Bench Memos

The Dog that Hasn’t Barked

Now this is curious:

In August 2010, on the very day that Judge Vaughn Walker issued his ruling invalidating Prop 8, the ACLU of Southern California issued a press release hailing the “landmark” decision. The press release quoted the ACLU/SC’s then-executive director, Ramona Ripston, “rejoic[ing] at this decision.”

By contrast, today, a full 24 hours after Judge Stephen Reinhardt’s Ninth Circuit opinion affirming Walker’s judgment, the ACLU/SC’s website is silent about the ruling.

What might explain the difference?

Well, I suppose that one possibility is that the ACLU/SC is no longer as efficient now that Ms. Ripston isn’t running the day-to-day operations and is instead executive director emeritus. But the most recent ACLU/SC press releases were all issued the same day as the news they report, so that theory seems doubtful.

I would guess that a far more likely explanation arises from the fact that Stephen Reinhardt and Ramona Ripston are husband and wife. I’m guessing that the ACLU/SC has decided that it would be unseemly to openly celebrate a ruling on an issue of high importance to it when that ruling was rendered by the spouse of someone who remains affiliated with it (and who continues to “assist the organization in fundraising, among other areas”).

It was just over a year ago, you may recall, that Reinhardt declined to recuse himself from the Prop 8 appeal, notwithstanding the fact that his wife Ramona Ripston consulted with plaintiffs’ counsel about the very decision to file the lawsuit, that she authorized the ACLU/SC—which had vaunted its “lead role” on the fight for same-sex marriage—to file amicus briefs supporting plaintiffs in the trial proceedings in the same case, and that she publicly celebrated the very ruling that he is now reviewing. (Links to my multi-part critique of Reinhardt’s utterly unpersuasive non-recusal order are here.) So far as I’m aware, no legal ethicist has defended Reinhardt’s non-recusal, and his participation in yesterday’s ruling provides a clean and sufficient basis for the Supreme Court to vacate that ruling.

In a sane legal world, Reinhardt would have recused himself, and the ACLU/SC would feel itself free to celebrate or condemn whatever ruling the differently composed Ninth Circuit panel issued. Instead, Reinhardt has taken part, and the ACLU/SC seems to be lying low.


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