Initial Thoughts on 9th Circuit Prop. 8 Decision

I have now had a chance to read through the lengthy ruling and dissent in the Proposition 8 litigation at the Ninth Circuit.  Although I tweeted some initial reactions, I thought it useful to summarize my thoughts here.

1. Romer, Romer, Romer. Judge Reinhardt wrote his opinion for an audience of one: Justice Kennedy.  This opinion is considerably narrower than Judge Walker’s opinion in the district court, and it relies very heavily on Romer v. Evans, an earlier gay rights case in which Justice Kennedy wrote the majority opinion.  Notably, Judge Reinhardt does not hold there is a right to same sex marriage, only that CA had no rational reason to take away the label of marriage for use by gay and lesbian couples after the state had had already given it.  By crafting the argument in this way, and making the case that the only reason for passing Prop. 8 was anti-gay animus, Judge Reinhardt has given Justice Kennedy a way to decide the case without embracing a major holding recognizing a right to same sex marriage generally.  And just like Romer would have paved a way for an affirmance here, a decision from Justice Kennedy along these lines would make it more likely that when the Supreme Court ultimately does face the same sex marriage question, it could rely on Romer and this case in recognizing such a right.

2. The smart dissent.  Just as Judge Reinhardt was smart and savvy in writing his analysis striking down Prop. 8 on the narrowest grounds possible, Judge Smith’s dissent is similarly crafted to be appealing to a swing Justice. Rather than a full-throated defense of traditional marriage (a la Justice Scalia), Judge Smith hangs his hat on two fundamental, almost procedural points: first, that the 9th Circuit is bound by an earlier summary affirmance of the Supreme Court in the Baker case [UPDATE: As a reader pointed out to me–on this point I am mistaken.  Judge Smith distinguished Baker on page 8 of his dissent]; and second, that rational basis review is exceedingly deferential.  On this second argument, Judge Smith says that even if the people of California were ‘erroneous’ in believing that Prop. 8 could further procreation and optimal parenting goals, and even if there was some bias in making that determination, under the exceedingly deferential “rational basis” review standard, the law should stand.  While the majority opinion is meant to appeal to the anti-animus Kennedy, the dissent is meant to appeal to the judicial restraint Kennedy.  My guess is that the majority would be more persuasive to Justice Kennedy, but that’s by no means certain.

3. En banc, or straight to the Supreme Court? When I predicted the 2-1 decision striking down Prop. 8, I said that the important strategic question facing the Prop. 8 supporters is whether to seek an 11-judge “en banc” review in the Ninth Circuit or to go straight to SCOTUS.  I expect that the Prop. 8 supporters will go straight to SCOTUS.  There are a fair number of conservative judges on the Ninth Circuit, despite its reputation, so it is possible that there could be a conservative-leaning panel of en banc 9th Circuit judges coming from a random draw. But that’s by no means certain.  Going en banc could drag this out for another year or more, and time is against same sex marriage opponents.  The longer time goes on, the more public and judicial opinion seems to shift in favor of same sex marriage.  Waiting another year does not make sense.  And besides, I think Prop. 8 supporters would rather get the issue before the Supreme Court than avoid Supreme Court review.  Even if they lose, it moves the same sex marriage issue onto the front burner now, creating a cultural controversy just as the presidential election season kicks off.

4. Super PACs. Super PACs?  A great timing (and I would guess not coincidental) for the Obama flip-flop on Super PACs.

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