It’s hard to be blind to it, as Maggie Gallagher points out on the National Organization for Marriage’s website:
Even liberal papers are reading the oral arguments today as a sign that Judge Reinhardt is looking for some kind of “narrow ruling” that might not be overturned by the Supreme Court. …
Temperamentally, it’s hard to believe a judge this activist-minded is going to sit back on the standing issue and refuse to be the guy who tries to make history by writing the opinion validating gay marriage.
Even Judge Reinhardt expressed considerable skepticism on the “lack of standing” arguments– that the Attorney General and Governor had the sole standing to protect Prop 8: “The Ninth Circuit panel, which devoted the first hour of Monday’s hearing to that issue, suggested that it would be unfair to let state officials effectively veto a ballot measure by letting it die in court.
“That does not seem to be consistent with the initiative system,” Reinhardt said.” (He suggested referring it to the California Supreme Court, effectively giving the California courts that same veto!)
But to really make history requires–not being overturned, as he so often is, by the Supreme Court. Reinhardt appears to be toying with the idea of saying that you cannot rescind a right to gay marriage, if a court first grants it. He is using Romer v. Evans (an opinion written by Justice Kennedy striking down a statewide ban on orientation anti-discrimination laws at the city and county level) as the precedent for saying: the majority cannot take away any rights of a minority by ballot initiative.
This is really conceptually pretty radical: it amounts to saying the voters have no right to amend their state constitution if they disagree with the supreme court’s interpretation. Romer was decided by Kennedy on the grounds it was about general access to the legislative process, not a specific right like marriage.