Image 01 Image 03

9th Circuit Prop. 8 Decision to be released Tuesday

9th Circuit Prop. 8 Decision to be released Tuesday

Tomorrow will be a big legal day, as the 9th Circuit Court of Appeals has pre-announced that it will release its decision in the Prop. 8 – California same-sex marriage case:

The Court anticipates filing an opinion tomorrow (Tuesday, February 7) by 10:00 a.m. in Perry v. Brown, case numbers 10-16696 and 11-16577, regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgement in the case. A summary of the opinion prepared by court staff will be posted along with the opinion.

Background from my prior posts:

No, I’m not making predictions.  Except that if it is a ruling upholding the lower court (i.e., that Prop. 8 violates the federal constitution), the U.S. Supreme Court will accept the case.

At which point, we may learn whether Elena Kagan meant what she said during her testimony in connection with her nomination to be Solicitor General: “There is no federal constitutional right to same-sex marriage.”

Or if, as some including Ann Althouse suggested, it depends upon what Kagan meant by “is”.


Donations tax deductible
to the full extent allowed by law.



As far as I am concerned, California has the right set-up, even if they arrived at it in an awkward fashion.

California originally recorded “marriages,” and then they added “civil unions” which can be older adults or same-sex couples and which have exactly the same rights and responsibilities as a marriage.

Gays have the same rights in California. State law just calls it by a different word.

If somebody wants to Do Something, they should propose that all future marriages should be recorded as “civil unions.” Then churches can call it what they please.

    Doug Wright in reply to Valerie. | February 6, 2012 at 5:57 pm

    I agree with you regarding state approval of marriage or civil unions. Minnesota made my wife and I go to the county where her folks lived to get a marriage license rather than where we both then lived. If states adopted laws allowing civil unions between consenting adults, so be. Let churches and organized religions handle the question of what to call it, except I would be very much against calling same sex unions “marriage;” that’s my one hangup on that whole issue but the question of the meaning of words is most important unless we decide to throw out much of our history as a species.

JimMtnViewCaUSA | February 6, 2012 at 3:52 pm

I used to be reflexively for gay marriage.
Until it became clear that proponents wanted to override voters by using the courts. The People can be wrong. But I like to see the clear will of The People be given some respect.
Over time, I’ve become a “screw the know-it-all elites” advocate and a generally ornery cuss.

You make a good point ‘just change it to civil unions’ while churches can call it marriage though what will The State do when Gay-for the cause of equalityness and fairness and all- wants to be ‘civil unioned’ in a church?

Further, does this ‘civil union’ apply to heterosexuals? And if heterosexuals are ‘civil unioned’ does this mean they are Gay?

That said; When words lose meaning then everything is nonsensical.

    syn in reply to syn. | February 6, 2012 at 4:01 pm

    I should clarify: Does this ‘civil union’ apply to same-sex heterosexuals? If same-sex hetrosexuals are ‘civil unioned’ does this mean they are Gay?

      n.n in reply to syn. | February 6, 2012 at 4:19 pm

      I think that is a noteworthy point which has not been previously discussed. If we no longer intend to use the natural order as the defining witness, then there are other relationships, including: polygamy, prostitution, friendships, vocational, cooperatives, etc., which should be equally considered. In fact, since our biological imperative (i.e. evolutionary fitness) is no longer the priority, it cannot be said that physical intercourse should even be a defining characteristic of couplings.

      Let the grand biological and social experiment continue. May we enjoy the progressive success we have had with similar enterprises in recent history.

Cowboy Curtis | February 6, 2012 at 4:02 pm

I guarantee you she meant “at this exact moment, no case law has established a Constitutional right to gay marriage.” Then she’ll vote to make some.

You know, “living” Constitution and all. Besides, if she held otherwise, she might not get invited to some cocktail parties….and those are what really matter. Just ask Anthony Kennedy and Sandra O’Connor.

    See Dan Sorkin’s “11 Reasons to vote Democrat”

    Reason #9 – I voted Democrat because I believe liberal judges need to rewrite the Constitution every few days to suit some fringe kooks who would never get their agendas past the voters.

    This is only a constitutional matter with respect to the individuals. It is a biological matter with respect to the exhibited behavior. There is insufficient evidence to outright reject the behavior, which would suggest it should be tolerated. However, there is no legitimate reason to normalize it. The behavior has no redeeming biological or societal value. It is purely a matter of physical instant gratification. Incidentally, the promiscuous behavior of heterosexuals falls into the same class of deviant behavior, along with its attendant diseases and dysfunction. Although, as potentially productive biological members of humanity, the consequences of heterosexual dysfunction is arguably worse (e.g. premature termination of human life — abortion — devaluation of human life).

Everyone I’ve read seems to believe the composition of the panel makes a ruling upholding Walker’s decision likely. Scotusblog seems to think an en banc review is also likely, and a review by the Supreme Court this term unlikely.

Which means we are likely to have this drama with us for quite some time to come.

And now I’ve used ‘likely’ 4 times in one comment. (er, make that 5.)

Raquel Pinkbullet | February 6, 2012 at 4:27 pm

No matter what happens tomorrow this will end up being heard by the SCOTUS. Hopefully Prop. 8 is upheld

Henry Hawkins | February 6, 2012 at 4:27 pm

“I’m gay and I want to get married!”


“I have a constitutional right to pursue happiness!”

Well, which is it? Do you want to get married or do you want to be happy?

If this goes to SCOTUS and they affirm the trial court, it will be because the legal team behind the defense was incompetent. I’ve read the briefs and decision from the case in the Northern District, and the factual contentions that the defense just gave up could cost them a variety of fairly easy arguments.

I’m a supporter of gay marriage, but not of a Constitutional right to it. Californians made their decision, it’s a shame they couldn’t get a decent team to defend it.