Liz Newcomb raises an interesting point about the dissent in the Prop 8 decision reached today.
The decision today was a 2-1 decision. As anticipated, Judges Reinhardt (Carter-appointed and very liberal) and Hawkins (Clinton-appointed) went our way. Judge Smith did not. Smith is a George W. Bush appointee who was chairman of Idaho's Republican party before winding up on the 9th Circuit. Smith was by far the most conservative member of the panel. So it is not all that surprising that he was not with us.In other words, we hope this isn't a bellwether of how the Supreme Court may split when the case finally gets there, if it gets there.
However, the inability to bring Smith on board is concerning for me. To understand why, one has to understand that the court issued a narrow ruling that was limited to the peculiar circumstances of California. I welcomed this, because I belong squarely in the camp that thinks that asking the Supremes to make same-sex marriage the law for the entire country at this juncture is a bridge too far. The narrower position that the court took is stronger. The court essentially said that regardless of whether same-sex couples have a due process right to marriage across the board, the situation in California is unconstitutional, because that right was granted and then taken away without good reason.
After watching the hearing, I thought there was a chance Smith might get on board with a narrow ruling and I hoped he would. A unanimous ruling with the support of such a conservative justice would have shown that the issue has the potential to transcend the nasty ideological divide on the court.
But the two more liberal justices didn't persuade him.