Leonard Link lays out what’s next in the Prop 8 lawsuit

Arthur S. Leonard is a New York Law School professor who provides wonderfully perceptive and thorough analyses of important LGBT rights cases on his blog, Leonard Link. He has a new one out on the future prospects and next steps of the Prop 8 case. For legal geeks, it is definitely worth the read. Here is an excerpt analyzing whether the Supreme Court will hear the case (i.e. grant certiorari):

Four votes are necessary to grant certiorari [before the Supreme Court]. The four Justices to the right, presuming they would be disposed to overrule the 9th Circuit, would be unlikely to vote for Proponents’ petition for certiorari (on a theory of strategic cert voting) if they thought Kennedy was likely to vote to affirm. The four Justices to the center-left, presuming they would be disposed to affirm the 9th Circuit panel opinion, would be unlikely to vote for a petition for certiorari from Proponents if they thought Kennedy was likely to vote to reverse. But Kennedy is unlikely to signal any predisposition in this case, and there is lively speculation about whether Kennedy would see the 9th Circuit opinion as an appropriate application of his ruling in Romer or whether he would see a need re-examine Romer in light of the California facts of the Prop 8 case. Because judges are not supposed to announce a position on a case before it is briefed and argued, and in their function as judges they should reserve forming a conclusion before they have read the briefs and heard the arguments of the parties and discussed the matter in conference, nobody will know for certain where they stand. Confident predictions about how the Court will decide a case or how individual Justices will vote are sometimes proved wrong.

I continue to believe that because of the narrow basis on which the 9th Circuit ruled, there is a good chance that the Court would deny a cert petition filed by the Proponents.

Liz Newcomb is an attorney by day and committed LGBT activist by night and weekend. She has worked as a researcher at the Williams Institute. While in law school at UCLA, she was Articles Editor of the LGBT law journal. Liz lives in West Hollywood with her wife, Lynne. They are one of the 18,000 California same-sex couples who got married during the summer before proposition 8 passed. Liz has lived in California for over 20 years and brings a left coast perspective to AMERICAblog.

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