Judge overturns Calif. gay marriage ban

[RandBlade]

I thought seperate but equal had been struck down by the SCOTUS 60 years ago. About time this is sorted.

Going back a few posts, Scalia is 100% correct about his interpretation of the intention of the authors of the 1868 amendment, it was intended to apply to men only. That's irrelevant though, because its been decided that women are equal to men for the last century so therefore that expands everything intended for men to men and women. The fact that 150 years ago women were owned by men doesn't mean its true now.

[GGT]

And we are a step closer to the point that the US courts say a final word on whether or not it is constitutional for majorities to strip minorities of their equality.

source

The ruling was narrow and likely to be limited to California.

Same sex couples once had the recognized right to be married in CA, but Prop 8 tried to undo/remove that right. The legalese is confusing, and it's hard to figure out what they're calling unconstitutional.

CA is well known for its ballot initiatives, where a majority of voters could hypothetically return us to the 19th century.

Human Rights shouldn't be ballot initiatives. I hope that's what the court meant by "unconstitutional".

[CitizenCain]

And we are a step closer to the point that the US courts say a final word on whether or not it is constitutional for majorities to strip minorities of their equality.

No we're not.

That's not remotely what's going on here. On this on specific issue, perhaps (it's debatable), but to pretend that this one issue is going to have an impact on the thousands of other ways the tyranny of the majority rules this country is incredibly delusional.

[GGT]

No we're not.

That's not remotely what's going on here. On this on specific issue, perhaps (it's debatable), but to pretend that this one issue is going to have an impact on the thousands of other ways the tyranny of the majority rules this country is incredibly delusional.

Actually, we are one step closer to SCOTUS hearing a marriage equality case, and making a decision regarding rights that states can't try to violate by ballot initiatives, or amending state constitutions.

The irony is seeing so-called Constitutional Freedom Loving Religious Conservatives trying to fight gay marriage by invoking Biblical definitions....saying our Rights come from Our Creator....while trying to [so very hard] also ignore that gay/lesbian/bisexual/transgender people are born just as God intended....

[CitizenCain]

Actually, we are one step closer to SCOTUS hearing a marriage equality case, and making a decision regarding rights that states can't try to violate by ballot initiatives, or amending state constitutions.

OK, you enjoy that delusion.

The irony is seeing so-called Constitutional Freedom Loving Religious Conservatives

No, the irony is that progressives, who've hijacked the "liberal" mantle are the modern world's fascists and socialists, hellbent on controlling the actions of everyone else... while shooting off at the mouth about "civil liberties" and rights and everything else their political movement is hellbent on wiping off the face of the planet.

[Hazir]

The USC has just announced it will hear the proposition 8 case and a DOMA case. I haven't really read anything yet, but the Justices seem to have their doubts about the standing of the proposition 8 defenders.

[RandBlade]

By USC I'm guessing you mean the same thing as SCOTUS?

We haven't discussed this for a while so please remind me which side are the proposition 8 defenders? I'm guessing the bigots right?

[Hazir]

By USC I'm guessing you mean the same thing as SCOTUS?

We haven't discussed this for a while so please remind me which side are the proposition 8 defenders? I'm guessing the bigots right?

Yes and yes.

[Hazir]

It's not in the least questionable that they have standing Hazir. They're the ones actually administering the law. They actually have more direct standing on the merits than the State did. And it's not that unusual to intervene on the appeal, though it usually travels up the chain of authority, not down it. There is also the possible impropriety on Walker's part in not hearing their petitions before he made his initial ruling. If it's determined they don't have standing, they'll just appeal that determination. I don't know whether SCOTUS will agree to hear the main case, but one way or another this is going to end up in front of the Ninth Circuit.

I would like to point out that since the Supreme Court did add the question of standing to the Propositon 8 case, the question of standing very much exists.

[LittleFuzzy]

I would like to point out that since the Supreme Court did add the question of standing to the Propositon 8 case, the question of standing very much exists.

Not the same question. What I said was in reference to the Imperial County Clerk's attempt to intervene when all the other state organs declined to defend the law and that office has stopped pursuing it*. The question of standing SCOTUS wants addressed is for the private-party intervenors who are the only ones still involved and I have and will continue to freely acknowledge that their position is open to question.


*The whole chain of events is somewhat unclear to me but as near as I can unravel it at this point the County Clerk in Imperial wasn't going to get involved so a Deputy clerk tried to intervene on behalf of the office back when the suit was before Walker's court, he denied the petition since she wasn't the County Clerk, the CC lost the ensuing election and the new one tried to get involved and the 9th Circuit denied THAT petition saying the window for that had passed when the prior Clerk was still in office.

[LittleFuzzy]

A beautiful thought just occurred to me. SCOTUS agreed to take the case but I'm still certain that they don't really want to get involved on this whole issue. I was thinking *now that there are only the private parties involved in the case* that their ruling would be that the intervenors don't have standing and they would dismiss the suit on those grounds. It would leave Prop 8 dumped unless and until California could pass it again and start things over but would be at least a temporary resolution. But it occurs to me that the Court could conceivably make an even more noncommittal ruling. They could say that the State really ought to have stayed involved, that it was improper of it to not defend the product of its system for public democracy, and insist that the entire thing be reargued, remanding the case back down to the 9th Circuit. They could keep the case going for another two or three years!

[Hazir]

And why would they want that? Is there anybody who doesn't want clarity on the matter one way or the other? If they would have wanted to delay ruling on the constitutionality of inequality in marriage legislation for all of the US all they would have needed to do was, not take up the proposition 8 case at all and all that would have done was restoring marriage equality in California.

What they have on their hands now is, most likely, a very ideological fight within the court on whether or not they should give equal protection to gay people with the effect of granting everybody everywhere in the US the right to marry a person of the same sex. I have no doubt that the likes of Scalia will try to abuse the fact that marriage isn't in the Constitution (thus sidestepping the equality and necessity questions).

P.S. it's good to see that the term 'gay marriage' is one I see less and less.

[RandBlade]

Just to be a bit morbid on the practicalities/politics of the ultimate SCOTUS vote: Almost regardless of the legal arguments I suspect this will end up as a 5-4 ruling (one way or another) with 76 year old Justice Kennedy being the swing vote. What happens if he becomes incapacitated/passes away prior to the vote? Especially since although the Dems control both the Senate and the White House the GOP does have a blocking minority in the Senate.

[Hazir]

You mean if this would lead to a tied vote? Your guess is as good as anyone's.

Also, the filibuster rule is under discussion at the moment, it's not certain that the rules we know today stand at the time of a Justice having to be appointed. Also, you have to keep in mind one of the Justices would have to die between today and June 2013 for your question to be relevant.

And then of course, there is the recess appointment.

[RandBlade]

Well that's why I asked, I suspect LittleFuzzy and maybe others would have a more educated guess than I would.

The filibuster rule has been said to be under discussion for as long as I can remember. Can SCOTUS justices be appointed by recess appointments? (I don't know the answer)

[Hazir]

Well that's why I asked, I suspect LittleFuzzy and maybe others would have a more educated guess than I would.

The filibuster rule has been said to be under discussion for as long as I can remember. Can SCOTUS justices be appointed by recess appointments? (I don't know the answer)

It's appearantly not usual, but it has been done.

The reason why the discussion about the filibuster is more relevant at this moment than at other moments is that the Senate can decide to modify it with a simple majority when it comes back to session. I don't think I have to point out that the Democrats are really fed up with the procedural terrorism of the GOP in the Senate.

[RandBlade]

It's appearantly not usual, but it has been done.

The reason why the discussion about the filibuster is more relevant at this moment than at other moments is that the Senate can decide to modify it with a simple majority when it comes back to session. I don't think I have to point out that the Democrats are really fed up with the procedural terrorism of the GOP in the Senate.

Just as the GOP were fed up with the same by the Democrats a decade ago.

As much as they threatened the nuclear option of changing it, they never did. Nothing's changed besides the party names switching places.

[Nessus]

[Hazir]

Just as the GOP were fed up with the same by the Democrats a decade ago.

As much as they threatened the nuclear option of changing it, they never did. Nothing's changed besides the party names switching places.

I see you are back into 'let's vehemently oppose anything HE says' mode?

[RandBlade]

I see you are back into 'let's vehemently oppose anything HE says' mode?

Not at all. Got nothing to do with the messenger and more to do with deja vu.

We've done this dance before, many times. One partner says "we don't like that candidate and can block him through filibuster" the other says "we don't like you using filibuster and can change the rules". It never actually reaches a conclusion though, I don't see what's changed. 10 years ago the GOP were whining about Democrat obstructionism, today its reversed. I strongly suspect in 10 years time we'll have the GOP whining about Democrat obstructionism and threatening to remove the filibuster yet again.

[LittleFuzzy]

And why would they want that? Is there anybody who doesn't want clarity on the matter one way or the other? If they would have wanted to delay ruling on the constitutionality of inequality in marriage legislation for all of the US all they would have needed to do was, not take up the proposition 8 case at all and all that would have done was restoring marriage equality in California.

I don't expect them to do that, I just felt like sharing it because I find the idea of them doing as I outlined above to be hilarious (in a hair-tearing and crying kind of way). What I expect to happen is that they're going to bicker a lot in conference about this one and finally return a dismissal based on the lack of standing which won't really resolve anything since it'll result in a "no same-sex marriage" prop going right back on the ballot with a fair chance of passing the same was 8 passed.
As for why they would want that, a majority can want to delay as much as they wish. So long as 4 justices can be persuaded that the case should be heard, they're out of luck. And it was plainly very hard to get even those four justices on board considering how they kept delaying.

[RandBlade]

If SCOTUS throw out the case based on standing then won't the Californian Supreme Court ruling stand - ie its unconstitutional to ban gay marriage like that. In which case although SCOTUS won't have made a blanket decision for the entire United States, it'd be settled for California?

[LittleFuzzy]

Well that's why I asked, I suspect LittleFuzzy and maybe others would have a more educated guess than I would.

The filibuster rule has been said to be under discussion for as long as I can remember. Can SCOTUS justices be appointed by recess appointments? (I don't know the answer)

If the Court ties there are two options, either they wash their hands of it and the appellate decision stands (basically it's as if the court never agreed to hear it in the first place) which is more common, or they might simply delay and have the case reargued if the absence is a temporary one.

[GGT]

"Standing" needs to be fleshed out here.

[LittleFuzzy]

If SCOTUS throw out the case based on standing then won't the Californian Supreme Court ruling stand - ie its unconstitutional to ban gay marriage like that. In which case although SCOTUS won't have made a blanket decision for the entire United States, it'd be settled for California?

Different ruling, different prop. The California court struck down Prop 22 banning gay marriage so the California passed Prop 8 putting "no same sex marriage" directly into the state constitution. If SCOTUS throws out the case for lack of standing that will impact the 9th Circuits decision since those appellants without standing were the only ones the 9th agreed to hear themselves. It invalidates the 9th's ruling because these guys should never have been allowed before a federal appellate court. So the [b]District Court[/i]'s decision will stand, but a District Court decision creates no precedent. Other District courts don't have to follow it, even the same court doesn't have to follow it. So 8 will no longer be part of the state constitution in California but the field will still be wide open.

[LittleFuzzy]

"Standing" needs to be fleshed out here.

Go farther back in the thread. I'm pretty sure I provided a link somewhere halfway through to a fairly understandable explanation of standing.

[RandBlade]

Different ruling, different prop. The California court struck down Prop 22 banning gay marriage so the California passed Prop 8 putting "no same sex marriage" directly into the state constitution. If SCOTUS throws out the case for lack of standing that will impact the 9th Circuits decision since those appellants without standing were the only ones the 9th agreed to hear themselves. It invalidates the 9th's ruling because these guys should never have been allowed before a federal appellate court. So the [b]District Court[/i]'s decision will stand, but a District Court decision creates no precedent. Other District courts don't have to follow it, even the same court doesn't have to follow it. So 8 will no longer be part of the state constitution in California but the field will still be wide open.

Wait that sounds a bit convoluted. So are you saying that if I and those like me think we'll lose a court case we can just refuse to defend it then the courts rulings set no precedent? Surely the 9th circuit offered a chance for relevant parties to defend their position but they declined to, so how does that invalidate the case?

[Hazir]

Different ruling, different prop. The California court struck down Prop 22 banning gay marriage so the California passed Prop 8 putting "no same sex marriage" directly into the state constitution. If SCOTUS throws out the case for lack of standing that will impact the 9th Circuits decision since those appellants without standing were the only ones the 9th agreed to hear themselves. It invalidates the 9th's ruling because these guys should never have been allowed before a federal appellate court. So the [b]District Court[/i]'s decision will stand, but a District Court decision creates no precedent. Other District courts don't have to follow it, even the same court doesn't have to follow it. So 8 will no longer be part of the state constitution in California but the field will still be wide open.

Could you explain what you mean with 'creates no precedent'? I saw some claims that if the Court would take this route the case would only have a bearing on the plaintiffs in the Original case, but that seems a bit odd to me since Judge Walker, as far as I remember, deemed proposition 8 unconstitutional. Logically it would restore marriage rights in California, with the people/legislative left with the question if they like that status quo or not.

If you are right, then I'd say then that it seems like a very thinly veiled attempt of the conservative Justices to dodge the bullet. I don't really see how the 'liberal' Justices would necessarily accomodate a course of action that's basically the Supreme Court refusing to do what it is supposed to do.

[GGT]

Go farther back in the thread. I'm pretty sure I provided a link somewhere halfway through to a fairly understandable explanation of standing.

Then refresh our memories. And explain why court "standing" wouldn't mean Prop 8/Perry is the case to watch. After all, that was a state LAW that was deemed unconstitutional by lower courts.

[LittleFuzzy]

Wait that sounds a bit convoluted. So are you saying that if I and those like me think we'll lose a court case we can just refuse to defend it then the courts rulings set no precedent? Surely the 9th circuit offered a chance for relevant parties to defend their position but they declined to, so how does that invalidate the case?

The relevant parties, i.e. the state government did not choose to appeal the district court's decision. And yes, that is a bit of dirty pool in a way, for getting out of acts of public democracy you don't like. That's a major reason why the 9th Circuit DID let the current appellants intervene and carry on with the case. SCOTUS plainly thinks that decision should still be addressed. The last time a situation like this came up *as was mentioned earlier in the thread* SCOTUS didn't make a definitive ruling but did suggest they did not really like the idea of such private-party intervenors having standing.

Also the case isn't invalidated, the 9th Circuit's decision is invalidated. Two different things. The case still stands, as decided earlier by the District Court. It's just that since the district court is a lesser court its decisions are consequently weaker. The law is struck down but there's nothing to say the exact same law would be struck down if it were passed again. The judge who made the ruling has retired and there are several other federal district courts covering the state where a new challenge can be filed as well.

Could you explain what you mean with 'creates no precedent'? I saw some claims that if the Court would take this route the case would only have a bearing on the plaintiffs in the Original case, but that seems a bit odd to me since Judge Walker, as far as I remember, deemed proposition 8 unconstitutional. Logically it would restore marriage rights in California, with the people/legislative left with the question if they like that status quo or not.

If you are right, then I'd say then that it seems like a very thinly veiled attempt of the conservative Justices to dodge the bullet. I don't really see how the 'liberal' Justices would necessarily accomodate a course of action that's basically the Supreme Court refusing to do what it is supposed to do.

All district courts are equal. They cannot restrict their fellows with their decisions. While a judge would presumably rule the same way as he did before if an identical issue were brought before him as one he'd already made a decision on, the same does not hold true for other judges in other district courts, they are under no obligation or expectation to be consistent with another's ruling. They are expected to rule in consistence with the rulings of relevant higher courts. I.e. the Circuit Court of Appeals that has sway in their area and with SCOTUS. The Appellate Courts are built along similar lines*. The 4th Circuit Court is the equal of the 9th Circuit and so on and as such is not bound by an obligation or expectation to make its rulings consistent with the 9th's rulings but it does have to be consistent with courts higher than it, i.e the Supreme Court. A good deal of what SCOTUS does is step in when the divisions between different Circuit Courts grows too large and make a definitive decision informed by the different interpretations and approaches developed by the separate Circuit Courts.

*Similar but not identical. District Court cases are heard by a single judge while appellate cases are heard by three-judge panels and decisions by those three judges may be overruled by the appellate court acting as a whole making what is known as an en banc decision. En banc hearing are somewhat discouraged but play an important part in keeping the larger Circuit Courts (like the 9th, which has 29 judges sitting on it) internally consistent with their rulings.

So if the only relevant decision for this case ends up being Judge Walker's District Court ruling then yes the decision is only really relevant and binding on the parties to that specific case. One of those parties happening to be the State of California. But since District Courts create no precedent when they make original declarations on constitutionality it kinda lacks weight. Prop 8 would no struck down but could just get reenacted.