Judge overturns Calif. gay marriage ban

[LittleFuzzy]

While prior decisions (of which there have been a number) won't automatically be overturned, a SCOTUS ruling that they were made in error would open the door to them being overturned wouldn't it?

Which in turn would create a messy quagmire it would seem to me. To overturn the equalisation of the laws and open the door to potentially dozens of states closing the door on marriages that have already taken effect. Then creating the mess as to what happens federally, in those states and across state lines for people who got married when it's no longer permitted.

Seems incredibly messy to me. For pragmatic reasons as much as legal reasons I'd have thought the cleanest solution by far is not to reverse this jurisprudence.

It's. . . there is a framework disconnect here, Rand.

If there isn't something active, there isn't something to overturn. You can overturn a binding precedent because it is continuing to exert an effect. You can't overturn a settled ruling like Hollingsworth, because it doesn't have any still-active elements. What you can do is re-implement something that conflicted with a former settled ruling, like the ban on same-sex marriage which was struck down by Hollingsworth, with the expectation that the reimplementation will not itself be struck down.

For cleanliness, yes the best solution is to not reverse the circuit courts who struck down bans, particularly since SCOTUS took the surprising step of not issuing an injunction against performing marriages in those jurisdictions until the matter was ruled on. But while there might be some mess, depending on precisely how they rule on the two questions, it's not necessarily going to be a big mess or quagmire. Rather unlikely in fact. Anymore than it would be if the states spontaneously decided to switch to a universal civil-union system, or decided they were going to stop giving marriage any recognition by the government in the first place. Most disruption and mess would arise from people deliberately trying to create it.

[Lewkowski]

It's. . . there is a framework disconnect here, Rand.

If there isn't something active, there isn't something to overturn. You can overturn a binding precedent because it is continuing to exert an effect. You can't overturn a settled ruling like Hollingsworth, because it doesn't have any still-active elements. What you can do is re-implement something that conflicted with a former settled ruling, like the ban on same-sex marriage which was struck down by Hollingsworth, with the expectation that the reimplementation will not itself be struck down.

For cleanliness, yes the best solution is to not reverse the circuit courts who struck down bans, particularly since SCOTUS took the surprising step of not issuing an injunction against performing marriages in those jurisdictions until the matter was ruled on. But while there might be some mess, depending on precisely how they rule on the two questions, it's not necessarily going to be a big mess or quagmire. Rather unlikely in fact. Anymore than it would be if the states spontaneously decided to switch to a universal civil-union system, or decided they were going to stop giving marriage any recognition by the government in the first place. Most disruption and mess would arise from people deliberately trying to create it.

Why do you keep saying things like "they can't" when you've already agreed that the Supreme Court has no check other than a lack of means to enforce? They can clearly do whatever the hell 5 of them come together to agree to and in today's political climate no one is going to say the SC can't enforce their ruling.

[LittleFuzzy]

Why do you keep saying things like "they can't" when you've already agreed that the Supreme Court has no check other than a lack of means to enforce? They can clearly do whatever the hell 5 of them come together to agree to and in today's political climate no one is going to say the SC can't enforce their ruling.

Lewk, can you burn love? I mean literally burn it, an oxidation chemical reaction involving the release of heat?

It doesn't matter what fiat powers you pretend I've ascribed to the court, you can't act against something when there isn't anything to act against.

[Lewkowski]

Eh sure you can. Even if it doesn't have any active components to it you can still say that the previous decision was wrong and that the lower courts are no longer allowed to use it as precedent.

[LittleFuzzy]

Lewk, you're letting your pissant attitude blind you. I said right there at the top "you can overturn binding precedent." That's because it has an active component, it's still doing something. But you can't overturn the fact that a prior decision had consequences because that action has already happened and gone, there isn't anything to act against anymore. Someone has to make a positive action, that can do something where there is nothing anymore but a negative action is meaningless because there's nothing to take away or get rid of.

Hollingsworth struck down a piece of legislation. It is no longer in the California Constitution. Overturning the precedent means new legislation saying the same thing as what was struck down can be reintroduced but it doesn't magically make things like the provision was never struck down in the first place. Time has passed since then, the provision isn't there anymore.

[RandBlade]

That's nothing more than a matter of timing. The day after SCOTUS rules that was a mistake, the Californian Congress can re-introduce a Hollingsworth 2.0 piece of legislation and start passage on a new legislative ban.

How many States have legalised equal marriage based on court rulings rather than leglislation. Do you really think Kennedy is willing to overturn all that precedent?

[LittleFuzzy]

No, it's more than timing, it's also process. When a lower court strikes something down and a higher court overturns that decision on appeal, then it's like it was never struck down in the first place. If a final decision is reached, and then the precedent is overturned, then the decision took full effect and the material really was struck down. New material saying the same thing can be introduced, but it won't be the same legislation, even if it is identically worded.

And the California state legislature won't reintroduce it. It wasn't the source of the legislation the last two times either. The ban is always a product of our dysfunctionally loose direct democracy model. Of the 35+ states where same-sex marriage is currently legal, less than 1/3 permit it by legislative act or by act of public democracy. The large majority permit it by court ruling, though not all of those were based on federal law or the US Constitution. Massachusetts is an example where the state supreme court struck down a ban on the basis of the state constitution, and I believe Iowa is too.

And yeah, I think Kennedy would be willing to overturn lower-court precedent that has been in place for less than a year. That's routine, the court does it when addressing things like contract law all the time.

[RandBlade]

Process is in part a matter of timing, a new Californian proposition 8 can be introduced can't it? And then if that's the case approximately 20 or so States legalisations could be overturned ultimately from this decision? If Kennedy was willing to overturn all these then why now? He had an option to do so with an injunction (as you mentioned above) but didn't do so, to me that seems to suggest something.

Also is Kennedy the only swing voter? I thought Roberts was also less predictable (while the other seven you can probably predict confidently).

[LittleFuzzy]

The fact that timing and process impact each other doesn't mean they're part of each other. You might as well be saying cancer is in part a matter of death.

Yes, if the Supremes rule in the same direction at the 6th Circuit, and not in the direction of the other couple of Circuits, then their decisions will be overturned and the bans directly addressed by the cases in question will still be in place. That won't be all of the 20+ states affected since some of them were struck down as subsidiary rulings which SCOTUS isn't directly addressed and might require further court or legislative action to stay in place or be put back in place but it's the gist.

Why now? Because now is when it is actually before the Court. Yes, there was an opportunity to issue an injunction. Yes, it is extremely odd that one wasn't issued. A stay until the next level of appeal is decided is pretty much routine and everyone was surprised when it wasn't granted. You can think it suggests something all you want, but you'll be whistling in the dark, since the stays are regularly issued even when the Court's future decision permitting exactly what is being stayed is pretty clear. Another possible explanation is that the original decisions against granting stays came before an earlier decision by SCOTUS not to hear the appeals from the first few sets of Circuit Courts, back before there was a disagreement among them. If the Court was pretty clear it wasn't going to take the appeal then not granting a stay made sense, and continuing to do so with the couple of requests that have trickled in since they were forced to reverse and grant cert after all could be a matter of consistency.

Kennedy is the most reliable swing voter. There's a lot of chatter that Roberts might swing but. . . the basis I keep hearing is people citing things like ACA. It's the regular delusion that politics=jurisprudence. The fact that he has swung left on a couple of rulings which have nothing in common with this issue, from a legal perspective, is not telling. His questions during the oral argument were more bipartisan than most of the others but as I said earlier, making predictions from how oral arguments go is really chancy. Oral arguments and their questions from the justices these days seem to be almost meaningless. There certainly isn't a sign that he's likely to swing visible in the earlier decisions. He is less predictable than the others because he's a "political" judge, one of the justices who was nominated on the basis of a high profile as a lawyer and politically rather than from extensive experience on lesser benches, but I don't think that's really enough to predict he might swing. It'll explain a swing in hindsight but it's not enough to do so now.

[Dreadnaught]

That's nothing more than a matter of timing. The day after SCOTUS rules that was a mistake, the Californian Congress can re-introduce a Hollingsworth 2.0 piece of legislation and start passage on a new legislative ban.

How many States have legalised equal marriage based on court rulings rather than leglislation. Do you really think Kennedy is willing to overturn all that precedent?

Hence the problem with relying on courts instead of the legislative process.

[RandBlade]

Hence the problem with relying on courts instead of the legislative process.

It's not a problem unless the courts are overturned by SCOTUS. If SCOTUS sides with the US's own Constitution and the courts then its case closed, matter resolved and we all move on.

And lets not kid ourselves that this will drag on for decades, like Roe v Wade. Abortion is permanently a live issue for those who believe its murder because it results (according to their beliefs) in the "murder of babies". Gay marriage results in ... nothing harmful for anyone. Life goes on. At the moment people are upset as its a change, but once the change has happened life goes on and people will get over it as there are literally zero negative consequences.

[Lewkowski]

RB do you think the courts should be spearheading social change or do you think that should be the legislative bodies function?

As a follow-up do you care about the impact of the decision or do you care about the process. IE if you believed the constitution actually curtailed certain types of freedom would you support the court ruling against the constitution in order to quash liberty because then it would not violate their mandate. Or more simply do you care about the procedure or do you care about the end result?

[GGT]

Actually since I'm not a communist I don't believe in equality of outcomes. Oh was that kind of random and not germane to the subject? Sorry for taking your shtick.

You didn't answer my question. If you support marriage as a legal contract, then why shouldn't existing anti-discrimination laws -- that apply to other civil/contract laws -- extend to marriages, too? Today's religious objections to marriage equality don't any more sense than prohibitions from previous centuries did, when only white males could own property and/or vote.

RB do you think the courts should be spearheading social change or do you think that should be the legislative bodies function?

As a follow-up do you care about the impact of the decision or do you care about the process. IE if you believed the constitution actually curtailed certain types of freedom would you support the court ruling against the constitution in order to quash liberty because then it would not violate their mandate. Or more simply do you care about the procedure or do you care about the end result?

Lewk, do you believe Liberty and Freedom can be achieved without Equality and Justice under law?

The US Constitution and Bill of Rights are brilliant documents, not just because they were written in an era that's practically medieval compared to modern times, but because change was recognized as a normal, healthy, evolutionary process.

[Hazir]

Seems the Irish have voted 75% yes in their same-sex marriage referendum. Of course that's a nice result, doesn't mean I approve of a referendum to start with of course.

[RandBlade]

Considering Ireland is a country where abortion is still pretty much illegal, this is a great result. A referendum shouldn't be necessary but good job Ireland.

Not sure where you got 75% from, the numbers I'm hearing are "two to one". So long as its 50%+1 I'll be happy.

[Loki]

The 75% is in Dublin I think.

[RandBlade]

Over 62% final margin for Yes. Great result for equality.

[RandBlade]

Final results, Yes win every county bar just one:

Twitter Link

Interesting that Dublin was where by far the greatest margin for equality was, while the Republic's Ulster border is where it was most divided.

[Loki]

Urban areas are almost always the most socially liberal.

[RandBlade]

SCOTUS has done the right thing. Same sex marriage is a right in all 50 States. 5-4 decision as expected.

[Hazir]

.... @LF ... haha.. told you so.. .

[RandBlade]

.... @LF ... haha.. told you so.. .

LOL yes, called the swing voter right too. Thought it'd be Kennedy that swung it.

RB do you think the courts should be spearheading social change or do you think that should be the legislative bodies function?

Sorry Lewk I missed this at the time you asked.

To answer: Both. The legislatures in the US passed the amendments to the Constitution that said that equality under the law was a requirement that SCOTUS has to enforce. It is SCOTUS's job to enforce that. Previously gays were not viewed as legal or holding equal rights. Once that changed, today's decision was the only logical conclusion from the laws the legislatures have passed. The 14th Amendment wasn't passed by SCOTUS but requires equal protection for all under the law, there is no exemption saying that gay people don't have equal protection. Unless gays are criminals, their right to marry is the natural conclusion the Court had to reach.

The Court is just doing its job in ensuring equality under the law. If you don't want the Court to do that, propose an Amendment to withdraw the 14th Amendment, as the Amendment enshrining prohibition was withdrawn by a latter one.

As a follow-up do you care about the impact of the decision or do you care about the process. IE if you believed the constitution actually curtailed certain types of freedom would you support the court ruling against the constitution in order to quash liberty because then it would not violate their mandate. Or more simply do you care about the procedure or do you care about the end result?

Again both. In this instance I believe that the Courts decision is right under both questions, but I hold the US Constitution in high regard. If the Constitution enshrined that people were unequal then I'd want that changing, but it doesn't.

[Ominous Gamer]

DDAAAAAAAMMMMMNNN

My facebook feed has never been this colorful. Its beautiful.

[RandBlade]

Incredibly well written.

[Bitter Jeweler]

DDAAAAAAAMMMMMNNN

My facebook feed has never been this colorful. Its beautiful.

[RandBlade]

Oddly enough there's zero reaction to it on my Facebook. I posted a version of OG's picture of the text and its got no likes or comments, there've been no other posts I've seen about it. The news in Tunisia and France has overshadowed this decision here.

[Loki]

I wonder how long before some Christian fundy pastor connects the two.

[earthJoker]

Christianity is seriously on attack these days

[Being]

What is Religious Freedom? From what I read, those who oppose this decision believe their rights are being infringed. Yet not one has explained how. All 14 Rep candidates claim it infringes on "our" religious freedom. I always thought religious freedom meant different religions, or even lack of religious convition of any kind, must be tolerated by all. Seems they didn't really read Section 1 of the 14th Amendment. It doesn't exclude anyone other than non-citizens.

[Loki]

What I find amusing about the reaction to this ruling are all the "anti-Shariah" pastors suddenly deciding that they want to push for religious freedom as a key component of the American political system.