The United States Supreme Court will soon review the Ninth Circuit’s panel opinion invalidating Proposition 8, California’s voter-passed constitutional amendment that eliminated same-sex marriage. Predictions about the shape and substance of any eventual opinion are wildly speculative. Nevertheless, perhaps this is the most appropriate time for advice, even wild advice.
This piece is a creative intervention inspired by two disparate sets of thirteen passages: Wallace Stevens’ iconic poem, “Thirteen Ways of Looking at a Black-bird,” and the section “Thirteen Falsities Exposed” in Justice Antonin Scalia’s recent co-authored volume Reading Law. It offers thirteen “false blackbirds” that the majority opinion in Hollingsworth v. Perry should avoid.
Evaluates the two approaches that Justice Kennedy could take when deciding Hollingsworth v. Perry.
Critiques the District Court's use of the sex discrimination theory of marriage equality as too fragmented to provide an adequate model for advocates.
Reflection on the current "ephemeral moment" in marriage equality movement and analysis of the minimalist and federalism based litigation strategies.
Argues the court should deny certiori altogether and avoid any question on any broad prouncements on the merits of the plaintiffs claim.