Breaking News: Judge Walker’s Prop 8 Stay Decision | Emptywheel: "In the 9th Circuit, when a case goes up on appeal, and it has been there before to a given panel on any issue, that panel has the option of taking the full appeal when it is filed. Well, the Perry case has indeed already been up to the 9th previously on an interlocutory appeal of a discovery issue during the trial process, and that appeal was decided by a panel consisting of Judges Wardlaw, Fisher and Berzon. I think there is a very decent chance the standard 9th protocol is followed here and the full appeal is assigned to the previous panel of Wardlaw, Fisher and Berzon, which makes sense in terms of judicial economy since they are already up to speed on the parties and the case facts and posture. So who are these judges, and what is the book on them? Well, that is where the fun comes in. They are all three Clinton appointees, and two of them, Marsha Berzon and Ray Fisher, clerked for Justice Brennan. Solid liberal credentials for sure, and Kim Wardlaw may actually be even more enlightened. If the appeal gets assigned to this panel, it would be in excellent hands and I would like very much the chances for upholding Judge Walker’s decision in favor of marriage equality for all."
This is some high-quality analysis. It makes sense to me. I followed the trial and it seems to me that Judge Walker's decision is going to stand--all the way to the United Supreme Court. That case was carefully set up by two of the best Supreme Court litigators in the country to foreground the key issue in Lawrence v. Texas. As with the Texas sodomy law that only applied to gays, the only basis for banning same-sex marriage is religious/moral disapproval of gays. I don't see how that can be the basis for a state law under the Equal Protection Clause, and I don't see how that constitutes a "rational basis" for a law, which means it also fails under the Due Process Clause.
ps: However, check out this post from law professor Ann Althouse, where she highlights Walker's point that his decision may not be appealed at all. Why? The State of California never defended Prop 8 to begin with, and the private parties who did defend it may have had standing to intervene and play that role at the trial stage, but may not have standing to appeal. That would mean Judge Walker's opinion would be the final word on gay marriage in California.