UC Davis Law Dean Vikram Amar on the future of Prop 8
Associate dean and professor at the UC Davis School of Law, Vikram Amar, predicts that Prop 8 will ultimately be decided in the Ninth Circuit, not at the Supreme Court:
If the Ninth Circuit reverses Judge Walker’s ruling and upholds Prop. 8, I think it improbable that the Supreme Court would grant the plaintiffs’ request to accept review. The two primary reasons the high court takes cases are:
– A disagreement among the lower courts on how to resolve a recurring legal question.
– An earth-shattering need to answer a major legal question right now.
Neither would apply here. There would be no conflict among the lower courts on the question of a federal right to gay marriage (no judge other than Walker has yet embraced one), and upholding Prop. 8 doesn’t change the world in the way that requires the court to weigh in immediately.
The Supreme Court justices (both conservatives and liberals) would, I suspect, be quite content to let the issue “percolate” in the lower courts – and state ballot boxes – for a while before deciding to address it.
The likelihood of Supreme Court review goes up a lot if the Ninth Circuit invalidates Prop. 8 on the broad grounds embraced by Walker – that all same-sex adult couples have a federal right to enter into marriage, period. Such a ruling would recognize a constitutional right in the western states (those covered by the Ninth Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) that hasn’t been recognized elsewhere; under those circumstances, the justices would have a hard time deferring the issue.
What are the odds of the Ninth Circuit reversing Walker? They did it twice already in motions leading up to the Prop 8. Reason for hope?
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If this is true i view it as very bad news because even if it goes to the SC it will be a narrow margin. If Obama gets re-elected in 2012 we will have so-called Gay marriage in every state and then the Pandora’s book as to the guardianship of children, polygamy etc.
Appeasement to the hedonist left. By the way many anti-clerical types support Gay marriage not because they care but out of a spirit of revenge only.
I had not considered the possibility that the relatively liberal 9th Circuit would reverse Judge Walker’s decision and that the Supreme Court would refuse to hear the appeal.
In Baker v. Nelson the U.S. Supreme Court dismissed a similar appeal “for want of a substantial federal question,” even though plaintiffs had appealed on the basis of the first, eighth, ninth, and fourteenth amendments. Did Judge Walker even reference Baker v. Nelson in his opinion?
If President Obama is not re-elected, the makeup of the Supreme Court could turn further to the right. President Obama’s re-election and his ability to break through a possible GOP filibuster of a nominee to the Supreme Court may depend how well his economic policies succeed in the face of the great recession. I year ago I would have bet on President Obama’s re-election. I am not so sure now.