Wednesday, June 6, 2012

A mild dissent

The Calif. marriage equality case, known as Prop. 8, is back in the news. The case was heard in a district court, which became the basis for the play 8. The judge in that case said the ban in Calif. is unconstitutional.

The case was appealed to the 9th Circuit Court. A three-judge panel reviewed the case and agreed the Calif. ban is unconstitutional. This panel was very careful to say the ruling applied only to Calif. because it had gay marriage and then took it away. The Constitution frowns on taking rights away from only a few people.

The case was appealed to a 9th Circuit en banc hearing, meaning an 11-judge panel reviews what the original 3-judge panel decided. Yesterday, the 9th Circuit denied the en banc hearing.

That means the anti-gay side has 90 days to appeal to the Supremes. There is a lot of speculation the Supremes won't bother with the case because it will apply only to Calif., so there is no "federal" question to answer. The justices could grab the chance to avoid a gay marriage debate. We'll know soon. The appeal must be filed by early September. The Supremes will probably decide to hear the case in October when the new court season begins.

Timothy Kincaid of Box Turtle Bulletin examines an interesting question. Since the 9th Circuit is so progressive the denial of an en banc hearing was almost guaranteed. So why go through the motions? One reason, pointed out earlier, was to simply delay the time when Calif. would have marriage equality. If the larger 9th Circuit panel heard the case it could easily be another year before it got to the Supremes.

Kincaid suggests another reason. The 9th Circuit judges who disagreed with the denial could have written a scathing dissent, which would have been useful when the case got to the Supremes. They didn't get it.

There was a dissent, all right. It just wasn't scathing. Not at all. The dissent was along the lines of, "Hey guys, since this case is so important, we think we really should talk about it some more." It was not, "We believe the original 3-judge panel totally screwed it up and we came to that conclusion for these reasons." The dissent did mention the one judge who dissented in the decision of the 3-judge panel, but that dissent was essentially, "I'm just not convinced, yet." Not scathing at all.

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