Patterico's Pontifications


Bad Draw of Judges for the Proposition 8 Appeal

Filed under: General — Aaron Worthing @ 11:16 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

The defenders of Proposition 8 must feel a bit like Custer at Little Big Horn right about now.  As you might know, their appeal has gone to a panel of the Ninth circuit.  By my count, there are 26 judges in the Ninth Circuit, but in most cases, the appeal is heard by a panel of three judges.  Occasionally there is a rehearing en banc, which means by the entire slate, but as you might imagine that is kind of rare.

So who are going to hear this appeal?  Stephen Reinhardt, Michael D. Hawkins, and N. Randy Smith.  Ed Whelan gives you the ideological break down of the three:

Reinhardt (appointed by President Carter in 1980) may well be the most aggressive liberal judicial activist in the nation—and the most reversed judge in history. Hawkins, a 1994 Clinton appointee, is also regularly on the Left on the Ninth Circuit. Smith, who was appointed by President George W. Bush in 2007, is much more of a judicial conservative.

So Reinhardt is probably a lost cause, a man who rules very liberally and isn’t troubled overly much by the prospect of being reversed, apparently.  So by default defenders of Prop 8 will be pinning their hopes on Hawkins, probably mainly hoping they can convince him not to make new law.

But this isn’t all bad.  I wonder how convincing a victory involving Reinhardt would actually be to the Supreme Court.  But it certainly does increase the likelihood that the Ninth Circuit will force the Supreme Court to confront this issue.

[Posted and authored by Aaron Worthing.]

76 Responses to “Bad Draw of Judges for the Proposition 8 Appeal”

  1. The old joke about the Supreme Court is:

    “May it please the Court, I am appealing a decision by the Ninth Circuit … and I have other arguments.”

    I guess it would be best updated with: ” … I am appealing a decision written by J. Reinhardt …” given the rate of reversal he’s seen.

    SPQR (26be8b)

  2. Seems like a good reason for an en banc review, at the very leasst.

    As an opponent of Prop. 8, I don’t like this draw, for basically the reason you’ve outlined: Reinhardt doesn’t have the *credibility* for anyone to believe that he’s judging the case rather than going into it with a preconceived notion.

    aphrael (e0cdc9)

  3. Legal question: What difference, if any, does it make that incoming CA AG, Kamala Harris is probably not going to defend Prop. 8?

    Brother Bradley J. Fikes, C.O.R. (a18ddc)

  4. Bradley: Kamala doesn’t take office until Jan. 3. However, the current AG, Jerry Brown, is also not defending Prop. 8.

    The fact that the state isn’t appealing the district court decision and isn’t defending the law puts a hurdle in front of the case: the person who *is* appealing has to demonstrate that they have legal standing to appeal. They may be able to do that; they may not be able to do that. Opinions differ. :)

    The first hour of the hearing next Monday will be on that issue, rather than the substance of the appeal.

    aphrael (e0cdc9)

  5. Let’s not pretend there is a pretense of fairness, here, there isn’t any. And the next step, assuming
    there is no enbanc proceeding, is convincing Anthony Kennedy, first to take the case, and then rule the right way ;sigh

    narciso (9d0688)

  6. An appeal to the 9th circuit in a case like this one is a speed bump.

    Mike K (568408)

  7. the more obvious question is why the ninth circus panels for cases like this always wind up stacked with the usual suspects?

    why should the average citizen have any respect for the legal system or its decisions when it is so painfully obvious that it is being deliberately manipulated from within for partisan purposes?

    redc1c4 (fb8750)

  8. and, btw, the “standing” issue is just more legal horsesh1t: an excuse for those manipulating the situation to eliminate the people from the justice system so that they may use it for their own ends.

    if the AG won’t do his j*b, it should be the right of any citizen or group of citizen’s who reside in the affected area to stand in for the public servant who isn’t.

    imho, of course, but if they won’t listen to the public when they’re on the soap box, and they negate our voice at the ballot box, there is only one other box left to get their attention with.

    redc1c4 (fb8750)

  9. “Ouch please to not assault me, dickface,” whined traditional marriage.

    “I didn’t even touch you I have no idea what you’re talking about,” said gay marriage, earnestly.

    “OMG RAPE!!” screamed traditional marriage.

    “No one’s gonna believe you that’s just silly,” gay marriage replied calmly.

    “Oh,” said traditional marriage. “You’re probably right.”

    happyfeet (a55ba0)

  10. red

    well, standing here is just horsepoo, but there is a genuine principle underneath it, which is the avoidance of mere advisory opinions.


    i try to write my legal analysis in a way so that, yes, you know how i want to case to turn out, but you also see enough of the nuts and bolts so that, frankly, you can make the kind of observation you just made.

    I would ask this, though. You said you oppose prop 8. okay, but do you also think it is contrary to the federal constitution? i mean our host disagrees with prop 8, too, as policy, but thinks that the courts should be upholding it.

    Aaron Worthing (e7d72e)

  11. Reinhardt always ends up on the panels for these hot-button issues.


    With Hawkins on the panel, it’s a done deal. I’d bet my life savings on a pro-gay marriage outcome. The legal arguments don’t matter. With this set of judges the decision is already made.

    Patterico (8f734f)

  12. How does a Senior judge, supposedly on reduced duty, get on all these panels? Is it based on “who’s free right now?” or what?

    Kevin M (73dcc9)

  13. Patterico, if judges feel free to ignore the case before them and rule on the basis of prejudice, what does that say to jurors when they are admonished by judges not to do exactly that?

    Kevin M (73dcc9)

  14. Patterico

    so you think it is that much a slam dunk?

    Is it safe to assume that they would be screwed if it was en banc?

    And feel free by any means to add your opinion to the post itself, since this is your backyard. Not that you need my permission, technically, so take that more as a bleg than a grant of permission.

    Aaron Worthing (e7d72e)

  15. What are the odds of Rheinhart getting on the panel for every single one of these hot-button issues?

    JD (ab60db)

  16. i know it is way off topic, but I wondered if any of you legal eagles had any experience about trying to purchase real estate that has been abandoned to the bankruptcy court, but not converted title to the bank, and not yet discharged from the bankruptcy. Is there any advantage for the party going through the bankruptcy to essentially do this as a short sale? Can a third party petition the Court to have this parcel discharged? Would the Trustee or the bank be the party to offer to, and negotiate with? SPQR, I am looking at you 😉

    JD (ab60db)

  17. It probably depends on what you consider a hot button issue.

    imdw (e6d25a)

  18. No day is complete without some inane drivel from iamadimwit.

    JD (ab60db)

  19. red: kamala was quite up front during the election about not defending prop 8, and the voters of California (against my wishes) elected her anyway. To a certain extent that can be read as a tacit endorsement of the position.

    I have major issues with the way standing works, and think that it often serves the purpose of keeping disputes out of the courts and denying justice to the injured party. That said, I don’t think an exception should be made for this case, and the same rules which apply in other cases should apply to this one.


    You asked Patterico this, not me, but: I don’t think it’s a slam dunk either way if it’s heard en banc.


    Whether the equal protection clause prohibits discrimination on the basis of sexual orientation is, to me, a difficult question. (Note: I think it’s clear that opposite-sex marriage *discriminates*. the only question in my mind is whether the discrimination is constitutional).

    The authors of the amendment would never have considered that sexual orientation was even an issue. But they wrote a broad amendment which guarantees “equal protection of the law”. The breadth of that writing implies that they intended it to encompass situations and inequalities which they had not imagined – if they’d intended to confine it to race, they would have said that (the way they did in the fifteenth amendment).

    In my view, the way we handle gender discrimination by the state is inconsistent with the equal protection clause; the court should have used the same standard of scrutiny for that as it uses for race, nationality, and religious belief. I think it should apply to sexual orientation, as well … but in this expansive view of the equal protection clause, the state also can’t discriminate on the basis of wealth, or property ownership, or family status, or anything else which is unrelated to criminal activity; everyone must be treated equally. (Goodbye, for example, progressive income tax).

    But … the world we live in isn’t that world; the supreme court has never interpreted the EPC that broadly. Which means the question actually is: should sexual orientation be held to a *higher* standard than wealth?

    Clearly the answer to that is ‘no’.

    And yet: failure to interpret the clause correctly in one case doesn’t/shouldn’t require continued failure in other, unrelated cases.

    aphrael (e0cdc9)

  20. An en banc panel in the 9th Cir. doesn’t involve the entire court as is the case in the other Circuits. Due to the number of judges, an en banc court in the 9th is a panel of 11 full time (not senior status) judges, one of whom is the Presiding Judge — Kosinski right now.

    It will be interesting to see how this works out. While Reinhardt may want to right a far-left decision, he needs to get Hawkins to sign it.

    As the senior full time judge, Reinhardt can assign the opinion in the case to himself — but he will have to produce an opinion that Hawkins will sign.

    The more extreme an opinion Reinhardt produces, the greater pressure there will be to reign it in with an en banc panel.

    Given the makeup of the Circuit, even an en banc panel would likely tilt to the left, but more voices would be brought to bear on the subject.

    My view of it is that the Judges on the 9th are not going to let themselves be tainted by a ridiculous endorsement of the show trial put on by Judge Walker in SF. Reinhardt is probably the last judge they wanted to see on the panel, and that makes it more likely that they will not let Reinhardt be the last work on the Ninth on this subject.

    They did the same thing recently when an en banc court really dialed back and extremely libertarian panel opinion by Judge Kosinski on computer search warrants in the BALCO case. The en banc court affirmed the panel’s decision, but took out all Kosinski’s most extreme language, making his opinion a mere concurrence.

    shipwreckedcrew (4ae072)

  21. That should have been “write” not “right” a far left decision.

    shipwreckedcrew (4ae072)

  22. Shipwreckedcrew: surely Reinhardt has enough political sense to assign the opinion to Hawkins?

    Anyhow, if this forces an en banc hearing, I think it’s a good thing – regardless of the decision rendered, an en banc hearing will have more legitimacy than a three judge panel.

    aphrael (e0cdc9)

  23. Ramona Ripston’s husband, when has he ever shown good sense, in the last 20 years

    narciso (9d0688)

  24. araphel: the straight ticket vote in this last election is proof that the voters who cast said ballots looked no further than the (D) after the candidates name.

    thus claiming that the candidate’s stand on Prop 8 is somehow validated by this election is silly. after all, if Prop 8 was that unpopular, it never would have passed to begin with.

    besides that, i’m of the opinion that our elected officials are supposed to serve us, not decide things for us. when you hire an employee, they are supposed to do what they’re told, not do whatever the hell they want. anytime a governor or the AG, or whomever refuses to enforce a law like this they should be taken out and publicly horse whipped, just to remind the replacement of their standing in the scheme of things.

    redc1c4 (fb8750)

  25. Red: I agree with you to a point. However, when one of the primary publicized differences between candidate A and candidate B is that one of them says they will defend a law in court and another of them says they won’t defend that same law in court … and the voters choose candidate A, it is reasonable to assume that the voters either approved candidate A’s position or, at the very least, didn’t care enough about it that it overwhelmed whatever other considerations were in their head when they were voting.

    All of which is to say: I think complaining about AG Brown refusing to defend Prop. 8 is perfectly legitimate, but I think the case against AG-elect Harris is much less strong. In Brown’s case, the voters knew nothing of this when they elected him. In Harris’ case, the voters knew where she stood and elected her anyway.

    aphrael (e0cdc9)

  26. Also, some account must be taken of turnout:

    For Prop 8, 7,001,084 votes were in favor (52.3%) and 6,401,482 were against (47.7%).

    For the AG race, at last count, 4,421,402 votes for Harris (46.1%) and 4,350,698 votes for Cooley (45.4%).

    Far more people voted on Prop 8 than voted on the AG race this year – 13.4 million vs. 9.5 million.

    aphrael (e0cdc9)

  27. The responsibility of an elected official to do their damn job should not be subject to their whims and ideology, even if they are honest enough to campaign on a platform of not doing their job.

    JD (ab60db)

  28. JD: sure. but a candidate who campaigns saying “i’m going to do [x]” and *wins*, having said that, should be insulated from criticism for then doing [x].

    Especially in the case of something like AG: if someone campaigned openly on the platform of not enforcing the death penalty and won, then we’d say the voters had endorsed that position

    Similarly, if someone campaigned openly on the platform of not enforcing drug laws and won, we’d say the voters had endorsed that position.

    Or if someone campaigned openly on the platform of an across-the-board pay cut for all state employees of 20% and then ordered it done by administrative action, we’d say the voters had endorsed *that* position.

    This is no different.

    aphrael (e0cdc9)

  29. apparel – I understand your position, but I am just noting that it seems pretty f@cked up that a system of laws can have someone sworn to uphold the law when they have sworn to ignore the law. Change the damn law.

    JD (ab60db)

  30. And if someone took an oath to faithfully execute the law, would we agree they were bound to do so no matter how they campaigned?

    Kevin M (73dcc9)

  31. JD beat me to it.

    Kevin M (73dcc9)

  32. Kevin – sure, but since what we have in this case is an honest disagreement about how to go about faithfully executing the law (I’m sure Kamala would say that she believes that Prop. 8 is unconstitutional), I don’t see where that gets you. :)

    aphrael (e0cdc9)

  33. aphrael – you’re not having a good day …

    If someone Republican campaigned openly on the platform of not enforcing drug laws and won, we could reasonably and plausibly say the voters had endorsed that position, in California.

    If someone Democrat campaigned openly on the platform of not enforcing drug laws and won (or even campaigned for smaller government and cutting taxes and spending and won), we cannot reasonably and plausibly say the voters had endorsed that position, in California.

    I know from conversations at work and with friends that most D-voters didn’t know the stand the candidates they supported were taking … most D-voters just *knew* they shouldn’t vote R … and that’s all that mattered to them …

    Alasdair (e7cb73)

  34. Wait, so you’re saying that whether or not we can interpret the voters as having endorsed the publically stated positions of the candidates we elect depends on the party of the candidate?

    That’s a really troubling proposition.

    aphrael (e0cdc9)

  35. Kamala can say that until she is blue in the face, but she is not a Judge nor the Court, and does not have the authority to make those decisions. The idea that she or Brown can make these political decisions on legal issues should be noxious.

    JD (ab60db)

  36. Ah, but they’re not making the decision to, say, not enforce the law. They’re just declining to appeal a case they’ve lost in court.

    There’s a difference between the two acts.

    aphrael (e0cdc9)

  37. That is a distinction without a difference when they chose to not defend the law in the underlying matter, no?

    JD (ab60db)

  38. I don’t think you can hold Brown’s refusal to defend the law in the district court against Harris; that was a decision she wasn’t involved in. (The city attorney of San Francisco intervened on the side of the opponents to Proposition 8, but the city attorney’s office is a different office than the DA and reports to the mayor rather than the DA … so, again, Harris wasn’t involved).

    This is a bizarre situation for me as I voted against Harris, so it feels strange to be defending her … but ISTM that she’s only responsible for her actions, and that not appealing a case (when she was elected after telling the voters she wasn’t going to appeal that case) is neither problematic nor objectionable.

    aphrael (e0cdc9)

  39. (Yes, it’s bizarre that San Francisco has a district attorney’s office and a city attorney’s office which have different responsibilities and aren’t responsible to each other. It’s a side-effect of San Francisco’s unique status under California law as a merged city-county.)

    aphrael (e0cdc9)

  40. How can you not hold Brown’s refusal against them collectively when she is just continuing his failure to defend the law of the State that he swore to uphold?

    JD (ab60db)

  41. Sorry, I don’t know how Patterico’s name wound up on that.

    [I do. You keep sock puppeting me, and the cookie remembered it. Would be how that happened. — P]

    JEA (7925d5)

  42. Something’s messed up. My question was what determines whether the whole 9th circuit hears a case versus just three of the judges.

    [Here is what is messed up: you keep sock puppeting me. — P]

    JEA (7925d5)

  43. JD: I don’t follow.

    Brown refused to defend the law in the trial court.

    That trial is over.

    Brown then refused to appeal the law.

    That’s ongoing.

    Harris is replacing Brown.

    Harris is refusing to appeal the law.

    How can I hold Harris responsible for not defending the law in the trial court? She didn’t make that decision. The opportunity to make that decision was completely gone by the time she came into office. Likely she would have made the same decision, if she’d been in that office … but she didn’t, and it wasn’t her responsibility.

    It’s not fair to blame her for actions she never had the opportunity to take or not take, just because I believe that she would have taken a particular position.

    I mean: I can’t hold John Boehner responsible for decisions Nancy Pelosi made as Speaker. Neither can I hold Kamala Harris responsible for decisions Jerry Brown made as AG.

    aphrael (e0cdc9)

  44. I did not make myself clear. She is instructed to uphold the law, no? I am saying that just because someone before her chose to ignore their vow, and abdicate their responsibility, does not simply give her clearance to continue down the same path, when she has acknowledged that she would have done the exact same damn thing.

    JD (ab60db)

  45. The fix was in. The California AG threw the fight. It made a mockery of the court (such as it was). Let’s see if the Court of Appeals defends the integrity of the courts.

    nk (db4a41)

  46. If I were on the 9th Circuit Court of Appeals this would be my order, without opinion: The decision of the District Court is vacated.

    Period. No remandment, no further action.

    nk (db4a41)

  47. aphrael — I don’t think Reinhardt can sit by and let someone else write this decision. While Hawkins is a likely vote to affirm, he’s not going to write the kind of sweeping opinion that Reinhardt is going to want to see his name attached to on such a historic issue — even if later reversed.

    I think he probably knows the panel decision won’t be the last word, but it might be his only chance to be the main voice on the topic. I don’t see him giving that away to Hawkins.

    shipwreckedcrew (4ae072)

  48. First of all, there is the almost-certainty that the Ninth Circuit will want to hear the case en banc.

    Currently, there is an issue of standing, and I do believe that at the very least, Imperial County’s standing would be recognized.

    In Bishop v. Oklahoma (a case challenging the constitutionality of Oklahoma’s Question 711 and the federal DOMA), the Tenth Circuit dismissed the Question 711 claim against the governor and attorney general, on the grounds that issuing marriage licenses “are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded
    by the district court clerks.”

    On remand, the Bishop plaintiffs refiled the Question 711 complaint, naming the state of Oklahoma and the Tulsa County District Court Clerk as defendants. (The Clerk had denied them a marriage license on the basis of their sex.) The state of Oklahoma moved to dismiss the Question 711 claim on Eleventh Amendment grounds. Interestingly enough, the Tulsa County Clerk joined the plaintiffs in opposing the motion to dismiss the claim against the state. Following the lead of the Tenth Circuit, the Bishop district court dismissed the Question 711 claim against the state of Oklahoma, leaving only the Tulsa County Clerk as the defendant in the Question 711 claim.

    In any event, Judge Reinhardt is unlikely to deny standing, given his history. He will probably grant Proponents standing on the basis of his earlier ruling in Yniguez v. Arizonans for Official English and citing that Strauss v. Horton established standing for proponents.

    The fact that the state isn’t appealing the district court decision and isn’t defending the law puts a hurdle in front of the case: the person who *is* appealing has to demonstrate that they have legal standing to appeal. They may be able to do that; they may not be able to do that.

    The procedural history of Bishop sheds light on the matter of Imperial County’s standing. Also see Richardson v. Ramirez.

    In any event, Bishop case will be decided by the district court on the merits by the time the Ninth Circuit issues a decision whether or not to hear Perry en banc. And the parties on both sides are almost certain to appeal an adverse decision. Bishop could go to the Supreme Court the same time Perry does, even if the Tenth Circuit had not decided Bishop on the merits.

    Michael Ejercito (249c90)

  49. why do the lieberals insist that criminals, even those who get caught red handed and/or confess, are entitled to full protection under the law and a vigorous defense, even if it means getting them off one the flimsiest of reasons, yet they can turn right around and not find any reason why the honest law abiding citizens should be entitled to the same level of vigor in defending the laws they voted into existence?

    because, deep down, at the core of their beings, they are disgustingly immoral scum and a burden on civilization. hell is too good for them.

    redc1c4 (fb8750)

  50. That was just a bit of hyperbole, right, red?

    JD (ab60db)

  51. well, i might have been a *bit* peeved when i typed it, but the basic premise rings true, imho.

    i’d like to see a rational justification for giving the ultimate defense to accused crooks (because they are entitled to it), yet on the other hand deny the same level of judicial advocacy to the average citizen in protecting the laws the citizens have chosen.

    that, after all IS what the AG, Governor, etc, are supposed to do. they are public servants, and if they can’t, in their mind, defend the law, then the only moral thing for them to do is resign in protest.

    to deliberately NOT enforce the law impartially, nor to fulfill their oath of office is an immoral and uncivilized act.

    redc1c4 (fb8750)

  52. Bad draw of judges?

    This isn’t a case of bad luck. This is a case of a system of government that is failing.

    This is a case of a people who no longer believe in the principles that formed their society.

    Amphipolis (b120ce)

  53. JD, kick me an email.

    SPQR (26be8b)

  54. From a policy perspective, I support treating gay couples exactly the same as straight couples in all ways. With that full disclosure, you are free to take it with a grain of salt of course that I also think the Equal Protection Clause of the US Constitution requires that, if the government is involved at all in sanctioning some couples as “married,” that process must be equally open to gay couples.

    Even under the rational basis test, I think the discrimination would fail. That is what has happened in some of the states that have considered the issue: The evidence just doesn’t bear out that the institution of straight marriage is threatened or that children suffer or any of the other perceived concerns that people use to justify the discrimination.

    But I think there is also sufficient precedent to argue either that the discrimination is on a suspect basis (gender: men can marry the only class of spouses who can bear children, but women cannot; etc) or that it infringes on a fundamental right to marry a single person of your choice. I could brief either argument non-frivolously. That would earn heightened scrutiny and not pass muster.

    Now, lest anyone get upset: Whether you or your church or the business that you own or your family choose to recognize gay couples as “married” is fully up to you. But government entities are subject to the EPC. If they want to grant this benefit of state-sanctioned “marriage” and all of its attendant benefits to some people, they at a minimum cannot discriminate on irrational basis and probably face heightened scrutiny.

    Sarah (c7f910)

  55. Sarah, your application of the rational basis test is nonsense unfortunately. You’ve created a burden of proving far more than the rational basis test requires.

    And your suspect class analysis involves misrepresenting the class. “Men” as a class are not prohibited from marrying by a ban on same-sex marriage.

    SPQR (26be8b)

  56. #14 redc1c4: You say that our elected officials should follow this law or be horsewhipped.

    Do you not like living in a Constitutional Republic?

    California voters are subject to the federal constitution. If they don’t like the Equal Protection Clause, they have to amend it. They can’t just ignore.

    Our courts and the concept of judicial review exist precisely as an intended constraint on the executive and legislative branches of government. Our courts in fact might be the most important check and balance of all three: they cannot pass laws that restrict our freedoms; they can only prevent the other two from doing so.

    I have never understood this antipathy towards what to me is so obviously the most benign branch of government. Isn’t the possibility that they might interpret the EPC more broadly than our founders intended a pepercorn of a concern compared with where we would be if they had no power of judicial review.

    Would you rather live in a pure democracy and do away with constitutions altogether? I think you might want to think that through a little longer …

    Sarah (c7f910)

  57. The most benign branch of government?

    Uh, are you damning with faint praise?

    SPQR (26be8b)

  58. Sarah

    > California voters are subject to the federal constitution. If they don’t like the Equal Protection Clause, they have to amend it. They can’t just ignore.

    Except that gay marriage IS NOT IN THE CONSTITUTION. And the framers of the 14th Amendment would be appalled to hear anyone thought it was.

    the framers of the EPC were evangelical christians. they did not believe in live and let live when it came to sexual morality.

    Aaron Worthing (e7d72e)

  59. SPQR – I do not have your email, so I sent an email through your contact page on your blog. THANKS !!!!!!

    JD (ab60db)

  60. SPQR – Yeah, yeah, I know it’s very vogue these days, particularly in conservative circles, to get worked up over judicial activism. I just don’t buy it.

    The Courts cannot make us do anything: they can only enforce what the other two branches make us do or they can constrain the other two branches.

    In fact, the Courts cannot make anyone recognize same-sex marriage. All they can do is say, if the other two branches for some reason want to get involved in it, they might be constrained by the Constitution in exactly how they implement that involvement.

    I’ve asked a lot of people who are worked up over judicial activism to explain how the courts can make us do anything or if they really want to do away with judicial review and the constitutional constraints on executive or legislative power. No one has said anything that changed my mind. Someone mentioned forced bussing to do away with school segretation. But, again, no one is making the other two branches get invovled in education. It’s only if they choose to do so that the Court can issue directives on how they do so.

    And no one — when pressed — really wants to get rid of judicial review or move to a pure democracy.

    As for the rational basis test, the test as I understand it is something to the effect that the law must advance a legitimate government interest. I’m not saying that these are the only legitimate government interests that could possibly be advanced by the law. I’m saying that these are *usually* the legitimate government interests used by those who are attempting to meet the test.

    Sarah (c7f910)

  61. # 58 Aaron – I agree that “gay marriage is not in the Constitution.” YOU DON’T EVEN HAVE TO PUT IT IN CAPS. 😉

    But what does that even mean? Neither is interracial marriage. Neither is divorce and remarriage. Marriage at all isn’t in the Constitution.

    I am saying that a court could reasonably reach the conclusion that the federal constitution, combined with the relevant precedents, constrains the other two branches from granting a benefit they call “marriage” in ways that discriminate against same-sex couples.

    I’m probably also willing to accept that, from the perspective of constitutional analysis, the opposite conclusion might also be “reasonable.” I’m less sure about that one, because it leaves a bad taste in my mouth given my admitted policy preferences.

    If marriage were left to purely private individuals, churches, organizations, etc, I would agree that the courts have no place in it.

    But when you have government entities placing the imprimature of approval on certain couples and then handing out a score of governmental goodies based on having achieved that approved status — then the Constitution and the courts come into play.

    Sarah (c7f910)

  62. In fact, the Courts cannot make anyone recognize same-sex marriage. All they can do is say, if the other two branches for some reason want to get involved in it, they might be constrained by the Constitution in exactly how they implement that involvement.

    Sarah, tell it to the people of Iowa. They might be amused now.

    SPQR (26be8b)

  63. JD, lord knows where that goes. email me at spqrzilla

    with a domain of

    SPQR (26be8b)

  64. the framers of the EPC were evangelical christians. they did not believe in live and let live when it came to sexual morality.

    What a ridiculously incorrect statement, on so many levels.

    First of all, there were far too many “framers” involved to make such a blanket statement that they were all “evangelical christians”. The EPC was the product of dozens of proposals, committee reviews in the Senate and House, etc.

    Secondly, to the extent that some of them might have been evangelical Christians, a strict constructionist would agree that that has no bearing on how we interpret the 14th. Words have meaning, and if the authors wanted the EPC to NOT apply in certain situations, they would have WRITTEN it in a much narrower fashion (and indeed, there were many proposals to do just that — proposals that were ultimately rejected in favor of what we have now as the 14th Amendment).

    Kman (d30fc3)

  65. if the authors wanted the EPC to NOT apply in certain situations, they would have WRITTEN it in a much narrower fashion

    Not at all true, Kman. The interpretations to which the equal protection clause has been subject to would never have occurred to those who wrote it in the late 19th century.

    SPQR (26be8b)

  66. Done, SPQR. Thanks.

    JD (ab60db)

  67. The interpretations to which the equal protection clause has been subject to would never have occurred to those who wrote it in the late 19th century.

    Right. But that’s the point (and genius/beauty) of the Constitution and its amendments. The document sets forth a framework of principles, each of which has an internal and consistent logic which stands the test of time…. but gets applied to new situations, technologies, and social constructs.

    In other words, the EPC applies to gay marriage for the same reason that the Second Amendment applies to handguns (or other “arms” not envisioned by the framers). In both cases, the PRINCIPLE laid down by the framers remains the same. But what the principle protects goes far beyond the limited provincial mindset of centuries past.

    Kman (d30fc3)

  68. Kman, while I agree with you that the document sets forth a framework of principles with internal and consistent logic – and while I think that the EPC has been interpreted too narrowly by the courts in general – I also think the courts are constrained by their existing strict/intermediate/rational basis scrutiny levels, unless the supreme court decides to abandon the entire line of precedent as ill-conceived.

    Which creates an interesting dynamic: within the rules of the existing scrutiny levels, how does discrimination on the basis of sexual orientation play out?

    It’s absurd to say that it gets strict scrutiny when gender discrimination doesn’t.

    So let’s say it gets intermediate scrutiny. Justice O’Connor expressed that as “narrowly tailored to meet a substantial government interest.” Does that apply?

    The claimed substantial government interest is in the stability of family life and the protection of children. I think it’s an absurd claim, but certainly at rational basis level the government is entitled to have its absurd claims taken at face value; i’m not sure to what degree that deference holds at intermediate scrutiny.

    Which is, I think, the real problem: the government clearly loses if you get strict scrutiny (as every court to have applied that level of scrutiny, in every jurisdiction within the US which has done so, has agreed). The government clearly wins if you get rational basis review.

    But at rational-basis-plus or intermediate scrutiny, it’s not clear, because it’s not clear (a) how much we should take the government’s claimed interest at face value, (b) how to balance the government’s interest against the discrimination.

    It’s easy to say that the entire tripartite scrutiny scheme is bunk, constructed out of thin air to try and tame an equal protection doctrine which would otherwise have been unmanageable – but the supreme court isn’t going to do that, and a lower court can’t.

    aphrael (fe2ce4)

  69. But at rational-basis-plus or intermediate scrutiny, it’s not clear, because it’s not clear (a) how much we should take the government’s claimed interest at face value, (b) how to balance the government’s interest against the discrimination.

    Well, you can’t take the government’s claimed interest “at face value”. It has a burden to show that there is a substantial government interest, or indeed, a government interest at all (depending on what test you use).

    Of course, at trial, the “government” wasn’t there to defend Prop 8, which tends to undermine the notion that it has an interest.

    Kman (d30fc3)

  70. #62 – SPQR – Reread what I wrote. Especially the part where I wrote “if the other two branches for some reason want to get involved in it, . . . ”

    If marriage were left purely to private individuals and institutions, the Courts in Iowa and everyone else could not force anyone to recognize gay marriage. I mean, no one is requiring states to perform or recognize marriages. It could be a purely private institution.

    But “if the other two branches for some reason want to get involved in it,” which Iowa’s did, then the Courts can require those two branches of government to act consistently with the EPC.

    They cannot make you personally or your church recognize the marriage as valid. They can only require the government to act non-discriminatorily.

    Why do you even care? In your personal life and your church and family and social circle, marriage can be defined however you want it to be. Why do you need the government to sanction your definition?

    Sarah (c7f910)

  71. Sarah, I did read what you wrote and I find your pretend position that Iowa could abandon all regulation of marriage to avoid sanctioning same-sex marriage to be a bizarre bit of sophistry at best.

    As for why I care, why do you put words in my mouth?

    SPQR (26be8b)

  72. SPQR – I don’t know why you think it’s a “pretend position.” I prefer a limited government with much less involvement in our personal lives. That’s the “real position” of most libertarians I know. It’s also the “real” position of many Christians I know, who want the government out of marriage precisely because they don’t want it co-opted by a secular institution.

    But I still think you are missing the point a little. For me, personally, this is about more than gay marriage. It’s about what I view as dangerous and ill-conceived animosity to the courts. I stand by my position that the Courts can’t make you do anything – they can only enforce what the other two branches are doing or constrain what they are doing. The courts in Iowa did not mandate anyone to recognize same-sex marriage, they just required the other branches to administer their marriage program in a neutral way.

    Even if I didn’t personally like gay marriage, I would still prefer that than doing anything to limit this check on the other two branches.

    Sarah (c7f910)

  73. Kman: but for rational basis review, we take government claims of a legitimate government interest at face value and put the burden on the opponent to prove the absence of such.

    Also, for voter-initiated propositions, “who is the government” is an interesting question.


    SPQR, to be fair, the “the government should get out of the marriage business” has also been put forward by opponents of gay marriage as a way to resolve the difficulty caused by (a) religious opposition to sanctioning of same-sex unions and (b) court decisions which say that equal protection requires that same-sex unions be recognized by the states.

    aphrael (9802d6)

  74. Right. But that’s the point (and genius/beauty) of the Constitution and its amendments. The document sets forth a framework of principles, each of which has an internal and consistent logic which stands the test of time…. but gets applied to new situations, technologies, and social constructs.

    And yet, the U.S. Supreme Court rejected, on the merits, the appeal in Baker v. Nelson.

    Of course, at trial, the “government” wasn’t there to defend Prop 8, which tends to undermine the notion that it has an interest.

    Only because a government (Impertial
    County) was denied intervention.

    I also mentioned the Bishop case, where the Question 711 claims against the governor and attorney general were dismissed by the Tenth Circuit. The case will be decided on the merits with only a county clerk defending. Should the fact that the governor and attorney general are not defending the merits of Oklahoma’s Question 711 dispositive of the claim that the government does not have an interest in Question 711.

    Michael Ejercito (249c90)

  75. Kman

    as usual, you misstate the law. Read the proponent’s briefs and get an education on what is really required under rational basis review.

    If i didn’t think you were just being dishonest, i would question your competence as a lawyer.

    Aaron Worthing (b8e056)

  76. There are still issues about the proper scope of the injunction in Perry. A district court, in a suit that is not a class action, can only have jurisdiction over the rights and duties of the parties in the suit. It can not, for example, determine the rights or duties of persons not before the court, such as same-sex couples other than the plaintiffs or state and local government officials other than the defendants. Under Ex Parte Young, the state of California itself is not a party to the suit, and thus can not be directly enjoined. Only the named officials in the suit can be so enjoined.

    And the Ninth Circuit had, in fact, overruled, in part, an injunction that exceeded the district court’s jurisdiction. In Meinhold v. United States Department of Defense, the Ninth Circuit, while ruling that, under the law at the time, military personnel can not be discharged on the basis of sexual orientation (this is distinguishable for discharges on the basis of sexual conduct), it overruled the portion of the district court injunction enjoining the Navy from discharging anyone except the named plaintiffs on the basis of sexual orientation. (Although, to be sure, as a practical matter, Meinhold was a decision on the merits, and would control any similar suit brought by similarly-situated plaintiffs in the Ninth Circuit.)

    Under the doctrine reiterated in Meinhold, the district court injunction can only enjoin the named Perry defendants’ acts towards the named Perry plaintiffs. The named defendants can still deny marriage licenses to other same-sex couples, other county clerks, (like the clerks for Orange, Kern, San Diego, or Imperial Counties) can still deny marriage licenses to same-sex couples, including the plaintiffs, other state agencies not reporting to the governor or attorney general (like the Department of Insurance) can continue to follow Proposition 8, even in acts involving the plaintiffs, an of course, state judges can continue to recognize Proposition 8 as valid law.

    Of course, this is moot if standing for the proponents or Imperial County is ultimately found. (Of course, Reinhardt is a sure bet for voting for proponents’ standing, see his ruling in Yniguez v. Arizonans for Official English.)

    Michael Ejercito (249c90)

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