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发帖数: 4174 | 1 Posted on Advocate.com February 07, 2012 05:49:47 PM ET
An LGBT Law Expert's Take on Tuesday's Prop. 8 Decision
By Advocate.com Editors
PROP 8 2012 X390 (GETTY IMAGES) | ADVOCATE.COM
Expert analyses of the Ninth Circuit’s Prop. 8 ruling Tuesday have been
legion throughout the day, though one from Williams Institute legal director
Jennifer Pizer stood out as particularly thoughtful. The former Lambda
Legal marriage project director wrote earlier today:
The decision breaks new ground because it’s the first federal appeals court
to strike down a state’s exclusion of same-sex couples from marriage. But
it doesn’t break new ground legally. Instead, the ruling’s close
application of Justice Kennedy’s 1996 equal protection analysis (in the
Romer v. Evans, Colorado Amendment 2 case) both makes it less likely that
the Supreme Court will grant review, and more likely that that plaintiffs
would win if the case does go up. Justice Kennedy is generally seen as the
key vote, and today’s decision – looking at another state ballot measure
– uses his 1996 analysis as a roadmap.
By deciding that California has no legitimate reasons for allowing same-sex
couples all the same rights and obligations as different-sex couples, but
withholding the equal dignity of marriage, the decision has important
implications for other states doing the same. At present, there are nine of
them with either a civil union law (DE, HI, IL, NJ, RI) or a broad domestic
partnership law like California’s (CA, NV, OR, WA). Today’s decision doesn
’t mean those laws are automatically invalid, because it focused closely on
specific facts and dynamics of the Prop 8 campaign. That focus on facts
unique to California is another reason the Supreme Court might decide not to
hear it. And in any challenge to a another state’s marriage restriction
any defenders of the restriction would have a chance to try to show reasons
to retain it, aiming to persuade other judges to agree with Judge Smith’s
dissent rather than the today’s majority opinion.
Today’s bottom line is that this decision is written about as narrowly as
it could be, and offers as little reason as possible for the Supreme Court
to want to grant review. Even so, given California’s size and national
influence, the immense public interest in the marriage question, and the
implications of the decision for other states, means there’s still plenty
of reason to think the Justices may find the case irresistible. | t*******e
发帖数: 2113 | 2 高院可能不會拒絕這個案子，看看今年的潮流。
除非高院在下更大的一盤棋，等著釋憲DOMA。 |
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