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Prop H8 and 9CA

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Vikram Amar has a good piece about the recent holding that Propoistion 8 is unconstitutional and the 9th Circuit Court of Appeals. The most important point, I think, is that if the 9th Circuit decides to reverse the Supreme Court will probably decline to hear the case. In addition to the more legalistic reasons cited by Amar, I’d add that neither of the Court’s distinguishable 4-vote blocs (charitably assuming that the Court’s four more liberal members would actually vote to uphold Walker’s opinion, and remembering that if you think that Roberts is anything but an orthodox conservative you are the sucker) could be confident enough in Kennedy’s vote to risk going all-in. On the other hand, I think if anything he understates the likelihood of an opinion upholding Walker’s ruling being reviewed by the Supreme Court. Not only would this create a right to same-sex marriage throughout the nine states of the ninth circuit but it would lead immediately to federal lawsuits in every other state where same-sex marriage is illegal. It’s inevitable that the Court would want to step in immediately, as in that scenario the 4 doctrinaire reactionaries on the Court would have no reason not to grant cert unless it was certain that Kennedy would vote to strike down Prop 8 (and there’s no way it would be certain.) Because of all this, the forthcoming 9th Circuit decision will indeed be one of substantial historical importance.

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