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

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  •  Great post Adam B (7+ / 0-)

    I too have been waiting for you to weight in.

    Can you give your thoughts on Smith's dissent? I was really hoping for a 3-0 ruling, especially if it were such a tightly written decision. I am very disappoint that this decision basically fell along party lines.

    Minority rights should never be subject to majority vote.

    by lostboyjim on Tue Feb 07, 2012 at 03:55:08 PM PST

    •  I can't speak for Adam, but (3+ / 0-)
      Recommended by:
      Seneca Doane, Darmok, LuvSet

      Smith's dissent is basically to give a high level of deference 1. to the state, when it claims a rational basis for its laws, and 2. to SCOTUS, who've not defended LGB rights along these lines before. He argues that the cases used by the majority are distinguishable from the CA situation, and that the judges should be wary of overstepping their boundaries.

      The most confusing part of his decision for me, although it's supported by E. Volokh in a very odd set of hypotheticals, is that one can have rational basis even when the law doesn't do what it purports to do and the proponents are fully aware of this fact. It leads Smith into some mighty contorted arguments, which he basically passes off with a shrug, that sometimes governments do weird things.

      I disagree with plenty in his dissent but I understand most of where he's coming from, especially if your judicial philosophy is based around deference. On this point, however, I'm confused. And a little angry that he thinks the optimal parenting thing is "at least debatable", which no, it isn't.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Tue Feb 07, 2012 at 04:07:11 PM PST

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      •  Forgot to add: (2+ / 0-)
        Recommended by:
        terrypinder, LuvSet

        the point about rational basis is especially bizarre because he uses the fact that the law is pointless to argue against animus, too! Unlike Romer, where the law put a broad burden on the LGBT population, the total pointlessness of Prop 8 defends it, in Smith's mind, against comparison with Romer on claims of animus. He twists into some fancy pretzels.

        Saint, n. A dead sinner revised and edited. - Ambrose Bierce

        by pico on Tue Feb 07, 2012 at 04:17:43 PM PST

        [ Parent ]

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