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In Defense of Reinhardt

[ 28 ] February 9, 2012 |

A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron White, I agree with Mazzone that the best outcome would be for the Supreme Court to declare a nation-wide right to same-sex marriage, but our agreement ends there. In short, I think Mazzone’s reading of Reinhardt’s opinion is uncharitable and erroneous, and more importantly I think he is far too optimistic about Kennedy’s willingness to make bans on same-sex marriage illegal in all 50 states.

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  1. L2P says:

    I agree. Mazzone is trying really, really hard to find some reason to distinguish Romer from this case, but I’m not seeing it. I hope the 9th Circuit en banc doesn’t see it, either.

    More importantly, if Kennedy wants to say that same-sex marriage bans are unconstitutional, the 9th Circuit opinion certainly doesn’t STOP him from doing that. Kennedy, unlike the 9th Circuit justices, is a Supreme Court justice. He can simply right a one line concurrence and say, “No state can prohibit same-sex couples from being married if they grant that privilege to couples of different sexes.” And that’s it. He doesn’t need to make it look pretty so that law professors can fit it neatly into their theories.

    • Scott Lemieux says:

      Right. That, to me, is the most puzzling aspect of Mazzone’s argument. If Kennedy is as committed to a broad right to same-sex marriage as Mazzone thinks, nothing Reinhardt says can stop him. Kennedy, unlike 9CA, isn’t bound by Romer.

      • Anonymous says:

        Good point.

        Moreover, the argument about judicial decisions being immune to Constitutional intervention is simply wrong… Romer was a 14th amendment case. If people want to overturn the 14th amendment they can…

        I think Reinhardt was trying to find a way to make sure that the SCOTUS affirms regardless of whether they decide to scrap Baker v. Nelson.

        I think the bigger issue now is whether the 9CA is affirmed on the Romer basis, or whether it is affirmed on a straight-up gay-marriage-for-everyone basis.

        I don’t see a reversal of any sort as being terribly likely, unless the Scalito-Roberts-Thomas axis can somehow convince Kennedy that Romer was a bad idea.

        • L.M. says:

          I think we get a 9-0 opinion, as a standing case. Not sure how many separate concurrences in the judgment: my gut reaction would be to expect one 4-vote concurrence (Ginsburg/Sotomayor/Kagan/Breyer) and one 2-vote concurrence (Scalia/Thomas), with Alito and Roberts keeping their powder dry so they can pull their usual passive-aggressive bullshit in a future same-sex marriage case and Kennedy doing his best to remain enigmatic.

          I think Kennedy likes the fact that the Romer-Lawrence-??? line of cases is so amorphous. (Can anyone, in one sentence, tell me the holding in Lawrence? I didn’t think so.) It gives him a lot of power as long as this issue remains alive and he remains on the Court (i.e., for the rest of his career), and it will make him look good to future generations without requiring him to actually do very much.

          • Anonymous says:

            (Can anyone, in one sentence, tell me the holding in Lawrence? I didn’t think so.)

            Sure, its in the holding
            “the Texas (anti-sodomy) statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”

            That’s the case in a nutshell. Simple, easy to grasp.

            Any other questions?

            • L.M. says:

              Right: That’s about as much of a holding as Lawrence gives us, and it’s not much of a holding at all. Nothing in Lawrence suggests that the case is limited to its facts, but there’s no clear holding in Lawrence to apply outside of its facts.

              • Pithlord says:

                As a non-American, I find the doctrine in Lawrence less baffling than some American commenters. Canadian and European courts have a standard of review a bit like “rational basis”, but it is possible for the state to fail that standard. American law profs assume that the state can never fail rational-basis review, but no actual court has said as much. So Lawrence is just saying (a) we will use rational-basis review; (b) a law criminalizing sodomy doesn’t meet rational basis review.

                This would actually be considered banal by even extremely conservative European or Canadian judges.

    • R Johnston says:

      Mazzone is trying really, really hard to find some reason to distinguish Romer from this case, but I’m not seeing it.

      Absolutely agreed. The notion that the Ninth Circuit Court’s ruling in this case is anything other than a straightforward application of Romer is bizarre. Trying to distinguish Romer is the kind of asinine hair-splitting that justifiably gives lawyers a bad name.

  2. rea says:

    The job of a judge is to decide the case in front of him. A judge doesn’t have the power to decide broad questions of social policy, except to the extent that deciding the case in front of him requires him to do so. This is a crucial limitation on judicial power, one of the things that makes judicial review reconcilable with constitutional democracy.

  3. matth says:

    I think a lot of the hostility towards Reinhardt is really criticism of Romer.

    Your linked article illustrates the problems with Romer, when you write that “it’s not impossible to argue that bans on same-sex marriage fail even a rational basis test [but] it’s a stretch.” That sentence caught my eye, because Perry purportedly applies rational basis scrutiny. See the end of part (V)(C)(1). If, arguendo, there is some rational basis for excluding gay couples from marriage, why wouldn’t that be a rational basis for Proposition 8?

    Reinhardt tried to answer this question by focusing on the difference between granting a right and taking a right away. See (V)(E). This part of the opinion struck me as a departure from Romer, which I read as more concerned with animus.

    • Scott Lemieux says:

      Well, like many people I agree that Kennedy’s argument that he was only applying rational basis scrutiny in Romer is problematic, but I don’t think calling the median vote of the court who will be reviewing your decision disingenuous is a very good idea. For the reasons stated in the linked article, I think Reinhardt’s opinion is a completely straightforward application of Romer.

  4. That seems like an implausibly optimistic read on Anthony Kennedy. Yes, he’s been good on gay rights issues, but a national gay marriage right would be running way ahead of the pack, in a way that striking down laws from the olden days in Texas was not.

  5. Murc says:

    Am I the only one wondering if attempts to work the refs (as t’were) when it comes to the Supremes is something that might backfire?

    Tony Kennedy doesn’t live in his Fortress of Judgeitude, sleeping the sleep of death until the arcane rituals of certiorari summon him forth to decide a case. He’s an actual person who has a brain in his head and can read things. I don’t actually know a lot about his personal temperament, only his judicial one, but speaking only for myself, if I were a justice, seeing a lower court judge try to transparently manipulate me into affirming his position would cause me to instantly become LESS likely to do so, not more.

    • Anonymous says:

      How on earth is it “manipulation” for Reinhardt to provide a straightforward application of existing, controlling precedent, rather than issue the much broader opinion he no doubt would have liked to write in his heart of hearts (but which would entail going far beyond what precedent required to decide this particular case)? Why would Kennedy more likely to reject such an application of a decision he wrote than one that reached far beyond it?

      • Murc says:

        Well, I haven’t actually plowed through the Reinhardt myself, but I’ve seen a metric ton of legal pundits (including, but not limited to, our hosts) make the claim “Reinhardt has very clearly targeted his opinion at Tony Kennedy to make it more likely to be upheld.”

        Maybe “manipulation” is too strong a word for that, but what would you call it?

        Why would Kennedy more likely to reject such an application of a decision he wrote than one that reached far beyond it?

        You seem to be assuming that I am making an implied argument that Reinhardt should have issued a broader, more sweeping opinion. I am doing no such thing and indeed did not touch upon the issue in any way.

      • mpowell says:

        Well, I think it is a kind of manipulation. But having lower courts bend over backwards to reach judgments that will make you happy to agree with them is not the kind of manipulation that pisses most people off.

    • Pithlord says:

      I doubt it’ll make any difference one way or the other. Anthony Kennedy will make up his own damn mind whether Anthony Kennedy’s ready to say the 14th Amendment requires same sex marriage. I doubt he will, but if he doesn’t, it isn’t going to be because of Reinhardt.

    • L.M. says:

      As far as personal politics are concerned, there are only a few things I know that might be relevant:

      1. On a strictly personal level, Kennedy is totally crazy.

      2. Again, on a strictly personal level, Reinhardt is totally crazy, but in a different and much more affable way.

      3. Reinhardt is super-best-friends with Alex Kozinski, who is totally crazy in a way that’s strikingly similar to the way in which Kennedy is crazy. (Reinhardt and Kozinski aren’t political allies at all, but they have an extremely close personal friendship.)

      4. Kennedy really likes Kozinski, in part because they’re both totally insane in basically the same way.

      I have *no idea* how Kennedy and Reinhardt regard each other, but it’s possible that Reinhardt is counting on his relationship with Kozinski to do some work here (if only because he thinks knowing Kozinski can help him get inside Kennedy’s head a little bit).

      It’s also possible that everyone involved is so crazy that the personal politics of the situation are just fundamentally unpredictable.

  6. burnt says:

    This is an emptywheel thing but I’m not against sharing. If you want a searchable version of the Prop 8 decision then you will find it here:

    and look for Prop8searchable.pdf

    Knock your selves out. Searchable torture docs there as well but those are old news.

  7. burnt says:

    close tag fail. Oh, well, it is still usable.

  8. [...] Kennedy is likely to rule on the Prop 8 case, a few additional points. First, in response to Murc here, I should make it clear what I’m not arguing, namely that Reinhardt’s opinion will [...]

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