The narrow Prop 8 decision

"The difference between the right word and the almost right word is the difference between lightning and a lightning bug."Mark Twain That quote is one of my favorite.

In an extremely loose fashion, I think it applies to the two news stories I'm about to review — each of which appeared above the fold on the front page of a different Times today, one in New York and the other in Los Angeles.

I first read the New York Times' story on a federal appeals panel's ruling Tuesday throwing out California's Proposition 8, a voter-approved ban on same-sex marriage passed in 2008. I found the coverage confusing, beset with legalese and lacking any real insight on the repeated characterization of the 2-1 decision as "narrowly framed."

Then I read the Los Angeles Times' story and was amazed by how much more effectively it explained the judges' reasoning (on both sides), analyzed the potential national ramifications and clearly made me understand the meaning of "narrowly written."

The top of the L.A. Times report:

Reporting from San Francisco and Los Angeles -- A federal appeals court has declared California's 2008 voter-approved ban on same-sex marriage unconstitutional, concluding that the prohibition served no purpose other than to "lessen the status and human dignity of gays and lesbians."

The 2-1 ruling by the U.S. 9th Circuit Court of Appeals was narrowly written to limit its scope to California's borders and possibly even avoid review by the U.S. Supreme Court, legal experts said. Nonetheless, gay-rights advocates hailed Tuesday's decision as historic, while supporters of Proposition 8 immediately vowed to appeal.

Instead of expanding the constitutional rights of gays and lesbians, the court based its decision on a 1996 U.S. Supreme Court precedent that said a majority may not take away a minority's rights without legitimate reasons.

The two stories, dare I say, epitomize the difference between lightning and a lightning bug.

The N.Y. Times story boils down the decision to two judges on one side who believe Proposition 8 "serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California." Then there's the dissenting judge, who "wrote that the court was overreaching in nullifying a voter initiative." That's the full extent of the dissent, if all you read is the N.Y. Times. 

Contrast that with the L.A. Times' report, which explains why the 2-1 decision may be seen as narrowly applying to California and not a potentially precedent-setting U.S. Supreme Court case:

But other lawyers and legal scholars said the 9th Circuit might have the final word on Proposition 8 because the ruling was so pointedly limited to California, a state where voters stripped a minority of a right that already existed and where the usual justifications for a same-sex marriage ban, responsible parenting and procreation, are undercut by domestic partner laws.

Proposition 8 passed as a constitutional amendment six months after the California Supreme Court struck down a state law that limited marriage to a man and a woman, and an estimated 18,000 same-sex couples married during that time. The initiative also did not affect parenting rights of gays and lesbians, which are protected under other state laws.

"That legal background does not exist in most states," said University of Minnesota Law School professor Dale Carpenter, who has followed the case.

As for the dissenting judge, whose only rationale was upholding the will of the voters? According to the L.A. Times, there's a little more to his position:

Judge N. Randy Smith, a conservative appointed by President George W. Bush, dissented, arguing that limiting marriage to opposite-sex couples could be justified on the grounds that heterosexual couples are the only couples who can procreate naturally.

"The family structure of two committed biological parents — one man and one woman — is the optimal partnership for raising children," Smith wrote.

He also noted that states may legitimately prohibit bigamy, incest, bestiality and other sexual relationships condemned by society, as well as impose age limits for marriage or require tests for venereal disease without running afoul of constitutional rights.

Barry McDonald, a constitutional law professor at Pepperdine University, called Smith's arguments "very reasonable." Whereas the Colorado case barred gays from receiving all sorts of protections from discrimination, Proposition 8 was limited to marriage, McDonald noted.

"It's going to be tougher to make the case that the voters of California were animated by pure animus alone" in passing Proposition 8 "since they already had done so much in giving gays and lesbians all the rights of marriage," McDonald said.

Alas, and maybe it's just me, but the N.Y. Times gave me a chuckle by including a parenthetical statement in one sentence suggesting that "some view" the Ninth Circuit as "liberal." Actually, "the most notoriously liberal appeals court in the nation" is how a leading evangelical describes the circuit that in 2002 declared the "one nation under God" phrase of the Pledge of Allegiance unconstitutional.

Even more humorous, given the Ninth Circuit's notoriety, the N.Y. Times apparently got the circuits confused in its original story. This correction is appended to the online story:

Correction: February 7, 2012

A previous version of this article said supporters of Proposition 8 might ask a larger panel of the 11th circuit to review Tuesday’s decision. It would be the Ninth Circuit.

(A quick Google search reveals that the 11th Circuit is based in Atlanta.)

For its part, the L.A. Times characterizes the two majority judges this way:

Joining Reinhardt, a liberal lion of the 9th Circuit appointed by former President Jimmy Carter, was Judge Michael Daly Hawkins, a former Arizona federal prosecutor and an appointee of former President Bill Clinton.

Both stories, meanwhile, end with a jubilant supporter of gay marriage celebrating Tuesday's ruling. I guess none of the people (including religious leaders) who rallied on behalf of Proposition 8 were available to express their disappointment?

Those are, of course, just two examples of the coverage of the decision. Have you seen other particularly egregious or exceptional stories? Please provide links in the comments section.

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