Patterico's Pontifications

5/24/2008

Ninth Circuit: Lawrence v. Texas Never Even Mentioned Romer v. Eva — D’OH!!

Filed under: Constitutional Law,Court Decisions,Dog Trainer,General — Patterico @ 2:10 pm

The recent Ninth Circuit opinion on “Don’t Ask, Don’t Tell” has this incorrect passage:

Second, the cases on which the Supreme Court explicitly based its decision in Lawrence are based on heightened scrutiny. As Major Witt pointed out, those cases include Griswold, Roe, and Carey. Moreover, the Court stated that Casey, a post-Bowers decision, cast its holding in Bowers into doubt. Lawrence, 539 U.S. at 573-74. Notably, the Court did not mention or apply the post-Bowers case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.

The Supreme Court didn’t mention Romer in Lawrence, eh?

Here is a quote from Justice Kennedy’s majority opinion in Lawrence:

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Oops.

Thanks to Ed Whelan for noticing that failing of the Ninth Circuit opinion.

By the way, in my first post on the Ninth Circuit decision, I wondered how the L.A. Times would describe the judges who decided the case. Would readers be told that all three judges are Democrat appointees?

It’s even worse than that. I have seen no evidence that the legal titans at the L.A. Times even realize this case was decided. A search for “Witt” or “Don’t Ask, Don’t Tell” in the paper’s search engine reveals no relevant articles. This despite the fact that the case was covered by the New York Times, the Seattle Times, and the Seattle Post-Intellligencer, among others. But the L.A. Times seems blissfully unaware of the case.

7 Comments

  1. Reminds me of the old Supreme Court joke. The attorney stands up in front of the Supreme Court and opens with: “May it please the Court, we are appealing a decision of the Ninth Circuit … and we have other arguments …”

    Comment by SPQR (26be8b) — 5/24/2008 @ 5:10 pm

  2. Patrick, you would not have made it out of my training session for new prosecutors.

    My motto: Reading is cheating.

    Sure, the judge might ask you some question: “What are the elements of the crime?” Had you read the elements, you might know something. But it’s far more exciting to see if you can work out the elements of the crime on the fly. Plus, the judge is just showing off. Elements. Heh.

    I suppose I approve of reading the 20-word blurbs in the annotated code if your only alternative is to go read the case, but why even that?

    Whether in civil or criminal, you *could* go and read all the reports and depos and transcripts, but what if there are a lot of words in them? That is valuable Minesweeper time lost.

    So here we have the Ninth Circuit. Their mistake wasn’t reading only some of the words in the SCOTUS opinion; it was reading any of them. Lame attempts to kowtow to “precedent” are the final chapter in the cheating readers’ arsenal, and we can’t have that.

    I once again salute the Ninth Circuit. Reading can only lead to hardship. It is simply not something that lawyers should do.

    –JRM, pretty sure that I’ll be in an R.B. post: “Prosecutors Willfully Ignorant.”

    Comment by JRM (de6363) — 5/24/2008 @ 7:02 pm

  3. Its time to close down the 9th curcut court of supply them with better judges then the wackos they have now

    Comment by krazy kagu (7cd87d) — 5/25/2008 @ 7:12 am

  4. The 9th Circus is to sound judicial opinions, what the Mendoza line is to sound hitting in baseball.

    Falling below the Mendoza line is a standing joke. It represents a level so utterly devoid of major league skill…as to render itself ab initio of such absurdly low quality, it does not merit further mention.

    The Ninth Cicus has lowered itself repeatedly beneath the Mendoza line. Even if I empathize with a position of the party in which they have granted majority favor…the result is tainted by their misfortune of residing within the Ninth Circuit.

    Comment by cfbleachers (4040c7) — 5/25/2008 @ 8:36 am

  5. Still, I love to read a Kozinski opinion.

    Comment by SPQR (26be8b) — 5/25/2008 @ 11:45 am

  6. This is not unlike the amicus briefs by the ACLU and other parties; in the Hamdi and Hamdan cases, that practically avoided pertinet case law on military tribunals and ‘enemy combatant detention
    like ex parte Milligan, Mulligan, Qurin, Eisentrager; in favor of irrelevant like Councilman (how does the courtmartial of navy enlisted personnel relate to the determination of foreign nationals, violating the pre-requisites of Geneva convention; Article 3?)They don’t, that’s exactly why it was cited.

    Comment by narciso (c36902) — 5/25/2008 @ 8:07 pm

  7. The ACLU is a socialists organiztion founded by a communists it should lose its tax exempt status

    Comment by krazy kagu (eb0daf) — 5/26/2008 @ 10:32 pm

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