by Jeremy Leaming
As noted here yesterday Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote in Perry v. Brown that the state of California had no reason to strip from lesbians and gay men the right to wed. It was a classification of a group of people for apparently hostile reasons that doomed the rabidly anti-gay ballot measure, Proposition 8.
The writer and law professor Garrett Epps provides for The American Prospect, not surprisingly, a clearer understanding of Reinhardt’s opinion, which many pundits suggest could, if not likely, reach the Supreme Court.
Epps notes that Reinhardt (pictured) is a “last great liberal lion of a once-numerous pride,” who has authored “dozens of decisions that embody old-style judicial liberalism (including one that terminally ill individuals have a right to seek medical assistance in suicide).”
But in this case that lion, Epps says, has crafted an opinion that may have a longer “shelf-life” than many of his other decisions. For the opinion, did not sweepingly find that gays have a fundamental right to marry. As ACSblog noted, Reinhardt was focused on the targeting of a group of people for ill treatment, rather like the matter that resulted in the Supreme Court’s 1996 opinion in Romer v. Evans, where Justice Anthony Kennedy led a majority in finding unconstitutional Colorado’s noxious Amendment 2, a voter passed measure altering the state constitution to prohibit localities from enacting policy protecting lesbians and gay men from discrimination.
Epps says in his latest opinion, Reinhardt may have been itching to roar – “to say something broader about human dignity and the essential worth of gays and lesbians.”
But would roaring have helped in this case? A good intermediate court judge, laboring under the eye of a hostile superior court, must be, to quote the Gospel of Matthew, wise as a serpent and wary as a dove. Tuesday’s opinion was much more dove than lion. “We need not and do not answer the broader question [of a general right to gay marriage] in this case,” Reinhardt coos.
It’s that coo, and restraint, Epps concludes, that Reinhardt was shooting for this time.
It may be the reason why the high court upholds it, if it indeed decides to hear the case. Epps suspects “Reinhardt has a different outcome in his mind – four Justices (you fill in the names) supporting the broader rights to marry, four others (again, you pick ‘em) denying its existence, and one, whose initials might be AMK, affirming Reinhardt’s narrower opinion.”