The U.S. Ninth Circuit Court of Appeals said Monday that nominees of Presidents Jimmy Carter, Bill Clinton and George W. Bush have been chosen at random to consider an appeal in the highly publicized California Proposition 8 case. Oral arguments will take place next Monday, Dec. 6.
The Carter nominee, Stephen Reinhardt, is considered one of the most liberal members of the court, although -- if conservatives have their way -- he may disqualify himself because of his wife's alleged involvement in the case. The Clinton nominee, Michael Daly Hawkins, also leans left. Only the Bush nominee, N. Randy Smith, is viewed as a likely vote against "gay marriage."
Conservatives had hoped the random draw would result in a more favorable panel. The Ninth Circuit is one of the more liberal courts in the nation, though, so a conservative-leaning panel would have been somewhat surprising.
"Reinhardt ... may well be the most aggressive liberal judicial activist in the nation -- and the most reversed judge in history," Ed Whalen, president of the Ethics and Public Policy Center, wrote at NationalReview.com. "Hawkins, a 1994 Clinton appointee, is also regularly on the Left on the Ninth Circuit. Smith, who was appointed by President George W. Bush in 2007, is much more of a judicial conservative.
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"With two hard-core liberals, the panel is a fairly typical Ninth Circuit draw -- which is to say, a bad one for supporters of Prop 8."
Oral arguments will take place nearly four months after U.S. District Judge Vaughn Walker struck down California's 2008 voter-approved constitutional amendment that protected the traditional definition of marriage. If the Supreme Court takes the case and Walker's ruling stands, then every state could be forced to recognize "marriage" between homosexuals.
Opponents of "gay marriage" warn that its legalization will negatively affect all of society, impacting everything from the tax-exempt status of religious organizations to the way private businesses are run to what is taught in elementary schools.
The Ninth Circuit announced in August it was taking the case but didn't reveal the panel's makeup until Monday (Nov. 29).
Some say Reinhardt should disqualify himself from the case because his wife, Ramona Ripston, consulted with the plaintiffs when they were preparing to file the lawsuit, according to an article in the publication California Lawyer. Ripston is the immediate past executive director of the ACLU of Southern California. Additionally, according to the same story, a lawyer for the ACLU of Southern California helped prepare a friend-of-the-court brief urging that Prop 8 be overturned. Ripston was the exectutive director at the time.
The panel's composition is but the latest bit of bad news for supporters of Prop 8. In the California Attorney General's race, Democrat and Prop 8 opponent Kamala Harris was declared the winner Nov. 24 in a close race with Republican Steve Cooley, who had vowed to defend Prop 8 in court if he won. The outgoing attorney general, Jerry Brown, also refused to defend Prop 8. Harris won by about 70,000 votes out of nearly 8.7 million votes (46.1 to 45.4 percent). The vote-counting dragged on more than three weeks after Election Day.
Michael Foust is an assistant editor of Baptist Press.
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