9th Cir. Rules on SSM (Edited/Updated)

And Also: Continuing his trend of intellectual guests, Colbert used the First Monday in October to bring on a law professor's whose article on use of facts in amicus briefs have received some attention. Dare I say she also is pretty cute? The article and others can be found here, showing a past interesting in court use of facts.

It might take a little while, but a handful of states not directly involved should have SSM given they are in the same circuit as yesterday's denial. The same holds for any state not directly covered by today's totally unsurprising 9CA ruling. One count is thirty-five states now or will soon have SSM. The take down of the "traditional marriage" claim is my favorite part of the latest ruling.  It rests on equal protection though the concurrences also rely on right to marry and gender discrimination arguments.

It is not really surprising that Judge Reinhardt would "concur without reservation in the opinion of the Court," since he wrote it. True enough examples can be found where primary author dissented on some point.  His concurrence is brief; the gender concurrence is longer than the majority, perhaps because it is more unique (various judges offered it as did others, some of whom think it pretty obvious, but most do see it as a sexual orientation manner -- I think the two are connected). 

There is some facial obviousness to the gender argument -- you can marry a person, but only if they are the right sex.  You don't have to show love or sexual desire to marry. Some homosexuals, for whatever reason, along with bisexuals and asexuals etc., have married under the old rubric.  But, the specific harm and motivation is clearly largely a matter of sexual orientation. Likewise, gender discrimination brings with it a pre-set heightened scrutiny requirement.  Still, again, the concurrence is sound, in large part because the discrimination on sexual orientation grounds is also based on gender stereotyping.  Sex and sexual orientation are interrelated. 

Next up should be the 6CA and it looks close to some. Baker v. Nelson is a risible ground. Judge Sutton, if honest, shouldn't use that fig leaf.  I kept on saying yesterday (on Twitter etc.) that it seemed curious to me that the USSC ruled before the 6CA did, since that circuit might create a circuit split and should rule pretty soon unlike other circuits. One person told me online, without sourcing, that one opinion is that the USSC was sending a message to the 6CA to decide, the 6CA apparently possibly waiting for the USSC to act on the other appeals first.  Maybe.  If the circuit was reading tea leaves, even if denials aren't supposed to have legal effect, I think they or at least Judge Sutton got one.

I guess the logic of them eventually taking a case when a circuit rules the other way makes sense and in the long run is okay, but this shouldn't be it ... if Sutton is going to rely on the Baker v. Nelson "precedent."  Flimsy business.