Bench Memos

Re: Initial Assessment of Ninth Circuit’s Anti-Prop 8 Ruling

I see that Eugene Volokh’s initial assessment is similar to mine. He’s unpersuaded by Reinhardt’s argument that Prop 8 doesn’t advance an interest in proceeding cautiously (his point 5, my point 4), and he doesn’t think that Reinhardt’s reasoning can be limited to situations like California’s (his point 3, my point 5).*

Volokh and I also agree that Reinhardt’s dismissal of California’s interest in procreation and childrearing is erroneous, though his argument (his point 4) has only some overlap with mine (my point 3).

We also agree that this is a ruling the Supreme Court will see fit to review.

* To be more precise, Volokh’s and my views differ in this regard: Volokh believes that Reinhardt’s reasoning applies to other states that, like California, recognize civil unions but not same-sex marriage, whereas I believe that his reasoning would invalidate traditional marriage laws everywhere.

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