There are many, many issues being batted around the blogosphere surrounding the Prop 8 decision. One that I haven’t seen addressed anywhere is something that was raised in ProtectMarriage.com’s brief in support of its motion to the 9th Circuit for a stay of Walker’s Aug. 4 decision.
Apparently, the 9th Circuit has already decided as a matter of law that there is a “rational basis” for a duly-enacted law that favors heterosexual marriage over homosexual marriage. Here’s the argument straight from the brief to the 9th Circuit:
This Court has likewise rejected claims that the Federal Constitution bars the government from limiting marriage to opposite-sex couples. In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), this Court interpreted “spouse” in a federal immigration provision to exclude partners in a purported same-sex marriage, and squarely held that “Congress’s decision to confer spouse status … only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.” Id. at 1042. This binding decision likewise forecloses Plaintiffs’ claims. (emphasis mine)
Despite 100 pages or so of Judge Walker’s so-called “fact-finding,” and another 30 or so pages containing conclusions of law, Walker never addresses why he isn’t foreclosed by 9th Circuit precedent from concluding that there is no “rational basis” for a law recognizing only one man, one woman marriage. Even if he’s previously addressed the 9th Circuit case during pre-trial proceedings, I’d still expect a reference to it.
He’s already found a way to disregard binding Supreme Court precedent directly on point. He must also be hoping for a 9th Circuit 3-judge panel that has “evolved” since the 1982 case. I’m not saying there aren’t certain 9th Circuit judges who would gladly ignore their own case law in a rush to rubber-stamp Walker’s decision; but even the typical left-leaning 9th Circuit judge is usually inclined to follow 9th Circuit precedent.