NOM BLOG

Ed Whelan on 9th Circuit Decision: "Clear Path to the Supreme Court"

 

NRO's Legal expert Ed Whelan on today's 9th Circuit decision:

As I expected, a divided panel of the Ninth Circuit has affirmed former judge Vaughn Walker’s outlandish ruling that California’s Proposition 8 violates the federal Constitution. Arch-liberals Judge Stephen Reinhardt and Judge Michael Hawkins were in the majority, with Hawkins joining Reinhardt’s opinion. Judge Randy Smith dissented.

From a quick skim of the introduction, I see that the majority opinion purports to be narrow. It doesn’t opine on the general question “[w]hether under the Constitution same-sex couples may ever be denied the right to marry.” [Emphasis in original.] Instead, it maintains that the particular context in California—in which same-sex couples under California’s domestic-partnership law had all the rights of opposite-sex couples and in which Proposition 8 restored the definition of marriage that the state supreme court had invalidated—means that there was no “legitimate reason” for Proposition 8.

In the grand scheme of things, there is nothing enduringly significant about today’s ruling. The Ninth Circuit was just a way-station on the path to the Supreme Court, and the composition of the Ninth Circuit panel meant that there was no prospect for a reversal of Walker’s ruling. What would have been most troubling would have been a ruling that Prop 8 proponents didn’t have standing on appeal, as that might have complicated the prospects for Supreme Court review. But the case now has a seemingly clear path to the Supreme Court.

31 Comments

  1. Rich
    Posted February 7, 2012 at 2:55 pm | Permalink

    Walker's "outlandish" ruling is affirmed as Constitutionally correct. Get over it.

  2. Zack
    Posted February 7, 2012 at 3:32 pm | Permalink

    @rich

    The same thing happened with roe v wade. The supreme court will hear this case. Now how the court will decide is a different matter.

    So dont dismiss it. You sound foolish.

  3. anonygrl
    Posted February 7, 2012 at 3:36 pm | Permalink

    Interesting how you all argued about how wrong Judge Walker's ruling was, and how sure you were that the 9th would overturn it, yet now this ruling was "expected."

    It was expected because it was correct.

  4. Louis E.
    Posted February 7, 2012 at 3:37 pm | Permalink

    No,it was expected because the judges involved had a history of misunderstanding the real issues.

  5. David Madsen
    Posted February 7, 2012 at 3:41 pm | Permalink

    Prop 8 doesn't discriminate. With it, anyone- ANYONE- has the right to marry someone of the opposite sex. No one is excluded. Homosexuals have the same right to marry someone of the opposite sex that heterosexuals do. Heterosexuals have the same restrictions on marriage that homosexuals do. That is equality. Government recognition of same-sex marriage is creating a new right specifically for homosexuals. This is not equality.

  6. Ash
    Posted February 7, 2012 at 3:51 pm | Permalink

    Anonygrl: "Interesting how you all argued about how wrong Judge Walker's ruling was, and how sure you were that the 9th would overturn it, yet now this ruling was 'expected.'"

    You must not be referring to Brian Brown and the rest of the NOM staff who wrote on November 17, 2011:

    "We fully expect the Ninth Circuit, the most overturned court in America, to invalidate Prop 8, finding some phony right to same-sex marriage in the US constitution. However, once this case gets out of San Francisco and reaches the US Supreme Court, we fully expect to be victorious."

    http://www.nomblog.com/15806/

    Oh yes, today's ruing was "expected," and we expect a better ruling from the SCOTUS.

  7. Hello again
    Posted February 7, 2012 at 3:57 pm | Permalink

    Marriage 'equality' is not possible.

    In one the child can see biological traits of himself in both his parents.
    In the other he can not.

    A natural and instinctive desire to stay together because of the biological connection can exist.
    In the other it can not.

    In one the child can know that he is physically unique to his parents.
    In the other he can not.

    In one the child can know that his parents are physically unique to him.
    In the other he can not.

    In one the child can know that his body and life came from the union of his two parents.
    In the other he can not.

    In one the symbol of this reproductive union of humankind can be represented (man, woman) to adopted children; and to children observing a marriage.
    In the other it can not.

    These above things are also part of a definition of marriage.
    Marriage cannot be equal between any two people; that is just a fact.
    One word for all, is not equality for all. It will be the creation of inequality.

    You can take all the religion and religious teachings and throw them out the window.
    You can take god or the gods and throw them out the window.
    You can take personal beliefs and do what you want with them.
    But the above does not change.
    And any and all arguments and faiths, and religions, and beliefs that can be used to safeguard and protect such a basic fundamental truth , are valid. As is human desire and need for one unique word to define the man and woman union as hitherto has been done with the one of 'marriage'.

    For a society not to allow words to distinguish a difference on this subject which revolves around the very existence of human life is to suppress, oppress and to be dishonest to its people, (for manipulative and marketing interests and to allow 'revenge' for 'revenge' sake).

  8. Posted February 7, 2012 at 4:01 pm | Permalink

    Here are my comments.

    The Court avoided addressing "the question of the constitutionality of a state's ban on same-sex marriage", but instead whether the state "may strip a group" of a benefit "they previously enjoyed on terms on equality with all others in the state"

    This ruling will have a direct effect on the Hawaii marriage lawsuit. There, the plaintiffs are challenging Hawaii's marriage amendment. In Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (Haw. Sup. Ct. 1993), the Hawaii Supreme Court held that the state marriage law was subject to strict scrutiny. Thus, when the state's constitution was amended, it stripped same-sex couples, but not others, of strict scrutiny protections under the Hawaii Constitution. Unless and until this ruling is reversed or vacated, the judge in the Hawaii case must find in favor of the plaintiffs if they themselves had those strict scrutiny protections back then.

    Here is the key. The "group...stripped of the benefit" were same-sex couples who could have "married" the morning of the election. But not all persons today could have "married" someone of the same sex the morning of the election, either because they were too young, or did not meet residency requirements. Thus, Proposition 8 did not strip them of any benefits, because they never had such benefits in the first place.

    Applying this to the Hawaii case, if the plaintiff couple would have had strict scrutiny protections if they had sued for a marriage license to "marry" someone of the same sex the morning of the election,then this ruling mandates judgment in their favor. If they did not, on the basis that they could not have married on other grounds for some reason, then the ruling does not apply to their case.

    But in trying to avoid a conflict with Baker v. Nelson, 409 U.S. 810, 34 L.E.2d 65, 93 s. Ct. 37 (1972), the Court ran afoul of another Supreme Court case, Crawford v. Los Angeles Board of Education, 458 U.S. 527 (1982). In Crawford, the Supreme Court, in upholding a law, rejected "the contention that, once a State chooses to do "more" than the Fourteenth Amendment requires, it may never recede....this interpretation has no support in the decisions of this Court" id. at 535. Thus, it is irrelevant for equal protection analysis if same-sex couples once had the right to the state status of marriage. If extending the status to same-sex couples is "more" than the Fourteenth Amendment requires, then "reced[ing]" is not prohibited by the amendment. Only if the extension of the status of "marriage" to same-sex couples, if extended to opposite-sex couples, were required, could the withdrawal of "marriage" from same-sex couples, but not opposite-sex couples, be forbidden.

    Under Crawford , the question of whether the state "may strip a group" of a benefit "they previously enjoyed on terms on equality with all others in the state" depends on the answer to "the question of the constitutionality of a state's ban on same-sex marriage"

  9. james2
    Posted February 7, 2012 at 6:03 pm | Permalink

    Michael, you're forgetting that there has to be a VALID, PUBLIC PURPOSE in stripping rights. There is none here. There is no rational purpose in giving gay and straight relationships legal rights and protections, but calling them by different names.

    As the court noted, as in Colorado earlier, this was merely an attempt for a homophobic group of straight people to exercise their personal sense of superiority over gay people.

  10. WeTheSheeple
    Posted February 7, 2012 at 6:24 pm | Permalink

    The California Supreme Court ruled same-sex couple had the right to marry under the California constitution. It was THAT right which Prop 8 unconstitutionally took away.

    I can't wait to see the anti-gays cry when the SCOTUS refuses to hear this case!!

  11. Louis E.
    Posted February 8, 2012 at 12:13 am | Permalink

    James2,
    I agree that there is no valid public purpose to give homosexual relationships legal rights and protections that should be reserved exclusively for heterosexual ones.But remember,the superiority is of relationships and not of people.

  12. Zack
    Posted February 8, 2012 at 12:19 am | Permalink

    @WeTheSheeple

    That was dealing with the state constitution. But how quickly you forget that when prop 8 was brought before the California Supreme court back in 2009, it was upheld as a legitimately ratified constitution approved by the voters.

    No rights were taken away.

  13. Rick DeLano
    Posted February 8, 2012 at 3:22 am | Permalink

    The big news here is the finding of standing.

    All the rest is drearily predictable nonsense.

    SCOTUS here we come!

    OK, I have 6-3 to reverse Walker.

    Anybody else?

  14. Posted February 8, 2012 at 12:27 pm | Permalink

    Michael, you're forgetting that there has to be a VALID, PUBLIC PURPOSE in stripping rights.

    In order to do so, one must determine if there is a VALID, PUBLIC PURPOSE in refusing to extend the right in the first place.

  15. Louis E.
    Posted February 8, 2012 at 1:06 pm | Permalink

    Rick DeLano,on the PBS Newshour last night,David Boies was predicting at least 6-3 on the SCOTUS would uphold Reinhardt and Walker,John Eastman disagreed.I hope Prop 8 is upheld,but who are your 6?

  16. John Noe
    Posted February 8, 2012 at 6:27 pm | Permalink

    Hello Again in post #7 that was brillant. The best shoot down to the phony marriage equallity argument. As you pointed out SSM is inequallity in the homosexuals favor.

  17. The.Truth
    Posted February 10, 2012 at 3:35 pm | Permalink

    David Madsen, How is same gender marriage equality a special right for homosexuals? That would only be the case if heterosexuals were unable to avail themselves of same gender marriage, which of course is not the case. As you like to point out gay people can just as freely marry someone of the opposite gender a straight people.

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  18. The.Truth
    Posted February 10, 2012 at 3:36 pm | Permalink

    David, How is same gender marriage equality a special right for homosexuals? That would only be the case if heterosexuals were unable to avail themselves of same gender marriage, which of course is not the case. As you like to point out gay people can just as freely marry someone of the opposite gender as straight people.

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  19. The.Truth
    Posted February 10, 2012 at 3:39 pm | Permalink

    David, How is same gender marriage equality a special right for gay people? That would only be the case if straight people were unable to avail themselves of same gender marriage, which of course is not the case. As you like to point out gay people can just as freely marry someone of the opposite gender as straight people.

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  20. The.Truth
    Posted February 10, 2012 at 3:40 pm | Permalink

    David, How is same gender marriage equality a special right for gay people? That would only be the case if straight people were unable to participate in same gender marriage, which of course is not the case. As you like to point out gay people can just as freely marry someone of the opposite gender as straight people.

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  21. The.Truth
    Posted February 10, 2012 at 3:40 pm | Permalink

    Hello. Is this thing on?

  22. The.Truth
    Posted February 10, 2012 at 3:43 pm | Permalink

    David, How is same gender marriage equality a special right for gay people? That would only be the case if straight people were unable to participate in same gender marriage, which of course is not the case. As you like to point out gay people can just as freely marry someone of the opposite gender as straight people.

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you utilize it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  23. The.Truth
    Posted February 10, 2012 at 3:43 pm | Permalink

    David, How is same gender marriage equality a special right for gay people? That would only be the case if straight people were unable to participate in same gender marriage, which of course is not the case. As you like to point out gay people can just as freely marry someone of the opposite gender as straight people.

  24. The.Truth
    Posted February 10, 2012 at 3:45 pm | Permalink

    (cont.)

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  25. The.Truth
    Posted February 10, 2012 at 3:47 pm | Permalink

    (cont.)

    Ah! But you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  26. The.Truth
    Posted February 10, 2012 at 3:47 pm | Permalink

    (cont.)

    But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  27. The.Truth
    Posted February 10, 2012 at 3:48 pm | Permalink

    (cont.)

    Ah! But of course you don't want to marry someone of the same gender, so why would you take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  28. The.Truth
    Posted February 10, 2012 at 3:49 pm | Permalink

    (cont.)

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it? Perhaps now you can see why it is unequal to say that someone who is gay can marry someone of the opposite gender.

  29. The.Truth
    Posted February 10, 2012 at 3:50 pm | Permalink

    (cont.)

    Ah! But of course you don't want to marry someone of the same gender, so how or why would you take advantage of it?

  30. The.Truth
    Posted February 10, 2012 at 3:53 pm | Permalink

    (cont.)

    Ah! But of course straight people don't want to marry someone of the same gender, so how or why would they take advantage of it? Perhaps now you can see why it is not equal to say that someone who is gay can marry someone of the opposite gender.

  31. The.Truth
    Posted February 10, 2012 at 3:57 pm | Permalink

    Louis, the 6 who will up hold the ninth circuit ruling are the 4 liberal justices plus Kennedy and Roberts.

    Worst case scenario is that they lose Roberts, but that is unlikely.