At 9:53 a.m., I received electronic notice of the posting of the opinion in Perry v. Brown, and noticed that the Ninth Circuit’s website with links to the opinion crashed every time I tried to get at the opinion. Some high demand for this case. The result was obvious enough: the entry reads “(2/7/12) Perry v. Brown, Nos. 10-16696, 11-16577 (opinion regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgment in the case) – 128 pages,” which means that the result is affirmation of the lower court opinion — Proposition 8, banning same-sex marriages, has been held to violate the Fourteenth Amendment to the U.S. Constitution (again).
I must disagree with an earlier commenter, though; this fight is not over yet and won’t be over until there has been some action by the U.S. Supreme Court. So while it’s frustrating not being able to read the opinion, or its 3-page summary, at least there’s no suspense as to the outcome. I know I’m not helping by posting the links. So I’ll try to get at the opinion again later today; I’ve too much work to do now to dig in to the opinion anyway and I can content myself that the good guys have won again.
EDIT: The Fish Wrapper has the whole opinion available on a more robust server than the Court.
Now we get to find out what Tony Kennedy thinks is the right answer!
I certainly hope that the SCotUS comes out and says “We hereby affirm that there are areas where the government has no jurisdiction and *THIS IS ONE OF THEM*.”
Instead we’ll probably split the baby.
I suspect that, given the opinion will be written by Kennedy, you’re doing to get “We hereby affirm that government has jurisdiction in all areas, and prohibiting same-sex marriage is just too unfair.”
Full point.
Having read (part of) the decision, am I correct in concluding that the reasoning here is very, very tight? I.e., the California ban is only unconstitutional because it didn’t do anything other than withhold the term marriage? That would be rather difficult to apply to pretty much any other state, making this kind of a toothless decision.
Looks like they relied on San Francisco’s argument that Prop. 8 is unconstitutional because it took away the pre-existing right of SSM. So if The Marriage Cases hadn’t found that right in the pre-Prop. 8 California Constitution, then they’d have had to have used a more broad theory.
So it could be that the grounds for judicially voiding Prop. 8 would not apply to a state in which there had not been a judicial finding of SSM and then a subsequent political action to reverse the court. That means Iowa, Massachusetts, and Connecticut would likely be the only states other than California affected by the ruling.
That’s the way I understand it as well (IANAL!).
But given that, what’s the likelihood that the appeal is even heard by the SC? On the face of it, the only way the SC could overrule the 9th is by effectively granting that initiatives have the power to repeal already accorded rights. Or is this wrong?
Stillwater, the Supremes might deny certiorari, of course. I just can’t make myself believe they will. All nine of them angled to get on the Court in one way or another, and the whole reason you try to get on the Supreme Court is so that you can decide this case.
Well, there is that. I was wondering about something more specific to the case than my question implied: would the SC have wiggle room to (coherently) overturn the 9th’s ruling without making the determination that initiatives effectively can rescind already granted rights? Given the specificity of the 9th’s ruling, could they make that little dance?
This post, plus Ryan’s post above, will wind up being the “affirm the lower court’s ruling” argument. You guys should get a copyright or something on that posthaste.
Done already. 17 U.S.C. § 201(a).
I hear ya. It’s not that I think they couldn’t decide this for political reasons. I just that politics isn’t so easy to pull off at the SC level – or any court level, really. There’s pressure to make defensible arguments. I’m wondering a) whether the SC could make a defensible argument to overturn the 9th’s ruling (supposing it goes en banc) without granting that initiatives can rescind previously granted rights, and b) if there is enough at stake for the majority to offer up a patently ridiculous argument justifying it.
From out here looking in, it strikes me as unlikely. But one assumption I’m making here is that the only way to overrule the decision is to skip over state’s rights issues and validate direct democracy as the determiner of basic rights. I see that as a pretty pickle for the conservative Justices to be put in.
Seems to me that they could — but only if they were willing to effectively overrule Romer v. Evans. Given that Anthony Kennedy was the author of Romer, and that he considers Romer to be one of the proudest moments of his judicial career, and further counting noses and that Justice Kennedy is the likely swing vote in Perry v. Brown, I would consider that an exceedingly unlikely outcome.
But I’ve been surprised by the Brethren before. Stephen Breyer could be a dark horse for the fifth vote the proponents are looking for, given that we’re looking at a ballot initiative rather than an act of the state legislature. I call long odds on that, too, but others might not.
Stephen Breyer could be a dark horse for the fifth vote the proponents are looking for, given that we’re looking at a ballot initiative rather than an act of the state legislature.
And even as much of a long shot as that is, it encapsulates exactly why his “active liberty” argument is such a dog. He’s so enamored of the idea that the Constitution created a space for democratic decision-making that he seems not to grasp that it also denied a space for democratic decision-making in some realms.
Also, in one decision he confused separation of powers with checks and balances. Grumble, grumble, grumble. He’s a good man to have for the cases dealing with financial institutions and regulations (because who else on the Court actually wants to wrap their heads around that stuff), but I don’t like him much beyond that.
James, I’d be interested to read a fuller presentation of your views on Breyer’s publicly-enunciated system of interpretation and judging, given thay you’ve taken the opportunity to point it out. I think he at least deserves some credit for trying to provide the public with an accounting of his approach and methodology, something far from every justice on that court has offered the people they serve. I had mentioned that one of my areas of private curiosity is this question, and, have found myself relying on Breyer’s public role that he has created for himself as a kind of explainer of the work of the Court to fill in some background, simply because it is there. I’ve found his explanations of some of the major cases quite helpful (Burt’s as well of course), but i agree with you to an extent: I haven’t found the method he lays out to be entirely compelling (nor original: he calls it a pragmatic approach, but I believe there isn’t even an entry for Posner in the index of his latest book). On the other hand, I have found it to be among the more reasonable approaches I’ve seen offered.
If you care to write something detailing your fuller thoughts, I’d be, again, very interested in reading it.
…obviously this would be open to Likko, Kowal, Thompson, or others as well. It could be framed as a multiple-book review of these books:
Active Liberty: Interpreting Our Democratic Constitution
and
Making Our Democracy Work: A Judge’s View
Consider it an RFP (Request For Post). I flat-out don’t have the chops for it, and moreover am not so much interested in my own views is any case.
I’d also be very interested in getting various views about this book, and think would be relevant to the above discussion to an extent, but probably better treated on its own or as part of a discussion of differing views on originalism.