The Panel Decision


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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9 Responses

  1. Avatar James Hanley says:

    In both cases, a statewide ballot initiative amended the state’s constitution to find a right of same-sex couples to marry.

    ?? I assume that’s not what you actually meant to write?

    Now, it shouldn’t be that hard for an advocate in favor of Proposition 8 to distinguish Perry from Romer. It’s not an inconsiderable argument to note that except for about five months in 2008, there was neversame-sex marriage in California, and a substantial effort by the Legislature to create a parallel and ultimately nearly equal legal institution…. It’s also worth remembering that based on the reasoning in The Marriage Cases, the right to same-sex marriage was there all along, even though no such licenses were issued before 2008 ?

    So which of these conflicting approaches do you think is more correct? Or, a slightly different question, more persuasive to Kennedy?

    Very nicely detailed review, Burt.  Thank you.Report

  2. Avatar Pierre Corneille says:

    Could an en banc proceeding result in a more robust affirmation of a federal right to gay marriage and not a right to not have it taken away once granted?  (I hope that’s clear)Report

    • Avatar James Hanley in reply to Pierre Corneille says:


      Hopefully Burt will correct me if I’m wrong, but I think the answer is yes.  The en banc panel would be re-hearing the case, and could write its own opinions.  I suppose the panel could  simply write that they reaffirm the panel’s decision, but I think it’s normal for them to write a new set of opinions, and they could take any approach that appealed to them.

      By the way, how’s the dissertation going?Report

  3. Avatar Tim Kowal says:

    “‘marriage’ is the name that society gives to the relationship that matters most between two adults.” (Emphasis added.)

    “The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.” (Emphasis added.)

    I’m guessing that when you say you used to think “the name alone was not of significance,” you meant legal significance.  Obviously, the word’s social significance is of great interest to everyone watching this case.  Prop 8, as I understand it, worried that changing the legal meaning would have effects on its social meaning.  Not a stretch, I think anyone could agree – where we disagree is whether the change in the social meaning would be a good thing.  But again, that’s the social question, not relevant to the legal question.

    So it’s interesting that the opinion seems to give away the farm to Prop 8 supporters on the legal question:  the opinion apparently acknowledges that there is no legal significance, that California’s civil unions are legally identical (notwithstanding your observation of certain minor differences).  Thus, the opinion is only concerned with the way society, as opposed to the law, views “marriage.” And there are some strong arguments that this kind of social-envelope-pushing is precisely the kind of thing courts ought not to engage in.Report

    • Avatar Burt Likko in reply to Tim Kowal says:

      I’m guessing that when you say you used to think “the name alone was not of significance,” you meant legal significance. Obviously, the word’s social significance is of great interest to everyone watching this case.

      That is correct. I was guilty of two lacunae in my thinking — first, that the social significance of the word was not something the Court should even be concerned with, and second, that the nexus between the social significance of the word and the state’s involvement in bestowing a legal right to use that phrase was coincidental.Report