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"content": "\u003cp>by Laird Harrison and Scott Shafer\u003c/p>\n\u003cp>He waffled. He backtracked. And on Friday David Blankenhorn, a leading opponent of gay marriage, announced in the \u003ca href=\"http://www.nytimes.com/2012/06/23/opinion/how-my-view-on-gay-marriage-changed.html?_r=1\">New York Times\u003c/a> that he is giving in.\u003c/p>\n\u003cfigure id=\"attachment_68608\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/06/1073613061.jpg\">\u003cimg class=\"size-medium wp-image-68608\" title=\"Federal Appeals Court Holds Hearing On Prop 8\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/06/1073613061-300x212.jpg\" alt=\"\" width=\"300\" height=\"212\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters on both sides closely watched the 9th Circuit U.S. Court of Appeals decision on Proposition 8.\u003c/figcaption>\u003c/figure>\n\u003cp>In his 2007 book \"The Future of Marriage,\" and in testimony defending California's Proposition 8 in court, Blankenhorn argued that marriage should only be between a man and a woman.\u003c/p>\n\u003cp>The founder of the \u003ca href=\"http://www.americanvalues.org/\">Institute for American Values\u003c/a>, Blankenhorn served as the star witness for the defense in Perry vs. Brown, the federal case against the state's ban on same-sex marriage.\u003c/p>\n\u003cp>Blankenhorn still believes in the principle that led him to oppose gay marriage, he writes:\u003c/p>\n\u003cblockquote>\u003cp>I opposed gay marriage believing that children have the right, insofar as society makes it possible, to know and to be cared for by the two parents who brought them into this world.\u003c/p>\u003c/blockquote>\n\u003cp>But fighting gay marriage hasn't strengthened heterosexual marriage at all, he writes. The institution has continued to disintegrate, and the argument about gay marriage is tainted by \"anti-gay animus.\"\u003c/p>\n\u003cblockquote>\u003cp>So my intention is to try something new. Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.\u003c/p>\u003c/blockquote>\n\u003cp>Anyone who witnessed the Prop. 8 trial in 2010 (and sadly few \u003cem>did\u003c/em> since the U.S. Supreme Court banned cameras in the courtroom at the last minute) remembers Blankenhorn's testimony as one of the highlights.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>Blankenhorn testified that allowing gays and lesbians to wed would undermine traditional marriage. That's when the fireworks began.\u003c/p>\n\u003cp>During hours of withering cross examination by Prop. 8 opponent David Boies, Blankenhorn bickered, argued and stonewalled -- often refusing to answer Boies' \"yes or no\" questions with a one word answer. Speaking of marriage at one point Blankenhorn said, \"If you change the definition of the 'thing', it is hard to imagine how it wouldn't have an impact on the 'thing'.\"\u003c/p>\n\u003cp>It left both men -- and Judge Vaughn Walker -- a little exasperated.\u003c/p>\n\u003cp>Boies also questioned Blankenhorn's appearance as an \"expert witness.\" (Blankenhorn earned a masters degree in England, where he studied the history of labor unions.)\u003c/p>\n\u003cp>Under persistent questioning by Boies, Blankenhorn was forced to acknowledge that legalizing same sex marriage would most likely \"improve the well being of gay and lesbian households and their children.\"\u003c/p>\n\u003cp>Blankenhorn also confirmed an earlier statement in \"The Future of Marriage\" that the U.S. would be \"more American on the day we permit same-sex marriage than we we were on the day before.\"\u003c/p>\n\u003cp>A perfect witness for Prop. 8 Mr. Blankenhorn was not. And his ambivalence on the stand makes his conversion to same sex supporter less than surprising.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>The question now is how far will he go? Will he file an amicus brief for the opponents of Prop. 8 if and when it reaches the U.S. Supreme Court? Where does his evolution end?\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>by Laird Harrison and Scott Shafer\u003c/p>\n\u003cp>He waffled. He backtracked. And on Friday David Blankenhorn, a leading opponent of gay marriage, announced in the \u003ca href=\"http://www.nytimes.com/2012/06/23/opinion/how-my-view-on-gay-marriage-changed.html?_r=1\">New York Times\u003c/a> that he is giving in.\u003c/p>\n\u003cfigure id=\"attachment_68608\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/06/1073613061.jpg\">\u003cimg class=\"size-medium wp-image-68608\" title=\"Federal Appeals Court Holds Hearing On Prop 8\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/06/1073613061-300x212.jpg\" alt=\"\" width=\"300\" height=\"212\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters on both sides closely watched the 9th Circuit U.S. Court of Appeals decision on Proposition 8.\u003c/figcaption>\u003c/figure>\n\u003cp>In his 2007 book \"The Future of Marriage,\" and in testimony defending California's Proposition 8 in court, Blankenhorn argued that marriage should only be between a man and a woman.\u003c/p>\n\u003cp>The founder of the \u003ca href=\"http://www.americanvalues.org/\">Institute for American Values\u003c/a>, Blankenhorn served as the star witness for the defense in Perry vs. Brown, the federal case against the state's ban on same-sex marriage.\u003c/p>\n\u003cp>Blankenhorn still believes in the principle that led him to oppose gay marriage, he writes:\u003c/p>\n\u003cblockquote>\u003cp>I opposed gay marriage believing that children have the right, insofar as society makes it possible, to know and to be cared for by the two parents who brought them into this world.\u003c/p>\u003c/blockquote>\n\u003cp>But fighting gay marriage hasn't strengthened heterosexual marriage at all, he writes. The institution has continued to disintegrate, and the argument about gay marriage is tainted by \"anti-gay animus.\"\u003c/p>\n\u003cblockquote>\u003cp>So my intention is to try something new. Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.\u003c/p>\u003c/blockquote>\n\u003cp>Anyone who witnessed the Prop. 8 trial in 2010 (and sadly few \u003cem>did\u003c/em> since the U.S. Supreme Court banned cameras in the courtroom at the last minute) remembers Blankenhorn's testimony as one of the highlights.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>Blankenhorn testified that allowing gays and lesbians to wed would undermine traditional marriage. That's when the fireworks began.\u003c/p>\n\u003cp>During hours of withering cross examination by Prop. 8 opponent David Boies, Blankenhorn bickered, argued and stonewalled -- often refusing to answer Boies' \"yes or no\" questions with a one word answer. Speaking of marriage at one point Blankenhorn said, \"If you change the definition of the 'thing', it is hard to imagine how it wouldn't have an impact on the 'thing'.\"\u003c/p>\n\u003cp>It left both men -- and Judge Vaughn Walker -- a little exasperated.\u003c/p>\n\u003cp>Boies also questioned Blankenhorn's appearance as an \"expert witness.\" (Blankenhorn earned a masters degree in England, where he studied the history of labor unions.)\u003c/p>\n\u003cp>Under persistent questioning by Boies, Blankenhorn was forced to acknowledge that legalizing same sex marriage would most likely \"improve the well being of gay and lesbian households and their children.\"\u003c/p>\n\u003cp>Blankenhorn also confirmed an earlier statement in \"The Future of Marriage\" that the U.S. would be \"more American on the day we permit same-sex marriage than we we were on the day before.\"\u003c/p>\n\u003cp>A perfect witness for Prop. 8 Mr. Blankenhorn was not. And his ambivalence on the stand makes his conversion to same sex supporter less than surprising.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>The question now is how far will he go? Will he file an amicus brief for the opponents of Prop. 8 if and when it reaches the U.S. Supreme Court? Where does his evolution end?\u003c/p>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "Will the Supreme Court Take Up Prop 8? Another Opinion...",
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"content": "\u003cfigure id=\"attachment_57193\" class=\"wp-caption alignleft\" style=\"max-width: 180px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\">\u003cimg class=\"size-full wp-image-57193\" title=\"Prop8Sm\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\" alt=\"Prop 8\" width=\"180\" height=\"122\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters at a 2011 hearing on Prop 8. (Photo: Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The other day we posted \u003ca href=\"http://ww2.kqed.org/news/2012/06/06/analysis-will-the-supreme-court-hear-the-proposition-8-case/\">Rachael Myrow's interview with UC Davis law professor Vik Amar\u003c/a> about the likelihood that the U.S. Supreme Court would take up the Proposition 8 case now that the \u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/\">high court is the last available avenue of appeal\u003c/a> to the measure's supporters.\u003c/p>\n\u003cp>Amar said that the Ninth Circuit's narrow, exclusive-to-California opinion was an attempt to ward off the Supremes from interesting themselves in the ruling, which holds that California's same-sex marriage ban is unconstitutional. He also said the high court might want to hear a \u003ca href=\"http://ww2.kqed.org/news/2012/05/31/federal-appeals-court-rules-defense-of-marriage-act-unconstitutional/\">First Circuit case stemming from the Defense of Marriage Act\u003c/a> before or instead of the Prop 8 matter, because the DOMA case raised less sweeping issues than Prop 8.\u003c/p>\n\u003cp>Finally, Amar said that the issue of whether or not Prop 8 proponents should have been given standing to defend the law in the first place was not adequately dealt with by either the Ninth Circuit or the California Supreme Court, which \u003ca href=\"http://ww2.kqed.org/news/2011/11/17/california-ruling-on-standing-in-prop-8-case-due-at-10-a-m/\">advised the Ninth Circuit that standing should indeed be granted\u003c/a>.\u003c/p>\n\u003cp>Now, we turn to another legal analyst, Professor Rory Little of UC Hastings College of the Law, to address some of the same issues in answering the question: Will the Supreme Court agree to rule on Proposition 8?\u003c/p>\n\u003cp>Edited transcript from Rachael Myrow's interview earlier this week:\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: So what do you think the Supreme Court will do? Vik Amar said he thought the Supreme Court might look at the case involving the Defense of Marriage Act first?\u003c/p>\n\u003cp>\u003cstrong>PROFESSOR RORY LITTLE OF HASTINGS COLLEGE OF LAW\u003c/strong>: Predicting what the Supreme Court will do is kind of like predicting what number is going to come up on a roll of the dice. It's all tea-leaf reading.\u003c/p>\n\u003cp>It seems to me that the Supreme Court will be interested in the DOMA case, but I think they're also likely to be interested in this case. And it's not uncommon to decide to grant review on two related cases and set them for argument at about the same time. I think the Supreme Court may well decide to grant review on both of them if they're interested in the issue. And if they're not, they may decide to grant review on neither.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: Do you think the Supreme Court might decide that the Ninth Circuit was wrong to say that Prop 8 proponents have standing to defend the case?\u003c/p>\n\u003cp>\u003cstrong>RORY LITTLE\u003c/strong>: That's possible, but I think it's unlikely. Certainly the standing issue will be argued.\u003c/p>\n\u003cp>You remember the Ninth Circuit certified the standing question over to the California Supreme Court and the California Supreme Court rendered its own opinion on the topic and said there was standing. And I think that probably is going to settle the issue even for the Supreme Court. They're going to say if the state is prepared to say there's injury here based on state law, that's good enough for us.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: What is the absolute earliest the Supreme Court might decide to take this up?\u003c/p>\n\u003cp>\u003cstrong>RORY LITTLE\u003c/strong> October. They're in the last three weeks of the term right now. Then they will recess to October. Which means they won't have a conference, a voting meeting of the entire court, until late September. I think it's not likely they will take it up at that point. It will depend on how fast the parties file their briefs. You have 90 days to file a cert petition and extensions are routinely granted. So it's very likely this would not be ripe for the court to decide to review until November or December.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\u003cem>You can \u003ca href=\"http://ww2.kqed.org/news/2012/06/06/analysis-will-the-supreme-court-hear-the-proposition-8-case/\">read Rachael Myrow's earlier interview with Professor Vik Amar about this issue here\u003c/a>.\u003c/em>\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cfigure id=\"attachment_57193\" class=\"wp-caption alignleft\" style=\"max-width: 180px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\">\u003cimg class=\"size-full wp-image-57193\" title=\"Prop8Sm\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\" alt=\"Prop 8\" width=\"180\" height=\"122\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters at a 2011 hearing on Prop 8. (Photo: Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The other day we posted \u003ca href=\"http://ww2.kqed.org/news/2012/06/06/analysis-will-the-supreme-court-hear-the-proposition-8-case/\">Rachael Myrow's interview with UC Davis law professor Vik Amar\u003c/a> about the likelihood that the U.S. Supreme Court would take up the Proposition 8 case now that the \u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/\">high court is the last available avenue of appeal\u003c/a> to the measure's supporters.\u003c/p>\n\u003cp>Amar said that the Ninth Circuit's narrow, exclusive-to-California opinion was an attempt to ward off the Supremes from interesting themselves in the ruling, which holds that California's same-sex marriage ban is unconstitutional. He also said the high court might want to hear a \u003ca href=\"http://ww2.kqed.org/news/2012/05/31/federal-appeals-court-rules-defense-of-marriage-act-unconstitutional/\">First Circuit case stemming from the Defense of Marriage Act\u003c/a> before or instead of the Prop 8 matter, because the DOMA case raised less sweeping issues than Prop 8.\u003c/p>\n\u003cp>Finally, Amar said that the issue of whether or not Prop 8 proponents should have been given standing to defend the law in the first place was not adequately dealt with by either the Ninth Circuit or the California Supreme Court, which \u003ca href=\"http://ww2.kqed.org/news/2011/11/17/california-ruling-on-standing-in-prop-8-case-due-at-10-a-m/\">advised the Ninth Circuit that standing should indeed be granted\u003c/a>.\u003c/p>\n\u003cp>Now, we turn to another legal analyst, Professor Rory Little of UC Hastings College of the Law, to address some of the same issues in answering the question: Will the Supreme Court agree to rule on Proposition 8?\u003c/p>\n\u003cp>Edited transcript from Rachael Myrow's interview earlier this week:\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: So what do you think the Supreme Court will do? Vik Amar said he thought the Supreme Court might look at the case involving the Defense of Marriage Act first?\u003c/p>\n\u003cp>\u003cstrong>PROFESSOR RORY LITTLE OF HASTINGS COLLEGE OF LAW\u003c/strong>: Predicting what the Supreme Court will do is kind of like predicting what number is going to come up on a roll of the dice. It's all tea-leaf reading.\u003c/p>\n\u003cp>It seems to me that the Supreme Court will be interested in the DOMA case, but I think they're also likely to be interested in this case. And it's not uncommon to decide to grant review on two related cases and set them for argument at about the same time. I think the Supreme Court may well decide to grant review on both of them if they're interested in the issue. And if they're not, they may decide to grant review on neither.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: Do you think the Supreme Court might decide that the Ninth Circuit was wrong to say that Prop 8 proponents have standing to defend the case?\u003c/p>\n\u003cp>\u003cstrong>RORY LITTLE\u003c/strong>: That's possible, but I think it's unlikely. Certainly the standing issue will be argued.\u003c/p>\n\u003cp>You remember the Ninth Circuit certified the standing question over to the California Supreme Court and the California Supreme Court rendered its own opinion on the topic and said there was standing. And I think that probably is going to settle the issue even for the Supreme Court. They're going to say if the state is prepared to say there's injury here based on state law, that's good enough for us.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: What is the absolute earliest the Supreme Court might decide to take this up?\u003c/p>\n\u003cp>\u003cstrong>RORY LITTLE\u003c/strong> October. They're in the last three weeks of the term right now. Then they will recess to October. Which means they won't have a conference, a voting meeting of the entire court, until late September. I think it's not likely they will take it up at that point. It will depend on how fast the parties file their briefs. You have 90 days to file a cert petition and extensions are routinely granted. So it's very likely this would not be ripe for the court to decide to review until November or December.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>\u003cem>You can \u003ca href=\"http://ww2.kqed.org/news/2012/06/06/analysis-will-the-supreme-court-hear-the-proposition-8-case/\">read Rachael Myrow's earlier interview with Professor Vik Amar about this issue here\u003c/a>.\u003c/em>\u003c/p>\n\n\u003c/div>\u003c/p>",
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"content": "\u003cp>Yesterday the Ninth Circuit Court of Appeals declined to grant a rehearing of the Proposition 8 case. In February, a three-judge panel of the court voted 2-1 to uphold a lower court's ruling that the same-sex marriage ban is unconstitutional, and Proposition 8 proponents, on the losing side of that decision, had wanted a larger group of Ninth Circuit judges, called an \"en banc\" panel, to rehear the case.\u003c/p>\n\u003cp>After this latest setback, Prop 8 supporters, who have now lost at two levels of the federal judiciary, said they would \"absolutely\" ask the Supreme Court to review the case.\u003c/p>\n\u003cp>When the Ninth Circuit issued its ruling on the case in February, UC Davis law professor Vik Amar told KQED's Scott Shafer that he thought the opinion was written as narrowly as possible in order to ward off the Supreme Court from taking -- and perhaps overturning -- the case.\u003c/p>\n\u003cp>Yesterday, after the Ninth Circuit announced it would not take up the case again, KQED's Rachael Myrow checked in with Professor Amar to get his reading of the tea leaves in terms of whether the Supreme Court will take up the matter of Proposition 8. Edited transcript of that interview:\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>:Recap the narrow ruling that the Ninth Circuit issued in February.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: They tried to decide the case on very California-specific grounds, so the Supreme Court wouldn't feel it had to intervene and take review. If the Ninth Circuit had held that not only had Prop 8 violated the federal constitution, but that every state's ban on same-sex marriage in the western U.S. also violated the federal constitution, than I think the U.S. Supreme Court would have had no choice but to take review.\u003c/p>\n\u003cp>There's still a good chance the Supreme Court will step in, but at least by making the ruling so California-specific they offer the Supreme Court an excuse not to step in if it wants to wait.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: A lot of people are talking as if it's a given that the Supreme Court will take up the case. But might it leave it alone?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: It might. But the California-specific reasoning that Judge Reinhardt employed is not convincing to a lot of people. So there's a good chance the Supreme Court will still want to take the case.\u003c/p>\n\u003cp>But complicating things more now is the decision by the First Circuit Court of Appeals in the Defense of Marriage case last week. The DOMA case raises narrower questions than the Prop 8 case does. So they may want to look at the DOMA issues and wait a year or more before they take on the more momentous question of whether states have to recognize same-sex marriage, if they want to take up the question of gay marriage a little more incrementally.\u003c/p>\n\u003cp>Because in the First Circuit's DOMA ruling, the question wasn't whether states have to recognize same sex marriage, it was if a state recognizes same sex marriage, should the federal government have to abide by that and allow that couple to be considered married for federal purposes as well? The court may want to look at that narrower issue before it confronts the bigger issue presented by Prop 8 and other bans on same-sex marriage like it.\u003c/p>\n\u003cp>Sometimes the Supreme Court will sit on a request for review for awhile until it decides another case that may be relevant. So if the Supreme Court decides it wants to take the DOMA case first, it could grant review in that case and let the Prop 8 case sit.\u003c/p>\n\u003cp>One more thing that's important – we've been focusing on the merits of the Prop 8 case, whether the California constitutional ban on same-sex marriage violates the 14th Amendment. But there's still that looming question of whether the defenders of Prop 8 had standing to defend the law in the first place. The Supreme Court could dispose of the Prop 8 case if it wanted to on standing grounds without ever ruling on the merits. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: How likely is that?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: I think it's not unlikely. In 1996 the Supreme Court unanimously wrote an opinion that slapped the Ninth Circuit down for recognizing initiative-sponsored standing in Arizona. This case is arguably different than the Arizona case, but there's a lot of skepticism on the part of U.S. Supreme Court justices about whether unelected individuals should easily be able to step into the shoes of voters and defend enactments in federal court, especially when the people who passed Prop 8, the voters, may not have really known who the sponsors of Prop 8 were who were going to be their legal representatives.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>I think the standing question is a really complex one and I don't really think the Ninth circuit and the California Supreme Court did it justice in deciding that the sponsors really did have standing.\u003c/p>\n\n",
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"description": "Yesterday the Ninth Circuit Court of Appeals declined to grant a rehearing of the Proposition 8 case. In February, a three-judge panel of the court voted 2-1 to uphold a lower court's ruling that the same-sex marriage ban is unconstitutional, and Proposition 8 proponents, on the losing side of that decision, had wanted a larger",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>Yesterday the Ninth Circuit Court of Appeals declined to grant a rehearing of the Proposition 8 case. In February, a three-judge panel of the court voted 2-1 to uphold a lower court's ruling that the same-sex marriage ban is unconstitutional, and Proposition 8 proponents, on the losing side of that decision, had wanted a larger group of Ninth Circuit judges, called an \"en banc\" panel, to rehear the case.\u003c/p>\n\u003cp>After this latest setback, Prop 8 supporters, who have now lost at two levels of the federal judiciary, said they would \"absolutely\" ask the Supreme Court to review the case.\u003c/p>\n\u003cp>When the Ninth Circuit issued its ruling on the case in February, UC Davis law professor Vik Amar told KQED's Scott Shafer that he thought the opinion was written as narrowly as possible in order to ward off the Supreme Court from taking -- and perhaps overturning -- the case.\u003c/p>\n\u003cp>Yesterday, after the Ninth Circuit announced it would not take up the case again, KQED's Rachael Myrow checked in with Professor Amar to get his reading of the tea leaves in terms of whether the Supreme Court will take up the matter of Proposition 8. Edited transcript of that interview:\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>:Recap the narrow ruling that the Ninth Circuit issued in February.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: They tried to decide the case on very California-specific grounds, so the Supreme Court wouldn't feel it had to intervene and take review. If the Ninth Circuit had held that not only had Prop 8 violated the federal constitution, but that every state's ban on same-sex marriage in the western U.S. also violated the federal constitution, than I think the U.S. Supreme Court would have had no choice but to take review.\u003c/p>\n\u003cp>There's still a good chance the Supreme Court will step in, but at least by making the ruling so California-specific they offer the Supreme Court an excuse not to step in if it wants to wait.\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: A lot of people are talking as if it's a given that the Supreme Court will take up the case. But might it leave it alone?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: It might. But the California-specific reasoning that Judge Reinhardt employed is not convincing to a lot of people. So there's a good chance the Supreme Court will still want to take the case.\u003c/p>\n\u003cp>But complicating things more now is the decision by the First Circuit Court of Appeals in the Defense of Marriage case last week. The DOMA case raises narrower questions than the Prop 8 case does. So they may want to look at the DOMA issues and wait a year or more before they take on the more momentous question of whether states have to recognize same-sex marriage, if they want to take up the question of gay marriage a little more incrementally.\u003c/p>\n\u003cp>Because in the First Circuit's DOMA ruling, the question wasn't whether states have to recognize same sex marriage, it was if a state recognizes same sex marriage, should the federal government have to abide by that and allow that couple to be considered married for federal purposes as well? The court may want to look at that narrower issue before it confronts the bigger issue presented by Prop 8 and other bans on same-sex marriage like it.\u003c/p>\n\u003cp>Sometimes the Supreme Court will sit on a request for review for awhile until it decides another case that may be relevant. So if the Supreme Court decides it wants to take the DOMA case first, it could grant review in that case and let the Prop 8 case sit.\u003c/p>\n\u003cp>One more thing that's important – we've been focusing on the merits of the Prop 8 case, whether the California constitutional ban on same-sex marriage violates the 14th Amendment. But there's still that looming question of whether the defenders of Prop 8 had standing to defend the law in the first place. The Supreme Court could dispose of the Prop 8 case if it wanted to on standing grounds without ever ruling on the merits. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>RACHAEL MYROW\u003c/strong>: How likely is that?\u003c/p>\n\u003cp>\u003cstrong>VIK AMAR\u003c/strong>: I think it's not unlikely. In 1996 the Supreme Court unanimously wrote an opinion that slapped the Ninth Circuit down for recognizing initiative-sponsored standing in Arizona. This case is arguably different than the Arizona case, but there's a lot of skepticism on the part of U.S. Supreme Court justices about whether unelected individuals should easily be able to step into the shoes of voters and defend enactments in federal court, especially when the people who passed Prop 8, the voters, may not have really known who the sponsors of Prop 8 were who were going to be their legal representatives.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>I think the standing question is a really complex one and I don't really think the Ninth circuit and the California Supreme Court did it justice in deciding that the sponsors really did have standing.\u003c/p>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "Request for En Banc Rehearing of Prop 8 Case Denied by 9th Circuit",
"title": "Request for En Banc Rehearing of Prop 8 Case Denied by 9th Circuit",
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"content": "\u003cfigure id=\"attachment_55522\" class=\"wp-caption alignright\" style=\"max-width: 220px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11.jpg\">\u003cimg class=\"size-medium wp-image-55522\" title=\"Prop8plaintiffsSM1\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11-300x225.jpg\" alt=\"\" width=\"220\" height=\"166\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Couples challenging Prop 8 pose before an Appeals Court hearing in Dec, 2010. (Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The petition by Prop 8 proponents for a rehearing of the case by a larger panel of the Ninth Circuit Court of Appeals has been denied.\u003c/p>\n\u003cul>\n\u003cli>\u003ca href=\"http://www.ca9.uscourts.gov/datastore/general/2012/06/05/1016696ebofinal.pdf\">\u003cstrong>Read the ruling here\u003c/strong>\u003c/a>\u003c/li>\n\u003c/ul>\n\u003cp>Prop 8 proponents now have 90 days to file an appeal to the U.S. Supreme Court, during which time same-sex marriage in California will remain prohibited, as it will if and when the Supreme Court takes the case. Backers of the ban said today they \u003ca href=\"http://www.kqed.org/news/story/2012/06/05/96369/prop_8_backers_say_theyll_take_case_to_supreme_court?category=bay+area\">will indeed ask the high court to review the decision\u003c/a>. From AP:\u003c/p>\n\u003cblockquote>\u003cp>Alliance Defense Fund lawyer Brian Raum said Proposition 8 backers ``absolutely'' would take the case to the high court now that it has run its course at the 9th U.S. Circuit Court of Appeals.\u003c/p>\n\u003cp>Raum said he expected to get a ruling from the Supreme Court sometime in the fall on whether it would take the case. He did not know if the Proposition 8 defense team would take the entire 90 days they have to petition the Supreme Court.\u003c/p>\u003c/blockquote>\n\u003cp>If the high court declines to hear the case, or if it upholds the Ninth Circuit's ruling, then same-sex marriage will be legal in California. If the Supreme Court takes the case and reverses the Ninth Circuit decision, then it will remain illegal. \u003c/p>\n\u003cp>Theodore Olson, one of the lead attorneys for the plaintiffs challenging Prop 8, speculated on a conference call today that he expects the Supreme Court would announce its decision on whether it will hear the case in October. If the court takes up the matter, Olson said, he thinks arguments would occur some time in the spring of 2013, with a decision by June, 2013. \u003c/p>\n\u003caside class=\"pullquote alignleft\">\u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/#react\">\u003cstrong>Reaction from around the web and live chat\u003c/strong>\u003c/a>\u003c/aside>\n\u003cp>As for today's ruling, proponents of Prop 8 asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">decision by a three-judge panel\u003c/a> upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>In the 2-1 decision validating Walker's ruling, the court wrote: \"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.\" \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Update 10:30 a.m.\u003c/strong> KQED's Scott Shafer today talked to Vik Amar of the UC Davis School of Law, who said there were actually two requests before the court:\u003c/p>\n\u003cul>\n\u003cli>A request to the original three-judge panel for a rehearing. That request was denied 2 to 1, with Judge Smith, who wrote the original dissent to the decision, in the minority.\u003c/li>\n\u003cli>Having lost that vote, a request for an en banc hearing was then put to the full court, and at least three judges voted to rehear the case. The opinion, written by Judge O’Scannlain, was publicly joined by Judges Byee and Bea. Other judges may have also voted for a rehearing but declined to make their names public.\u003c/li>\n\u003c/ul>\n\u003cp>\u003cstrong>Update 10:40 a.m.\u003c/strong> In February, Hastings law professor Rory Little told Scott Shafer he thought Prop 8 supporters were pretty disappointed with Judge Smith's dissent to the original decision, \"which was not a ringing Scalia-like forceful 'this is wrong.' It was more like 'we should be cautious, although there are a lot of good points here.'\u003c/p>\n\u003cp>Little continued: \"Here's the best result for proponents -- they don't get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they're powerful writers.\"\u003c/p>\n\u003cp>Well, Judge O'Scannlain did indeed write a dissent...\u003c/p>\n\u003cblockquote>\u003cp>A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”\u003c/p>\n\u003cp>Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of \u003ca href=\"http://www.oyez.org/cases/1990-1999/1995/1995_94_1039\">Romer v. Evans\u003c/a>, we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia. Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.\u003c/p>\u003c/blockquote>\n\u003cp>And the retort from Judges Reinhardt and Hawkins, who made up the majority in February's 2-1 decision:\u003c/p>\n\u003cblockquote>\u003cp>We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.\u003c/p>\u003c/blockquote>\n\u003cp>The reference here to the \"the particular circumstances relating to California’s Proposition 8\" and to the lack of resolution to \"the fundamental question [of] whether the Constitution prohibits the states from banning same-sex marriage\" may also be noteworthy.\u003c/p>\n\u003cp>After the Ninth Circuit panel's decision against Prop 8 in February, UC Davis' Vik Amar told Scott Shafer that \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-ruling-legal-analysis-decision-was-made-with-eye-toward-supreme-court/\">Reinhardt and Hawkins may have tailored their decision in the narrowest way possible\u003c/a>, making it applicable only to California, so as to give the ruling the best possible chance of \u003cem>not\u003c/em> being taken up by the U.S. Supreme Court.\u003c/p>\n\u003cp>But Amar also said: \"There was no way the Ninth circuit was going to rule for the plaintiffs and not create a significant risk that the Supreme Court would step in. The question wasn't whether the Supreme Court had its eye on this case, the question was how do you minimize that, and I think they tried to do that by keeping the reasoning specific to California.\"\u003c/p>\n\u003cp>Professor Rory Little of Hastings agreed with that today, in an interview with KQED's Rachael Myrow. \"I think it's a little naieve to believe that the court will see this as limited to just California. Certainly the Ninth Circuit's ruling only relates to California, but its analysis is much broader than just California. And of course the Ninth Circuit governs the entire western United states, so its analysis would be precedent for the entire [region]. \u003c/p>\n\u003cp>\"I think the Supreme Court is likely to think this issue is ripe, this is ready for a national decision. One way or the other, there are enough states that have gone in different directions, there's enough controversy about it, [so] let's try to put the issue to rest one way or the other.\"\u003c/p>\n\u003cp>\u003ca name=\"react\">\u003c/a>\u003cbr>\nReaction and coverage from around the web below...\u003c/p>\n\u003cp>\u003ciframe style=\"border: 1px solid #000000\" src=\"http://embed.scribblelive.com/Embed/v5.aspx?Id=48944&ThemeId=5349\" frameborder=\"0\" width=\"400\" height=\"300\">\u003c/iframe>\u003c/p>\n\u003cp>\u003ca href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Read the full decision here\u003c/a>:\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision on Scribd\" href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision\u003c/a>\u003ciframe src=\"http://www.scribd.com/embeds/96044529/content?start_page=1&view_mode=list&access_key=key-2f8llfbytss95ikdjxx2\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cfigure id=\"attachment_55522\" class=\"wp-caption alignright\" style=\"max-width: 220px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11.jpg\">\u003cimg class=\"size-medium wp-image-55522\" title=\"Prop8plaintiffsSM1\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8plaintiffsSM11-300x225.jpg\" alt=\"\" width=\"220\" height=\"166\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Couples challenging Prop 8 pose before an Appeals Court hearing in Dec, 2010. (Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The petition by Prop 8 proponents for a rehearing of the case by a larger panel of the Ninth Circuit Court of Appeals has been denied.\u003c/p>\n\u003cul>\n\u003cli>\u003ca href=\"http://www.ca9.uscourts.gov/datastore/general/2012/06/05/1016696ebofinal.pdf\">\u003cstrong>Read the ruling here\u003c/strong>\u003c/a>\u003c/li>\n\u003c/ul>\n\u003cp>Prop 8 proponents now have 90 days to file an appeal to the U.S. Supreme Court, during which time same-sex marriage in California will remain prohibited, as it will if and when the Supreme Court takes the case. Backers of the ban said today they \u003ca href=\"http://www.kqed.org/news/story/2012/06/05/96369/prop_8_backers_say_theyll_take_case_to_supreme_court?category=bay+area\">will indeed ask the high court to review the decision\u003c/a>. From AP:\u003c/p>\n\u003cblockquote>\u003cp>Alliance Defense Fund lawyer Brian Raum said Proposition 8 backers ``absolutely'' would take the case to the high court now that it has run its course at the 9th U.S. Circuit Court of Appeals.\u003c/p>\n\u003cp>Raum said he expected to get a ruling from the Supreme Court sometime in the fall on whether it would take the case. He did not know if the Proposition 8 defense team would take the entire 90 days they have to petition the Supreme Court.\u003c/p>\u003c/blockquote>\n\u003cp>If the high court declines to hear the case, or if it upholds the Ninth Circuit's ruling, then same-sex marriage will be legal in California. If the Supreme Court takes the case and reverses the Ninth Circuit decision, then it will remain illegal. \u003c/p>\n\u003cp>Theodore Olson, one of the lead attorneys for the plaintiffs challenging Prop 8, speculated on a conference call today that he expects the Supreme Court would announce its decision on whether it will hear the case in October. If the court takes up the matter, Olson said, he thinks arguments would occur some time in the spring of 2013, with a decision by June, 2013. \u003c/p>\n\u003caside class=\"pullquote alignleft\">\u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/#react\">\u003cstrong>Reaction from around the web and live chat\u003c/strong>\u003c/a>\u003c/aside>\n\u003cp>As for today's ruling, proponents of Prop 8 asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">decision by a three-judge panel\u003c/a> upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>In the 2-1 decision validating Walker's ruling, the court wrote: \"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.\" \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Update 10:30 a.m.\u003c/strong> KQED's Scott Shafer today talked to Vik Amar of the UC Davis School of Law, who said there were actually two requests before the court:\u003c/p>\n\u003cul>\n\u003cli>A request to the original three-judge panel for a rehearing. That request was denied 2 to 1, with Judge Smith, who wrote the original dissent to the decision, in the minority.\u003c/li>\n\u003cli>Having lost that vote, a request for an en banc hearing was then put to the full court, and at least three judges voted to rehear the case. The opinion, written by Judge O’Scannlain, was publicly joined by Judges Byee and Bea. Other judges may have also voted for a rehearing but declined to make their names public.\u003c/li>\n\u003c/ul>\n\u003cp>\u003cstrong>Update 10:40 a.m.\u003c/strong> In February, Hastings law professor Rory Little told Scott Shafer he thought Prop 8 supporters were pretty disappointed with Judge Smith's dissent to the original decision, \"which was not a ringing Scalia-like forceful 'this is wrong.' It was more like 'we should be cautious, although there are a lot of good points here.'\u003c/p>\n\u003cp>Little continued: \"Here's the best result for proponents -- they don't get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they're powerful writers.\"\u003c/p>\n\u003cp>Well, Judge O'Scannlain did indeed write a dissent...\u003c/p>\n\u003cblockquote>\u003cp>A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”\u003c/p>\n\u003cp>Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of \u003ca href=\"http://www.oyez.org/cases/1990-1999/1995/1995_94_1039\">Romer v. Evans\u003c/a>, we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia. Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.\u003c/p>\u003c/blockquote>\n\u003cp>And the retort from Judges Reinhardt and Hawkins, who made up the majority in February's 2-1 decision:\u003c/p>\n\u003cblockquote>\u003cp>We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.\u003c/p>\u003c/blockquote>\n\u003cp>The reference here to the \"the particular circumstances relating to California’s Proposition 8\" and to the lack of resolution to \"the fundamental question [of] whether the Constitution prohibits the states from banning same-sex marriage\" may also be noteworthy.\u003c/p>\n\u003cp>After the Ninth Circuit panel's decision against Prop 8 in February, UC Davis' Vik Amar told Scott Shafer that \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-ruling-legal-analysis-decision-was-made-with-eye-toward-supreme-court/\">Reinhardt and Hawkins may have tailored their decision in the narrowest way possible\u003c/a>, making it applicable only to California, so as to give the ruling the best possible chance of \u003cem>not\u003c/em> being taken up by the U.S. Supreme Court.\u003c/p>\n\u003cp>But Amar also said: \"There was no way the Ninth circuit was going to rule for the plaintiffs and not create a significant risk that the Supreme Court would step in. The question wasn't whether the Supreme Court had its eye on this case, the question was how do you minimize that, and I think they tried to do that by keeping the reasoning specific to California.\"\u003c/p>\n\u003cp>Professor Rory Little of Hastings agreed with that today, in an interview with KQED's Rachael Myrow. \"I think it's a little naieve to believe that the court will see this as limited to just California. Certainly the Ninth Circuit's ruling only relates to California, but its analysis is much broader than just California. And of course the Ninth Circuit governs the entire western United states, so its analysis would be precedent for the entire [region]. \u003c/p>\n\u003cp>\"I think the Supreme Court is likely to think this issue is ripe, this is ready for a national decision. One way or the other, there are enough states that have gone in different directions, there's enough controversy about it, [so] let's try to put the issue to rest one way or the other.\"\u003c/p>\n\u003cp>\u003ca name=\"react\">\u003c/a>\u003cbr>\nReaction and coverage from around the web below...\u003c/p>\n\u003cp>\u003ciframe style=\"border: 1px solid #000000\" src=\"http://embed.scribblelive.com/Embed/v5.aspx?Id=48944&ThemeId=5349\" frameborder=\"0\" width=\"400\" height=\"300\">\u003c/iframe>\u003c/p>\n\u003cp>\u003ca href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Read the full decision here\u003c/a>:\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision on Scribd\" href=\"http://www.scribd.com/doc/96044529/Ninth-Circuit-Denies-Rehearing-of-Prop-8-Case-Decision\">Ninth Circuit Denies Rehearing of Prop. 8 Case - Decision\u003c/a>\u003ciframe src=\"http://www.scribd.com/embeds/96044529/content?start_page=1&view_mode=list&access_key=key-2f8llfbytss95ikdjxx2\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "Prop 8 Filing Tomorrow Could Be 9th Circuit's Decision on Rehearing Case En Banc",
"title": "Prop 8 Filing Tomorrow Could Be 9th Circuit's Decision on Rehearing Case En Banc",
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"content": "\u003cp>\u003cem>Update Tuesday\u003c/em>: \u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/\">\u003cstrong>The petition for an en banc rehearing has been denied\u003c/strong>\u003c/a>.\u003c/p>\n\u003cp>\u003cem>Monday's post\u003c/em>\u003c/p>\n\u003cp>The Ninth Circuit Court of Appeals just announced there will be a filing tomorrow in Perry v. Brown -- the Proposition 8 case.\u003c/p>\n\u003cfigure id=\"attachment_55632\" class=\"wp-caption alignleft\" style=\"max-width: 285px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\">\u003cimg class=\"size-full wp-image-55632\" title=\"prop8\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\" alt=\"\" width=\"285\" height=\"213\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Kids at an anti-Prop 8 rally before a 9th Circuit hearing\u003c/figcaption>\u003c/figure>\n\u003cp>\"The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions,\" the court said.\u003c/p>\n\u003cp>KQED's Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>(\u003cstrong>Update 3:40 p.m.\u003c/strong> The court just sent out a notice that tomorrow's filing will indeed relate to the petition for rehearing en banc.)\u003c/p>\n\u003cp>If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case.\u003c/p>\n\u003cp>Proponents of Prop 8, California's same-sex marriage ban, asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/\">ruling by a three-judge panel upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional\u003c/a>. (You can read the \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">petition for the en banc panel here\u003c/a>.)\u003c/p>\n\u003cp>In the 2-1 decision validating Walker's ruling, the court wrote: \"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.\"\u003c/p>\n\u003cp>Judges Stephen Reinhardt and Michael Daly Hawkins, appointed by Democrats, voted to uphold Walker's ruling. Judge N. Randy Smith, appointed by George W. Bush, dissented, asserting he wasn't convinced that there isn't a rational reason behind the ban. \u003c!--more-->\u003c/p>\n\u003cp>As Scott Shafer reported at the time, \"one of the unknowns before the decision was whether the ruling would be broad, having national significance, or a narrower one that focused on Prop 8 in California. The decision was a narrow one, focusing on the proposition itself and the fact that California voters withdrew a right that had existed before Prop 8 was passed. The narrower ruling might make it a little less likely that the Supreme Court would take the case up, but that remains to be seen.\"\u003c/p>\n\u003cp>One legal analyst Shafer spoke to said the majority opinion was written with an eye toward dissuading the Supreme Court from hearing the case. \"By limiting the ruling and the reasoning to California and to Proposition 8,\" said UC Davis' Vik Amar, \"the Ninth Circuit judges at least give the Supreme Court an excuse not to step in.\"\u003c/p>\n\u003cp>After the filing asking for the en banc panel, Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind the request. Edited transcript\u003c/p>\n\u003cblockquote>\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process.\u003c/p>\n\u003cp>\u003cstrong>Hastings Law Professor Rory Little\u003c/strong>\u003c/p>\n\u003cp>Normally the filing is styled as a petition for a rehearing or for a rehearing en banc. A rehearing by the original panel is not granted very often. It's possible that the original panel either determines that the petitioners have shown an obvious error, so we don't need to go en banc because we can correct it ourselves, or the panel will sometimes adjust their opinion trying to head off an en banc. They're not likely to consider granting a rehearing of their own, but you never know.\u003c/p>\n\u003cp>In a case like this, almost certainly the panel will refer it to the en banc court. It would then go to a judge who's called the en banc coordinator. That coordinator will send it out and say here's a petition for rehearing en banc – and they get a ton of these. But this one will get special attention.\u003c/p>\n\u003cp>A majority of active judges in the circuit needs to grant an en banc hearing. That's 13 votes, which is very hard to get in a circuit that has 7,000 – 8,000 appeals filed a year. They grant maybe 15-20 en bancs a year.\u003c/p>\n\u003cdiv>I think [Prop 8 proponents] are pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\"\u003c/div>\n\u003cp>The Supreme Court has said more than once that the 9th circuit ought to use its en banc power to clear up problematic decisions before the cases get to us. Then there are other judges who believe that if a case is an outlier, it's the Supreme Court's job to clear it up, not the en banc court.\u003c/p>\n\u003cp>Here's the kind of case that's always granted en banc: a case in which different panels of the 9th Circuit have reached opposite conclusions, meaning an intra-circuit conflict. This case is not going to have any intra-circuit conflicts associated with it. The other kind of case is an inter-circuit conflict, where the opinion of the panel conflicts with opinions from other circuits.\u003c/p>\n\u003cp>The Prop 8 backers will assert that the panel's opinion conflicts with Supreme Court authority. The other thing they'll say is this is a matter of exceptional importance, even though it's a California case, because it's a huge state and also because parts of the panel's opinion cannot be limited to California.\u003c/p>\n\u003cp>For example, the panel's rejecting the pro-Prop 8 rationale for the law as not having a rational basis is not restricted to California. That rational basis analysis, you would think, applies to virtually any gay rights case.\u003c/p>\n\u003cp>There are judges on the circuit who believe that if there's an inter-circuit conflict, that's not a job for the en banc court, it's a job for the Supreme Court. But the Supreme Court, frankly, believes that 9th circuit panels generate more outlier decisions, and that a number of decisions every year are obviously incorrect. So they think these cases should be handled by the circuit en banc and not by the Supreme Court in a summary reversal. Every year a large number of summary reversals by the Supreme Court are from the 9th circuit.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>What’s the legal strategy in asking for an en banc panel? The en banc panel is chosen at random, so it's a bit of a crapshoot, isn't it?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>The strategy is that if they ask for en banc and it's denied, then in a sense they've exhausted all the remedies, and it makes it a slightly stronger case for Supreme Court review. Because the Supreme Court often says 'why didn't you ask for an en banc hearing?'\u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent.\u003c/p>\n\u003cp>I think they're pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\"\u003c/p>\n\u003cp>Here's the best result for proponents: They don't get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they're powerful writers.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>They do not have to have a second round of briefing. There are circuits that routinely do en banc without new briefs being filed. The 9th Circuit has tended to ask for a new en banc briefing, because sometimes the cases on which they grant en banc haven't been briefed very well, frankly. But that's hard to say in this case.\u003c/p>\n\u003cp>There will be people really strategically maneuvering within the court on this one, on both sides. There is an argument that says, fine, let's re-hear it en banc, and now we'll get eight judges to say it's unconstitutional instead of just two.\u003c/p>\u003c/blockquote>\n\u003cp> \u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp> \u003c/p>\n\n",
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"description": "Update Tuesday: The petition for an en banc rehearing has been denied. Monday's post The Ninth Circuit Court of Appeals just announced there will be a filing tomorrow in Perry v. Brown -- the Proposition 8 case. "The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions," the court said. KQED's",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>\u003cem>Update Tuesday\u003c/em>: \u003ca href=\"http://ww2.kqed.org/news/2012/06/05/prop-8-en-banc-ruling/\">\u003cstrong>The petition for an en banc rehearing has been denied\u003c/strong>\u003c/a>.\u003c/p>\n\u003cp>\u003cem>Monday's post\u003c/em>\u003c/p>\n\u003cp>The Ninth Circuit Court of Appeals just announced there will be a filing tomorrow in Perry v. Brown -- the Proposition 8 case.\u003c/p>\n\u003cfigure id=\"attachment_55632\" class=\"wp-caption alignleft\" style=\"max-width: 285px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\">\u003cimg class=\"size-full wp-image-55632\" title=\"prop8\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8.jpg\" alt=\"\" width=\"285\" height=\"213\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Kids at an anti-Prop 8 rally before a 9th Circuit hearing\u003c/figcaption>\u003c/figure>\n\u003cp>\"The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions,\" the court said.\u003c/p>\n\u003cp>KQED's Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>(\u003cstrong>Update 3:40 p.m.\u003c/strong> The court just sent out a notice that tomorrow's filing will indeed relate to the petition for rehearing en banc.)\u003c/p>\n\u003cp>If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case.\u003c/p>\n\u003cp>Proponents of Prop 8, California's same-sex marriage ban, asked the 9th Circuit for the en banc review in February, after a \u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/\">ruling by a three-judge panel upheld Judge Vaughn Walker's 2010 decision striking down the law as unconstitutional\u003c/a>. (You can read the \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">petition for the en banc panel here\u003c/a>.)\u003c/p>\n\u003cp>In the 2-1 decision validating Walker's ruling, the court wrote: \"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.\"\u003c/p>\n\u003cp>Judges Stephen Reinhardt and Michael Daly Hawkins, appointed by Democrats, voted to uphold Walker's ruling. Judge N. Randy Smith, appointed by George W. Bush, dissented, asserting he wasn't convinced that there isn't a rational reason behind the ban. \u003c!--more-->\u003c/p>\n\u003cp>As Scott Shafer reported at the time, \"one of the unknowns before the decision was whether the ruling would be broad, having national significance, or a narrower one that focused on Prop 8 in California. The decision was a narrow one, focusing on the proposition itself and the fact that California voters withdrew a right that had existed before Prop 8 was passed. The narrower ruling might make it a little less likely that the Supreme Court would take the case up, but that remains to be seen.\"\u003c/p>\n\u003cp>One legal analyst Shafer spoke to said the majority opinion was written with an eye toward dissuading the Supreme Court from hearing the case. \"By limiting the ruling and the reasoning to California and to Proposition 8,\" said UC Davis' Vik Amar, \"the Ninth Circuit judges at least give the Supreme Court an excuse not to step in.\"\u003c/p>\n\u003cp>After the filing asking for the en banc panel, Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind the request. Edited transcript\u003c/p>\n\u003cblockquote>\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process.\u003c/p>\n\u003cp>\u003cstrong>Hastings Law Professor Rory Little\u003c/strong>\u003c/p>\n\u003cp>Normally the filing is styled as a petition for a rehearing or for a rehearing en banc. A rehearing by the original panel is not granted very often. It's possible that the original panel either determines that the petitioners have shown an obvious error, so we don't need to go en banc because we can correct it ourselves, or the panel will sometimes adjust their opinion trying to head off an en banc. They're not likely to consider granting a rehearing of their own, but you never know.\u003c/p>\n\u003cp>In a case like this, almost certainly the panel will refer it to the en banc court. It would then go to a judge who's called the en banc coordinator. That coordinator will send it out and say here's a petition for rehearing en banc – and they get a ton of these. But this one will get special attention.\u003c/p>\n\u003cp>A majority of active judges in the circuit needs to grant an en banc hearing. That's 13 votes, which is very hard to get in a circuit that has 7,000 – 8,000 appeals filed a year. They grant maybe 15-20 en bancs a year.\u003c/p>\n\u003cdiv>I think [Prop 8 proponents] are pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\"\u003c/div>\n\u003cp>The Supreme Court has said more than once that the 9th circuit ought to use its en banc power to clear up problematic decisions before the cases get to us. Then there are other judges who believe that if a case is an outlier, it's the Supreme Court's job to clear it up, not the en banc court.\u003c/p>\n\u003cp>Here's the kind of case that's always granted en banc: a case in which different panels of the 9th Circuit have reached opposite conclusions, meaning an intra-circuit conflict. This case is not going to have any intra-circuit conflicts associated with it. The other kind of case is an inter-circuit conflict, where the opinion of the panel conflicts with opinions from other circuits.\u003c/p>\n\u003cp>The Prop 8 backers will assert that the panel's opinion conflicts with Supreme Court authority. The other thing they'll say is this is a matter of exceptional importance, even though it's a California case, because it's a huge state and also because parts of the panel's opinion cannot be limited to California.\u003c/p>\n\u003cp>For example, the panel's rejecting the pro-Prop 8 rationale for the law as not having a rational basis is not restricted to California. That rational basis analysis, you would think, applies to virtually any gay rights case.\u003c/p>\n\u003cp>There are judges on the circuit who believe that if there's an inter-circuit conflict, that's not a job for the en banc court, it's a job for the Supreme Court. But the Supreme Court, frankly, believes that 9th circuit panels generate more outlier decisions, and that a number of decisions every year are obviously incorrect. So they think these cases should be handled by the circuit en banc and not by the Supreme Court in a summary reversal. Every year a large number of summary reversals by the Supreme Court are from the 9th circuit.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>What’s the legal strategy in asking for an en banc panel? The en banc panel is chosen at random, so it's a bit of a crapshoot, isn't it?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>The strategy is that if they ask for en banc and it's denied, then in a sense they've exhausted all the remedies, and it makes it a slightly stronger case for Supreme Court review. Because the Supreme Court often says 'why didn't you ask for an en banc hearing?'\u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent.\u003c/p>\n\u003cp>I think they're pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\"\u003c/p>\n\u003cp>Here's the best result for proponents: They don't get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they're powerful writers.\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>They do not have to have a second round of briefing. There are circuits that routinely do en banc without new briefs being filed. The 9th Circuit has tended to ask for a new en banc briefing, because sometimes the cases on which they grant en banc haven't been briefed very well, frankly. But that's hard to say in this case.\u003c/p>\n\u003cp>There will be people really strategically maneuvering within the court on this one, on both sides. There is an argument that says, fine, let's re-hear it en banc, and now we'll get eight judges to say it's unconstitutional instead of just two.\u003c/p>\u003c/blockquote>\n\u003cp> \u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"disqusTitle": "San Diego Church Puts up N. Carolina Billboard Slamming Same-Sex Marriage Ban Backers; Interview With Pastor",
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"content": "\u003cp>Not sure this is going to go over well in North Carolina.\u003c/p>\n\u003cp>In fact, I know it's not, judging by some of the \u003ca href=\"http://www.wsoctv.com/news/news/local/california-church-plans-billboard-charlotte-offeri/nPGCk/#cmComments\">comments\u003c/a> on this \u003ca href=\"http://www.wsoctv.com/news/news/local/california-church-plans-billboard-charlotte-offeri/nPGCk/\">WSOC TV Charlotte news story\u003c/a> about a San Diego church's plan to put up a billboard in the city with a message condemning the state's recent passage of \u003ca href=\"http://www.ballotpedia.org/wiki/index.php/North_Carolina_Same-Sex_Marriage,_Amendment_1_%28May_2012%29\">Amendment One\u003c/a>. That measure, which decrees that \"marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State,\" enshrined a ban on same-sex marriage in the constitution and potentially threatens the legality of civil unions and other types of domestic partnerships between same-sex couples.\u003c/p>\n\u003cp>Here's what the San Diego church's billboard says:\u003c/p>\n\u003cblockquote>\u003cp>Missiongathering Christian Church is sorry for the narrow-minded, judgmental, deceptive, manipulative actions of those who denied rights and equality to so many in the Name of God.\u003c/p>\u003c/blockquote>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/05/ncarolinabillbarod.jpg\">\u003cimg class=\"aligncenter size-medium wp-image-66658\" title=\"ncarolinabillbarod\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/05/ncarolinabillbarod-300x112.jpg\" alt=\"\" width=\"386\" height=\"143\">\u003c/a>\u003c/p>\n\u003cp>This afternoon, KQED's Stephanie Martin interviewed Alex Roller, a pastor at \u003ca href=\"http://www.missiongathering.com/\">Missiongathering Church\u003c/a>, about the billboard. Edited transcript...\u003c/p>\n\u003cblockquote>\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: What's the status of the billboard?\u003c/p>\n\u003cp>\u003cstrong>PASTOR ALEX ROLLER\u003c/strong>: I haven't heard if it's been put up yet, but it was scheduled to be put up today.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: \u003ca href=\"http://www.usatoday.com/news/religion/story/2012-05-03/billy-graham-gay-marriage/54725250/1\">Billy Graham campaigned for Amendment One\u003c/a> and you put the sign on Billy Graham Parkway....\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Yes, but also the location had to do with the visibleness of the location. It's right outside the airport, and it's at the intersection of Billy Graham Parkway and I-74. And because of the number of words on the billboard, we wanted it to be at a place that was prominent, but where people driving by would either be slowing down or could read the entire text while continuing.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: And this is similar to something you put up in California a few years ago?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Yes we posted two billboards in San Diego in response to Proposition 8 in 2008, as a way to say that some Christians don’t speak for all Christians, that there are progressive Christians who believe in the Bible and Jesus but still support marriage equality and rights for the LGBT population. The only difference in the language this time is the billboard will read \"took away the rights and equality,\" because when Prop 8 passed gay marriage had been legal.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: You're a California church. Why go clear across the country to North Carolina to do something like this?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: North Carolina kind of came to us. When Amendment One passed, images of the Prop 8 billboard began to resurface online. Human Rights Campaign of North Carolina posted the image, and we started getting phone calls and emails from across the country and even from Canada and the UK, thanking us for the message.\u003c/p>\n\u003cp>And we thought, what if we were able to continue the message we put out there after Prop 8, and to stand in solidarity with LGBT people of North Carolina and straight allies, to say there are people of faith who love and support this community and stand in solidarity with this community and we just want them to know our hearts are with you.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How did the Prop 8 billboards go over?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Very well. Once the photos of the billboard went viral, it hit like 37 different blog threads worldwide within about a week. And we received thousands of emails, phonecalls and postcards thanking us. We received our fair share of criticism of well, since San Diego was ground zero for Proposition 8. But the vast majority of the response was grateful and supportive.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: Are there plans for more billboards?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: We don't know. There's a Facebook fan page where people can come and participate in dialogue and download a profile-sized version of the apology that says as a Christian I'm sorry, to join in spreading the news and message of the movement that there are likeminded people of faith and even likeminded people not of faith who want to stand in solidarity with the LGBT community.\u003c/p>\n\u003cp>We know there are several other states in the next several weeks and months that are going to be voting on similar issues. It's possible that if equality is denied in other places, we'll attempt to raise funds to put the apology up in those states and cities as well.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How much did this billboard cost you?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Three thousand dollars, for four weeks.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: Where did you get the money?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: We had some people come to the church and when they heard we were thinking about doing this, they wanted to help pay for it. We also have started a \u003ca href=\"http://givimo.com/\">Givmo\u003c/a> page, which is a social network fundraising site where people can go and view why we're doing the billboard and contribute.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: The Democratic Convention is coming to Charlotte in September. Are you going to try to extend the billboard?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: That's certainly a possibility. We don't necessarily have direct plans to do that at this point.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How big of a church are you?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: About 300.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How do you feel about the negative comments about this so far?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: We definitely anticipated we'd likely receive a lot more criticism and negative feedback in North Carolina than we did over the California billboards in 2008. We certainly have received a lot of negative and angry emails already.\u003c/p>\n\u003cp>We are certainly all entitled to our opinions and perspectives. Our goal in putting out the message of this apology was to say to the LGBT community of North Carolina and likeminded straight allies that there are people across the country that stand in support with you, and to know that you're not alone in this journey for the fight for marriage equality. And to say if you're an LGBT person of faith that there is a place for you; you don't have to abandon your faith to live who you are as a person.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Update Wednesday\u003c/strong>: Alex Roller tells Stephanie Martin that the billboard is now up. He writes: \"Because of the delay in getting it put up, they are also running the billboard on one of their digital billboards in another location (BIlly Graham Pkwy & I -85) for the rest of the week.\"\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\u003cp>[ad floatright]\u003c/p>\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>Not sure this is going to go over well in North Carolina.\u003c/p>\n\u003cp>In fact, I know it's not, judging by some of the \u003ca href=\"http://www.wsoctv.com/news/news/local/california-church-plans-billboard-charlotte-offeri/nPGCk/#cmComments\">comments\u003c/a> on this \u003ca href=\"http://www.wsoctv.com/news/news/local/california-church-plans-billboard-charlotte-offeri/nPGCk/\">WSOC TV Charlotte news story\u003c/a> about a San Diego church's plan to put up a billboard in the city with a message condemning the state's recent passage of \u003ca href=\"http://www.ballotpedia.org/wiki/index.php/North_Carolina_Same-Sex_Marriage,_Amendment_1_%28May_2012%29\">Amendment One\u003c/a>. That measure, which decrees that \"marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State,\" enshrined a ban on same-sex marriage in the constitution and potentially threatens the legality of civil unions and other types of domestic partnerships between same-sex couples.\u003c/p>\n\u003cp>Here's what the San Diego church's billboard says:\u003c/p>\n\u003cblockquote>\u003cp>Missiongathering Christian Church is sorry for the narrow-minded, judgmental, deceptive, manipulative actions of those who denied rights and equality to so many in the Name of God.\u003c/p>\u003c/blockquote>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/05/ncarolinabillbarod.jpg\">\u003cimg class=\"aligncenter size-medium wp-image-66658\" title=\"ncarolinabillbarod\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/05/ncarolinabillbarod-300x112.jpg\" alt=\"\" width=\"386\" height=\"143\">\u003c/a>\u003c/p>\n\u003cp>This afternoon, KQED's Stephanie Martin interviewed Alex Roller, a pastor at \u003ca href=\"http://www.missiongathering.com/\">Missiongathering Church\u003c/a>, about the billboard. Edited transcript...\u003c/p>\n\u003cblockquote>\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: What's the status of the billboard?\u003c/p>\n\u003cp>\u003cstrong>PASTOR ALEX ROLLER\u003c/strong>: I haven't heard if it's been put up yet, but it was scheduled to be put up today.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: \u003ca href=\"http://www.usatoday.com/news/religion/story/2012-05-03/billy-graham-gay-marriage/54725250/1\">Billy Graham campaigned for Amendment One\u003c/a> and you put the sign on Billy Graham Parkway....\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Yes, but also the location had to do with the visibleness of the location. It's right outside the airport, and it's at the intersection of Billy Graham Parkway and I-74. And because of the number of words on the billboard, we wanted it to be at a place that was prominent, but where people driving by would either be slowing down or could read the entire text while continuing.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: And this is similar to something you put up in California a few years ago?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Yes we posted two billboards in San Diego in response to Proposition 8 in 2008, as a way to say that some Christians don’t speak for all Christians, that there are progressive Christians who believe in the Bible and Jesus but still support marriage equality and rights for the LGBT population. The only difference in the language this time is the billboard will read \"took away the rights and equality,\" because when Prop 8 passed gay marriage had been legal.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: You're a California church. Why go clear across the country to North Carolina to do something like this?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: North Carolina kind of came to us. When Amendment One passed, images of the Prop 8 billboard began to resurface online. Human Rights Campaign of North Carolina posted the image, and we started getting phone calls and emails from across the country and even from Canada and the UK, thanking us for the message.\u003c/p>\n\u003cp>And we thought, what if we were able to continue the message we put out there after Prop 8, and to stand in solidarity with LGBT people of North Carolina and straight allies, to say there are people of faith who love and support this community and stand in solidarity with this community and we just want them to know our hearts are with you.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How did the Prop 8 billboards go over?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Very well. Once the photos of the billboard went viral, it hit like 37 different blog threads worldwide within about a week. And we received thousands of emails, phonecalls and postcards thanking us. We received our fair share of criticism of well, since San Diego was ground zero for Proposition 8. But the vast majority of the response was grateful and supportive.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: Are there plans for more billboards?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: We don't know. There's a Facebook fan page where people can come and participate in dialogue and download a profile-sized version of the apology that says as a Christian I'm sorry, to join in spreading the news and message of the movement that there are likeminded people of faith and even likeminded people not of faith who want to stand in solidarity with the LGBT community.\u003c/p>\n\u003cp>We know there are several other states in the next several weeks and months that are going to be voting on similar issues. It's possible that if equality is denied in other places, we'll attempt to raise funds to put the apology up in those states and cities as well.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How much did this billboard cost you?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: Three thousand dollars, for four weeks.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: Where did you get the money?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: We had some people come to the church and when they heard we were thinking about doing this, they wanted to help pay for it. We also have started a \u003ca href=\"http://givimo.com/\">Givmo\u003c/a> page, which is a social network fundraising site where people can go and view why we're doing the billboard and contribute.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: The Democratic Convention is coming to Charlotte in September. Are you going to try to extend the billboard?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: That's certainly a possibility. We don't necessarily have direct plans to do that at this point.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How big of a church are you?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: About 300.\u003c/p>\n\u003cp>\u003cstrong>STEPHANIE MARTIN\u003c/strong>: How do you feel about the negative comments about this so far?\u003c/p>\n\u003cp>\u003cstrong>ALEX ROLLER\u003c/strong>: We definitely anticipated we'd likely receive a lot more criticism and negative feedback in North Carolina than we did over the California billboards in 2008. We certainly have received a lot of negative and angry emails already.\u003c/p>\n\u003cp>We are certainly all entitled to our opinions and perspectives. Our goal in putting out the message of this apology was to say to the LGBT community of North Carolina and likeminded straight allies that there are people across the country that stand in support with you, and to know that you're not alone in this journey for the fight for marriage equality. And to say if you're an LGBT person of faith that there is a place for you; you don't have to abandon your faith to live who you are as a person.\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Update Wednesday\u003c/strong>: Alex Roller tells Stephanie Martin that the billboard is now up. He writes: \"Because of the delay in getting it put up, they are also running the billboard on one of their digital billboards in another location (BIlly Graham Pkwy & I -85) for the rest of the week.\"\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cp>The American Foundation for Equal Rights, which is sponsoring the court challenge to Proposition 8, live-streamed Saturday night a Los Angeles reading of \u003cem>8\u003c/em>, Dustin Lance Black's play about the trial in which Judge Vaughn Walker ruled that California's same-sex marriage ban was unconstitutional. The play is made up largely of \u003ca href=\"http://www.afer.org/our-work/hearing-transcripts/page/2/\">transcripts from the trial\u003c/a>. \u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">Click here or on the image below to watch a video replay of the play\u003c/a>\u003c/strong>.\u003c/p>\n\u003cp>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cimg src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/03/8LA-live-2-300x155.jpg\" alt=\"\" title=\"prop 8 play live Pitt Clooney\" width=\"300\" height=\"155\" class=\"aligncenter size-medium wp-image-58365\">\u003c/a>\u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cstrong>Watch video replay on YouTube\u003c/strong>\u003c/a>\u003c/div>\n\u003cp>\u003c/p>\n\u003cp>The all-star cast included:\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>Brad Pitt as Vaughn Walker\u003cbr>\nGeorge Clooney as plaintiffs' attorney David Boies\u003cbr>\nMartin Sheen as plaintiffs' attorney Theodore Olson\u003cbr>\nChristine Lahti and Jamie Lee Curtis as plaintiffs Kris Perry and Sandy Stier\u003c/p>\n\u003cp>Kevin Bacon, John C Reilly and Jane Lynch also had roles. \u003c/p>\n\u003cp>\u003ca href=\"http://act.afer.org/site/PageServer?pagename=8LALivestreamRSVP\">Full cast here\u003c/a>.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Here's director \u003ca href=\"http://www.youtube.com/watch?feature=player_embedded&v=DcGbPqRqS8o\">Rob Reiner talking about the performance\u003c/a>. \"The Prop 8 proponents are still trying to hide what happened at the trial,\" Reiner says, perhaps referring to Prop 8 backers' \u003ca href=\"http://abclocal.go.com/kabc/story?section=news/state&id=8529684\">successful attempt at preventing the release of videotapes from the trial\u003c/a>. \"So we're going to do the exact opposite, we're gonna broadcast it to the entire world.\" \u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ciframe width=\"480\" height=\"274\" src=\"http://www.youtube.com/embed/DcGbPqRqS8o\" frameborder=\"0\">\u003c/iframe>\u003c/div>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>The American Foundation for Equal Rights, which is sponsoring the court challenge to Proposition 8, live-streamed Saturday night a Los Angeles reading of \u003cem>8\u003c/em>, Dustin Lance Black's play about the trial in which Judge Vaughn Walker ruled that California's same-sex marriage ban was unconstitutional. The play is made up largely of \u003ca href=\"http://www.afer.org/our-work/hearing-transcripts/page/2/\">transcripts from the trial\u003c/a>. \u003c/p>\n\u003cp>\u003cstrong>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">Click here or on the image below to watch a video replay of the play\u003c/a>\u003c/strong>.\u003c/p>\n\u003cp>\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cimg src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/03/8LA-live-2-300x155.jpg\" alt=\"\" title=\"prop 8 play live Pitt Clooney\" width=\"300\" height=\"155\" class=\"aligncenter size-medium wp-image-58365\">\u003c/a>\u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ca href=\"http://www.youtube.com/user/AmericanEqualRights/featured?v=qlUG8F9uVgM\">\u003cstrong>Watch video replay on YouTube\u003c/strong>\u003c/a>\u003c/div>\n\u003cp>\u003c/p>\n\u003cp>The all-star cast included:\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>Brad Pitt as Vaughn Walker\u003cbr>\nGeorge Clooney as plaintiffs' attorney David Boies\u003cbr>\nMartin Sheen as plaintiffs' attorney Theodore Olson\u003cbr>\nChristine Lahti and Jamie Lee Curtis as plaintiffs Kris Perry and Sandy Stier\u003c/p>\n\u003cp>Kevin Bacon, John C Reilly and Jane Lynch also had roles. \u003c/p>\n\u003cp>\u003ca href=\"http://act.afer.org/site/PageServer?pagename=8LALivestreamRSVP\">Full cast here\u003c/a>.\u003c/p>\n\u003cp>\u003c/p>\n\u003cp>Here's director \u003ca href=\"http://www.youtube.com/watch?feature=player_embedded&v=DcGbPqRqS8o\">Rob Reiner talking about the performance\u003c/a>. \"The Prop 8 proponents are still trying to hide what happened at the trial,\" Reiner says, perhaps referring to Prop 8 backers' \u003ca href=\"http://abclocal.go.com/kabc/story?section=news/state&id=8529684\">successful attempt at preventing the release of videotapes from the trial\u003c/a>. \"So we're going to do the exact opposite, we're gonna broadcast it to the entire world.\" \u003c/p>\n\u003cdiv style=\"text-align: center\">\u003ciframe width=\"480\" height=\"274\" src=\"http://www.youtube.com/embed/DcGbPqRqS8o\" frameborder=\"0\">\u003c/iframe>\u003c/div>\n\n\u003c/div>\u003c/p>",
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"disqusTitle": "Analysis of Prop 8 \u003ci>En Banc\u003c/i> Filing: Proponents Looking For Stronger Dissent to Take to SCOTUS",
"title": "Analysis of Prop 8 \u003ci>En Banc\u003c/i> Filing: Proponents Looking For Stronger Dissent to Take to SCOTUS",
"headTitle": "News Fix | KQED News",
"content": "\u003cfigure id=\"attachment_57193\" class=\"wp-caption alignright\" style=\"max-width: 180px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\">\u003cimg class=\"size-full wp-image-57193\" title=\"Prop8Sm\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\" alt=\"Prop 8\" width=\"180\" height=\"122\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters at a 2011 hearing on Prop 8. (Photo: Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>Proponents of Proposition 8, California's same-sex marriage ban, have asked the 9th Circuit Court of Appeals for an en banc review of a ruling by a three-judge panel upholding a lower court's striking down the law as unconstitutional. \u003c/p>\n\u003cp>An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">Read the petition for an en banc panel here\u003c/a>.\u003c/p>\n\u003cp>Earlier today, KQED's Scott Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind asking for an en banc panel. Edited transcript \u003c/p>\n\u003cblockquote>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process. \u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong> \u003c/p>\n\u003cp>Normally the filing is styled as a petition for a rehearing or for a rehearing en banc. A rehearing by the original panel is not granted very often. It's possible that the original panel either determines that the petitioners have shown an obvious error, so we don't need to go en banc because we can correct it ourselves, or the panel will sometimes adjust their opinion trying to head off an en banc. They're not likely to consider granting a rehearing of their own, but you never know. \u003c/p>\n\u003cp>In a case like this, almost certainly the panel will refer it to the en banc court. It would then go to a judge who's called the en banc coordinator. That coordinator will send it out and say here's a petition for rehearing en banc – and they get a ton of these. But this one will get special attention. \u003c/p>\n\u003cp>A majority of active judges in the circuit needs to grant an en banc hearing. That's 13 votes, which is very hard to get in a circuit that has 7,000 – 8,000 appeals filed a year. They grant maybe 15-20 en bancs a year.\u003c/p>\n\u003caside class=\"pullquote alignleft\">I think [Prop 8 proponents] are pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\"\u003c/aside>\n\u003cp>The Supreme Court has said more than once that the 9th circuit ought to use its en banc power to clear up problematic decisions before the cases get to us. Then there are other judges who believe that if a case is an outlier, it's the Supreme Court's job to clear it up, not the en banc court. \u003c/p>\n\u003cp>Here's the kind of case that's always granted en banc: a case in which different panels of the 9th circuit have reached opposite conclusions, meaning an intra-circuit conflict. This case is not going to have any intra-circuit conflicts associated with it. The other kind of case is an inter-circuit conflict, where the opinion of the panel conflicts with opinions from other circuits. \u003c/p>\n\u003cp>The Prop 8 backers will assert that the panel's opinion conflicts with Supreme Court authority. The other thing they'll say is this is a matter of exceptional importance, even though it's a California case, because it's a huge state and also because parts of the panel's opinion cannot be limited to California. For example, the panel's rejecting the pro-Prop 8 rationale for the law as not having a rational basis is not restricted to California. That rational basis analysis, you would think, applies to virtually any gay rights case. \u003c/p>\n\u003cp>There are judges on the circuit who believe that if there's an inter-circuit conflict, that's not a job for the en banc court, it's a job for the Supreme Court. But the Supreme Court, frankly, believes that 9th circuit panels generate more outlier decisions, and that a number of decisions every year are obviously incorrect. So they think these cases should be handled by the circuit en banc and not by the Supreme Court in a summary reversal. Every year a large number of summary reversals by the Supreme Court are from the 9th circuit. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>What’s the legal strategy in asking for an en banc panel? The en banc panel is chosen at random, so it's a bit of a crapshoot, isn't it?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>The strategy is that if they ask for en banc and it's denied, then in a sense they've exhausted all the remedies, and it makes it a slightly stronger case for Supreme Court review. Because the Supreme Court often says 'why didn't you ask for an en banc hearing?' \u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent. \u003c/p>\n\u003cp>I think they're pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\" \u003c/p>\n\u003cp>Here's the best result for proponents: They don't get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they're powerful writers. \u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>They do not have to have a second round of briefing. There are circuits that routinely do en banc without new briefs being filed. The 9th Circuit has tended to ask for a new en banc briefing, because sometimes the cases on which they grant en banc haven't been briefed very well, frankly. But that's hard to say in this case. \u003c/p>\n\u003cp>There will be people really strategically maneuvering within the court on this one, on both sides. There is an argument that says, fine, let's re-hear it en banc, and now we'll get eight judges to say it's unconstitutional instead of just two.\n \u003c/p>\u003c/blockquote>\n\u003cp>[ad fullwidth]\u003c/p>\u003cp>[ad floatright]\u003c/p>\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cfigure id=\"attachment_57193\" class=\"wp-caption alignright\" style=\"max-width: 180px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\">\u003cimg class=\"size-full wp-image-57193\" title=\"Prop8Sm\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8Sm.jpg\" alt=\"Prop 8\" width=\"180\" height=\"122\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Protesters at a 2011 hearing on Prop 8. (Photo: Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>Proponents of Proposition 8, California's same-sex marriage ban, have asked the 9th Circuit Court of Appeals for an en banc review of a ruling by a three-judge panel upholding a lower court's striking down the law as unconstitutional. \u003c/p>\n\u003cp>An en banc panel is made up of 11 judges, chosen at random from the circuit.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/Prop8_EnBanc_Petition.pdf\">Read the petition for an en banc panel here\u003c/a>.\u003c/p>\n\u003cp>Earlier today, KQED's Scott Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind asking for an en banc panel. Edited transcript \u003c/p>\n\u003cblockquote>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>Explain the en banc process. \u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong> \u003c/p>\n\u003cp>Normally the filing is styled as a petition for a rehearing or for a rehearing en banc. A rehearing by the original panel is not granted very often. It's possible that the original panel either determines that the petitioners have shown an obvious error, so we don't need to go en banc because we can correct it ourselves, or the panel will sometimes adjust their opinion trying to head off an en banc. They're not likely to consider granting a rehearing of their own, but you never know. \u003c/p>\n\u003cp>In a case like this, almost certainly the panel will refer it to the en banc court. It would then go to a judge who's called the en banc coordinator. That coordinator will send it out and say here's a petition for rehearing en banc – and they get a ton of these. But this one will get special attention. \u003c/p>\n\u003cp>A majority of active judges in the circuit needs to grant an en banc hearing. That's 13 votes, which is very hard to get in a circuit that has 7,000 – 8,000 appeals filed a year. They grant maybe 15-20 en bancs a year.\u003c/p>\n\u003caside class=\"pullquote alignleft\">I think [Prop 8 proponents] are pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\"\u003c/aside>\n\u003cp>The Supreme Court has said more than once that the 9th circuit ought to use its en banc power to clear up problematic decisions before the cases get to us. Then there are other judges who believe that if a case is an outlier, it's the Supreme Court's job to clear it up, not the en banc court. \u003c/p>\n\u003cp>Here's the kind of case that's always granted en banc: a case in which different panels of the 9th circuit have reached opposite conclusions, meaning an intra-circuit conflict. This case is not going to have any intra-circuit conflicts associated with it. The other kind of case is an inter-circuit conflict, where the opinion of the panel conflicts with opinions from other circuits. \u003c/p>\n\u003cp>The Prop 8 backers will assert that the panel's opinion conflicts with Supreme Court authority. The other thing they'll say is this is a matter of exceptional importance, even though it's a California case, because it's a huge state and also because parts of the panel's opinion cannot be limited to California. For example, the panel's rejecting the pro-Prop 8 rationale for the law as not having a rational basis is not restricted to California. That rational basis analysis, you would think, applies to virtually any gay rights case. \u003c/p>\n\u003cp>There are judges on the circuit who believe that if there's an inter-circuit conflict, that's not a job for the en banc court, it's a job for the Supreme Court. But the Supreme Court, frankly, believes that 9th circuit panels generate more outlier decisions, and that a number of decisions every year are obviously incorrect. So they think these cases should be handled by the circuit en banc and not by the Supreme Court in a summary reversal. Every year a large number of summary reversals by the Supreme Court are from the 9th circuit. \u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>What’s the legal strategy in asking for an en banc panel? The en banc panel is chosen at random, so it's a bit of a crapshoot, isn't it?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>The strategy is that if they ask for en banc and it's denied, then in a sense they've exhausted all the remedies, and it makes it a slightly stronger case for Supreme Court review. Because the Supreme Court often says 'why didn't you ask for an en banc hearing?' \u003c/p>\n\u003cp>Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=1803&cid=999&ctype=na&instate=na\">O`Scannlain\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=2981&cid=999&ctype=na&instate=na\">Bybee\u003c/a> or \u003ca href=\"http://www.fjc.gov/servlet/nGetInfo?jid=3121&cid=999&ctype=na&instate=na\">Ikuta\u003c/a> my guess is they might get a stronger dissent. \u003c/p>\n\u003cp>I think they're pretty disappointed with Judge Smith's dissent, which was not a ringing Scalia-like forceful \"this is wrong.\" It was more like \"we should be cautious, although there are a lot of good points here.\" \u003c/p>\n\u003cp>Here's the best result for proponents: They don't get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they're powerful writers. \u003c/p>\n\u003cp>\u003cstrong>Scott Shafer\u003c/strong>\u003c/p>\n\u003cp>In terms of timing, do new briefs have to be filed with the en banc panel?\u003c/p>\n\u003cp>\u003cstrong>Rory Little\u003c/strong>\u003c/p>\n\u003cp>They do not have to have a second round of briefing. There are circuits that routinely do en banc without new briefs being filed. The 9th Circuit has tended to ask for a new en banc briefing, because sometimes the cases on which they grant en banc haven't been briefed very well, frankly. But that's hard to say in this case. \u003c/p>\n\u003cp>There will be people really strategically maneuvering within the court on this one, on both sides. There is an argument that says, fine, let's re-hear it en banc, and now we'll get eight judges to say it's unconstitutional instead of just two.\n \u003c/p>\u003c/blockquote>\n\u003cp>\u003c/p>\u003c/div>",
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"disqusTitle": "Prop 8 Ruling Legal Analysis: Decision Made With Eye Toward Warding Off Supreme Court",
"title": "Prop 8 Ruling Legal Analysis: Decision Made With Eye Toward Warding Off Supreme Court",
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"content": "\u003cfigure id=\"attachment_55730\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8SM.gif\">\u003cimg class=\"size-medium wp-image-55730\" title=\"prop8SM\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8SM-300x200.gif\" alt=\"\" width=\"300\" height=\"200\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Same-sex marriage supporters march after today's ruling (Don Clyde/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>UC Davis law professor Vik Amar analyzed the 9th Circuit's Prop 8 ruling in an interview with KQED's Scott Shafer today.\u003c/p>\n\u003cp>Amar's take: The two judges in the majority, Stephen Reinhardt and Michael Hawkins, may have tailored their decision in the narrowest way possible -- applying only to California -- so as to give the ruling the best possible chance of \u003cem>not\u003c/em> being taken up by the U.S. Supreme Court. Amar also said if history is any guide, the more states that legalize same-sex marriage, the more inclined the Supreme Court may be to make it a federal right applicable across the country.\u003c/p>\n\u003cp>Here's an edited transcript...\u003c/p>\n\u003cp>\u003cstrong>What's your initial take on the ruling? \u003c/strong>\u003c/p>\n\u003cp>I think the two judges making up the majority tried to write the opinion narrowly and probably did so because they were trying to minimize the interest of the Supreme Court in taking the case at the next level.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>If they'd written an opinion that struck down bans on gay marriage not just in California but in all the states covered by the 9th Circuit, the Supreme Court would almost have to step in to resolve the matter one way or the other, because you would have had a very different federal rights regime west of the Rockies vs. the rest of country.\u003c/p>\n\u003cp>But by limiting the ruling and the reasoning to California and to Proposition 8, the Ninth Circuit judges at least give the Supreme Court an excuse not to step in.\u003c/p>\n\u003cp>Today's ruling is monumental in a lot of respects: This is the first federal appellate ruling that holds there is a federal right to same-sex marriage, no matter how narrow the reasoning might be. That alone coupled with California's size and prominence may lead the Supreme Court to feel they have to weigh in. But as important as California is, it's still one state. If the decision had affected nine states rather than one, it would have been bigger still.\u003c/p>\n\u003cp>But there was no way the 9th circuit was going to rule for the plaintiffs and not create a significant risk that the Supreme Court would step in. The question wasn't whether the Supreme Court had its eye on this case, the question was how do you minimize that, and I think they tried to do that by keeping the reasoning specific to California.\u003c/p>\n\u003cp>That may not work. The Prop 8 proponents may end up convincing the Supreme Court that this is a big ruling that needs to be dealt with, even though it affects California only.\u003c/p>\n\u003cp>\u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>In terms of dissent from Judge Smith, who said he isn't convinced there \u003cem>isn't\u003c/em> a rational reason to limit marriage to heterosexuals, what impact might that have on the Supreme Court or on a possible Ninth Circuit \u003ca href=\"http://en.wikipedia.org/wiki/En_banc\">en banc panel\u003c/a>?\u003c/strong>\u003c/p>\n\u003cp>I'm not sure the dissent is going to influence many people on the Ninth Circuit or on the Supreme Court. This matter is important and has been in the news so much that a lot of judges on both courts probably have their own views.\u003c/p>\n\u003cp>And a lot of people who might agree with Judge Smith that Prop 8 is not unconstitutional would have written a very different dissent, stressing different issues. Judge Smith stressed procreation and child rearing, other people might stress how it should be permissible for states to proceed incrementally and with caution, and that you don't want too much social change too quickly. For some backers of same-sex marriage, that's a more plausible line of defense.\u003c/p>\n\u003cp>So I'm not sure the particulars of what Judge Smith said in his defense will affect anybody, but it is a reminder that this is the kind of dispute where you're unlikely to have unanimity on any court.\u003c/p>\n\u003cp>\u003cstrong>Washington state \u003ca href=\"http://www.usatoday.com/news/nation/story/2012-02-06/washington-gay-marriage-bill/52994722/1\">may soon legalize gay marriage\u003c/a>. The senate has passed it; the governor says she'll sign it. What effect does the politics of same-sex marriage have on the ultimate resolution of this case legally?\u003c/strong>\u003c/p>\n\u003cp>I think that the larger political backdrop has an enormous effect. Whether the Supreme Court always admits it or not –- and sometimes they do —- federal constitutional rights are easier to defend when there is a broad or emerging national consensus on them.\u003c/p>\n\u003cp>This is not to say that minorities should be deprived of their basic liberties simply because they haven't convinced the entire country that they're being treated unfairly. But when you do have social movements that reflect a broader national trend line, there are justices on the Supreme Court who will feel more comfortable saying what was a regional trend is now national, so they will feel more disposed to deem it a national right.\u003c/p>\n\u003cp>For Justice Kennedy, for instance, to embrace gay marriage as a federal right when five states or seven states have recognized it is different than if a dozen or 20 states have.\u003c/p>\n\u003cp>One area in which the Supreme Court does this explicitly is the Cruel and Unusual punishment clause of the 8th Amendment. What counts as cruel and unusual depends on how many states do the same thing.\u003c/p>\n\u003cp>In the most famous Supreme Court same-sex case to date, \u003ca href=\"http://www.oyez.org/cases/2000-2009/2002/2002_02_102\">Lawrence vs. Texas\u003c/a>, in which the court struck down a law that made it a crime to engage in any same-sex conduct, I think it mattered a great deal that Texas was an outlier.\u003c/p>\n\u003cp>There's a famous case from Colorado that Judge Reinhardt leaned on in his opinion today, \u003ca href=\"http://www.oyez.org/cases/1990-1999/1995/1995_94_1039\">Romer v. Evans\u003c/a>, where the Supreme Court struck down a mean-spirited measure in Colorado that visited discrimination on gays and lesbians. In Justice Kennedy invalidating that measure, he highlighted that Colorado was an outlier, was doing something unusual.\u003c/p>\n\u003cp>So the more states that recognize same-sex marriage and the more that becomes the trend line, the more that those states who don't recognize it start to look like laggards.\u003c/p>\n\u003cp>\u003cstrong>Thinking back to \u003ca href=\"http://www.oyez.org/cases/1950-1959/1952/1952_1/\">Brown v. Board of Ed\u003c/a> on segregation and \u003ca href=\"http://www.oyez.org/cases/1960-1969/1966/1966_395\">Loving v. Virginia\u003c/a> on interracial marriage, how would you compare the public mood about those issues versus the way the public feels now about gay marriage? \u003c/strong>\u003c/p>\n\u003cp>I think it mattered a lot in Loving v. Virginia that a lot of states in the years leading up to 1967 had become more liberal with respect to interracial marriage.\u003c/p>\n\u003cp>The California Supreme Court recognized interracial marriage decades before the Supreme Court in Loving, but in that intervening period a number of other states followed California's lead. So by the time the Supreme Court determined interracial marriage to be a national right in 1967, the trend line was clear and states that resisted begun to look like outliers. Brown vs. Board of Ed is a little different because you still had a big bloc of states that were adamant in not wanting to desegregate, so that was more regionalized.\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp>With regard to same-sex marriage, it's been legalized mostly on the coasts, though you also have a state like Iowa that recognized it as well, albeit under a lot of controversy. But I do think these cases underscore that it's easier for the Supreme Court to take a step in recognizing a national right when that right is winning recognition in different parts of the country.\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cfigure id=\"attachment_55730\" class=\"wp-caption alignleft\" style=\"max-width: 300px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8SM.gif\">\u003cimg class=\"size-medium wp-image-55730\" title=\"prop8SM\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8SM-300x200.gif\" alt=\"\" width=\"300\" height=\"200\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">Same-sex marriage supporters march after today's ruling (Don Clyde/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>UC Davis law professor Vik Amar analyzed the 9th Circuit's Prop 8 ruling in an interview with KQED's Scott Shafer today.\u003c/p>\n\u003cp>Amar's take: The two judges in the majority, Stephen Reinhardt and Michael Hawkins, may have tailored their decision in the narrowest way possible -- applying only to California -- so as to give the ruling the best possible chance of \u003cem>not\u003c/em> being taken up by the U.S. Supreme Court. Amar also said if history is any guide, the more states that legalize same-sex marriage, the more inclined the Supreme Court may be to make it a federal right applicable across the country.\u003c/p>\n\u003cp>Here's an edited transcript...\u003c/p>\n\u003cp>\u003cstrong>What's your initial take on the ruling? \u003c/strong>\u003c/p>\n\u003cp>I think the two judges making up the majority tried to write the opinion narrowly and probably did so because they were trying to minimize the interest of the Supreme Court in taking the case at the next level.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>If they'd written an opinion that struck down bans on gay marriage not just in California but in all the states covered by the 9th Circuit, the Supreme Court would almost have to step in to resolve the matter one way or the other, because you would have had a very different federal rights regime west of the Rockies vs. the rest of country.\u003c/p>\n\u003cp>But by limiting the ruling and the reasoning to California and to Proposition 8, the Ninth Circuit judges at least give the Supreme Court an excuse not to step in.\u003c/p>\n\u003cp>Today's ruling is monumental in a lot of respects: This is the first federal appellate ruling that holds there is a federal right to same-sex marriage, no matter how narrow the reasoning might be. That alone coupled with California's size and prominence may lead the Supreme Court to feel they have to weigh in. But as important as California is, it's still one state. If the decision had affected nine states rather than one, it would have been bigger still.\u003c/p>\n\u003cp>But there was no way the 9th circuit was going to rule for the plaintiffs and not create a significant risk that the Supreme Court would step in. The question wasn't whether the Supreme Court had its eye on this case, the question was how do you minimize that, and I think they tried to do that by keeping the reasoning specific to California.\u003c/p>\n\u003cp>That may not work. The Prop 8 proponents may end up convincing the Supreme Court that this is a big ruling that needs to be dealt with, even though it affects California only.\u003c/p>\n\u003cp>\u003c!--more-->\u003c/p>\n\u003cp>\u003cstrong>In terms of dissent from Judge Smith, who said he isn't convinced there \u003cem>isn't\u003c/em> a rational reason to limit marriage to heterosexuals, what impact might that have on the Supreme Court or on a possible Ninth Circuit \u003ca href=\"http://en.wikipedia.org/wiki/En_banc\">en banc panel\u003c/a>?\u003c/strong>\u003c/p>\n\u003cp>I'm not sure the dissent is going to influence many people on the Ninth Circuit or on the Supreme Court. This matter is important and has been in the news so much that a lot of judges on both courts probably have their own views.\u003c/p>\n\u003cp>And a lot of people who might agree with Judge Smith that Prop 8 is not unconstitutional would have written a very different dissent, stressing different issues. Judge Smith stressed procreation and child rearing, other people might stress how it should be permissible for states to proceed incrementally and with caution, and that you don't want too much social change too quickly. For some backers of same-sex marriage, that's a more plausible line of defense.\u003c/p>\n\u003cp>So I'm not sure the particulars of what Judge Smith said in his defense will affect anybody, but it is a reminder that this is the kind of dispute where you're unlikely to have unanimity on any court.\u003c/p>\n\u003cp>\u003cstrong>Washington state \u003ca href=\"http://www.usatoday.com/news/nation/story/2012-02-06/washington-gay-marriage-bill/52994722/1\">may soon legalize gay marriage\u003c/a>. The senate has passed it; the governor says she'll sign it. What effect does the politics of same-sex marriage have on the ultimate resolution of this case legally?\u003c/strong>\u003c/p>\n\u003cp>I think that the larger political backdrop has an enormous effect. Whether the Supreme Court always admits it or not –- and sometimes they do —- federal constitutional rights are easier to defend when there is a broad or emerging national consensus on them.\u003c/p>\n\u003cp>This is not to say that minorities should be deprived of their basic liberties simply because they haven't convinced the entire country that they're being treated unfairly. But when you do have social movements that reflect a broader national trend line, there are justices on the Supreme Court who will feel more comfortable saying what was a regional trend is now national, so they will feel more disposed to deem it a national right.\u003c/p>\n\u003cp>For Justice Kennedy, for instance, to embrace gay marriage as a federal right when five states or seven states have recognized it is different than if a dozen or 20 states have.\u003c/p>\n\u003cp>One area in which the Supreme Court does this explicitly is the Cruel and Unusual punishment clause of the 8th Amendment. What counts as cruel and unusual depends on how many states do the same thing.\u003c/p>\n\u003cp>In the most famous Supreme Court same-sex case to date, \u003ca href=\"http://www.oyez.org/cases/2000-2009/2002/2002_02_102\">Lawrence vs. Texas\u003c/a>, in which the court struck down a law that made it a crime to engage in any same-sex conduct, I think it mattered a great deal that Texas was an outlier.\u003c/p>\n\u003cp>There's a famous case from Colorado that Judge Reinhardt leaned on in his opinion today, \u003ca href=\"http://www.oyez.org/cases/1990-1999/1995/1995_94_1039\">Romer v. Evans\u003c/a>, where the Supreme Court struck down a mean-spirited measure in Colorado that visited discrimination on gays and lesbians. In Justice Kennedy invalidating that measure, he highlighted that Colorado was an outlier, was doing something unusual.\u003c/p>\n\u003cp>So the more states that recognize same-sex marriage and the more that becomes the trend line, the more that those states who don't recognize it start to look like laggards.\u003c/p>\n\u003cp>\u003cstrong>Thinking back to \u003ca href=\"http://www.oyez.org/cases/1950-1959/1952/1952_1/\">Brown v. Board of Ed\u003c/a> on segregation and \u003ca href=\"http://www.oyez.org/cases/1960-1969/1966/1966_395\">Loving v. Virginia\u003c/a> on interracial marriage, how would you compare the public mood about those issues versus the way the public feels now about gay marriage? \u003c/strong>\u003c/p>\n\u003cp>I think it mattered a lot in Loving v. Virginia that a lot of states in the years leading up to 1967 had become more liberal with respect to interracial marriage.\u003c/p>\n\u003cp>The California Supreme Court recognized interracial marriage decades before the Supreme Court in Loving, but in that intervening period a number of other states followed California's lead. So by the time the Supreme Court determined interracial marriage to be a national right in 1967, the trend line was clear and states that resisted begun to look like outliers. Brown vs. Board of Ed is a little different because you still had a big bloc of states that were adamant in not wanting to desegregate, so that was more regionalized.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>With regard to same-sex marriage, it's been legalized mostly on the coasts, though you also have a state like Iowa that recognized it as well, albeit under a lot of controversy. But I do think these cases underscore that it's easier for the Supreme Court to take a step in recognizing a national right when that right is winning recognition in different parts of the country.\u003c/p>\n\n\u003c/div>\u003c/p>",
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"title": "Appeals Court Upholds Vaughn Walker Ruling Invalidating Prop. 8",
"headTitle": "Appeals Court Upholds Vaughn Walker Ruling Invalidating Prop. 8 | KQED",
"content": "\u003cp>The 9th Circuit Court of Appeals has upheld Judge Vaughn Walker’s ruling invalidating Proposition 8, California’s same-sex marriage ban.\u003c/p>\n\u003caside class=\"pullquote alignleft\">\n\u003cul>\n\u003cli>\u003ca href=\"http://www.kqed.org/a/radiospecials/R201202071800\">\u003cstrong>Listen to KQED News Prop 8 special\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">\u003cstrong>Read the ruling and key passages\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/#twitter\">\u003cstrong>Reaction on Twitter\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-ruling-legal-analysis-decision-was-made-with-eye-toward-supreme-court/\">\u003cstrong>Legal analysis\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://www.flickr.com/photos/kqedradio/sets/72157629218649235/\">\u003cstrong>Photos\u003c/strong>\u003c/a>\u003c/li>\n\u003c/ul>\n\u003c/aside>\n\u003cp>The federal appeals court has declared California’s same-sex marriage ban to be unconstitutional, paving the way for a likely U.S. Supreme Court showdown on the voter-approved law. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled 2-1 Tuesday that Walker, a lower-court judge, interpreted the U.S. Constitution correctly in 2010 when he declared Proposition 8 to be a violation of the civil rights of gays and lesbians.\u003c/p>\n\u003cfigure id=\"attachment_55643\" class=\"wp-caption alignleft\" style=\"max-width: 225px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop81.jpg\">\u003cimg decoding=\"async\" loading=\"lazy\" class=\"size-medium wp-image-55643\" title=\"prop81\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop81-300x224.jpg\" alt=\"\" width=\"225\" height=\"168\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">At an anti-Prop 8 rally before the hearing. (Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The measure, which passed with 52 percent of the vote in 2008, outlawed same-sex unions just five months after they became legal in the state.\u003c/p>\n\u003cp>Lawyers for Proposition 8 sponsors and for two couples who sued to overturn the ban have said they would appeal to the Supreme Court if they did not receive a favorable ruling from the 9th Circuit.\u003c/p>\n\u003cp>A stay on same-sex marriage remains in effect.\u003c/p>\n\u003cp>[ad fullwidth]\u003c/p>\n\u003cp>A key passage from the ruling:\u003c/p>\n\u003cp>“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”\u003c/p>\n\u003cp>Earlier today, KQED’s Scott Shafer reported from outside the court on 7th and Mission in San Francisco:\u003c/p>\n\u003caside class=\"pullquote alignleft\">\n\u003cp>The decision was a narrow one, focusing on the proposition itself and the fact that California voters withdrew a right that had existed before Prop 8 was passed.\u003c/p>\n\u003c/aside>\n\u003cp>“Several dozen mostly supporters of same-sex marriage had gathered in front of the court awaiting the decision. A \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8whoop.mp3\">whoop went up from the crowd\u003c/a> almost instantaneously when it was released, accompanied by honking horns from passing motorists.\u003c/p>\n\u003cp>The panel of judges that made the ruling is ideologically diverse, with two having been appointed by Democrats and the third by George W. Bush. That judge, N. Randy Smith, dissented, asserting that he just wasn’t convinced that Prop 8 doesn’t have a rationally related reason attached to it.\u003c/p>\n\u003cp>The fact that it’s not unanimous makes it a little more likely that Prop 8 backers can go to the 9th Circuit and ask for an en banc review, made up of a larger panel of 11 judges. That would delay the case from going to the U.S. Supreme Court by possibly up to a year. The losing side has 14 days to decide whether to petition the court for such a review.\u003c/p>\n\u003cp>One of the unknowns before the decision was whether the ruling would be a broad, having national significance, or a narrower one that focused on Prop 8 in California. The decision was a narrow one, focusing on the proposition itself and the fact that California voters withdrew a right that had existed before Prop 8 was passed. The narrower ruling might make it a little less likely that the Supreme Court would take the case up, but that remains to be seen.”\u003cbr>\n\u003c!--more-->\u003c/p>\n\u003cp>On two ancillary issues, whether Prop 8 proponents have standing to defend the law in court, and whether Judge Vaughn Walker should have recused himself because of his own long-term same-sex relationship, the court was in unanimous agreement. It ruled that proponents do have the legal right to defend a proposition in court, and that Walker’s same-sex relationship did not require his recusal.\u003c/p>\n\u003cp>The National Organization For Marriage, the main group supporting Proposition 8, has \u003ca href=\"http://www.nationformarriage.org/site/apps/nlnet/content2.aspx?c=omL2KeN0LzH&b=5134145&ct=11622743¬oc=1\">condemned the ruling\u003c/a>. From the press release:\u003c/p>\n\u003cblockquote>\u003cp>“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.”\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Update 5:07 p.m.\u003c/strong>\u003c/p>\n\u003cp>\u003ca href=\"https://twitter.com/#!/newtgingrich/status/166956181204647936\">Newt Gingrich’s Twitter response\u003c/a>:\u003c/p>\n\u003cp>https://twitter.com/#!/newtgingrich/status/166956181204647936\u003c/p>\n\u003cp> \u003c/p>\n\u003cp>And from Mitt Romney, per the \u003ca href=\"http://www.washingtonpost.com/blogs/plum-line/post/on-gay-marriage-mitt-romney-veers-hard-to-the-right/2012/02/07/gIQALE48wQ_blog.html\">Washington Post Plum Line blog\u003c/a>:\u003c/p>\n\u003cblockquote>\u003cp>“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”\u003c/p>\u003c/blockquote>\n\u003cp>As for the White House response, Obama administration press secretary Jay Carney \u003ca href=\"http://www.youtube.com/watch?v=G3MO-thT-gk&feature=player_embedded\">wasn’t saying much\u003c/a>, other than this: “The president has long opposed, as you know, discriminatory efforts to deny rights and benefits to same-sex couples.”\u003c/p>\n\u003cp>\u003ciframe loading=\"lazy\" src=\"http://www.youtube.com/embed/G3MO-thT-gk\" frameborder=\"0\" width=\"480\" height=\"274\">\u003c/iframe>\u003c/p>\n\u003cp>\u003cstrong>Update 12:45 p.m.\u003c/strong> KQED reporter Caitlin Esch, at the courthouse today, recorded the following \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8whoop.mp\">whoop that went up from the crowd\u003c/a> of same-sex marriage supporters as soon as the ruling was released.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8whoop.mp3\">Audio: Crowd reacts to court ruling\u003c/a>\u003cbr>\n[audio:http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8whoop.mp3|titles=prop8whoop]\u003c/p>\n\u003cp>\u003ca name=\"twitter\">\u003c/a>Click on the play button below to see \u003ca href=\"https://twitter.com/#!/search?q=%23Prop8\">reaction to the ruling on Twitter\u003c/a>\u003ca name=\"twitter\">\u003c/a>:\u003c/p>\n\u003cp>\u003ciframe loading=\"lazy\" src=\"http://www.coveritlive.com/index2.php/option=com_altcaster/task=viewaltcast/altcast_code=d26f022e09/height=550/width=470\" frameborder=\"0\" scrolling=\"no\" width=\"470\" height=\"550\">\u003c/iframe>\u003c/p>\n\u003cp>Here’s the \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8fulltext.pdf\">full text of the decision\u003c/a>:\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Prop. 8 decision on Scribd\" href=\"http://www.scribd.com/doc/80809524/Ninth-Circuit-Prop-8-decision\">Ninth Circuit Prop. 8 decision\u003c/a>\u003ciframe loading=\"lazy\" src=\"http://www.scribd.com/embeds/80809524/content?start_page=1&view_mode=list&access_key=key-50ouzjzre6bsg062onq\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\u003cp>\u003cstrong>Update 10:50 a.m.\u003c/strong> Mayor Edwin M. Lee today issued this statement on the decision:\u003c/p>\n\u003cp>“I celebrate the decision by the Ninth Circuit Court today. This is a great day for marriage equality and a great day for California families. The Court affirmed today that there is nothing in the Constitution that allows discrimination and we are on our way to protecting the fundamental rights of everyone in our State.\u003c/p>\n\u003cp>And, we will continue the fight until everyone is treated equally.\u003c/p>\n\u003cp>San Francisco stands ready to begin marrying same sex couples, and we remain as deeply committed to the fight for marriage equality today as we did nearly eight years ago when then Mayor Gavin Newsom started one of the most important civil rights issues of our generation to ensure equality for all.\u003c/p>\n\u003cp>[ad floatright]\u003c/p>\n\u003cp>I would also like to acknowledge the tireless work of our City Attorney Dennis Herrera and his team in defense of marriage equality and the California Constitution these last eight years. Together, we will take this fight all the way to the nation’s highest court, if necessary.”\u003c/p>\n\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>The 9th Circuit Court of Appeals has upheld Judge Vaughn Walker’s ruling invalidating Proposition 8, California’s same-sex marriage ban.\u003c/p>\n\u003caside class=\"pullquote alignleft\">\n\u003cul>\n\u003cli>\u003ca href=\"http://www.kqed.org/a/radiospecials/R201202071800\">\u003cstrong>Listen to KQED News Prop 8 special\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://ww2.kqed.org/news/2012/02/07/read-the-full-prop-8-ruling-and-key-passages/\">\u003cstrong>Read the ruling and key passages\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-appeals-court-decision/#twitter\">\u003cstrong>Reaction on Twitter\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://ww2.kqed.org/news/2012/02/07/prop-8-ruling-legal-analysis-decision-was-made-with-eye-toward-supreme-court/\">\u003cstrong>Legal analysis\u003c/strong>\u003c/a>\u003c/li>\n\u003cli>\u003ca href=\"http://www.flickr.com/photos/kqedradio/sets/72157629218649235/\">\u003cstrong>Photos\u003c/strong>\u003c/a>\u003c/li>\n\u003c/ul>\n\u003c/aside>\n\u003cp>The federal appeals court has declared California’s same-sex marriage ban to be unconstitutional, paving the way for a likely U.S. Supreme Court showdown on the voter-approved law. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled 2-1 Tuesday that Walker, a lower-court judge, interpreted the U.S. Constitution correctly in 2010 when he declared Proposition 8 to be a violation of the civil rights of gays and lesbians.\u003c/p>\n\u003cfigure id=\"attachment_55643\" class=\"wp-caption alignleft\" style=\"max-width: 225px\">\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop81.jpg\">\u003cimg decoding=\"async\" loading=\"lazy\" class=\"size-medium wp-image-55643\" title=\"prop81\" src=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop81-300x224.jpg\" alt=\"\" width=\"225\" height=\"168\">\u003c/a>\u003cfigcaption class=\"wp-caption-text\">At an anti-Prop 8 rally before the hearing. (Scott Shafer/KQED)\u003c/figcaption>\u003c/figure>\n\u003cp>The measure, which passed with 52 percent of the vote in 2008, outlawed same-sex unions just five months after they became legal in the state.\u003c/p>\n\u003cp>Lawyers for Proposition 8 sponsors and for two couples who sued to overturn the ban have said they would appeal to the Supreme Court if they did not receive a favorable ruling from the 9th Circuit.\u003c/p>\n\u003cp>A stay on same-sex marriage remains in effect.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>A key passage from the ruling:\u003c/p>\n\u003cp>“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”\u003c/p>\n\u003cp>Earlier today, KQED’s Scott Shafer reported from outside the court on 7th and Mission in San Francisco:\u003c/p>\n\u003caside class=\"pullquote alignleft\">\n\u003cp>The decision was a narrow one, focusing on the proposition itself and the fact that California voters withdrew a right that had existed before Prop 8 was passed.\u003c/p>\n\u003c/aside>\n\u003cp>“Several dozen mostly supporters of same-sex marriage had gathered in front of the court awaiting the decision. A \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8whoop.mp3\">whoop went up from the crowd\u003c/a> almost instantaneously when it was released, accompanied by honking horns from passing motorists.\u003c/p>\n\u003cp>The panel of judges that made the ruling is ideologically diverse, with two having been appointed by Democrats and the third by George W. Bush. That judge, N. Randy Smith, dissented, asserting that he just wasn’t convinced that Prop 8 doesn’t have a rationally related reason attached to it.\u003c/p>\n\u003cp>The fact that it’s not unanimous makes it a little more likely that Prop 8 backers can go to the 9th Circuit and ask for an en banc review, made up of a larger panel of 11 judges. That would delay the case from going to the U.S. Supreme Court by possibly up to a year. The losing side has 14 days to decide whether to petition the court for such a review.\u003c/p>\n\u003cp>One of the unknowns before the decision was whether the ruling would be a broad, having national significance, or a narrower one that focused on Prop 8 in California. The decision was a narrow one, focusing on the proposition itself and the fact that California voters withdrew a right that had existed before Prop 8 was passed. The narrower ruling might make it a little less likely that the Supreme Court would take the case up, but that remains to be seen.”\u003cbr>\n\u003c!--more-->\u003c/p>\n\u003cp>On two ancillary issues, whether Prop 8 proponents have standing to defend the law in court, and whether Judge Vaughn Walker should have recused himself because of his own long-term same-sex relationship, the court was in unanimous agreement. It ruled that proponents do have the legal right to defend a proposition in court, and that Walker’s same-sex relationship did not require his recusal.\u003c/p>\n\u003cp>The National Organization For Marriage, the main group supporting Proposition 8, has \u003ca href=\"http://www.nationformarriage.org/site/apps/nlnet/content2.aspx?c=omL2KeN0LzH&b=5134145&ct=11622743¬oc=1\">condemned the ruling\u003c/a>. From the press release:\u003c/p>\n\u003cblockquote>\u003cp>“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.”\u003c/p>\u003c/blockquote>\n\u003cp>\u003cstrong>Update 5:07 p.m.\u003c/strong>\u003c/p>\n\u003cp>\u003ca href=\"https://twitter.com/#!/newtgingrich/status/166956181204647936\">Newt Gingrich’s Twitter response\u003c/a>:\u003c/p>\n\u003cp>https://twitter.com/#!/newtgingrich/status/166956181204647936\u003c/p>\n\u003cp> \u003c/p>\n\u003cp>And from Mitt Romney, per the \u003ca href=\"http://www.washingtonpost.com/blogs/plum-line/post/on-gay-marriage-mitt-romney-veers-hard-to-the-right/2012/02/07/gIQALE48wQ_blog.html\">Washington Post Plum Line blog\u003c/a>:\u003c/p>\n\u003cblockquote>\u003cp>“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”\u003c/p>\u003c/blockquote>\n\u003cp>As for the White House response, Obama administration press secretary Jay Carney \u003ca href=\"http://www.youtube.com/watch?v=G3MO-thT-gk&feature=player_embedded\">wasn’t saying much\u003c/a>, other than this: “The president has long opposed, as you know, discriminatory efforts to deny rights and benefits to same-sex couples.”\u003c/p>\n\u003cp>\u003ciframe loading=\"lazy\" src=\"http://www.youtube.com/embed/G3MO-thT-gk\" frameborder=\"0\" width=\"480\" height=\"274\">\u003c/iframe>\u003c/p>\n\u003cp>\u003cstrong>Update 12:45 p.m.\u003c/strong> KQED reporter Caitlin Esch, at the courthouse today, recorded the following \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8whoop.mp\">whoop that went up from the crowd\u003c/a> of same-sex marriage supporters as soon as the ruling was released.\u003c/p>\n\u003cp>\u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8whoop.mp3\">Audio: Crowd reacts to court ruling\u003c/a>\u003cbr>\n\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>\u003ca name=\"twitter\">\u003c/a>Click on the play button below to see \u003ca href=\"https://twitter.com/#!/search?q=%23Prop8\">reaction to the ruling on Twitter\u003c/a>\u003ca name=\"twitter\">\u003c/a>:\u003c/p>\n\u003cp>\u003ciframe loading=\"lazy\" src=\"http://www.coveritlive.com/index2.php/option=com_altcaster/task=viewaltcast/altcast_code=d26f022e09/height=550/width=470\" frameborder=\"0\" scrolling=\"no\" width=\"470\" height=\"550\">\u003c/iframe>\u003c/p>\n\u003cp>Here’s the \u003ca href=\"http://ww2.kqed.org/news/wp-content/uploads/sites/10/2012/02/prop8fulltext.pdf\">full text of the decision\u003c/a>:\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Prop. 8 decision on Scribd\" href=\"http://www.scribd.com/doc/80809524/Ninth-Circuit-Prop-8-decision\">Ninth Circuit Prop. 8 decision\u003c/a>\u003ciframe loading=\"lazy\" src=\"http://www.scribd.com/embeds/80809524/content?start_page=1&view_mode=list&access_key=key-50ouzjzre6bsg062onq\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\u003cp>\u003cstrong>Update 10:50 a.m.\u003c/strong> Mayor Edwin M. Lee today issued this statement on the decision:\u003c/p>\n\u003cp>“I celebrate the decision by the Ninth Circuit Court today. This is a great day for marriage equality and a great day for California families. The Court affirmed today that there is nothing in the Constitution that allows discrimination and we are on our way to protecting the fundamental rights of everyone in our State.\u003c/p>\n\u003cp>And, we will continue the fight until everyone is treated equally.\u003c/p>\n\u003cp>San Francisco stands ready to begin marrying same sex couples, and we remain as deeply committed to the fight for marriage equality today as we did nearly eight years ago when then Mayor Gavin Newsom started one of the most important civil rights issues of our generation to ensure equality for all.\u003c/p>\n\u003cp>\u003c/p>\u003c/div>",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003c/p>\n\u003cp>I would also like to acknowledge the tireless work of our City Attorney Dennis Herrera and his team in defense of marriage equality and the California Constitution these last eight years. Together, we will take this fight all the way to the nation’s highest court, if necessary.”\u003c/p>\n\n\u003c/div>\u003c/p>",
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"content": "\u003cp>Here is \u003ca href=\"http://www.scribd.com/doc/80809524/Ninth-Circuit-Prop-8-decision\">today's full Appeals Court decision\u003c/a> upholding Judge Vaughn Walker's decision to strike down Proposition 8, California's same-sex marriage ban.\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Prop. 8 decision on Scribd\" href=\"http://www.scribd.com/doc/80809524/Ninth-Circuit-Prop-8-decision\">Ninth Circuit Prop. 8 decision\u003c/a>\u003ciframe src=\"http://www.scribd.com/embeds/80809524/content?start_page=1&view_mode=list&access_key=key-50ouzjzre6bsg062onq\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\u003cp>The first few passages summarize the findings and also speak to the narrowness of the ruling, which did not address \"whether under the Constitution same-sex couples may ever be denied the right to marry.\" \u003c/p>\n\u003cblockquote>\u003cp>Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right--the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in child-rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties.\u003c/p>\n\u003cp>All that Proposition 8 accomplished was to take away from the same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage', which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for \"laws of this sort.\" Romer v. Evans, 517 U.S. 620, 633 \u003c/p>\n\u003cp>Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court,\" \u003ca href=\"http://www.law.cornell.edu/supct/html/historics/USSC_CR_0339_0629_ZS.html\">Sweatt v. Painter\u003c/a>, 339 U.S. 629, 631 (1950). Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.\u003c/p>\n\u003cp>Thus, as a result of our \"traditional\" reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in th[is] case[ ] is unnecessary to [its] disposition.\" Were we unable, however, to resolve the matter on the basis we do, we would not hesitate to process to the broader question--the constitutionality of denying same-sex couples the right to marry.\u003c/p>\n\u003c/blockquote>\n\u003cp>The Wall Street Journal has also \u003ca href=\"http://blogs.wsj.com/law/2012/02/07/ninth-circuit-california-gay-marriage-ban-is-unconstitutional/\">pulled a few interesting passages\u003c/a>, including this rather entertaining extract: \u003c/p>\n\u003cblockquote>\u003cp>Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.\u003c/p>\u003c/blockquote>\n\u003cp>And this related to Prop 8 supporters' motion that Judge Vaughn Walker's original decision be nullified because Walker is himself in a long-term, same-sex relationship:\u003c/p>\n\u003cblockquote>\u003cp> Finally, we address Proponents’ motion to vacate the district court’s judgment. On April 6, 2011, after resigning from the bench, former Chief Judge Walker disclosed he was gay and that he had for the past ten years been in a relationship with another man. Proponents moved shortly thereafter to vacate the judgment on the basis that 28 U.S.C. Sec. 455(b)(4) obligated Chief Judge Walker to recuse himself, because he had an “interest that could be substantially affected by the outcome of the proceeding,” and that 28 U.S.C. Sec. 455(a) obligated him either to recuse himself or to disclose his potential conflict, because his “impartiality might reasonably be questioned.” . . .\u003c/p>\n\u003cp> The district court properly held that . . . Chief Judge Walker had no obligation to recuse himself . . . As Chief Judge Ware explained, the fact that a judge “could be affected by the outcome of a proceeding, in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification . . . “ Nor could it possibly be “reasonable to presume,” . . . “that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceeding.” . . . To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts.”\u003c/p>\u003c/blockquote>\n\u003cp>And more \u003ca href=\"http://www.washingtonpost.com/national/excerpts-from-the-ruling-declaring-californias-same-sex-marriage-ban-to-be-unconstitutional/2012/02/07/gIQAfELvwQ_story.html\">excerpts from AP\u003c/a>:\u003c/p>\n\u003cblockquote>\u003cp>By emphasizing Proposition 8’s limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”\u003c/p>\u003c/blockquote>\n\u003cp>plus this...\u003c/p>\n\u003cblockquote>\u003cp>It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.\u003c/p>\u003c/blockquote>\n\u003cp>[ad fullwidth]\u003c/p>\u003cp>[ad floatright]\u003c/p>\n",
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"content": "\u003cdiv class=\"post-body\">\u003cp>\u003cp>Here is \u003ca href=\"http://www.scribd.com/doc/80809524/Ninth-Circuit-Prop-8-decision\">today's full Appeals Court decision\u003c/a> upholding Judge Vaughn Walker's decision to strike down Proposition 8, California's same-sex marriage ban.\u003c/p>\n\u003cp>\u003ca title=\"View Ninth Circuit Prop. 8 decision on Scribd\" href=\"http://www.scribd.com/doc/80809524/Ninth-Circuit-Prop-8-decision\">Ninth Circuit Prop. 8 decision\u003c/a>\u003ciframe src=\"http://www.scribd.com/embeds/80809524/content?start_page=1&view_mode=list&access_key=key-50ouzjzre6bsg062onq\" frameborder=\"0\" scrolling=\"no\" width=\"100%\" height=\"600\">\u003c/iframe>\u003c/p>\n\u003cp>The first few passages summarize the findings and also speak to the narrowness of the ruling, which did not address \"whether under the Constitution same-sex couples may ever be denied the right to marry.\" \u003c/p>\n\u003cblockquote>\u003cp>Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right--the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California's interests in child-rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties.\u003c/p>\n\u003cp>All that Proposition 8 accomplished was to take away from the same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage', which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for \"laws of this sort.\" Romer v. Evans, 517 U.S. 620, 633 \u003c/p>\n\u003cp>Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court,\" \u003ca href=\"http://www.law.cornell.edu/supct/html/historics/USSC_CR_0339_0629_ZS.html\">Sweatt v. Painter\u003c/a>, 339 U.S. 629, 631 (1950). Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.\u003c/p>\n\u003cp>Thus, as a result of our \"traditional\" reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in th[is] case[ ] is unnecessary to [its] disposition.\" Were we unable, however, to resolve the matter on the basis we do, we would not hesitate to process to the broader question--the constitutionality of denying same-sex couples the right to marry.\u003c/p>\n\u003c/blockquote>\n\u003cp>The Wall Street Journal has also \u003ca href=\"http://blogs.wsj.com/law/2012/02/07/ninth-circuit-california-gay-marriage-ban-is-unconstitutional/\">pulled a few interesting passages\u003c/a>, including this rather entertaining extract: \u003c/p>\n\u003cblockquote>\u003cp>Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.\u003c/p>\u003c/blockquote>\n\u003cp>And this related to Prop 8 supporters' motion that Judge Vaughn Walker's original decision be nullified because Walker is himself in a long-term, same-sex relationship:\u003c/p>\n\u003cblockquote>\u003cp> Finally, we address Proponents’ motion to vacate the district court’s judgment. On April 6, 2011, after resigning from the bench, former Chief Judge Walker disclosed he was gay and that he had for the past ten years been in a relationship with another man. Proponents moved shortly thereafter to vacate the judgment on the basis that 28 U.S.C. Sec. 455(b)(4) obligated Chief Judge Walker to recuse himself, because he had an “interest that could be substantially affected by the outcome of the proceeding,” and that 28 U.S.C. Sec. 455(a) obligated him either to recuse himself or to disclose his potential conflict, because his “impartiality might reasonably be questioned.” . . .\u003c/p>\n\u003cp> The district court properly held that . . . Chief Judge Walker had no obligation to recuse himself . . . As Chief Judge Ware explained, the fact that a judge “could be affected by the outcome of a proceeding, in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification . . . “ Nor could it possibly be “reasonable to presume,” . . . “that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceeding.” . . . To hold otherwise would demonstrate a lack of respect for the integrity of our federal courts.”\u003c/p>\u003c/blockquote>\n\u003cp>And more \u003ca href=\"http://www.washingtonpost.com/national/excerpts-from-the-ruling-declaring-californias-same-sex-marriage-ban-to-be-unconstitutional/2012/02/07/gIQAfELvwQ_story.html\">excerpts from AP\u003c/a>:\u003c/p>\n\u003cblockquote>\u003cp>By emphasizing Proposition 8’s limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. 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},
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"rss": "https://podcasts.files.bbci.co.uk/p02nq0gn.rss"
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},
"californiareport": {
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"info": "KQED’s statewide radio news program providing daily coverage of issues, trends and public policy decisions.",
"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/The-California-Report-Podcast-Tile-703x703-1.jpg",
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"officialWebsiteLink": "/californiareport",
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"order": 8
},
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},
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"info": "Every week, The California Report Magazine takes you on a road trip for the ears: to visit the places and meet the people who make California unique. The in-depth storytelling podcast from the California Report.",
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"google": "https://podcasts.google.com/feed/aHR0cHM6Ly9mZWVkcy5tZWdhcGhvbmUuZm0vS1FJTkM3NjkwNjk1OTAz",
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"meta": {
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"source": "City Arts & Lectures"
},
"link": "https://www.cityarts.net",
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},
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"order": 1
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"info": "\u003cem>Code Switch\u003c/em>, which listeners will hear in the first part of the hour, has fearless and much-needed conversations about race. Hosted by journalists of color, the show tackles the subject of race head-on, exploring how it impacts every part of society — from politics and pop culture to history, sports and more.\u003cbr />\u003cbr />\u003cem>Life Kit\u003c/em>, which will be in the second part of the hour, guides you through spaces and feelings no one prepares you for — from finances to mental health, from workplace microaggressions to imposter syndrome, from relationships to parenting. The show features experts with real world experience and shares their knowledge. Because everyone needs a little help being human.\u003cbr />\u003cbr />\u003ca href=\"https://www.npr.org/podcasts/510312/codeswitch\">\u003cem>Code Switch\u003c/em> offical site and podcast\u003c/a>\u003cbr />\u003ca href=\"https://www.npr.org/lifekit\">\u003cem>Life Kit\u003c/em> offical site and podcast\u003c/a>\u003cbr />",
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"id": "commonwealth-club",
"title": "Commonwealth Club of California Podcast",
"info": "The Commonwealth Club of California is the nation's oldest and largest public affairs forum. As a non-partisan forum, The Club brings to the public airwaves diverse viewpoints on important topics. The Club's weekly radio broadcast - the oldest in the U.S., dating back to 1924 - is carried across the nation on public radio stations and is now podcasting. Our website archive features audio of our recent programs, as well as selected speeches from our long and distinguished history. This podcast feed is usually updated twice a week and is always un-edited.",
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"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/Commonwealth-Club-Podcast-Tile-360x360-1.jpg",
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"source": "Commonwealth Club of California"
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"link": "/radio/program/commonwealth-club",
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"google": "https://podcasts.google.com/feed/aHR0cDovL3d3dy5jb21tb253ZWFsdGhjbHViLm9yZy9hdWRpby9wb2RjYXN0L3dlZWtseS54bWw",
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"id": "forum",
"title": "Forum",
"tagline": "The conversation starts here",
"info": "KQED’s live call-in program discussing local, state, national and international issues, as well as in-depth interviews.",
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"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/Forum-Podcast-Tile-703x703-1.jpg",
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"order": 9
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"freakonomics-radio": {
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"officialWebsiteLink": "http://freakonomics.com/",
"airtime": "SUN 1am-2am, SAT 3pm-4pm",
"meta": {
"site": "radio",
"source": "WNYC"
},
"link": "/radio/program/freakonomics-radio",
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"tuneIn": "https://tunein.com/podcasts/WNYC-Podcasts/Freakonomics-Radio-p272293/",
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"id": "fresh-air",
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"info": "A live production of NPR and WBUR Boston, in collaboration with stations across the country, Here & Now reflects the fluid world of news as it's happening in the middle of the day, with timely, in-depth news, interviews and conversation. Hosted by Robin Young, Jeremy Hobson and Tonya Mosley.",
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"hidden-brain": {
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"info": "Shankar Vedantam uses science and storytelling to reveal the unconscious patterns that drive human behavior, shape our choices and direct our relationships.",
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"airtime": "SUN 7pm-8pm",
"meta": {
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"source": "NPR"
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"how-i-built-this": {
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"title": "How I Built This with Guy Raz",
"info": "Guy Raz dives into the stories behind some of the world's best known companies. How I Built This weaves a narrative journey about innovators, entrepreneurs and idealists—and the movements they built.",
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"airtime": "SUN 7:30pm-8pm",
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"hyphenacion": {
"id": "hyphenacion",
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"tagline": "Where conversation and cultura meet",
"info": "What kind of no sabo word is Hyphenación? For us, it’s about living within a hyphenation. Like being a third-gen Mexican-American from the Texas border now living that Bay Area Chicano life. Like Xorje! Each week we bring together a couple of hyphenated Latinos to talk all about personal life choices: family, careers, relationships, belonging … everything is on the table. ",
"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2025/03/Hyphenacion_FinalAssets_PodcastTile.png",
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"order": 15
},
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},
"jerrybrown": {
"id": "jerrybrown",
"title": "The Political Mind of Jerry Brown",
"tagline": "Lessons from a lifetime in politics",
"info": "The Political Mind of Jerry Brown brings listeners the wisdom of the former Governor, Mayor, and presidential candidate. Scott Shafer interviewed Brown for more than 40 hours, covering the former governor's life and half-century in the political game and Brown has some lessons he'd like to share. ",
"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/The-Political-Mind-of-Jerry-Brown-Podcast-Tile-703x703-1.jpg",
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"order": 18
},
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},
"latino-usa": {
"id": "latino-usa",
"title": "Latino USA",
"airtime": "MON 1am-2am, SUN 6pm-7pm",
"info": "Latino USA, the radio journal of news and culture, is the only national, English-language radio program produced from a Latino perspective.",
"imageSrc": "https://ww2.kqed.org/radio/wp-content/uploads/sites/50/2018/04/latinoUsa.jpg",
"officialWebsiteLink": "http://latinousa.org/",
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},
"link": "/radio/program/latino-usa",
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"apple": "https://itunes.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?s=143441&mt=2&id=79681317&at=11l79Y&ct=nprdirectory",
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"rss": "https://feeds.npr.org/510016/podcast.xml"
}
},
"marketplace": {
"id": "marketplace",
"title": "Marketplace",
"info": "Our flagship program, helmed by Kai Ryssdal, examines what the day in money delivered, through stories, conversations, newsworthy numbers and more. Updated Monday through Friday at about 3:30 p.m. PT.",
"airtime": "MON-FRI 4pm-4:30pm, MON-WED 6:30pm-7pm",
"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/Marketplace-Podcast-Tile-360x360-1.jpg",
"officialWebsiteLink": "https://www.marketplace.org/",
"meta": {
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"source": "American Public Media"
},
"link": "/radio/program/marketplace",
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},
"masters-of-scale": {
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"title": "Masters of Scale",
"info": "Masters of Scale is an original podcast in which LinkedIn co-founder and Greylock Partner Reid Hoffman sets out to describe and prove theories that explain how great entrepreneurs take their companies from zero to a gazillion in ingenious fashion.",
"airtime": "Every other Wednesday June 12 through October 16 at 8pm (repeats Thursdays at 2am)",
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"officialWebsiteLink": "https://mastersofscale.com/",
"meta": {
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"source": "WaitWhat"
},
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"rss": "https://rss.art19.com/masters-of-scale"
}
},
"mindshift": {
"id": "mindshift",
"title": "MindShift",
"tagline": "A podcast about the future of learning and how we raise our kids",
"info": "The MindShift podcast explores the innovations in education that are shaping how kids learn. Hosts Ki Sung and Katrina Schwartz introduce listeners to educators, researchers, parents and students who are developing effective ways to improve how kids learn. We cover topics like how fed-up administrators are developing surprising tactics to deal with classroom disruptions; how listening to podcasts are helping kids develop reading skills; the consequences of overparenting; and why interdisciplinary learning can engage students on all ends of the traditional achievement spectrum. This podcast is part of the MindShift education site, a division of KQED News. KQED is an NPR/PBS member station based in San Francisco. You can also visit the MindShift website for episodes and supplemental blog posts or tweet us \u003ca href=\"https://twitter.com/MindShiftKQED\">@MindShiftKQED\u003c/a> or visit us at \u003ca href=\"/mindshift\">MindShift.KQED.org\u003c/a>",
"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/Mindshift-Podcast-Tile-703x703-1.jpg",
"imageAlt": "KQED MindShift: How We Will Learn",
"officialWebsiteLink": "/mindshift/",
"meta": {
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"source": "kqed",
"order": 12
},
"link": "/podcasts/mindshift",
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"google": "https://podcasts.google.com/feed/aHR0cHM6Ly9mZWVkcy5tZWdhcGhvbmUuZm0vS1FJTkM1NzY0NjAwNDI5",
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}
},
"morning-edition": {
"id": "morning-edition",
"title": "Morning Edition",
"info": "\u003cem>Morning Edition\u003c/em> takes listeners around the country and the world with multi-faceted stories and commentaries every weekday. Hosts Steve Inskeep, David Greene and Rachel Martin bring you the latest breaking news and features to prepare you for the day.",
"airtime": "MON-FRI 3am-9am",
"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/Morning-Edition-Podcast-Tile-360x360-1.jpg",
"officialWebsiteLink": "https://www.npr.org/programs/morning-edition/",
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"link": "/radio/program/morning-edition"
},
"onourwatch": {
"id": "onourwatch",
"title": "On Our Watch",
"tagline": "Deeply-reported investigative journalism",
"info": "For decades, the process for how police police themselves has been inconsistent – if not opaque. In some states, like California, these proceedings were completely hidden. After a new police transparency law unsealed scores of internal affairs files, our reporters set out to examine these cases and the shadow world of police discipline. On Our Watch brings listeners into the rooms where officers are questioned and witnesses are interrogated to find out who this system is really protecting. Is it the officers, or the public they've sworn to serve?",
"imageSrc": "https://cdn.kqed.org/wp-content/uploads/2024/04/On-Our-Watch-Podcast-Tile-703x703-1.jpg",
"imageAlt": "On Our Watch from NPR and KQED",
"officialWebsiteLink": "/podcasts/onourwatch",
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