9th Circuit panel blocks California ban on gay "reparative" therapy.

"The appeals court's order prevents the state from enforcing the law, SB1172, while a different three-judge panel considers if the measure violates the First Amendment rights of therapists and parents."

Earlier this month, two federal judges in California arrived at opposite conclusions on whether the law violates the Constitution.

If DOMA is unconstitutional, what kind of past employee benefits will need to be paid?

Don't assume the effect of a new decision will be only prospective. Consider this report of a ruling by the Judicial Council of the Ninth U.S. Circuit Court of Appeals:

... Christopher Nathan, 39, of San Francisco, a law clerk for U.S. Magistrate Maria Elena James, sought [health insurance] coverage for his spouse, Thomas Alexander, 40.... [H]e was turned down by the Administrative Office of the U.S. Courts because the 1996 law bars federal recognition of same-sex unions.

In April, Chief U.S. District Judge James Ware said the denial violated the federal court's rules against discrimination based on sexual orientation and gender, and ordered the court to reimburse Nathan for the costs of buying private insurance.

The Judicial Council, the final authority in the administrative review process, went a step further in this week's order and said DOMA has been held unconstitutional by a San Francisco federal judge in another employee's case. The three-judge panel ordered the court [that is, his employer] to determine how much it owes Nathan and then pay him within 10 days.

The "Stolen Valor" case — United States v. Alvarez.

From the SCOTUSblog live blog this morning in the Supreme Court:

In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality.

The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. So Congress probably could rewrite it.

"Lying was his habit" is how the opinion begins.

Alito, Scalia, and Thomas dissent.

Here's the opinion PDF.

"The Ninth Circuit U.S. Court of Appeals on Tuesday declined to rehear arguments over California's ban on gay marriage..."

"... which the court invalidated in February. The decision sends the case on a trajectory to the U.S. Supreme Court."

There were 3 dissenting votes on an "en banc" panel of 11 judges. Here's a PDF of today's order.  The dissenting opinion, from O'Scannlain, Bybee, and Bea said:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”

Today our court has silenced any such respectful conversation.
Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.

For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc

Prop 8 ruling from the 9th Circuit is expected momentarily.

At 10 a.m. Pacific Time, noon Central.

UPDATE: The court holds that the ban on same-sex marriage violates equal protection.

AND: Here's the opinion [PDF].

ALSO: What Prop 8 did, the court writes, was take away the designation "marriage," and that word matters:

We are excited to see someone ask, "Will you marry me?", whether on bended knee or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution... but who wants to live in an institution?" would lack its punch if the word "marriage" were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that's marr'd," Lincoln's "Marriage is neither heaven no hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie....

You get the idea. The judges are old. I mean... marriage — even just the word — matters.

California Supreme Court decides that Prop 8 sponsors have standing to defend it.

The Court was responding to a state law question referred to it by the 9th Circuit Court of Appeals, which is considering whether the ban on same-sex marriage violates the federal Constitution.

The Supreme Court was emphatic that it would "undermine" the California ballot initiative process if the governor and attorney general can trump the voters by declining to defend such laws in the courts.

"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the [unanimous] court....

"This frees up the 9th Circuit to go ahead and decide the constitutional issues on the merits," said Theodore Olson, former U.S. Solicitor General during the Bush administration. "We're anxious to get to a decision on the merits that Proposition 8 is unconstitutional."

ADDED: Here's the California Supreme Court opinion (PDF). The California Supreme Court observes that the 9th Circuit saw the federal issue of standing as hinging on a state law question: whether "the official proponents of an initiative have authority under California law to assert the state‘s interest in the initiative measure‘s validity." The California Supreme Court's opinion stresses the nature of the initiative power, which was adopted "as one means of restoring the people‘s rightful control over their government":

The initiative power would be significantly impaired if there were no one to assert the state‘s interest in the validity of the measure when elected officials decline to defend it in court or to appeal a judgment invalidating the measure. Under article II, section 8 and the Elections Code, the official proponents of an initiative measure have a unique relationship to the voter-approved measure that makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative‘s enactment into law....

Thus, regardless of the initiative‘s effect on their personal and particularized legally protected interests, the official proponents are the most logical and appropriate choice to assert the state‘s interest in the validity of the initiative measure on behalf of the electors who voted in favor of the measure....

[E]ven though the official proponents of an initiative measure are not public officials the role they play in asserting the state‘s interest in the validity of an initiative measure in this judicial setting does not threaten the democratic process or the proper governance of the state, but, on the contrary, serves to safeguard the unique elements and integrity of the initiative process.

The 9th Circuit gives the Obama administration 10 days to say whether it will appeal the injunction against enforcing Don't Ask Don't Tell.

According to the Wall Street Journal:

[T]he court said it did not believe the Obama administration is prepared to defend the constitutionality of Don’[t] Ask, Don’t Tell....

But the court wrangling appears to be much ado about nothing.

Although the injunction will bar the military from discharging any gay or lesbian service members, as a practical matter the injunction will have little effect on a military that is gearing up for repeal. Pentagon officials have said that they will be ready to certify that the military is ready for repeal within weeks.

"There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner."

The Supreme Court, per curiam, grants a petition for certiorari and a motion for leave to proceed in forma pauperis, and delivers an immediate reversal, after the 9th Circuit blatantly disregards the standard imposed by the federal habeas statute.

"Men tend to behave better when they're married..."

"... both because marriage likely helps improve their behavior, and nicer men are more likely to be married in the first place, a new study reports."

Via Instapundit.

The last couple of days, I've been preoccupied with the Prop 8 case, where the key question is: What is the government's interest in restricting marriage to opposite sex couples? The pro-Prop 8 side focused entirely — and oddly — on the fact that only opposite-sex couples make babies accidentally. If accidental babies are the problem, why express any negativity toward same-sex couples? They'll only get babies if they make a deliberate decision to have them.

But this study suggests another reason for the special treatment of opposite sex couples. Society extracts better behavior from men by encouraging them to pair up with women. Women are the tamers of men. Don't waste women on other women. The social order wants to maximize the use of women for the fixing of men. And if men pair with men, all hell will break loose. Double the chaos of men roaming solo. With synergy, even more than double.

I spent all day Monday watching the oral argument in the 9th Circuit, and much of yesterday, reading, talking, and writing about it. That would have been way more entertaining if the pro-Prop 8 lawyers had contended that there is a legitimate government interest in controlling men by yoking them to women.

I talk about the appellate argument in the Prop 8 case with Emily Bazelon.

The argument in the 9th Circuit Court of Appeals took place yesterday, and Emily and I gabbed about it this morning for Bloggingheads.

The oral argument in the 9th Circuit in the Prop 8 case is about to begin.

The case is Perry v. Schwarzenegger. You can watch live on C-SPAN. I'll update with comments soon.

UPDATE: You can read some details about the case here. I'll have some of my own impressions in a little while.

UPDATE 2: You can watch the whole oral argument here. The first hour of the argument dealt with the threshold question of standing. California Governor Schwarzenegger and Attorney General Jerry Brown were the original defendants in the case, and they have opted not to appeal. Proponents of Prop 8 (which banned same-sex marriage) need a way to intervene using some other party with a personal stake in the outcome or the decision of the district judge, finding Prop 8 unconstitutional, will be the final word on the subject.

It seems as though there should be appellate review, but the constitutional limits on federal court jurisdiction don't depend on how important it is for an issue to be heard. There are technical requirements, and it seems as though the plaintiffs' lawyers did a clever job of setting things up so a district court decision in their favor would be insulated from appellate review. But listening to the oral argument, I got the impression the judges thought it was too clever.

In the second hour, the substantive question boiled down to whether there was a rational basis for excluding gay people from marriage. The pro-Prop 8 side rested heavily on the fact that only heterosexual couples produce babies accidentally. But that has so little to do with the value of excluding gay people from the status of marriage. It's hard even to understand why reserving marriage to heterosexuals would make them do a better job of deploying their reproductive powers. Why should gay people, who aren't even the problem, bear the burden?

The Supreme Court leaves Don't Ask Don't Tell in place — with Kagan not participating.

The 9th Circuit stay on the order ending DADT will keep the policy in effect pending appeal. There were no dissenting opinions, and, most interestingly Justice Kagan did not participate:

While it was not a surprise that Justice Kagan had opted not to take part in the order, that was nevertheless a significant development.  It raised the prospect that, when the constitutional challenge reached the Supreme Court, the Justices might split 4-4 on it; that is always a risk when only eight Justices are taking part and the issue is a deeply controversial one.  Should the Ninth Circuit Court upheld [sic] the policy, that result would simply be affirmed; without an opinion, if the Justices were actually to divide 4-4 in reaction to it....

If it should turn out that Congress does not repeal the policy, despite the requests by President Obama and some of the Pentagon’s top civilian and uniformed officers, the constitutional challenge in the Log Cabin Republicans’ case would be the only potential way to end the policy, at least for several more years.

A 9th Circuit panel keeps Don't Ask, Don't Tell in place.

"[T]he public interest in ensuring orderly change of this magnitude in the military – if that is what is to happen – strongly militates in favor of a stay...."

9th Circuit Judge John T. Noonan Jr. can't understand the Justice Deparment's argument that the Arizona immigration law is preempted by federal law.

At oral argument today:

"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Noonan told deputy solicitor general Edwin S. Kneedler. "We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."

"With respect, I do believe we have an argument," responded Kneedler, who said the Arizona law is unconstitutional and threatens civil liberties by subjecting lawful immigrants to "interogation and police surveillance.''

Yeah, well, but that's not preemption.

Here's my old post trying to make sense of the preemption argument. I came up with this (admittedly strange and politically inadvisable) argument:

The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).

I really need to see the whole transcript. Ah! Here's today's oral argument:

9th Circuit stays the Prop 8 case pending appeal.

So... no same-sex marriages in California until the appellate court hears the case. The question whether the Prop 8 proponents have standing to appeal is a threshold question that is still unresolved.

"Those offended by Kehowski's ideas should engage him in debate or hit the 'delete' button' when they receive his e-mails."

"They may not invoke the power of the government to shut him up."

"See, for example, the words of former Governor Sarah Palin of Alaska: 'If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me....'"

Those words appear in Palin's Gubernatorial Candidate Questionnaire, Eagle Forum Alaska, July 31, 2006. In his dissenting opinion in the new 9th Circuit case upholding the constitutionality of the Pledge of Allegiance, Judge Reinhardt cited Palin's words in a footnote in support of the proposition that "some individuals" don't know their history:

For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.

Orin Kerr sees the hand of a smartass clerk:

I think it’s notable when a federal court of appeals judge with a well-established political view picks up a meme from political blogs and pokes fun at a politician on the other side in a pretty gratuitous way. It also screams “law clerk idea.” If you don’t think that’s notable, then I suppose we’ll just have to disagree.

A Kerr commenters defends Palin. DrGrishka says:

Reinhardt’s citation is misleading. The question to which Sarah Palin responded read:

11. Are you offended by the phrase “Under God” in the Pledge of Allegiance? Why or why not?

The answer was

Not on your life. If it was good enough for the founding fathers, its good enough for me and I’ll fight in defense of our Pledge of Allegiance

It could be that she gave a stupid answer in which the “it” referred to the Pledge itself. That would be historically inaccurate. But the “it” could have just as easily referred to the phrase “under G-d.” If so, the answer would be completely plausible as founding fathers used such phrases all the time.

And Palin's task at hand was to be an effective political candidate, and that is not about parsing the question and saying the most technically correct thing. People who assume they are smarter than Palin need to perceive the contextual dimension of intelligence. Are you smart at doing the thing you are currently trying to do or smart in the abstract? Because life is not in the abstract, and the people who are smartest in the abstract are not the ones who win political power. Reinhardt/his law clerk was overconfident, perhaps, in his own intelligence and failed to pay attention to the context in which he was operating, a judicial opinion. Fortunately, the political process is pretty good at filtering out individuals afflicted with this form of stupidity. But if they have life tenure, as judges do, we are stuck with it. And yet, Reinhardt needed votes too, and here we see he is writing in dissent, having lost.

Another commenter, footnoter, says:

What a sad reflection on Reinhardt. When a judge gets to doing this, it’s past time to hang up the spurs.

On the topic of a 133-page dissent with its own table of contents, on a rather simple issue, I’m reminded of EZ Rider’s dictum: “simple arguments are winning arguments; convoluted arguments are sleeping pills on paper. . . . when judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief”

[I]magine if Judge Bybee or Justice Scalia said “we have 50 states– a fact unknown to some Americans in power” with a footnote saying “see, e.g., President Obama’s remarks he had visited ’57 states.’”

What if the other side had done the equivalent? That question pops up so often these days.

Orin Kerr thinks the 9th Circuit has made "every computer search warrant that has ever been obtained — and every offsite search" unconstitutional.

"Am I right that the Ninth Circuit's Fourth Amendment decision in United States v. Comprehensive Drug Testing has rendered every computer search warrant that has ever been obtained — and every offsite search — unconstitutional? I've been working in this area for over a decade, and I have never heard of a case that satisfies the Ninth Circuit's new procedural standards."

The 9th Circuit is now Street Performer Heaven!

Get out your balloons! Get out your bongos and dulcimers! And go west!

[T]he U.S. 9th Circuit Court of Appeals on Wednesday struck down curbs imposed by Seattle on those performing at the popular Seattle Center, home of the landmark Space Needle.

Michael "Magic Mike" Berger, a busker who sculpted balloon figures and dazzled children with sleight-of-hand tricks, prevailed in his seven-year challenge of the constitutionality of Seattle's 2002 rules regulating street performers. The city had required them to obtain permits, wear badges, refrain from soliciting gratuities, stay away from "captive audiences" and work only within designated sites....

"The city has been trying to turn Seattle Center into a government-controlled place that is very convenient for commercial interests and hostile to freedom and free speech," [Berger] wrote, concluding that "the city needs to wake up and read the Constitution."