Wednesday, April 08, 2015

8th Circuit Releases Gay Marriage Panel

It won't really matter, because the Supreme Court will have the last word soon enough, but the 8th Circuit has released its panel assignment for the pending challenges to gay marriage bans in Nebraska, Missouri, Arkansas, and North Dakota. The trio hearing the case will be Judges Roger Wollman, Lavenski Smith, and Duane Benton.

The best thing you can say about this panel, if you favor same-sex marriage rights, is that it isn't the worse panel one could draw from the 8th Circuit. Judge Gruender isn't on it, for instance, nor is Judge Colloton or Chief Judge Riley. That said, I think it is very unlikely that this panel will produce anything but a 3-0 decision upholding the bans (unless the Supreme Court instructs otherwise).

All three judges are Republican appointees -- not surprising, since the GOP has an 8-3 advantage amongst active judges. Judge Wollman, a Reagan appointee, is probably the most moderate of the three, while Judge Benton (G.W. Bush) is the most conservative. Judge Smith (G.W. Bush) is in the middle, and has shown a bit of an iconoclastic in discrimination cases in the past. That said, Judge Smith is rumored to have his eye on a Supreme Court nomination if a seat opens up during a Republican administration. And in any event, it would take a more than a bit of iconoclasm for Judge Smith to side with the plaintiffs here, given his voting record and general social conservatism. Basically, while I can imagine a world in which Judge Wollman and/or Smith voted to strike down gay marriage bans, neither seems particularly likely to do so and both of them doing it at the same time seems like a real stretch.

So the 8th Circuit will likely join the minority camp on this issue, and we can only hope that the Supreme Court will correct the error.

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