9th Circuit Rules Against Prop. 8
Professor Jeffrey L. Fisher spoke with the Daily Journal's John Roemer and gave his feedback on the 9th Circuit and its ruling that California's Proposition 8 violates the U.S. Constitution.
Proposition 8, California's voter-approved same-sex marriage ban, cannot stand because it violates the U.S. Constitution's equal protection clause, a divided 9th U.S. Circuit Court of Appeals panel held Tuesday.
The much-anticipated ruling on a 2-1 vote took a narrow path to affirm former Chief U.S. District Judge Vaughn R. Walker of San Francisco, who found Prop. 8 unconstitutional both on equal protection and due process grounds after a 2010 bench trial. Tuesday's opinion did not reach broader issues of same-sex marriage rights beyond California's borders. Perry v. Brown, 2012 DJDAR 1705.
Instead, the majority pointed out that before Prop. 8 was passed in 2008, same-sex California couples had the right to marry, thanks to a California Supreme Court ruling earlier that year.
Everybody ought to cool their jets - we may not have heard the last word from the 9th Circuit. I'm sure there will be a lengthy en banc discussion among the judges before they vote on rehearing. - Jeffrey Fisher'We are not surprised that this Hollywood-orchestrated attack on marriage - tried in San Francisco - turned out this way.' - Brian RaumIn an exercise of judicial minimalism, Reinhardt's opinion avoided making expansive gay rights pronouncements that could be an inviting target for Supreme Court review.
One federal appellate authority cautioned that it's too early to look ahead to the high court. "Everybody ought to cool their jets - we may not have heard the last word from the 9th Circuit," said Jeffrey L. Fisher, a former Reinhardt clerk who runs Stanford Law School's Supreme Court Litigation Clinic. "I'm sure there will be a lengthy en banc discussion among the judges before they vote on rehearing."