DOMA - struck down

[Scooter]

Prop 8 cannot become an issue again. The original federal court ruling striking it down still stands. That decision is binding on the state of California, and will be so forever, because at this point it cannot be appealed anymore.

The DOMA section about recognizing the SSMs of other states was never anything but a pretext for the real purpose behind DOMA, which was to deny federal recognition to SSMs. The principle that states are not obligated to recognize marriages contracted out of state that are against the state's public policy is well established in precedents going back a hundred years, several of which had been trotted out ad nauseam previously. And if it were not so, ask yourself, why was Loving v. Virginia necessary to make interracial marriages legal throughout the country? Could not interracial couples simply have relied on FF&C to demand their marriages be recognized in states where interracial marriage was illegal, and would not cases on interracial marriage like Loving have dedicated at least a few words to FF&C? Except they didn't, because clearly no one believed that FF&C required any state to recognize interracial marriages performed out of state. How could what was not true for interracial marriages suddenly become true for SSMs?

There is clearly still an issue to decide, namely, do the equal protection and/or due process clauses preclude states from banning SSM. But that question did not have to be answered to reach either of the decisions made last week, nor was the Court prepared to go there, as evidenced by its refusal to hear two other cases that would have required it to address that issue head on. But even if that decision is eventually negative, it is not going to turn back the clock on SSM, and its legalization will still be able to proceed on a state-by-state basis.

It will be the difference in having SSM in every state in 10 years vs. in 20-25 years.

Although Vietnam may get there first, and that raises all sorts of ironies that I will leave to speak for themselves.

[Long Run]

Prop 8 cannot become an issue again. The original federal court ruling striking it down still stands. That decision is binding on the state of California, and will be so forever, because at this point it cannot be appealed anymore.

I don't think that is how it works, though I am happy to be educated on the issue. SCOTUS ruled that there was no controversy because the governor agreed that the law was unconstitutional, and thus the high court did not rule on the equal protection argument, and vacated the 9th Circuit appellate court decision. As I understand it, this means that the federal lower court ruling still stands, but that that ruling only applies to the parties in that case. It is not binding precedent for other cases, and certainly not binding precedent for the other federal districts in California. However, that lower court ruling provides the current governor with a basis for continuing the position that Prop 8 is unconstitutional, and therefore the previous legislation allowing SSM is applicable. Unlikely as it is, the governor or a future governor, can change that administrative position and decide Prop 8 is constitutional.

[Scooter]

As I understand it, this means that the federal lower court ruling still stands, but that that ruling only applies to the parties in that case.

Not even those who went to court trying to uphold Prop 8 are claiming the effect of the ruling to be as narrow as that.

Unlikely as it is, the governor or a future governor, can change that administrative position and decide Prop 8 is constitutional.

If that's what you need to believe in order to keep your hope alive that SSM will be stopped in California, then by all means go right ahead.

[Sue U]

As I understand it, this means that the federal lower court ruling still stands, but that that ruling only applies to the parties in that case. It is not binding precedent for other cases, and certainly not binding precedent for the other federal districts in California. However, that lower court ruling provides the current governor with a basis for continuing the position that Prop 8 is unconstitutional, and therefore the previous legislation allowing SSM is applicable. Unlikely as it is, the governor or a future governor, can change that administrative position and decide Prop 8 is constitutional.

Except that the District Court's order permanently enjoins the state and its officials from applying or enforcing Prop 8 at all, not just with respect to the plaintiffs:

Because Proposition 8 is unconstitutional under both the
Due Process and Equal Protection Clauses, the court orders entry of
judgment permanently enjoining its enforcement; prohibiting the
official defendants from applying or enforcing Proposition 8 and
directing the official defendants that all persons under their
control or supervision shall not apply or enforce Proposition 8.
The clerk is DIRECTED to enter judgment without bond in favor of
plaintiffs and plaintiff-intervenors and against defendants and
defendant-intervenors pursuant to FRCP 58.

https://ecf.cand.uscourts.gov/cand/09cv ... -ORDER.pdf

And because the Court has made a comprehensive ruling on the constitutionality of the law, the state and its future administrations are now properly barred from challenging that determination under the doctrines of res judicata and collateral estoppel.

[Gob]

res judicata and collateral estoppel.

Does that come with chips or rice?

[Sue U]

res judicata and collateral estoppel.

Does that come with chips or rice?

It means that the claim or issue has already been decided, so it cannot be re-litigated just because the next governor doesn't like the result. In other words:

[Scooter]

I love the way her do follows the contour of her eyebrows.

[Gob]

Trust you to notice that!

[Scooter]

Somebody had to.

And they have the nerve to say that homosexuality serves no evolutionary purpose. Hrrumph!

[Sue U]

[Gob]

[Long Run]

Except that the District Court's order permanently enjoins the state and its officials from applying or enforcing Prop 8 at all, not just with respect to the plaintiffs:

That is one possibility.

Lawyers for the two sides had different interpretations of the legal consequences of the Supreme Court’s ruling. Supporters of Proposition 8 said it remained the law in California because the trial court’s decision applied only to the two couples who had challenged the law. The lawyers who filed the challenge to Proposition 8, Theodore B. Olson and David Boies, said the trial court decision was binding in all of California.

http://www.nytimes.com/2013/06/27/us/po ... d=all&_r=0

Since none of the government defendants ever argued the case, even at the district court level, and the people who defended the law were found by the Supreme Court to have no status in defending Prop 8. As a result, there is good argument to be made that the litigants never had standing and thus the federal district court decision was issued without jurisdiction and should also be ignored.

fwiw, I am good with the political result of these cases, but think that procedurally the executive branches screwed up by not defending their laws (which is why so many liberal commentators are having second thoughts, realizing that what is good for the goose could come home to roost when they pass a liberal initiative that a conservative governor/president chooses not to defend when it is attacked in court)/ And, with public opinion moving swiftly in favor SSM it is always better to have these issues decided at the ballot box rather than trying to stretch/warp a constitutional analysis to arrive at politically motivated result that is not supported by a large portion of the populace.

[Scooter]

My, how sour the grapes are tasting.

[Long Run]

Maybe you're not following me. I'm happy with the result, not the method of getting there. There are plenty of other people who favored the end of Prop 8 that are concerned about the possibility that the executive branch can now veto popular initiatives by simply not defending laws they do not like.

[Scooter]

I'm happy with the result

Sure you are. Interesting how you don't realize how much a statement you made in this thread betrays that claim. To say nothing of previous pronouncements.

Your act doesn't fool me, sir.

[Crackpot]

I think you're reading a bit too much into it. That being said he is reading too much into various administrations decisions not to enforce certain laws

[Scooter]

Any time someone purports that this particular minority is only entitled to the fundamental rights which the majority may suffer to endow by popular vote, something which he/she would NEVER purport to be true for any other minority, I know EXACTLY where that person is coming from.

Just because Dave lacks the subtlety to mask his contempt doesn't make him the only one who demonstrates it.

[Crackpot]

Not entirely for example: there are (rare) times I find myself in agreement with either Dave or rubato but am entirely put off by the completely bent processes that they've arrived at our common conclusions.

I can understand being leery about the seemingly willy-nilly way some elected officials disregard some laws. The problem is there is a lot of legal input into those decisions and they are not taken lightly regardless what the punditry says.

[rubato]

Any time someone purports that this particular minority is only entitled to the fundamental rights which the majority may suffer to endow by popular vote, something which he/she would NEVER purport to be true for any other minority, I know EXACTLY where that person is coming from.

Just because Dave lacks the subtlety to mask his contempt doesn't make him the only one who demonstrates it.

Homosexuals are entitled to equality period. But the best way of securing them with the greatest level of active public support is with a popular vote. While it is morally right to impose equality doing so would lead to the kind of generations-long obstruction and violence we have seen with the imposition of civil rights in the south.

Ultimately the path the military took to overturning "don't ask... " was better than by presidential fiat for the same reason. They reviewed the evidence, and followed it themselves. This makes the overthrow their own will and thier own will is something they will do even when no one else is looking. External imposition often leads to public conformity but private resistence.

yrs,
rubato

[Sue U]

Since none of the government defendants ever argued the case, even at the district court level, and the people who defended the law were found by the Supreme Court to have no status in defending Prop 8. As a result, there is good argument to be made that the litigants never had standing and thus the federal district court decision was issued without jurisdiction and should also be ignored.

Standing and jurisdiction are two different issues and neither was a problem in the District Court. The standing question, as in all civil suits, was whether plaintiffs had suffered a harm that was capable of redress in the court. Clearly, they did, as they were denied marriage licenses available to other citizens solely on the basis of gender, pursuant to Prop 8. They sued the proper parties: the government officers who, in their official capacity, were responsible for issuing marriage licenses and otherwise executing the law. Whether or not the state defendants might choose to contest the allegations of a complaint has no effect on standing or the justiciability of the case. Even though the California Attorney General conceded Prop 8 was unconstitutional and the other state defendants took no position on the question, the law was still being enforced and the issue was not moot. (BTW, the state had already successfully defended the enactment of Prop 8 in the California Supreme Court.)

The District Court had jurisdiction because the complaint alleged the violation of rights under the U.S. Constitution, and the federal courts' "judicial power shall extend to all cases, in law and equity, arising under this Constitution." Article III, s 2. Thus, the federal question requirement for jurisdiction was met.

The District Court could have just entered summary judgment at that point, and that would have been that. But the group that actually wrote Prop 8, prepared the ballot initiative and instituted the campaign to get it passed -- led by then state senator Dennis Hollingsworth -- petitioned to intervene and argue for the law. The District Court allowed them to present a defense and held a 16-day trial in which both sides presented evidence and arguments. Do you really think there could have been any more appropriate or motivated a party to defend Prop 8?

fwiw, I am good with the political result of these cases, but think that procedurally the executive branches screwed up by not defending their laws (which is why so many liberal commentators are having second thoughts, realizing that what is good for the goose could come home to roost when they pass a liberal initiative that a conservative governor/president chooses not to defend when it is attacked in court)/ And, with public opinion moving swiftly in favor SSM it is always better to have these issues decided at the ballot box rather than trying to stretch/warp a constitutional analysis to arrive at politically motivated result that is not supported by a large portion of the populace.

That is exactly wrong. Fundamental rights are protected by the Constitution and are not subject to popular vote. You don't have a referendum on whether any minority gets to be treated as equal citizens. We do not subject ourselves to the tyranny of the mob.