Judge overturns Calif. gay marriage ban

[LittleFuzzy]

Last week, a federal district court in Idaho struck down the state ban on gay marriage. That court is in the overly-extensive 9th Circuit, same as Vaughn was and the Idaho governor has declared that the state will be appealing the ruling. I expect we'll have another ruling denying the appeal and upholding the lower Court's ruling sometime in the next 18 months (the appeal will be heard twice, once by the standard 3 judge panel and once by an en banc panel of nine appellate justices). The three-panel court might strike the lower ruling down, it's always a guess with a bench the size of the 9th Circuit, but the en banc panel's ruling is much more predictable. Then there will be an appeal to the Supreme Court and unless someone retires in the interim, I predict they will deny cert and gay marriage will be legal across the 11 westernmost states in the US except for Utah (they're in the 10th Circuit). District courts have also struck down bans in Utah, Oklahoma, Virginia, Michigan, Texas, and, as of two days ago, Pennsylvania. I don't know how their respective appellate courts will rule though. If enough of them support the lower courts, SCOTUS just might end up granting cert and proving Hazir right and me wrong.

[GGT]

Last week, a federal district court in Idaho struck down the state ban on gay marriage. That court is in the overly-extensive 9th Circuit, same as Vaughn was and the Idaho governor has declared that the state will be appealing the ruling. I expect we'll have another ruling denying the appeal and upholding the lower Court's ruling sometime in the next 18 months (the appeal will be heard twice, once by the standard 3 judge panel and once by an en banc panel of nine appellate justices). The three-panel court might strike the lower ruling down, it's always a guess with a bench the size of the 9th Circuit, but the en banc panel's ruling is much more predictable. Then there will be an appeal to the Supreme Court and unless someone retires in the interim, I predict they will deny cert and gay marriage will be legal across the 11 westernmost states in the US except for Utah (they're in the 10th Circuit). District courts have also struck down bans in Utah, Oklahoma, Virginia, Michigan, Texas, and, as of two days ago, Pennsylvania. I don't know how their respective appellate courts will rule though. If enough of them support the lower courts, SCOTUS just might end up granting cert and proving Hazir right and me wrong.

Has this been some sort of judicial "contest" in your mind?

[RandBlade]

I see no logical way to square precedents and the 14th Amendment without legalising gay marriage.

[Loki]

Fuzzy, isn't this because precedent is important, even if it comes from outside your circuit?

[Hazir]

Has this been some sort of judicial "contest" in your mind?

Of course, my only interest in the whole marriage equality issue is to be able to tell Fuzzy a big fat 'I told you so'. I hope Fuzzy takes this matter equally serious.

[LittleFuzzy]

Has this been some sort of judicial "contest" in your mind?

I have no idea what you're talking about. I'm almost certain that you're wrong though.

Actually, I'm not sure what any of the three of you are really saying.

Look, a lot of the rules and standards set by the Supreme Court? They're not original to them. The Supreme Court borrows, borrows heavily, from the rulings and opinions of the judges on the appellate courts. Those guys are the workhorses in building and maintaining federal and constitutional jurisprudence in the US. If the appellate courts are broadly in agreement about something, there's a very good chance SCOTUS will affirm them if a justiciable case on or near that issue comes before them. When the appellate courts are significantly divided in their rulings about the same or similar matters, the justices of the Supreme Court will often take a case and rule in favor of one of the camp's jurisprudence to settle the matter. Sometimes the system gets described as appellate decisions representing a marketplace or battleground of ideas for the Supreme Court to select from.

There's a reason why most of the Supreme Court justices have been drawn from the appellate benches. It's because that's where all the real theory and technical work behind US jurisprudence comes from. That's also why it's a good thing to have one or two strong voices on the Court which are from more political legal backgrounds, because the justices of the court can get lost in the theory and neglect the real-world impact of their rulings. 's why the Warren Court worked so well. The lack explains rulings like Kelo, that decision on eminent domain that all of us on here hated. As technical jurisprudence it was a wonderful decision and the Court recognized a well-crafted and understandable judicial process that settled a bitter divide between appellate circuits. It was an awful decision for all the people the law governs, though. Rehnquist was the justice on the court at the time who wasn't sitting on an appellate bench before joining the court and he spent most of his time arguing for the government at that level so all of them rose from work on the appellate circuit.

Loki, for your comment specifically, the answer is a sound "sometimes. Maybe. Depending on the perspective." Precedent from outside your court is not binding unless it comes from a court on a higher level. A judge may choose to recognize reasonable or well-crafted precedent from another court on an equivalent or lower level. A judge could also mention such a precedent to disagree with it and highlight way his/her own approach is better. Judges on higher courts recognize that it is problematic when there are too many or too extensively conflicting precedents guiding/governing behavior in the lesser courts in their area and will be on the lookout for justiciable cases with which they can settle such problems when necessary.

[GGT]

Fuzzy, I'm going to repeat my "objections" made in other threads. Your academic analysis falls short.

Should states that legally recognize same-sex marriages be competing with states that don't?

[Veldan Rath]

Competing?

[RandBlade]

Competing is a bizarre turn of phrase.

If you mean should states recognise the legal marriages of others states then the answer is simple: yes. Other states recognise the shotgun weddings of Vegas even if they couldn't legally occur in their own state.

[Hazir]

Competing is a bizarre turn of phrase.

If you mean should states recognise the legal marriages of others states then the answer is simple: yes. Other states recognise the shotgun weddings of Vegas even if they couldn't legally occur in their own state.

And here comes in my pre-Victorian notion of marriage; if marriage is a civil contract how can the states have a right to not recognize it barring a constitutional amendment? It's really a bit of a catch 22 for the opposite party. The federation hasn't the right to regulate marriage, the states don't have the right to regulate it taking effect. Once this really reaches the Supreme Court marriage equality has become inevitable for the simple fact that any other ruling won't make the problem go away.

[LittleFuzzy]

Fuzzy, I'm going to repeat my "objections" made in other threads. Your academic analysis falls short.

Should states that legally recognize same-sex marriages be competing with states that don't?

You can repeat yourself as much as you want, you're still not writing something comprehensible. Competing how? For a state to literally be contesting with another, you'd have to have two (or more) states as the opposing parties in a court case and that hasn't happened yet. I'm not sure it can happen on this particular topic, I don't think there would be a justiciable issue between the states themselves. I'm left to assume you're speaking metaphorically but I'm not grasping it and I don't think I'm the only one.

[LittleFuzzy]

And here comes in my pre-Victorian notion of marriage; if marriage is a civil contract how can the states have a right to not recognize it barring a constitutional amendment? It's really a bit of a catch 22 for the opposite party. The federation hasn't the right to regulate marriage, the states don't have the right to regulate it taking effect. Once this really reaches the Supreme Court marriage equality has become inevitable for the simple fact that any other ruling won't make the problem go away.

It IS possible for a state to nullify a contract that would be/was legal in the state where the contract was originally made. There's a lot of irrelevant minutia (by our standards, not those of the contract law lawyers) where states maintain different standards. But it would only happen if there was a justiciable controversy between the contracting parties, i.e. if they took a disagreement to a court in the new state and it had jurisdiction for whatever reason. In this context, that'll require divorce proceedings. Nullification is almost certainly be the approach a local Texas judge would take in divorce proceedings but I just don't know how higher courts will rule.

[Hazir]

It IS possible for a state to nullify a contract that would be/was legal in the state where the contract was originally made. There's a lot of irrelevant minutia (by our standards, not those of the contract law lawyers) where states maintain different standards. But it would only happen if there was a justiciable controversy between the contracting parties, i.e. if they took a disagreement to a court in the new state and it had jurisdiction for whatever reason. In this context, that'll require divorce proceedings. Nullification is almost certainly be the approach a local Texas judge would take in divorce proceedings but I just don't know how higher courts will rule.

You realize that the gender of the contracting person would be a problematic justiciable controversy?

Seriously, this matter is nearly done, there is no chance in hell the bans are going to survive in any other form than symbolic. Some backwaters may want to keep them in place to make a statement, but they won't be able to legally enforce them or even attempt to without judges swiping them aside.

[LittleFuzzy]

You realize that the gender of the contracting person would be a problematic justiciable controversy?

Seriously, this matter is nearly done, there is no chance in hell the bans are going to survive in any other form than symbolic. Some backwaters may want to keep them in place to make a statement, but they won't be able to legally enforce them or even attempt to without judges swiping them aside.

Different court, of course, but SCOTUS never did make states banning miscegenation recognize other states' marriages until they struck down the bans entirely. I just don't see Kennedy taking that strong a stance.

[Hazir]

Different court, of course, but SCOTUS never did make states banning miscegenation recognize other states' marriages until they struck down the bans entirely. I just don't see Kennedy taking that strong a stance.

They did so at a time that miscegenation thinking was still pretty much normative in society, anti-gay discrimination may still be widespread but it's not nearly as normative as that. My point is that marriage-discrimination has no solid legal basis and there is also no solid norm any longer in society defending it.

I think where we mostly differ is that you think the 'strong stance' has to be in the direction of liberal policies, my conviction is that the other side is on the defensive and without a strong stance against societal change will not be able to assert itself. No Justice of the Supreme Court wants to be in the history books as the one that got it totally wrong.

[LittleFuzzy]

They did so at a time that miscegenation thinking was still pretty much normative in society, anti-gay discrimination may still be widespread but it's not nearly as normative as that. My point is that marriage-discrimination has no solid legal basis and there is also no solid norm in any longer in society defending it.

I think where we mostly differ is that you think the 'strong stance' has to be in the direction of liberal policies, my conviction is that the other side is on the defensive and without a strong stance against societal change will not be able to assert itself. No Justice of the Supreme Court wants to be in the history books as the one that got it totally wrong.

Hazir, you need to look at it constitutionally when you're talking about the Court because that's what the justices do. With recognition of the acts of other states, we're not in any sort of equal protection territory. Equal protection doesn't care what another state does. This is a different clause, "full faith and credit" and there are different aspects to that. The modern court strongly tries to avoid letting public policy in one state dictate public policy in another state. That's a legacy of the Rehnquist years and Kennedy, while a swing vote, was most reliably with the consverative wing of the court when it came to states enacting their own policies. He'll go against that trend when confronted with really bad law *i.e. Lawrence v Texas, which even Scalia and Thomas thought was ridiculous* but here you'd be asking/expecting him to go against his own words in the DOMA case just last year. If as you say, anti-gay discrimination is widespread but no longer normative than it's going to be reducing itself and he's not going to have any compelling reason to act until it becomes as ridiculous as the Texas anti-sodomy statute was.

[Hazir]

Hazir, you need to look at it constitutionally when you're talking about the Court because that's what the justices do. With recognition of the acts of other states, we're not in any sort of equal protection territory. Equal protection doesn't care what another state does. This is a different clause, "full faith and credit" and there are different aspects to that. The modern court strongly tries to avoid letting public policy in one state dictate public policy in another state. That's a legacy of the Rehnquist years and Kennedy, while a swing vote, was most reliably with the consverative wing of the court when it came to states enacting their own policies. He'll go against that trend when confronted with really bad law *i.e. Lawrence v Texas, which even Scalia and Thomas thought was ridiculous* but here you'd be asking/expecting him to go against his own words in the DOMA case just last year. If as you say, anti-gay discrimination is widespread but no longer normative than it's going to be reducing itself and he's not going to have any compelling reason to act until it becomes as ridiculous as the Texas anti-sodomy statute was.

True, yet, the DOMA ruling was deeply dishonest in its reasoning, as was pointed out by Justice Scalia. It didnt' solve anything at all, it merely entangled the traditionalists (in and outside the Court) in a Gordian knot of equal protection and full faith and credit that they simply can't wriggle themselves out of without reasserting the latter.

[GGT]

Hazir, you need to look at it constitutionally when you're talking about the Court because that's what the justices do. With recognition of the acts of other states, we're not in any sort of equal protection territory. Equal protection doesn't care what another state does. This is a different clause, "full faith and credit" and there are different aspects to that. The modern court strongly tries to avoid letting public policy in one state dictate public policy in another state. That's a legacy of the Rehnquist years and Kennedy, while a swing vote, was most reliably with the consverative wing of the court when it came to states enacting their own policies. He'll go against that trend when confronted with really bad law *i.e. Lawrence v Texas, which even Scalia and Thomas thought was ridiculous* but here you'd be asking/expecting him to go against his own words in the DOMA case just last year. If as you say, anti-gay discrimination is widespread but no longer normative than it's going to be reducing itself and he's not going to have any compelling reason to act until it becomes as ridiculous as the Texas anti-sodomy statute was.

"Equal Protection" mattered in cases like Brown v Board of Education. Just ask Alabama.

The "full faith and credit" angle is part of the commerce clause, and interstate trade, which defaults to the states with the *highest and most comprehensive* standards. That's why the bread industry wanted to meet PA standards, and why the auto industry wanted to meet CA emission standards --- and eventually led to national minimum standards.

[LittleFuzzy]

"Equal Protection" mattered in cases like Brown v Board of Education. Just ask Alabama.

Yes. In each state, separate was demonstrably not equal. The clause did not require that a segregated black school in Alabama be the equal of a white public school in Texas. It required it be the equal of white public schools in its own county/district in Alabama. The Court conceded that the law school black students were allowed to attend in Texas would never be the equal of Texas A&M. The Court was also convinced by Thurgood Marshall's argument and supporting social scientists claiming segregation was inherently unequal. That direction will presumably bear fruit eventually. But not right now, and either way, it's got jack all to do with any sort of comparison or analysis across state lines.

The "full faith and credit" angle is part of the commerce clause, and interstate trade, which defaults to the states with the *highest and most comprehensive* standards.

Uh, no. Full faith and credit is from Section 1 of Article IV. Article IV details a few widely different bits of federal power flow. Full Faith and Credit, extradition between states, admission of new states into the Union, and a section saying the Feds will guarantee a republic form of government and shall protect the various states from invasion and (if asked) domestic violence. The commerce and federal supremacy clauses you are referring to are from Articles 1 and 2 detailing the powers of Congress and the Executive. And absolutely nothing in the Constitution ever mandates, suggests, or even mentions anything about higher/highest or more/most comprehensive standards. That is pure invention on your part. It does not exist.

That's why the bread industry wanted to meet PA standards, and why the auto industry wanted to meet CA emission standards --- and eventually led to national minimum standards.

Private entities choosing to develop to the highest standard has nothing to do with the law or Constitution. It's a reasonable practice on their part to achieve maximum penetration across the breadth of the US and lots of companies and industries don't bother, choosing instead to develop for specific markets. See the competing markets for textbooks written to the Californian and Texan standards for an example which has come up on here.

And the auto industry DIDN'T want to meet CA emission standards. They fought those standards for years and years. Eventually they decided "if you can't beat 'em, join 'em" and joined environmental lobbyists to push for national standards to screw over their competition who weren't bothering to try and sell in California.

[Dreadnaught]

I suspect the Supremes don't like being cornered into deciding whether or not states have the right to define marriage in this manner.

[Hazir]

I suspect the Supremes don't like being cornered into deciding whether or not states have the right to define marriage in this manner.

I suspect the same, but they can't keep putting it off. And I suspect they like it even less to be the Justice that stood in the way of what 60% of Americans today already think is perfectly acceptable.

[Hazir]

I understand we're going to see marriage equality in 30 states in the near future. I am seriously starting to think that 2015 might be the year 'gay-marriage' bans are struck down for good.

[Hazir]

Oops, today the number potentially appearantly went up to 35.

[LittleFuzzy]

And SCOTUS is calling out "no cert, no cert, bad touch! Don' wanna make a ruling, don't WANNA!"

[Dreadnaught]

I suspect the Supremes don't like being cornered into deciding whether or not states have the right to define marriage in this manner.

Well, the Surpremes made it explicitly clear they weren't ruling over whether states had the right to define marriage in a particular way. A bevy of federal judges nonetheless misconstrued their opinion to determine that states couldn't define marriage as a heterosexual institution. And now, in the interest of not taking a position, the court has asserted yet another area where it will dominate our personal lives.

[Hazir]

Well, the Surpremes made it explicitly clear they weren't ruling over whether states had the right to define marriage in a particular way. A bevy of federal judges nonetheless misconstrued their opinion to determine that states couldn't define marriage as a heterosexual institution. And now, in the interest of now taking a position, the court has asserted yet another area where it will dominate our personal lives.

For people less fluent in newspeak; in the above post doing nothing is being re-defined as activism from the bench.

[Dreadnaught]

It's basically activism from the bench if a high court willingly lets lower-courts make definitive rulings on something the high-court felt shouldn't be definitively ruled-upon.

[LittleFuzzy]

It's basically activism from the bench if a high court willingly lets lower-courts make definitive rulings on something the high-court felt shouldn't be definitively ruled-upon.

The high court doesn't think that Dread. The high court is divided and doesn't know WHAT it thinks. And so it is going about things the way it normally does and letting the appellate courts work out some solutions which it can adopt, refine, or nullify once things have to be clarified and not before. Go reread my post #246 in this thread, last page. SCOTUS never said "this is purely a legislative/executive matter and the courts have no business saying anything about it." You want them to have said that but their language has never been anywhere that strong on this matter. SCOTUS hasn't set a precedent so of course the appellate courts are going to come up with their own. That's what they're supposed to do, that's how the system functions.

[Hazir]

The high court doesn't think that Dread. The high court is divided and doesn't know WHAT it thinks. And so it is going about things the way it normally does and letting the appellate courts work out some solutions which it can adopt, refine, or nullify once things have to be clarified and not before. Go reread my post #246 in this thread, last page. SCOTUS never said "this is purely a legislative/executive matter and the courts have no business saying anything about it." You want them to have said that but their language has never been anywhere that strong on this matter. SCOTUS hasn't set a precedent so of course the appellate courts are going to come up with their own. That's what they're supposed to do, that's how the system functions.

And of course, the Supreme Court is avoiding exactly a repeat of what some Justices consider wading into the abortion question too soon. Which happened to be (obviously no longer is) an argument Dread used against the Court getting involved in this.

Or we may both understand him entirely wrong and he's simply advocating some new populist idea for a Constitution for the United States mark 2.0. That being not the document drafted 200 years ago, nor the judicial practice based upon it. I would dread to live under such a constitution; it seems to have no regard for individual rights being defended by the court system.

[RandBlade]

It's basically activism from the bench if a high court willingly lets lower-courts make definitive rulings on something the high-court felt shouldn't be definitively ruled-upon.

I'm not American and even I know that's a complete misreading of the situation. It is absolutely standard practice for in the absence of higher rulings that appellate courts make decisions. It only becomes "definitively ruled upon" once SCOTUS rules but until then the appellate courts are not only free to make their own rulings, it is their job. Very rarely have SCOTUS ruled before appellate courts have, SCOTUS would be jumping the gun if it went before the appellate courts.