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View Diary: The Ninth Circuit's restrained decision on Proposition 8 (141 comments)

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  •  I Agree with You (21+ / 0-)

    I thought that Judge Reinhardt did a brilliant job of crafting his analysis in a way that forced the Supreme Court's hand on the question of the validity of Proposition 8 - without regard to the larger principle we all hope will be self evident someday to everyone - based upon its own precedents. By doing so, he forces SCOTUS to either (a) uphold the ruling under the stare decisis created by the combined weight of Romer (with just a little Lawrence thrown in); (b) ignore the ruling by denying cert (making same-sex marriages legal in the largest state in the Union which when combined with New York, history confirms will dramatically accelerate the process of true cultural acceptance) or (c) take it up with the intent to reverse, an exercise that knowing the current state of the law would leave the court totally tied up in knots and truly vulnerable to arguments that we haven't really heard since Bush v. Gore, since it would require the court to violate the principal that SCOTUS doesn't reach a constitutional question if it doesn't have to and the principal of stare decisis, both of which this court has spoken of regularly as a justification for doing nothing to change the law.

    Not to mention they'd have to confront head on Scalia's presciently worded dissent in Lawrence, which may well cause him a coronary.

    Recognizing the brutal disappointment that some might feel that the courts have not yet all just screamed from the rafters the (in my mind) inarguable truth that equal protection demands no less than what was given today, today's ruling getting to the end game we wanted while minimizing the risk of reversal is one of the wisest, politically and otherwise, that I've read in a very long time.

    BTW, the quoted part you had about the meaning of the word "marriage" -- and especially the line about Marilyn Monroe - is one of my favorites. Put me in mind of the decisions of Justice Cardozo, another person with a wry wit as I'm sure you remember from law school. I love when judges are actually funny while making a deadly serious point.

    If you don't stand for something, you will go for anything. Visit Maat's Feather

    by shanikka on Tue Feb 07, 2012 at 03:43:52 PM PST

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