It's not every day that a federal appeals court cites late comedian Groucho Marx in a decision, especially one as important as overturning California's anti-gay marriage Proposition 8.
But a three-member panel of the 9th U.S. Circuit Court of Appeals did exactly that Tuesday, citing Marx's quip that "marriage is a wonderful institution...but who wants to live in an institution?"
It was one of several cultural references (another was to the title of a Marilyn Monroe movie, "How to Marry a Millionaire") in the decision that was narrowly hinged on whether the state had the right to withdraw the right to marry once it had been extended, as it had been in California by a state Supreme Court decision.
The federal panel sidestepped whether gays and lesbians had a constitutional right to marry, saying, "We therefore need not and do not consider whether same-sex couples have a fundamental right to marry."
But it declared that the state's voters could not terminate that right, saying that violated the Constitution's equal protection clause.
The decision repeatedly cited a 1996 U.S. Supreme Court decision setting aside a Colorado ballot measure barring certain rights to homosexuals, and thus appeared to be aimed at influencing the author of that decision (Romer v. Evans), Anthony Kennedy.
It's widely believed that when California's Proposition 8 reaches the Supreme Court, Kennedy will hold the decisive vote since the other eight justices are evenly divided between liberals and conservatives and Kennedy is often the swing vote.
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