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08 Feb 2012 02:00


Politics: “Judge Reinhardt wrote his opinion for an audience of one: Justice Kennedy”

  • Judge Reinhardt does not hold there is a right to same sex marriage, only that CA had no rational reason to take away the label of marriage for use by gay and lesbian couples after the state had had already given it. By crafting the argument in this way, and making the case that the only reason for passing Prop. 8 was anti-gay animus, Judge Reinhardt has given Justice Kennedy a way to decide the case without embracing a major holding recognizing a right to same sex marriage generally.
  • Rick Hansen • Regarding the nature of the 9th Circuit Court’s ruling on Proposition 8 earlier today. Hansen is suggesting that Judge Reinhardt cast the ruling in an intentionally narrow sense so as to make it easier for Justice Kennedy, the Supreme Court’s most notorious swing voter, to uphold it on appeal. The distinction we made earlier could thus affect the future of gay marriage in California. In short, court rulings often possess a strategic, as well as a legal, foundation. source

07 Feb 2012 18:30


Politics: Some important nuance regarding Proposition 8

  • A quick note about today’s prop 8 ruling: While the court did rule in favor of gay marriage, the court did not assert that gay marriage is a fundamental or constitutional right. That’s not the angle the court was coming from, and in fact, it intentionally deferred answering that question. Rather, the ruling rested on two assertions. One, the notion that US Constitution requires a “legitimate reason” for states to pass laws that treat “different classes of people differently.” Two, the fact that “under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status.” Because of this fact, Proposition 8 serves only and exclusively to “lessen the status and human dignity of gays and lesbians in California.” The court ruled that this isn’t “legitimate reason,” and therefore, is unconstitutional. As we’ll explain later, this nuance has significant implications for future court rulings. source

17 Nov 2011 14:20


U.S.: CA’s Prop. 8 proponents win State Supreme Court challenge

  • And The fight over gay marriage rolls on: The California Supreme Court has ruled that opponents of gay marriage may defend the state’s ban, better known as Proposition 8, in court proceedings. Typically the task of defending such a state initiative falls on officials like the governor or attorney general, but both Jerry Brown and Kamala Harris have refused to do so, voicing opposition to the marriage restriction. This is broadly viewed as a table-setting sort of ruling — there’s a growing air of inevitability that the gay marriage issue is bound for the U.S. Supreme Court, where a ruling could impact the institution all across the country. source

30 Aug 2011 22:53


Politics: Why to be careful when blocking judicial nominations

  • cause Back in May, Goodwin Liu’s nomination to the 9th Circuit Court was blocked by Republicans, due in part to his support for same-sex marriage.
  • effect Liu is now on track to be seated on the California Supreme Court instead–and will likely be confirmed in time to hear the case to repeal Proposition 8. source
  • » One note: Goodwin Liu has publicly opposed Proposition 8 in the past, so if he ends up hearing the case, supporters of the law will likely ask that he recuse himself. But that doesn’t mean he has to.

24 Mar 2011 15:02


Politics: Prop. 8: Plea to lift stay on California gay marriage rejected

  • It is decidedly unjust and unreasonable to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second-class citizens while their U.S. District Court victory comes to its final conclusion.
  • Chad Griffin, chairman of The American Foundation For Civil Rights • Speaking on the rejected plea to lift the stay on the Proposition 8 ruling. The proposition, which was approved by voters in the 2008 election, was ruled unconstitutional by Judge Vaughn Walker last year, but a stay was put on his ruling by the Ninth Circuit Court of Appeals. This was broadly thought to be a delay on the resumption of gay marriage in the state so that if/when a higher court examined the issue, the marriages wouldn’t again have to be halted if Walker’s verdict was overturned. Gay rights advocates are understandably unhappy, as the stay could conceivably last a year, and if civil rights are infringed, we suspect that’s not the expedient remedy most people would feel entitled to. source

04 Jan 2011 22:55


U.S.: Ninth District makes boring, indecisive decision on Prop 8 case

  • *shrug* The 9th District Court’s ruling on gay marriage – neither in favor of keeping Prop 8 nor against the controversial measure. Good answer, important people!
  • instead The court transferred the case to the California Supreme Court, to decide whether Prop. 8 backers can even defend the measure in court. Hmm. source

06 Dec 2010 20:06


U.S.: Ninth Circuit leaning towards Prop. 8 repeal – and a narrow decision

  • Do we have to reach that point?
  • Ninth Circuit Court of Appeals Judge Stephen Reinhardt • Suggesting that the court may not decide the Prop. 8 case with a broad brush, and may choose a more narrow route instead. It seems that the court in general is favoring gay-marriage supporters, with the court’s most conservative judge, N. Randy Smith, noting that the blockage of marriage seems arbitrary, considering that gays have equal rights in almost every other point of Californian life. “What is the rational basis for that?,” he asked. source

06 Dec 2010 10:53


U.S.: Gay marriage: Prop 8 trial heads to Ninth Circuit today

  • It’s a very favorable panel for the challengers to Proposition 8.
  • University of Pittsburgh law professor (and Ninth Circuit expert) Arthur Hellman • Handicapping the highly-anticipated horse race over Proposition 8 in the Ninth Circuit Court of Appeals starting today. The court, which chose to hear the case before allowing Judge Vaughn Walker’s initial decision to stand, could throw some wrenches in the case, though; namely, if they want, they can decide the case in such a way (by suggesting that supporters fo Prop. 8 didn’t have the standing to appeal the case) so that it doesn’t go to the Supreme Court, even if it legalizes gay marriage in California. source

29 Sep 2010 21:55


U.S.: My work is done here: Prop. 8 judge Vaughn Walker retiring

  • He’s only going to be remembered for that one case. Vaughn Walker had a long career as a judge in California, but it’s a decision he made in August that made him famous. Walker, the chief judge of the Northern District of California, struck down Proposition 8 using a tightly-written decision that law scholars are going to be reading for decades to come. Walker’s second act? He doesn’t have one. He’s retiring at the end of the year. Might as well go out on top. Bravo, dude. Have fun playing golf. source

17 Aug 2010 21:44


Politics: Prop 8 trial: Could procedure prevent a landmark decision?

  • Judges are human beings. If there is an easy way out, most people will look for it. And this would be an easy way out for the judges.
  • George Washington University Law Professor Alan Morrison • Regarding the possibility that the Ninth Circuit Court of Appeals, and later the Supreme Court, could use a distinction known as “standing” to allow gay marriage in California but invalidate the right of the supporters to represent the case for the state of California. The reason why this would be appealing? It wouldn’t allow a broader decision on gay marriage throughout the country. It would be a partial victory for those who support gay rights, rather than the one they really want. source