Governing through Reason
Proposition 8 Ruled Unconstitutional
Today, a three-judge panel of the Ninth Circuit Court of Appeals ruled in Perry v. Brown that California’s Proposition 8, denying marital rights to same-sex couples, is unconstitutional.
The panel had three issues to decide:
- Whether the backers of Proposition 8 had standing to appeal the District Court ruling that struck down Proposition 8
- Whether (assuming they did have standing) the ballot measure was unconstitutional, and
- Whether District Judge Vaughn R. Walker, who decided the lower court case, should have recused himself due to being in a same-sex relationship at the time, and which would invalidate his ruling altogether.
I just got the ruling, so I’m going to be reading through it before I comment more on the details.
From here, Proposition 8 proponents have the option of appealing to the en banc Ninth Circuit Court, or appealing to the United States Supreme Court. The strategy here depends on the proponents’ expectations.
If they expect that the Supreme Court will hear the case, and rule in their favor, then they are better served by immediately appealing to them, and getting that final decision as soon as possible. It is unlikely, though, that the Supreme Court will make time on this season’s calendar for the case. Much more likely is that it will be heard in next year’s season, which begins as we approach the Presidential election.
If they expect the Supreme Court to not hear the case, and let the lower ruling stand, then they are better served by taking a gamble with the en banc Court to get a ruling in their favor. It’s not unreasonable to do that anyway; the panel was made up of the most liberal members of the Ninth Circuit Court, so they stand a good chance of a more conservative opinion from the en banc Court. At worst, it would allow them to maximize the time without same-sex marriages in California, as such marriages will almost certainly be stayed until the Supreme Court does whatever it is going to do.
I’m pretty sure the Supreme Court would ultimately agree to hear the case. The Court may choose to delay action (as it so often does), by remanding the case to the en banc Ninth Circuit. But I cannot see how the Supreme Court cannot eventually act on this case.
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#102 written by Max aka Birdpilot 1 year ago
PWS,
BTW, did you read the SCOTUSblog article I cited?
The author made a very good case concerning the SPOUSES of same sex marriages being treated differently under the law. As he said:“With the abolition of “don’t ask, don’t tell,” it is only a matter of time before, for the first time in American history, the lawful spouse of a soldier killed in battle is denied any survivor’s benefits.“
If those spouses are not declared a suspect class, I’d be very surprised.
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Do keep in mind that the conservative activists on the Roberts court don’t give a damn about stare decisis. Alito, Roberts, and Scalia will decide however they damn well feel like deciding, and will invent a nonsense justification for it. Thomas is the village idiot, and usually functions as Scalia’s sockpuppet.
If there is a way to advance fascist corporatist goals, that’s how these four will decide. (See: Citizens United.) In this case, corporate interests don’t seem to be involved.
If there is a way to advance religious fundamentalism, they will follow that route. This is more subtle than it seems, because they are aware (for example) than infringements on freedom of speech can later bite fundies in the butt.
If there is a way to advance Republican interests, they’ll do that. In this case, it’s hard to say, because narrowly upholding same-sex marriage leaves gay bashing on the table for future elections, whereas issuing a sweeping decision setting marriage as heterosexual monopoly makes the right wing think they’ve won, and might dampen future enthusiasm on their part.
In any case, past judicial decisions are irrelevant, because if the conservative activists want to decide against those cases, they’ll simply quote some of the previous (overruled) objections, and claim those were the proper interpretations.
So it comes down to Kennedy as a swing vote. It will depend on how he’s swinging that day.
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#104 written by PWS 1 year ago
Max:
You’re so oracular. I often have trouble figuring out what you just said.Silly is too harsh a word. I said it because you made this wild jump into needing to overturn Loving in order to uphold DOMA. That’s simply not true. All you need to do is to NOT bring same-sex partnerships under the name marriage.
Yes, I agree it’s as plain as the noses on our faces that long term monogamous same-sex relationships deserve the name of marriage and all the respect and legal rights it confers.
But not everyone agrees with us.
And so far, the Supreme Court hasn’t, and they’ve been presented at least one case in which in which they could make that decision. And even in Lawrence, Kennedy specifically said that decision didn’t imply anything about gay marriage. Fortunately, he had already left that door pretty wide open.
Most of the state initiatives aim to withhold the designation ‘marriage’ to the relationship, even if they give most of the privileges of marriage to ‘domestic partnerships’.
Let’s hope enough Supreme Court justices see it our way.I didn’t see the SCOTUSblog you mentioned, and now I can’t find it. I’m happy to admit that gays SHOULD become a suspect class. Again, so far they haven’t, and the Supreme Court works in mysterious ways.
By the way, here’s an opinion by a well-respected conservative jurist explaining why same-sex relationships should NEVER be titled marriages. Hold your nose when you read it, but that’s the central argument of that side (not the central motive, but the central argument)
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/08/INEO1EOV73.DTL
I’m worn out with this. Why don’t we put it on hold until some DOMA decisions come down, and then we can handicap it again. But first I want to thank you in particular for considerably deepening my understanding of the issues.
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PWS,
The problem I’ve always had with this line of argument is that a lot of my married 50– and 60-year old friends are going to be sorely disappointed when they find out their marriages are invalid because they’re incapable of procreation.
If that’s going to be the State’s interest, then the State needs to start administering fertility tests prior to issuing marriage licenses.
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#107 written by Max aka Birdpilot 1 year ago
PWS,
I said it because you made this wild jump into needing to overturn Loving in order to uphold DOMA.
This may be the source of the confusion. I never stated or implied that Loving needed to be overturned. The opposite, in fact. I feel that case can be used as precedent in overturning DOMA.
You’re so oracular …
Yes, my girlfriend says the same and that’s why she keeps me!
For your review:
http://www.scotusblog.com/2011/08/why-the-supreme-court-will-strike-down-doma/And to counter the above reference, an aptly named article by Ted Olsen, former Solicitor General under W., lost his wife Barbara in the 9⁄11 Pentagon attack, represented W. in Bush v. Gore.
http://www.thedailybeast.com/newsweek/2010/01/08/the-conservative-case-for-gay-marriage.html
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#108 written by mostlyilurk 1 year ago
I think we could go round and round for a long time trying to predict how or even if the SCOTUS will rule on this issue. However, I was struck by this particular language in the Loving case:
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
These convictions must be reversed.
I understand that the SCOTUS is free to disregard its prior rulings on issues and I recognize that it has done so in the past. However, in the event the SCOTUS decides to take up the issue (I don’t believe that Baker stands for the proposition that they’ve already done so), I’ll be be anxious to see how they would legally justify upholding bans on same sex marriages in light of the Loving ruling. Maybe I’m being a blockhead about it, but I just don’t see how they could — and a cynical part of me wonders if this is why they’ve, thus far, declined to consider the issue. -
#110 written by PWS 1 year ago
monotreme:
PWS,
The problem I’ve always had with this line of argument is that a lot of my married 50– and 60-year old friends are going to be sorely disappointed when they find out their marriages are invalid because they’re incapable of procreation.
If that’s going to be the State’s interest, then the State needs to start administering fertility tests prior to issuing marriage licenses.
Absolutely, and a number of judges have not just disagreed with the assertion, but lampooned it in their decisions. And anyone that accepts it has to go through unbelievable contortions to make it work (e.g. ‘it doesn’t matter that the fit is imperfect, at least it’s theoretically possibly because they’re man and woman’, and other blah blah woof woof nonsense).
Personally I’m coming around to Max’s opinion that Kennedy will kick down this paper-thin argument, and bring gay marriage under the fundamental rights umbrella. HOPE SO. -
#111 written by PWS 1 year ago
lurker:
I understand that the SCOTUS is free to disregard its prior rulings on issues and I recognize that it has done so in the past. However, in the event the SCOTUS decides to take up the issue (I don’t believe that Baker stands for the proposition that they’ve already done so), I’ll be be anxious to see how they would legally justify upholding bans on same sex marriages in light of the Loving ruling. Maybe I’m being a blockhead about it, but I just don’t see how they could — and a cynical part of me wonders if this is why they’ve, thus far, declined to consider the issue.
All I can say is so far they haven’t considered ‘same-sex marriage’ to be just ‘marriage’. And all the efforts to stop it go to that point (e.g. California’s Proposition 8 didn’t take away any substantive benefits, ONLY the right to cal themselves ‘married’). Once it’s called ‘marriage’ the game’s over except for some mopup operation as to why you can’t marry your child or whatever. That argument is now paper-thin, and may well be kicked down in the next major decision. Let’s hope so.
Now look, I give my reasons for EVERYTHING. You tell me why you don’t think Baker will apply here.
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#112 written by PWS 1 year ago
Max:
I read both articles. They’re both very good, both went into the ‘same sex marriage’ folder on my desktop. From a ‘philosophical’ standpoint I think Olsen’s points are unassailable, and each one was argued successfully in the initial trial. Which is why I think the appeals decision was a wimp-out.
And yes, unless there’s some technical issue which in my ignorance I don’t know, I think DOMA will easily be struck down using Romer. But that’s STILL not as fundamental a decision as I want to see, so I hope they go further. -
#114 written by mostlyilurk 1 year ago
PWS,
My opinion on Baker is, at this point, more instinct than anything else and I certainly could be mistaken, as I’ve haven’t researched the issue and don’t intend to. It just seems to me that there’s an argument to be made the court did not consider and/or directly address, on a substantive basis, an explicit ban on same sex marriages. Selfishly (I suppose) I’d like to see the reasoning that would support the conclusion that Loving is distinguishable with respect to same sex marriage. However, I’m fully aware that the SCOTUS has no obligation to cater to my selfish wishes lol. -
#115 written by Max aka Birdpilot 1 year ago
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mil said:
I’ll be be anxious to see how they would legally justify upholding bans on same sex marriages in light of the Loving ruling. Maybe I’m being a blockhead about it, but I just don’t see how they could — and a cynical part of me wonders if this is why they’ve, thus far, declined to consider the issue.
That makes two of us, so if it’s a cynical part of you, I have the same cynical part. I think that Roberts, Scalia, Thomas and Alito are smart enough (okay, Roberts, Scalia and Alito are smart enough) to see that the game’s up as soon as the court grants cert.
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#117 written by PWS 1 year ago
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PWS,
Sorry, my friend, that you see it in that light. But silly or not, in the realm of jurisprudence, there have been favorable decisions that hinged on arguments that you would find substantially sillier!
I also defer to our friend mostlyilurk, who IS an attorney, who states in #94:
If found unconstitutional, as we believe, the other dominoes fall as well.