Judge overturns Calif. gay marriage ban

[Hazir]

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.

Not only that, but since those courts seem to be in perfect unison so far, it is becoming questionable if the Supreme Court needs to be involved at all.

Dread might consider that if the vast majority of judges come to the conclusion that those bans don't stand up to scrutiny that most likely those bans never were constitutional to begin with. And no matter how much you twist and turn; what's not constitutional in the US was a decision neither politicians nor a majority of the voters were entitled to take legitimately.

The American people ratified a Constitution that gives everyone a fair deal, nothing more and nothing less.

[GGT]

SCOTUS made its decision by not making a decision. That might sound appealing to folks who can now get married in a bunch of states, because appellate courts have ruled it's "unconstitutional" to ban same-sex marriages....but that doesn't mean SCOTUS has done its job.

As I see it, it's no better than if states had treated slavery or suffrage or de-segregation as "constitutional" elements one-by-one, until it became the norm in a majority of states. Isn't our SCOTUS supposed to focus on the United States parts of the US Constitution, as part of their judicial branch authority, and weigh things that states can't balance on their own?

[RandBlade]

Actually GGT SCOTUS never made slavery illegal, in fact SCOTUS confirmed slavery was legal. It was the 14th amendment that made it illegal - and it is the 14th amendment that makes gay marriage bans illegal.

[LittleFuzzy]

Actually GGT SCOTUS never made slavery illegal, in fact SCOTUS confirmed slavery was legal. It was the 14th amendment that made it illegal - and it is the 14th amendment that makes gay marriage bans illegal.

It was the 13th amendment Rand. Three amendments, the 13th prohibiting slavery, the 14th guaranteeing citizenship and equal protection (among other measures) and the 15th guaranteeing the right to vote.

SCOTUS made its decision by not making a decision. That might sound appealing to folks who can now get married in a bunch of states, because appellate courts have ruled it's "unconstitutional" to ban same-sex marriages....but that doesn't mean SCOTUS has done its job.

As I see it, it's no better than if states had treated slavery or suffrage or de-segregation as "constitutional" elements one-by-one, until it became the norm in a majority of states. Isn't our SCOTUS supposed to focus on the United States parts of the US Constitution, as part of their judicial branch authority, and weigh things that states can't balance on their own?

SCOTUS did not make a decision by declining to make a decision. They still have final say, there are still plenty of challenges they can opt to hear, and there are still a number of appellate jurisdictions that haven't provided their own say. The Supreme Court is waiting (well, waiting and hiding but still). And that is, in fact, part of doing its job. Pleasing you is not its job, nor is doing things the way you want them to be done. And GGT, the courts did treat suffrage that way. And no, it's not supposed to focus on the "United States" parts of the Constitution. That's just your constant delusion that everything has to follow one universal and comprehensive policy which is, in fact, antithetical to the way our federalism system works and was designed to work (and fan of One True Way policymaking is most definitely a worse way to go)

[Being]

...(well, waiting and hiding but still).

Such a clever way of repeating what GGT said without agreeing with her.

[LittleFuzzy]

The justices can hide and still do their job. The bench rarely has to be courageous and this certainly isn't one of those times. Again, the court itself is very closely divided and doesn't have any sort of settled answer itself. Don't mistake it for a machine, it isn't one.

[Hazir]

And Alaska.

[Hazir]

And Arizona and Wyoming. Any money on there being any ban still in place by year's end?

[Dreadnaught]

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.

Does anyone seriously think they are going to nullify or curb gay marriage in any way once so many states have started issuing same-sex marriage licenses voluntarily or under judicial duress? The Supreme Court's judicial subordinates are using a decision that deliberately stayed-away from a ruling on the constitutionality of gay marriage to rule on the constitutionality of gay marriage.

[Hazir]

Federal Courts are not the subordinates of the Supreme Court, the Supreme Court very legitimately lets them play their role in the system. In the ideal situation the Supreme Court will never find itself in a position of having to rule whether or not there is a constitutional right to marriage.

As for the matter at hand; it would be indeed surprising if the Supreme Court would go against all of its so-called 'subordinates'.

As for the underlying reason for your continuous ranting about 'the Courts'; I have held that - quite aside from the issue of marriage equality - the US Constitution is a solid roadblock in the way of any policy that - for no rational reason at all - makes the rights of a minority the play thing of the majority. Be that by vote in a referendum or a vote in a representative body.

[LittleFuzzy]

Does anyone seriously think they are going to nullify or curb gay marriage in any way once so many states have started issuing same-sex marriage licenses voluntarily or under judicial duress? The Supreme Court's judicial subordinates are using a decision that deliberately stayed-away from a ruling on the constitutionality of gay marriage to rule on the constitutionality of gay marriage.

A) they're not judicial subordinates. All of us legally-aware and living here under the 9th Circuit would probably be happier if the 9th actually was subordinate rather than thinking of itself as the Supreme Court West. B), yes the Supreme Court deliberately stayed away from ruling on the constitutionality of gay marriage in general. That in itself is a normal signal to the Appellate Courts "go nuts, find a decent solution." SCOTUS did not say "this isn't something the courts should be ruling on," it said "this is something WE are not ruling on right now". Further, in doing so they let a decision which did make a real ruling stand. That district ruling wasn't binding on any other court but again as I pointed out earlier, other courts could take it as guiding if they so wished. And the 9th Circuit's position was also clear. There was already precedent going the way of all these more recent rulings, it just hasn't been binding precedent. Similarly, they're free to draw on bits and pieces from the majority AND dissenting opinions from Hollingsworth, as well as from any other ruling which a district or appellate judge thinks might have bearing on the matter. SCOTUS' refusal to make a definitive ruling did not mean there was a vacuum in the field, Dread. Last year I didn't, couldn't, imagine so many judges would go for it but as I said at the time, I was and remain just not familiar enough with appellate courts besides the 9th to predict what they'd do.

And yeah, it's not impossible the Court would choose to let states cease to recognize same-sex marriage licenses once so many have started issuing them to a significant number of people but it does seem more unlikely.

[GGT]

Federal Courts are not the subordinates of the Supreme Court, the Supreme Court very legitimately lets them play their role in the system. In the ideal situation the Supreme Court will never find itself in a position of having to rule whether or not there is a constitutional right to marriage.

As for the matter at hand; it would be indeed surprising if the Supreme Court would go against all of its so-called 'subordinates'.

As for the underlying reason for your continuous ranting about 'the Courts'; I have held that - quite aside from the issue of marriage equality - the US Constitution is a solid roadblock in the way of any policy that - for no rational reason at all - makes the rights of a minority the play thing of the majority. Be that by vote in a referendum or a vote in a representative body.

A) they're not judicial subordinates. All of us legally-aware and living here under the 9th Circuit would probably be happier if the 9th actually was subordinate rather than thinking of itself as the Supreme Court West. B), yes the Supreme Court deliberately stayed away from ruling on the constitutionality of gay marriage in general. That in itself is a normal signal to the Appellate Courts "go nuts, find a decent solution." SCOTUS did not say "this isn't something the courts should be ruling on," it said "this is something WE are not ruling on right now". Further, in doing so they let a decision which did make a real ruling stand. That district ruling wasn't binding on any other court but again as I pointed out earlier, other courts could take it as guiding if they so wished. And the 9th Circuit's position was also clear. There was already precedent going the way of all these more recent rulings, it just hasn't been binding precedent. Similarly, they're free to draw on bits and pieces from the majority AND dissenting opinions from Hollingsworth, as well as from any other ruling which a district or appellate judge thinks might have bearing on the matter. SCOTUS' refusal to make a definitive ruling did not mean there was a vacuum in the field, Dread. Last year I didn't, couldn't, imagine so many judges would go for it but as I said at the time, I was and remain just not familiar enough with appellate courts besides the 9th to predict what they'd do.

And yeah, it's not impossible the Court would choose to let states cease to recognize same-sex marriage licenses once so many have started issuing them to a significant number of people but it does seem more unlikely.

Seems to me that Hazir's and Fuzzy's arguments boil down to process....and whether the voting process serves the voter or the politician?

[Flixy]

Seems to me they just argue about the judicial process...

[Hazir]

Seems to me they just argue about the judicial process...

Far from it; it's about principle. It's about whether or not the democratic way of government is free to be a tyranny of the majority.

[LittleFuzzy]

Seems to me they just argue about the judicial process...

Depends on how you frame it but I'm pretty sure however GGT chooses to frame something is not an accurate depiction of what I've said or argued nor what I've intended to say or argue. For instance, I know that I have never, at any point in time in this thread or any other on a same-sex topic, said anything or expressed the least bit of care about, whether the voting process serves the voter or the politician. The only possible confluence of that and anything to do with what we actually discuss that I can think of was the decision by the California governor and AG not to pursue an appeal to the district judge's ruling and that's a pretty massive stretch and quite tangental to boot.

[littlelolligagged]

http://www.huffingtonpost.com/2014/1...n_6055322.html

Bleh.

[Hazir]

Oops... missed Florida. Count stands at 36 now. Somehow I don't think the Supreme Court is going to roll back all that.

[Hazir]

And here we have it: the Supreme Court is going to rule this summer. If they stick with their incremental approach I think this summer they will conclude that every state can have its own definition of marriage but not the right to cherry pick while recognizing marriages performed in other states.

IIRC that sort of creates a situation similar to the one in Israel.

Better of course would be if they sweep the whole idea that minority rights should be dependent on the goodness of the majority in the dustbin of history.

[Dreadnaught]

I think it would bring-up issues of state sovereignty. If a state can ban a type of contract, but is forced to accept/enforce that very type of contract if signed in another state, what choice is really being made besides a symbolic choice?

[LittleFuzzy]

Well a state can't be forced to enforce a contract that it doesn't recognize or bans (unless federal supremacy comes into play, of course. States can't say boo about federal contracts) though "accept" is a much more vague, and hence murkier, word and concept. But a state doesn't have to be the ones to enforce the contract. If the contract was entered into back in state B and state A and its courts don't want anything to do with it, then you can go ahead and have it enforced by the authority of state B. They're a valid avenue of jurisdiction. It doesn't have to go through the courts of state A at all. Then police or related executive authority in state A can decide if they want to heed a formal request for assistance from the courts or authorities of state B, which doesn't entail recognizing or granting any legitimacy to the contract. Arrest on an out-of-state warrant or extradition across state lines works in a similar fashion. They're recognizing the other's courts which is another matter entirely.

[Hazir]

Well a state can't be forced to enforce a contract that it doesn't recognize or bans (unless federal supremacy comes into play, of course. States can't say boo about federal contracts) though "accept" is a much more vague, and hence murkier, word and concept. But a state doesn't have to be the ones to enforce the contract. If the contract was entered into back in state B and state A and its courts don't want anything to do with it, then you can go ahead and have it enforced by the authority of state B. They're a valid avenue of jurisdiction. It doesn't have to go through the courts of state A at all. Then police or related executive authority in state A can decide if they want to heed a formal request for assistance from the courts or authorities of state B, which doesn't entail recognizing or granting any legitimacy to the contract. Arrest on an out-of-state warrant or extradition across state lines works in a similar fashion. They're recognizing the other's courts which is another matter entirely.

For a religious person the difference would be significant.

[RandBlade]

SCOTUS doesn't permit bans on inter-racial marriage, I fail to see why it should permit bans on homosexual marriage. Just because they were both once OK doesn't mean that they are.

SCOTUS has already ruled that homosexuality is legal nationwide (Lawrence v Texas, 2003), it has already ruled that discrimination in marriage is illegal nationwide (Loving v Virginia, 1967), the logical conclusion as the circuit courts have repeatedly ruled is that gay marriage should be legal. And that should end the matter nationwide.

It is good that over two thirds of states have already resolved the matter before SCOTUS one way or the other, but its time to end the issue now.

[Hazir]

SCOTUS doesn't permit bans on inter-racial marriage, I fail to see why it should permit bans on homosexual marriage. Just because they were both once OK doesn't mean that they are.

SCOTUS has already ruled that homosexuality is legal nationwide (Lawrence v Texas, 2003), it has already ruled that discrimination in marriage is illegal nationwide (Loving v Virginia, 1967), the logical conclusion as the circuit courts have repeatedly ruled is that gay marriage should be legal. And that should end the matter nationwide.

It is good that over two thirds of states have already resolved the matter before SCOTUS one way or the other, but its time to end the issue now.

Playing the devil's advocate here; they would avoid establishing a federal right to marry. Which as far as I know doesn't really exist right now.

[RandBlade]

I am saying they should establish a federal right (or federal prohibition of bans, same thing in practice) in the same vein as Loving v Virginia established the federal right to interracial marriages.

Loving v Virginia made it legal to marry interracially in any state, not just get interracial marriages as permitted by a few recognised in all. That settled and closed the matter. This years case should follow precedent and do the exact same thing. Unless homosexuality is illegal (which SCOTUS has already ruled it isn't) there is no reason to diverge from the precedent set.

[LittleFuzzy]

SCOTUS doesn't permit bans on inter-racial marriage, I fail to see why it should permit bans on homosexual marriage. Just because they were both once OK doesn't mean that they are.

SCOTUS has already ruled that homosexuality is legal nationwide (Lawrence v Texas, 2003), it has already ruled that discrimination in marriage is illegal nationwide (Loving v Virginia, 1967), the logical conclusion as the circuit courts have repeatedly ruled is that gay marriage should be legal. And that should end the matter nationwide.

It is good that over two thirds of states have already resolved the matter before SCOTUS one way or the other, but its time to end the issue now.

Loving v Virginia did nothing of the sort. It was clearly and explicitly addressing "invidious racial discrimination" alone, not discrimination in general. Race, religion, and a few other categories are explicitly recognized as meriting a higher level of scrutiny (i.e. the application of strict scrutiny vs rational basis) and has also explicitly not recognized sexual orientation as being within the same group of categories. The California case two years ago was an attempt by appellate courts to introduce a new intermediate level and SCOTUS side-stepped, it punted rather than establish precedent one way or another with a new standard.

[GGT]

What Rand posted made sense.



IMO, sexual orientation shouldn't be used as a political football in the realm of marriage....and people need to decide what marriage means in the first place. If marriage is based on a religious concept, then we should admit we're a theocracy posing as a democracy.

[coinich]

If marriage is based on a religious concept, then we should admit we're a theocracy posing as a democracy.

Thats one hell of a way to stretch theocracy - marriage isn't linked to any one religion or religion at all. Theocracy generally applies to governments that actually rule via religious compulsion, religious source, and religious institutions. Marriage is neither it is a cultural tradition that carries all the baggage of a multitude of sources.

[Lewkowski]

What Rand posted made sense.



IMO, sexual orientation shouldn't be used as a political football in the realm of marriage....and people need to decide what marriage means in the first place. If marriage is based on a religious concept, then we should admit we're a theocracy posing as a democracy.

Which is why the institution of marriage should be done away with as a secular thing. Why should there be any legal/monetary benefit to someone if they choose to get married? Sure back in the bad old days when women were expected to stay in the house instead of work it made sense to have widow benefits for things like Social Security? Now it is just a throwback to laws that were created when society was different.

Quit arguing about marriage and just do away with it from a legal perspective.

Not to derail the discussion GGT - but it seems clear you dislike the idea of a theocracy. That's wonderful - so do I! Now I am wondering if you think all moral legislation should be done away with or do you feel only religious moral legislation should be specifically targeted for your ire.

[GGT]

Which is why the institution of marriage should be done away with as a secular thing. Why should there be any legal/monetary benefit to someone if they choose to get married? Sure back in the bad old days when women were expected to stay in the house instead of work it made sense to have widow benefits for things like Social Security? Now it is just a throwback to laws that were created when society was different.

Quit arguing about marriage and just do away with it from a legal perspective.

Not to derail the discussion GGT - but it seems clear you dislike the idea of a theocracy. That's wonderful - so do I! Now I am wondering if you think all moral legislation should be done away with or do you feel only religious moral legislation should be specifically targeted for your ire.

Huh? I don't think religion should have anything to do with creating laws. I'm pretty sure our founding fathers understood that.

Even atheists can see if something is right or wrong.

[RandBlade]

Loving v Virginia did nothing of the sort. It was clearly and explicitly addressing "invidious racial discrimination" alone, not discrimination in general. Race, religion, and a few other categories are explicitly recognized as meriting a higher level of scrutiny (i.e. the application of strict scrutiny vs rational basis) and has also explicitly not recognized sexual orientation as being within the same group of categories. The California case two years ago was an attempt by appellate courts to introduce a new intermediate level and SCOTUS side-stepped, it punted rather than establish precedent one way or another with a new standard.

I never said that this issue had already been dealt with in the '73 case, if it had then we'd not be having this discussion or any court case this year. However the principle of the civil rights decisions made 40-50 years ago on racial grounds are relevant to the decisions being made currently and in recent years. The precedent there was set on the grounds of race and it can and should be expanded to cover sexual orientation too.

A number of courts in the last year have agreed with this. It is in SCOTUS's power to do so if they wish and they should.