Orin Kerr, Professor of Law at George Washington University writes at the legal expert blog Volokh Conspiracy:
...I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don’t really matter very much. First, I think it’s unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they’re the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker’s extensive factual findings: He basically ignored them.
Second, to the extent the reasoning of the lower court decisions matter — which, as I said, I tend to doubt — the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren’t dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring. It creates a sort of patina of unreliability. I think a more clever strategy would have been to be more subtle: Create more of a sense of the opinions as routine legal opinions and less as advocacy briefs. And if you’re Reinhardt, make the opinion “per curiam” so it doesn’t come to the Court with your name on it.
16 Comments
I think Anthony Kennedy will uphold prop 8. I say this because he said that the Lawrence v Texas ruling would not lead to such societal change. Of course he was wrong, but I think he will vote with the conservative judges on this one.
I wouldn't be surprised to see Justice Scalia supporting equal legal rights for gays and lesbians. After all, in Lawrence, he said that if you can't outlaw gay sex, there's not much reason to outlaw gay marriage.
Let us hope you are right Zack. Kagan also claimed that their is no judicial right to same sex marriage. Now she will be put to the test.
John, Kagan said, “There is no federal constitutional right to same-sex marriage.”
But there is a constitutional right to marriage and it's unconstitutional to deny same-sex couples to access it. Semantics!
@Ken Cauld
No there is not a constitutional right to marriage. It is a privilege that society bestows upon a couple. The fact that government regulates is irrelevant.
According to SCOTUS, in Bakke, groups have no Rights. Only a person has Rights.
A couple is a "group." Nothing in the Constitution refers to groups as having Rights, except "the People."
The law that defines "marriage" as the union of a man and a woman includes ALL men and ALL women. NOBODY is left out.
Those who claim to be homosexual already may marry for whatever reason they wish. That opportunity is available to EVERYBODY.
I think gays and lesbians should have the same legal rights as straight people, such as the right to marry the person you love.
james2,
A little heads up for you; there has never been an expressed right to "marry the person you love."
Personally; I could give a rats rear who, or what you may love. Love is fickle; the laws of nature and natures God are not.
They already do: They have the same opportinity I have. No more. No less.
The fact is that Rights is not based on sexuality, or, in the case of homosexuality, the choice to go homo. It's based on personhood, no matter what the claim.
So, since those who claim to be homo are either men/males, or women/females, they are persons who are already included in the law that defines "marriage" as the union of a man and a woman.
"According to SCOTUS, in Bakke, groups have no Rights. Only a person has Rights."
Ummm, not really. And you forget that gays are individuals.
As the ruling said, proponents of Prop 8 had no rational reason:
Responsible Procreation - Prop 8 did nothing to secure this. Homosexuals can still procreate (yes we can) and adopt children.
Religious Liberty - Prop 8 did nothing to secure this. Existing anti-discrimination laws prevent this.
Protect Children - The law does not prevent schools from teaching about homosexuality.
"Homosexuals" cannot procreate within constructs of their partnerships. surrogacy is nothing more than an end run around poligamy laws.
This is where we diverge: 'Homosexuals can still procreate'. Nothing further from reality: That homosexuals, as a separate species exist. And that they can procreate (engender children between the pair). If they could procreate, there wouldn't be a marriage or civil union issue.
What is the difference between a right and a privilege when it comes to equality - are you asserting that only some may have privileges and others not? A drivers license in California is a privilege and not a right does that mean that those who qualify with the underlying right are not entitled to the privilege. ??? This is America for goodness sake - a couple IS a couple!!! regardless of gender - two people in love is two people in love!
What is the difference between a right and a privilege when it comes to equality - are you asserting that only some may have privileges and others not?
(1) The big difference is that although we have equal rights equality does not apply to priviledeges. Both a drivers license and a marriage license are priviledges and not rights. Notice how blind people cannot get a drivers license even though they are supposed to have equal rights to people who see.
So yes we are asserting that only some may have priviledges and others not. Only those who pass the teachers examination qualify for the priviiledge of a license while those who failed did not.
The marriage license contains benefits not available to people who are single. Although the law claims that singles and married people have equal rights, singles and married people are unequal in regards to the marriage license. Singles do not get the benefits that married people do.
THIS IS AFTER ALL AMERICA FOR GOODNESS SAKE.
6-3, Kagan and Kennedy with the majority:
Walker overturned in a blistering decision slapping down once and for all the San Francisco Conspiracy to substitute the judicial social engineering of Vaughn Walker for the expressed will of the People of California.
Of course, resounding victories in MN and NC won't hurt