Will the Ninth Circuit Ruling on Proposition 8 Survive?

As reported by the Guardian, the chair of the National Organization for Marriage noted that “The ninth circuit is the most overturned circuit in the country, and Stephen Reinhardt, the author of today’s absurd ruling, is the most overturned federal judge in America.”[1]

Judge Reinhardt seems well aware of this fact as you read the opinion.  He takes the time to delineate why the instant case does not require the panel to delve into the broader constitutional questions regarding same sex marriage.  He frames the case this way: California allowed both same and opposite sex couples to marry under state law. Proposition 8 “stripped” same sex couples of the use of the term ‘marriage’.  To treat these two groups differently now, since they were treated equally under the law, there must be a rational interest served.  The majority of the panel finds no legitimate interest served in this change in status.

Focusing on the rescission of the ability to marry, the panel links this case with Romer v. Evans (1996) and tries to distance itself from the larger debate regarding the granting of the right to same sex marriage.  Can this linkage and the narrow nature of the opinion protect the ruling from reversal?

Romer was decided in 1996 and Justice Scalia wrote a scathing dissent from Kennedy’s majority opinion. Justice Thomas and Chief Justice Rehnquist joined this opinion.  The Court has changed significantly since this case.  Chief Justice Roberts now occupies the center seat.  Justice Alito has replace Justice O’Connor and Justice Sotomayor and Kagan replaced Justices Souter and Stevens respectively.  While the line-up in terms of liberal and conservative is not that different, it is a difference of degree.  And it may be that Justice Alito is a wild card here.  Where Justice O’Connor signed onto the proposition that a law could not rescind a right to one group and not another, Justice Alito has shown that he is willing to restrict fundamental rights where other conservative justices are not (Snyder v. Phelps 2010).  The majority from Romer, then, is likely down to 5.  Provided that the ‘liberal’ wing of the Court votes to uphold the ruling, it comes down to Justice Kennedy.  Will his reasoning from Romer resonate?  In Romer, the rights rescinded were central to democratic participation.  Is this a distinction that will make a difference to the eminent justice?  After all, Reinhardt’s argument cuts both ways.  Since Prop 8 only eliminated the ability for same sex couples to use the term marriage and did not rescind any other rights granted under California law, and that law currently provides equivalent rights to spouses and partners, Reinhardt says it must be void.

However, if the only thing that was lost was the nomenclature, could Kennedy find that there really isn’t any tangible loss?  All rights remain in place and a rational basis for maintaining this small modicum of difference may be easy to manufacture.  It remains open to question whether Reinhardt’s legalistic gymnastics will keep this major Ninth Circuit ruling off the SCOTUS chopping block.

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