Big Day From The Ninth Circuit

Constitutional law geeks like me, especially here in the Ninth Circuit, had a big day today. First, the Ninth Circuit gave a clear, if judiciously-worded, opinion — when the government posts big crosses, for whatever reason, that conveys a message that the government endorses Christianity. That’s the case when it is a war memorial and that’s the case when it’s a memorial to fallen police officers. Granted that the reasons for posting the crosses are probably noble and have universal appeal, but that doesn’t excuse the fact that it’s an explicitly religious symbol being used.

Would that the message were clearer to certain members of the Supreme Court, who think that sometimes a cross can be divorced in meaning from its inherently religious symbolism. Then again, at least one of those same members of the Court thinks that the Equal Protection Clause does not apply to women, despite the plain wording of the clause.

My guess is that between the Utah cross case and the San Diego cross case, the Supremes will have an opportunity to consider this issue again, soon. The real question is what will happen to the endorsement test that five Justices followed in Santa Fe Independent School District v. Doe. Which is good for us Court-watchers, because it looks like we won’t have a ripe Prop. 8 case (which will have to be re-styled Perry v. Brown) after the Ninth Circuit certified the question of the Prop. 8 proponents’ standing to the California Supreme Court, which will delay the panel’s decision by six months or more. That means that it’s possible Perry v. Brown won’t find its way to the Supreme Court’s docket until 2013.

Of particular interest in that case is Judge Reinhardt’s concurring opinion, in which he goes out of his way to chastise nearly everyone in sight — starting (impliedly) with the Supreme Court of the United States for creating a murky, hyper-technical jurisprudence of Article III standing, moving on to the plaintiff’s lawyers for not naming every county clerk in California as a defendant, then hitting former Governor Schwarzenegger and former Attorney General Brown for not defending Prop. 8 as was their Constitutional duty, and finishing with the intervenors’ attorneys for finding the wrong public official to serve as their party representative instead of finding a number of such officials with a variety of standing claims. In other words, any one of these groups could have enabled the Court to get right in to the meat of the issue, but mysteriously no one did and as a result the ruling, and its eventual transmission up the chain to the Supreme Court, will wind up being delayed if not foreclosed. Reinhardt hints rather strongly that he thinks the proponents do have standing to defend Prop. 8, a conclusion with which I, for one, agree, but again, they’ll wait for the California Supreme Court to offer that guidance.

Also of profound amusement in that case is Judge Reinhardt’s full explanation for why he did not recuse himself from the case despite the fact that his wife is the executive director of the ACLU of Southern California — it turns out that her duties as a lawyer and his duties as a judge require them to make independent decisions regardless of what the other is doing professionally and since they are both independent human beings, they are capable of deciding things for themselves. I read this out loud to The Wife, who gave the most emphatic approval I’ve ever heard her give to any legal opinion I’ve tried to discuss with her.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.