Bench Memos

NRO’s home for judicial news and analysis.

Re: Reinhardt’s Anti-Prop 8 Ruling and Romer v. Evans


A follow-up to my post explaining that Reinhardt’s ruling is not actually faithful to Justice Kennedy’s opinion in Romer v. Evans:

On Balkinization, law professor Jason Mazzone (who evidently supports judicial conferral of a constitutional right to same-sex marriage) calls Reinhardt’s opinion “dishonest because it warps the relevant background and misrepresents Romer v. Evans.”

And on the Volokh Conspiracy, law professor Dale Carpenter, a leading proponent of a constitutional right to same-sex marriage, opines that Mazzone “has quite persuasively argued” that Reinhardt’s opinion “is a strained reading of Romer.”

As I’ve pointed out, the Washington Post offers a similar assessment.

Update: I now see that fellow Balkinization blogger Marty Lederman has a very long post taking issue with Mazzone. I don’t think any of Lederman’s comments bear on my critique (not that they purport to).


Subscribe to National Review