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Bench Memos

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Ninth Circuit Panel Affirms Anti-Prop 8 Ruling



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As I expected, a divided panel of the Ninth Circuit has affirmed former judge Vaughn Walker’s outlandish ruling that California’s Proposition 8 violates the federal Constitution. Arch-liberals Judge Stephen Reinhardt and Judge Michael Hawkins were in the majority, with Hawkins joining Reinhardt’s opinion. Judge Randy Smith dissented.

From a quick skim of the introduction, I see that the majority opinion purports to be narrow. It doesn’t opine on the general question “[w]hether under the Constitution same-sex couples may ever be denied the right to marry.” [Emphasis in original.] Instead, it maintains that the particular context in California—in which same-sex couples under California’s domestic-partnership law had all the rights of opposite-sex couples and in which Proposition 8 restored the definition of marriage that the state supreme court had invalidated—means that there was no “legitimate reason” for Proposition 8.

In the grand scheme of things, there is nothing enduringly significant about today’s ruling. The Ninth Circuit was just a way-station on the path to the Supreme Court, and the composition of the Ninth Circuit panel meant that there was no prospect for a reversal of Walker’s ruling. What would have been most troubling would have been a ruling that Prop 8 proponents didn’t have standing on appeal, as that might have complicated the prospects for Supreme Court review. But the case now has a seemingly clear path to the Supreme Court.

It’s still possible, of course, that the Ninth Circuit might take the case en banc, either on its own initiative or on a request from Prop 8 proponents. My own guess is that it won’t do so—and that the Court will grant review of the Ninth Circuit’s ruling before the November elections (and perhaps even hear oral argument in October or November).

I will provide further commentary after I have read the ruling more carefully.



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