Are we surprised that the 9th Circuit support the federal district court’s ruling in favor of gay marriage?

I’m not commenting on the merits of the decision, which I haven’t read, or on the merits of Prop. 8, which we’ve already hashed over at this blog.  I am commenting, however, on my utter lack of surprise with this ruling from the 9th Circuit, affirming the district court decision finding Prop. 8 unconstitutional.  Of course, the 9th Circuit is the most overruled appellate court in America, so advocates of gay marriage might want to hold off on getting too excited.

One other thing:  I have a lot of gay friends on Facebook, since I grew up and lived in the Bay Area.  Intriguingly, though, the ones who are most aggressive in their support for gay marriage are my straight friends.  What’s up with that?  Is this the “straight guilt” equivalent of the “white guilt” that transformed the Civil Rights movement from a Constitutional equality issue into a racism industry?

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  • Richard Johnston

    ” Of course, the 9th Circuit is the most overruled appellate court in America …”

    May want to reconsider the “of course” part: 

    • Bookworm

      Richard: Oh, my gosh! The Ninth Circuit is no longer the most overruled? Does this mean that the Ninth Circuit has gotten better or that the Sixth Circuit has gotten worse?

      beefrank: My Dad, whose great love in life was the English language, was incensed every time he heard the word “gay.” He wasn’t homophobic. He was degradation of language phobic.

      Soviet: That’s an interesting observation, because the straight friends who trumpet gay rights on Facebook are primarily female.

      Doug: That sounds reasonable. Gays are in a holding pattern, sort of like a time-out, while the straights still think they’re watching an exciting game.

  • beefrank

    No news flash with this ruling.  Just like the legal fights to remove the death penalty in California, this law will travel the same path and be upheld because the citizens of California repeatedly voted to keep the traditional marriage definition. It is no surprise two out of three 9th Circuit judges ruled against the law. What else is new? However, I wonder if they could get a majority in the full court? No matter, the law will be upheld like all the states that voted to retain the definition of marriage. Polygamous, homosexuals and other relationship variants will have to make due with another term instead of maligning the traditional term as an effort to ‘normalize’ or ‘mainstream’ their variant.  Growing up in Marin, I remember the time when the word ‘gay’ was stolen indicating their variant was composed of ‘happy’ and ‘joyous’ people. It is irksome to correct my children on the proper definition instead of the ‘street’ slang and similar when our kids snicker while watching Snow White and the Dwarfs singing, ‘Heigh Ho, heigh ho…’ but that is another story.  I enjoyed Dennis Miller’s retort to a Prop 8 discussion during the election, We’ll give you the word ‘marriage’ if you give back the word ‘gay’.  Is not that a fair trade?  You think they would go for it?

  • Soviet of Washington

    ‘Straight Guilt’…uh, no. 
    It’s that white (mostly professional) women are more comfortable with gays than straight betas and now have the political muscle in the blue states (at least) to put it over the top (/Whiskey).  Looks like its time has come here in the Soviet as well.  At least our courts had the decency to stay out of it and make the legislature go on record.

  • Doug

    I noticed the straight folks getting overly excited as well.  I think my gay friends who care either a) are already married or b) are following it carefully enough to know this was going to happen and until the supreme court rules it’s just a formality to kick it up to the next level.

  • Richard Johnston

    Bookworm said:

    “Richard: Oh, my gosh! The Ninth Circuit is no longer the most overruled? Does this mean that the Ninth Circuit has gotten better or that the Sixth Circuit has gotten worse?”

    Actually I think you can still say the Ninth is the most reversed as long as you’re talking absolute numbers of cases and not percentages.  It is the biggest circuit by far so it stands to reason they’ll have more reversals — they produce more opinions than anyone else in the first place.  That’s why I quibbled with “Of course,” not with “most overturned.” 

    I’ve long disliked the very common “most overturned” trope about the Ninth Circuit, because I think it’s essentially meaningless insofar as the point sought to be made is that the Ninth Circuit gets it wrong a lot.  When an appellate court reverses a lower court, it doesn’t mean these guys are “right” and these guys are “wrong,” it means five out of nine of these guys disagreed with two out of three of these other guys.  The higher court get the last word because somebody has to, not because they’re inherently better or smarter judges.  As the cliche has it, they’re not supreme because they’re right, they’re right because they’re supreme.

    I would wager that many here would think the “most overturned” circuit during the Warren court years was a pretty good circuit.  

  • Bookworm

    Richard: Excellent point that disagreements between justices do not necessarily mean that the lower court erred.  I can think of several cases on which I’ve worked that saw the appellate court making a bad call.  Indeed, on one case, the appellate court blatantly lied about the facts on record to justify its decision.  It wanted a certain outcome, and it was going to get it.

    Having litigated my whole career in California, though, I do believe that the Ninth Circuit is frequently overruled because it really does issue bad decisions.  It is so liberal and so politicized that many of its rulings simply cannot stand up to close scrutiny.  An honest Supreme Court, even one with a liberal swing vote, cannot countenance a lot of what emanates from those marbled halls.