That was me refreshing your memory. There are 120 posts in the thread, it should somewhere in the 50s or 60s. Halfway point, easy to find.Originally Posted by GGT
That was me refreshing your memory. There are 120 posts in the thread, it should somewhere in the 50s or 60s. Halfway point, easy to find.
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
Okay, then this is me being lazy.
If SCOTUS expects court "standing", then the Prop 8 case fits the bill. It means evaluating a state LAW that moved from voters to state legislature to state supreme court. It's taken every legal avenue without final disposition. Without federal interpretation, Prop 8 *disagreements* could feasibly continue in perpetuity.
Before I read that; aren't all judges in principle free in their rulings? I took jurisprudence to be only limiting them in a practicle way. As in; they know their rulings almost certainly will be struck down in higher court if they disregard it, but they actually have the right to disregard it if they see fit to do so.
Otherwise we seem to think the same about the case in case the Supreme Court tries to avoid answering the most pregnant question.
Congratulations America
State supreme courts and the SCOTUS operate on different legislative processes. Is that what you meant?
That question was for who? If for me then the answer is; no that is not what I said. What I said that any Judge is free to decide. He may heed jurisprudence but is under no formal obligation to do so.
Hmm.. I see this is not the case under Common Law?
Congratulations America
Then what would have happened if:
* The District Court ruled in favour of keeping Prop 8
* That decision got appealed to the Circuit Court
* The defendants at the Circuit Court realised they'd lose the appeal so don't stand but others do.
* The District Courts decision gets over-turned at Circuit Court
* SCOTUS rules that those who defended Prop 8 (since the relevant parties declined to) didn't have standing.
I just find it hard to believe that'd then mean that the Circuit Court decision is overturned.
That's a more common interpretation with the Napoleonic Code (ie on the European Continent)
Under Common Law (primarily but not just former British colonies) the issue of precedence is very important. It is considered an important principle of Common Law justice that laws should be interpreted consistently so previous rulings (especially by superior courts) count as precedent and as important as law until overturned. It is not the role of lower courts to overturn it.
The US doesn't recognize Common Law as the British does. Precedence is important, but that doesn't tie the hands of upper courts, especially not SCOTUS.
I find it very hard to imagine which 'third party' would have standing in this scenario. There would be no state-side party available, and I seriously can't think of anybody outside of that who would qualify as an interested party in the outcome of this particular case. You can't have standing on the general claim that you don't agree with a policy.
Congratulations America
Ugh, you two are caught up in the process, and going around in circles. While process does matter, and upper courts are often asked to decide if the process in lower courts was flawed.....that's not how marriage equality cases found their way to the SCOTUS for review.
Actually the circle was created by the Supreme Court re-opening the question of Standing. Suddenly we no longer know if the Proposition 8 case is about equal rights, marriage rights in California or just about a flawed process of legislation in California.
Congratulations America
Not sure what you think of the UK but Precedence never binds a higher court. The UK Supreme Court is not bound by lower courts either that's the same here as it is there. But the general principle in the UK and USA is that the rulings of higher courts DO bind those of lower courts.
Of course as it happens nowadays Common Law nations are becoming more civil and Civil Law nations pay more attention to precedence. So the difference between the two systems is not as significant as it used to be.
I doubt that SCOTUS decided to hear the case based on the constitutionality of ballot initiatives or referendums themselves. That type of direct state democracy has legal precedence in things like state tax policy. It's not state legal process that's being challenged...but if state laws conflict with the US Constitution and its Amendments meant to define All People as Equals.
I'm not going to do your work for you AND repost what I've previously written verbatim to deal with your laziness. Particularly not since I don't think it will ever matter what I say, you're not going to wrap your head around the concept anyway.Okay, then this is me being lazy.
If SCOTUS expects court "standing", then the Prop 8 case fits the bill. It means evaluating a state LAW that moved from voters to state legislature to state supreme court. It's taken every legal avenue without final disposition. Without federal interpretation, Prop 8 *disagreements* could feasibly continue in perpetuity.
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
You don´t understand that the third option is the one in which the Court doesn´t answer the relevant questions at all but simply tosses it back to the Californian legislative or voters to decide what they think about marriage equality while another batch of couples have a new window (at least) that enables them to get married?
Congratulations America
Yes. In principle any federal judge can say "fuck this, the precedent is wrong. You guys need to reevaluate and come up with a better answer."
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
Absolutely it means that the Circuit Court decision is overturned. Such a ruling means the Circuit Court committed an error of process, it shouldn't have heard the case at all with that set of appellants.
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
So if everybody on one side refuses to stand as appellant then what's supposed to happen?
If you don't represent yourself then you win by default? Sounds wrong.
Maybe I got something confused in what you said but I think you're also improperly mixing the terms plantiff, defendant, and appellant. The appellant is whichever side *defendant or plaintiff, but presumably the loser of the prior court's decision* who is appealing the case to the next highest court. If you don't contest a charge/decision then yes you lose by default.
In your scenario the State won the District decision, the plaintiffs seeking to overturn Prop 8 appealed and the State has now decided it was wrong and does not seek to contest the appeal. Technically what would happen is that rather than hear arguments *since there is no longer one to be heard, the State is no longer disagreeing with the plaintiffs* the appellate court would issue a summary judgement in favor of the appellants, the plaintiffs. This would overturn the District Court's decision but there would be no defendant to appeal the case to the Supreme Court. With that you outlined the course of action SCOTUS would take if, rather than issue a summary judgement the appellate court scounged up some party with questionable standing to make the appeal and heard arguments then issued a ruling, is it would remand the decision to the appellate court to be done right or it would just issue the summary judgement in favor of the plaintiffs itself.
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
That's basically what causes this problem with standing in a lot of cases isn't it? That the state side decides that it doesn't want to pursue a matter and where a third party takes the role of appelant on itself.
I couldn't quite understand the question he asked, it's hard to imagine the same happening on the side of the plaintiff. Which individual or organisation could claim to have an individual interest in the original plaintiffs getting married?
Congratulations America
Now what if all these theories about the reasons for taking on these cases are wrong? We see a situation of marriage equality in 11 states/territories. I think we can safely say that no ruling of the Court is going to touch that. Then we have Doma which consistently has been ruled unconstitutional and is weakened by every state that chooses for marriage equality. And then you have the fact that by having some states legislating against marriage equality, you get a situation where the entire field of family law becomes impossible to adjudicate. (gay couple married in New York, with children, move to New Jersey and decide to divorce). A situation that also compromises the full faith and credit clause. What if the Court took on these cases to restore some unity to the law?
And be on the side of history while they are at it ?
Congratulations America
And 38 states have have passed formal bans. That's 3/4 of the states. We are within shouting range for a push to put a federal ban in place via constitutional amendment. Why is it that the Court isn't going to touch on the 11 bu it might on the 38? Just because we think banning it is crap?
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
Excuse me? We're in shouting range for a push for a federal ban via constitutional amendment? You mind telling me where you see a 2/3 Congressional majority to pass such a ban? The reason for an approach of the kind I described is that it would be entirely unexpected for DOMA to get a seal of approval. I know the supreme court has its own role in the proces, but it would be very very surprising indeed if it would go against consistent rulings against DOMA in lower courts. Especially if you take into account that DOMA infringes on state rights. Marriage equality in the US is not going away as things stand. Marriage rights in the US are a big mess at the moment. Aside from the rights issue, the Supreme Court actually could also see it as its task to restore unity to it.
If and when they 'flip' California (most of the potential outcomes would result in California returning to marriage equality) you'd soon reach a situation where a constitutional amendment would not only be unlikely (even the GOP knows that, given that they never pushed for it) but outright impossible.
Congratulations America
I thought 2/3 Congressional majority wasn't required if 2/3 of States pushed for it by Convention. A process that's never been used before though, but is available I believe.
The more difficult condition to reach is getting the 3/4 approval from state legislatures/conventions to ratify. All the 2/3 requirement needs is legislators scared of public backlash against the courts striking down their laws. Is it likely to happen? No. But that's WHY you can't just say "what if all these theories about the reasons for taking on the case are wrong." Because SCOTUS will not forget the lesson taught by the 11th amendment or Jackson's Indian-relocation policies, or the fight over income tax. The Court is reliant on moral authority and the current picture across the states demonstrates that on this issue that's not good enough. Look at the decades of fighting about racial discrimination and that's when they had active support from both other branches of the federal government.
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
If you are weiging the impossible versus the improbable the impossible would be the 2/3 majority in Congress, it's way out of the same ballpark from improbable. You'd also have to be totally ignoring the facts on the ground to fear a backlash in a situation where you know the demographic where the issue is contentuous at all is dwindling (as in dying and no longer be relevant at all).
Unlike any of the issues you mention nobody is going to be actually affected by marriage equality besides the people who it actually concerns. It doesn't mean you have to put up with sitting next to blacks on the bus in Alabama, you don't have to send your children to an integrated school, you don't have to give up your ownership of another person and nobody gets killed, no matter how low you put the bar for what constitutes life. It's about as riskfree a landslide ruling as it gets.
Congratulations America
Uh-huh. That's why when California's first "no same-sex marriage" law was struck down by our state courts Prop 8 got passed. It's why those 38 states passed such legislation, by initiative or statute, since things first started moving in Hawaii.
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
A convention won't be called; it's too risky. It could conceivably rewrite the entire constitution.
Hope is the denial of reality
Is there a blue state where a ban was passed? You seriously want me to consider the extremely unlikely scenario that the Democratic Party is going to switch from 'drifting ever so carefully towards being in favor' to 'supporting an outright ban'? In Congress the House has a small Republican majority, nowhere near a 2/3 majority. We all know it's near impossible to get things past in the Senate that actually do have a majority behind them. How can you realistically believe the Senate will even vote about it, let alone that the Democratic majority there switches tack alltoghether.
Conservative red states voting bans into existance is a poor predictor for what the Democratic Party is willing to accept wrt Constitutional Amendments.
What Hawaii also put into motion was the other parallel movement in states that decided to install some sort of second class recognition or went all the way to outright equality.
And let me point out again; if people either don't know or care in a referendum they are going to vote for the status-quo, and the status-quo in most states is no marriage equality. California is the only exception to the rule, and even only because there was a short window of opportunity to get married and a humongous effort of opponents to push through proposition 8.
Congratulations America
Whenever I hear the possibility of a Convention it's from people who are profoundly unhappy with the United States of America and its system of government and who would do away with the present arrangement altogether.
Congratulations America
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