The Ball Heads for His Court

Same-sex marriage will resume in California over the will of the state's voters if a new federal court ruling stands up on appeal. In Perry v. Brown, a three-judge panel of the Ninth U.S. Circuit Court of Appeals today upheld a trial judge's ruling that struck down Proposition 8, a 2008 ballot measure that amended the state's constitution to restore the traditional definition of marriage. The Golden State's Supreme Court had earlier held that the unamended California Constitution mandated same-sex marriage, but then upheld the amendment that effectively struck down that ruling. "In the grand scheme of things, there is nothing enduringly significant about today's ruling," writes National Review's Edward Whelan. A perceptive reader will recognize the ponderous qualifiers "grand" and "enduring" as signals that Whelan's assertion is a trivial truth. As he explains in his next sentence, "The Ninth Circuit was just a way-station on the path to the Supreme Court." It's possible that the Ninth Circuit will rehear the case en banc--i.e., before an 11-judge panel--though Whelan doubts it. In any case, an appeal to the high court is a certainty, and the justices' agreeing to hear the case is a strong possibility, if not an overwhelming likelihood. The Ninth Circuit has a poor batting average in Supreme Court appeals, and this decision was written by Judge Stephen Reinhardt, who is notoriously liberal. Those facts are likely to inspire optimism among conservative commentators who oppose same-sex marriage. They shouldn't. Reinhardt's decision was expertly crafted to appeal to his former Ninth Circuit peer Justice Anthony Kennedy, whose view of the matter is all but certain to prove decisive.