Prop 8 Headed To U.S. Supreme Court?

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Now that the U.S. Court of Appeals for the Ninth Circuit has declined to conduct an en banc review of its earlier ruling invalidating California’s Prop. 8 — technically Perry v. Brown — the presumed next step is for the U.S. Supreme Court to take up the case.  I am not so sure that will happen?

For those unfamiliar with the Federal process, let me explain.  In February, 2012 a three judge panel from the United State Court of Appeal for the Ninth Circuit issued an opinion that declared California’s Proposition 8 ban on same sex marriages unconstitutional.  The next step under Federal procedure was to ask all 29 judges of the 9th Circuit whether they wanted to review the decision of their three colleagues.  In order for the review to happen a majority of the judges must have voted yes.  That did not happen, thus no review.  The decision in Perry v. Brown is still good law.  The next possible step is for the U.S. Supreme Court to review the opinion issued in February.

Will the Supreme Court take up the case?  I have my doubts.  This is a politically driven Court, and Prop. 8 is an impassioned political case.  I believe the conservative block of the court (Roberts, Scalia, Thomas, and Alito) are melting their own shorts with a burning desire to forever wipe out the legal possibility of same sex marriage.  I also believe that the less conservative bloc (Ginsburg, Breyer, Sotomayor, and Kagan) are of the collective mindset that the change is inevitable, and will vote accordingly.  That folks is a 4-4 tie on the issue.  That puts Justice Kennedy into play.  The stark conservatives will need Justice Kennedy as their swing vote in order to prevail.  For Justice Kennedy to join the majority in such a controversial case, he is going to have to be darn sure that the opinion will be timeless, and that there will be no possibility for injury to the reputation that he so obsessively tries to grow for himself.

That gets us to the February decision.  In my opinion that decision was very limited in scope, and shrewdly crafted an outcome that does not have direct effect as precedent beyond the borders of California.  That opinion was written by Appellate Court Justice Reinhardt.  He is known as a gushing liberal.  He is also acknowledged as a brilliant legal mind.  He was aware of the Supreme Court scrutiny that would eventually be given to his opinion.  That is why he wrote on a straight set of iron tracks, rather than winding along on a wide, wavering path.  I suspect that as he was writing, he was doing so intent on not creating an opinion that invited Supreme Court review.  For Reinhardt a win in California for same sex marriage is better than a permanent nationwide loss.  The outcome of Perry is controversial because of the subject matter.  The legal reasoning of the opinion itself is not as adventurous.  Perry is not the home run case that the conservatives require to craft their timeless decision.  There are too many chinks in the armor that current and future liberal justices could chip away at.  Perry won’t bring Kennedy on board, and it won’t discourage future attack.

I would not be surprised if the Supreme Court punts on Perry (which means the February opinion would stand as law in California) and waits for a better case to press their pencils on.  We shall see . . .

John Harding

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

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