Makeup of Prop 8 panel seems promising for marriage equality advocates

Posted by Ginny LaRoe on law.com:

"Attorneys fighting for marriage equality in the Prop 8 case at the Ninth Circuit U.S. Court of Appeals will see at least one friendly face staring back when they give oral arguments next week.

"Stephen Reinhardt, a Carter appointee who has been solidly in the liberal wing of the court since he took the bench in 1980, is on the panel, along with Clinton appointee Michael Daley Hawkins and N. Randy Smith, a George W. Bush pick.

"The court revealed the makeup of the panel today , setting off speculation of what it will mean for the case.

"'It's a very ideologically diverse panel,' said Erwin Chemerinsky, dean of the UC-Irvine School of Law, who along with other law professors has submitted an amicus curiae brief defending Northern District Judge Vaughn Walker's fact-finding in the bench trial.

"Walker's ruling rendering Prop 8's ban on the freedom to marry unconstitutional has been stayed since Aug. 16.

"Hawkins was on the Ninth Circuit panel that granted the stay, but that isn't necessarily indicative of how the judge feels about the merits of case, said Evan Wolfson, executive director of Freedom to Marry, who noted the stay was widely expected.

"'I'm not sure that means that much,' Wolfson said.

"The August panel did, however, take the unusual step of directing parties to the U.S. Supreme Court's 1997 ruling in Arizonans For Official English v. Arizona , with the instruction that 'appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.'

"When the Arizona case was before the Ninth Circuit, Reinhardt authored the opinion that held that the sponsors of a ballot initiative making English the state's official language could intervene. However, that ruling was later overturned by the Supreme Court in an unanimous opinion.

"Reinhardt is seen as friendly to gay rights, most recently issuing a published directive granting a federal public defender pay to cover the cost of private insurance because his same-sex partner's benefits had been denied.

"Wolfson said he suspects Reinhardt will 'want to rule the right way' in the Perry case, but has 'shown his willingness to follow the law.'

"The court has indicated its strong interest in standing, allocating a full hour to the issue. And that might be a resolution the judges could agree on, Chemerinsky said.

"'Because of the Supreme Court precedents on standing, they might agree there is not standing,' the dean said. ...

"A ruling saying neither the Prop 8 proponents nor the Imperial County intervenors have standing to appeal Walker's ruling would obviously be a win for gays in California.

"And such a ruling would mean that for the U.S. Supreme Court to overturn Walker, it would have to buck its own precedent to overturn the Ninth Circuit.

"But there are signs the Perry plaintiffs would prefer the case not be decided on a technicality, and not be limited to California. Theodore Olson, the Gibson, Dunn & Crutcher attorney who will deliver arguments on behalf of the gay couples who sued to overturn the ban, has pushed for more time to argue the merits.

"The court last week rejected his proposal to spend less time on standing, but did agree to give him an extra five minutes to argue the merits by subtracting five minutes from the City and County of San Francisco's time."

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