An appeal to this year's earlier ruling overturning Proposition 8 (California's voter-approved ban on gay marriage) will be heard beginning next week. A three-judge panel of the Ninth Circuit Court of Appeals in San Francisco is due to begin hearing the case on Monday, December 6. And now, the judges to hear that case have been chosen. Cautious early betting: looks pretty good for those opposed to Prop 8.
First, we have Ninth Circuit Judge Stephen R. Reinhardt. Rienhardt is widely considered one of the more liberal judges serving on federal courts. For instance, he was among the judges on the Ninth Circuit who ruled that the words "under God" in the Pledge of Allegiance were in violation of the First Amendment's protection against state-sponsored religion. A Carter appointee, Reinhardt has issued rulings in support of gay rights issues in the past. Just last year, he ruled in favor of a public defender whose partner was denied federal health coverage even after they had married.
Next, consider Michael Daly Hawkins. Hawkins is a Clinton appointee, who served as a courts martial judge for the US Marines in the 1970s, followed by service as a US Attorney for Arizona, and then a stint as Special Prosecutor for the Navajo Nation before coming to the Ninth Circuit. He is characterized as a "moderate Arizona Democrat" by the San Francisco Chronicle. He was also a member of the three-judge panel that placed a stay on Judge Vaughn Walker's earlier overrule of Prop. 8. (Judge Walker's is the ruling that is now under consideration on appeal.) But, says Freedom to Marry executive director Evan Wolfson, "I'm not sure that means that much." There's a big difference between a stay and a ruling based on the merits of the full case. Hawkins is generally expected to be sympathetic to the challenge to Prop. 8.
Finally we have Judge N. Randy Smith. Smith is a George W. Bush appointee, the only one of the three to have been seated by a Republican president. But even Smith's vote is not a certain no. Late last year, he served on a three-judge panel of the Ninth Circuit on a related matter—in this case, refusing to allow the Campaign for California Families to join the suit defending Prop. 8 that is now about to land back in Judge Smith's lap. Given that the standing of the appellants is predicted to be a big issue in this appeal (the anti-8 lawyers are claiming that the pro-8 crowd has no legal standing to bring an appeal at all), Judge Smith's earlier ruling is an interesting caveat to his more conservative history.
Though conservative outlets consider there was some sort of conspiracy to seat liberal judges for the Prop. 8 appeal, the fact is that the Ninth Circuit is one of the more liberal appellate courts, and the judges were appointed at random from among the judges scheduled to hear cases in San Francisco in December. It's just a roll of the dice—but in this case, the cause for cautious optimism.