’s followers may be enemies of the State.
4 more years of Barry anyone?
Four more years? Without the U.S. Constitution, the Democrats would never give up the executive branch. We already know what they think of the Constitution, it exists solely as a document they will use to twist to their advantage and block the advancement of agendas counter to their own.
What this tells me is that, at least in California, laws are irrelevant. Jury duty next week should be interesting if I have to go in… and yes, I’m in California.
Hmm, using the trial facts to make a tailored decision that only applies to California, where have I seen this (admittedly tepid and concerning the SCOTUS decision) prediction before??
Your marriage laws are belong to us!
The Ninth Circuit rules in favor of gay “marriage”. Also, water is wet, the sky is blue….
Professor Jacobson, who’s probably forgotten more about Constitutional Law than those knuckleheads on the Ninth Circuit ever pretended to know, says the court did not take into account the circular nature of its argument….
[…] legal issues are complex, best discussed by individuals far more versed in the law than I; William Jacobson among others details the flaws in the court’s decision. So, rather than get into the actual […]
[…] dunk even though what the court managed to do was base their decision on a circular argument. William Jacobson notes, “Prop. 8 was directed at the very judicial decision which gave rise to the right which the Court […]
Mitt Romney would fit right in with the 8th circuit — by Dan Riehl at Riehl World View
http://www.riehlworldview.com/carnivorous_conservative/2012/02/romney-would-fit-right-in-on-the-ninth-circuit-court.html
Oh. No. 9th Circuit, Prop 8. sorry!
[…] is one that is going to leave everyone unsatisfied. (Professor Jacobson has a pdf copy embedded at his blog Legal Insurrection. Warning: it’s […]
Here is why, imo, the activist judges of the 9th Circuit Court have unthinkingly cherry-picked the “equal protection” clause of Sect. 1 of 14A to favor special-interest groups such as pro-gay marriage activists.
Let’s examine a hypothetical legal situation. Let’s say that 14A was just ratified, the 15th Amendment hasn’t yet been proposed, and that somebody is already suing a state in the name of 14A protections, the person claiming that they are being denied the right to vote. More specifically, the person challenging her state to be able to vote is an 18 year old black woman who hasn’t paid her taxes.
Surely the bleeding-heart 9th Circuit Court judges would look at the 14th Amendment’s equal application clause, and despite protests from the woman’s state that race, gender, unpaid taxes, and age are not constitutionally-protected voter rights, forbid the state from preventing this woman from voting, arguing that the state’s voting laws which allows only white males to vote is in violation of the 14th Amendment’s equal protection law.
What the outcome-driven 9th Circuit Court would be overlooking in such a case is the following. As evidenced by the 15th, 19th, 24th and 26th Amendments, state lawmakers clearly did not regard 14A as protecting non-enumerated constitutional rights regardless of the 14th Amendment’s “equal protection” clause. So the woman challenging her state’s voting laws would still have had to wait until these amendments had been ratified before she could vote.
What the 9th Circuit Court is overlooking concerning 14A’s equal protection clause is the following imo. Given that 15A, for example, hadn’t yet been ratified, a given state could make a voting law that allowed only white males to vote, but could not subsequently prevent Irish Catholic men, for example, from voting, arguing that the Irish accent is to difficult to understand for proper voter registration.
The bottom line is that the states can make “discriminatory” laws if the basis for discrimination is not a constitutionally enumerated right. For example, consider drinking and driving laws that “discriminate” by age.