- It seems generally accepted that the decision was tailored towards Justice Kennedy. Many of the legal arguments require a great bit of stretching and cutting corners, and the shape that stretching and cutting takes seems to match perfectly a case that Kennedy wrote the opinion on.
- It seems generally accepted that the decision tries to limit itself to the California case as much as possible, even to the degree that it ignores much of the Walker ruling they were supposed to review.
It is, in so many words, an advocacy brief more than a decision. And the people who are cheering it are, well, cheering it on those points as being an effective advocacy brief.
On the other side seem to see the decision's advocacy as heading in a wrong direction. (I'm admittedly in that crowd).
And in the middle seems to be a large number of legal scholars (like Eugene Volokh and Orin Kerr) who put judicial propriety and obligation higher than their own personal advocacy. They may support same-sex marriage, but a judicial ruling is a place to give a dispassionate and careful consideration of the arguments presented to the court. Even the Washington Post considers the 9th decision to be "wobbly".
To use that as an opportunity to present your own arguments in the matter, as if it was fruitless to even review the previous ruling or the arguments given in the first place, is pretending to be an attorney who wishes they had that case. It is not the policy of an impartial judge.
The worst part for me is that they are attempting to keep it narrow and confined to California. Added to that is the fact that its trying to get Kennedy to then use his Romer reasoning in response.
ReplyDeleteMany legal minds have called it (basicly) too clever by half....& thats exactly what it ius. In that sense it couldent be better for us.
This whole thing has been going out on one limb aftewr another.
Hopefully SCOTUS will combine this case with the DOMA challenge and decide it under a 14th amendment challange to the fundemental right to Mary.
It's not wishfull thinking to see marriage restored across the country to it original definition. Indeed that the view of multiple scholars.
The judge who wrote the "trial court" decision and the judge who wrote the appeal court decision affirming both had an ethical and moral duty to recuse. That they did not is a testament to the abuse of judicial review upon which the SSM project has depended.
ReplyDeleteAnd then there is this 9th Circuit opinion written as a political appeal rather than as an exercise in legitimate judicial review. Obviously it is a sign that the judiciary no longer adjudicates but legislates -- or that prominent justices aspire to legislate, advocate, and decide policy matters that are beyond their competence, as judges, and beyond their constitutional role, as judge/citizens.
At the roote, of course, is the profoundly flawed argumentation of the SSM advocates who stood in federal court to make a case against marriage when the real case before the court is quite different. Why is it that SSMers cannot deal directly with the actual disagreement -- this one or any other -- in whatever forum they appear?
They have great difficulty making a case for SSM without first making superficial complaints against the principles of self-governance, the principles of responsible procreation, the principles of judicial review, and against the conjual or core meaning of the social institution of marriage itself. So they heap up a pile of self contradictory complaints about arbitrariness and gay this and gay that; and end up making no case for SSM.
The issue before the Supreme Court will not be the issue of marriage per se but the issue of amending state constitutions, first and foremost. They have no case. They do have complaints. But that is not the same thing.