Tuesday, February 07, 2012

9th Circuit Finds Prop 8 Unconstitutional

You can download the decision here (PDF). There's a lot to chew on, but the decision appears to be limited. It doesn't say that there's a constitutionally protected right to marry under the Due Process or Equal Protection Clauses, but rather, that eliminating an existing substantive right for a particular class of people is unacceptable.

I'm not a huge fan of judicial minimalism, but this decision seems crafted for Anthony Kennedy in light of his opinion in Romer v. Evans.

Thoughts?

12 Comments:

Anonymous Anonymous said...

I found this commentary fairly persuasive:

http://balkin.blogspot.com/2012/02/marriage-and-ninth-circuit-thumbs-down.html

2/07/2012 11:25 PM  
Blogger Laura said...

Good link anon! I came on here to say pretty much the same thing.

Does anyone actually think the grounds of this opinion are sound? (Not the result mind you, I have absolutely no problem with the result). It just seems like such an obvious judicial sleight of hand. Maybe that's where Reinhardt had to go to get the second vote he needed. But I don't think this is an opinion that should be celebrated (again, distinguish opinion from result).

2/08/2012 6:37 PM  
Anonymous Anonymous said...

it seems so "this is exquisitely cleverly designed to appeal to AK or to box him in." the trial court opinion was the same way. what do i know, but i'd guess that AK would resent that and find a way to disagree while preserving his ability to cast the deciding vote on the side of history at some later point.

and it can't help that Reinhardt has no credibility for integrity with anyone on the left or right. he's universally viewed as a guy who just does whatever he wants.

2/08/2012 9:57 PM  
Anonymous Anonymous said...

Not quite universally: http://balkin.blogspot.com/2012/02/understanding-perry-v-brown.html

2/09/2012 9:14 AM  
Anonymous Anonymous said...

with respect, that post said nothing about Reinhardt's integrity as a judge.

2/09/2012 4:07 PM  
Blogger Toney said...

"with respect..."

This is N&B; there is no place for antics like these.

2/09/2012 5:19 PM  
Anonymous Anonymous said...

No post about the Gun Club leaving business cards in "random" lockers?

2/09/2012 6:58 PM  
Anonymous Anonymous said...

Totally support this ruling, but everyone better join me in letting the gov allow me to have two wives rather than one.

2/09/2012 7:26 PM  
Anonymous Anonymous said...

Spoken like a man who has never been married.

2/09/2012 7:38 PM  
Anonymous Anonymous said...

Hey, Mr. or Ms. "with respect," the Lederman post at Balkinization is a counter-example to your notion that Reinhardt is "universally viewed as a guy who just does whatever he wants." Throughout, Reinhardt is depicted as explaining, evaluating, analyzing, providing rationales, providing sound reasoning... That's the antithesis of being arbitrary, and it pretty well covers what we expect from a respectable judicial opinion. Lederman plainly doesn't think Reinhardt "just does whatever he wants."

2/10/2012 9:36 AM  
Anonymous Anonymous said...

"with respect" here.

lederman's way too smart for that, which is why lederman never overtly takes a position on reinhardt's integrity. reinhardt does what he wants and then looks for law that might help his outcome. then he hope that SCOTUS can't catch'em all.

but you can prove me wrong yourself. just take the position that reinhardt feels bound by the law and can't and doesn't do what he wants. at that point, i'll have to say that everyone except one person takes the position that reinhardt does what he wants. and when i say that, i'm referring to people all away across the spectrum from far left to far right.

2/10/2012 3:59 PM  
Anonymous Anonymous said...

Straw men are so fun.

2/12/2012 1:45 PM  

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