Looks like Justices on the left and right are wondering why this is even an issue before the court ....
Looks like Justices on the left and right are wondering why this is even an issue before the court ....
Technically, it follows that a ruling that declares the proponents of Prop 8 lack standing would result in the Justices determining that these same proponents lacked standing in the 9th Circuit as well. If this is the case, then the Justices could vacate the trial (where Walker presided) entirely, leaving everything back at square one, where Prop 8 stands and the District Court challenge has to be started anew.
But Kennedy has correctly identified why it would be dangerous to deny standing for the proponents in this case. And it is because it would give the State a one-way ratchet in terms of the formation of laws. If an initiative they like is challenged they can defend it, and if they lose, they can appeal it (with obvious standing). If an initiative they don't like is challenged they can choose not to defend it, thereby denying the ability of proponents of the law to appeal due to such standing rulings.
Roberts will OK it with the other liberals of the court. Constitutional legality doesn't matter as we saw in the last two land mark decisions with health care and immigration in Arizona.
I think the Constitution will be upheld and the rights of gays will be upheld.
Prop 8 is going to get tossed on standing, which then means its a states rights issue by default. The court has never once issued a ruling on a case where the petitioners, who won their case in a lower court, then asked for SCOTUS to rule. The lower federal court ruling will stand as the precedent.
DOMA was a bad law to begin with since it singles out groups and, judging by the questions asked, it too is going to be tossed. IMO, 6-2 in favor of ruling it unconstitutional, with Alito and Scalia dissenting.
End result that it's a states rights issue, which is where all marriage needs to be dealt with to begin with. The 10th Amendment is rather clear on this issue.
The issue with standing is admittedly tricky but only because the State of CA has chosen not defend its own law. What happened was:
-CA SPCT ruled same-sex ban unconsitutional according to CA consititution
-Prop 8 passed amending the CA constitution and banning same-sex marriage
-Same-sex marriage proponents sued in state court
-CA SPCT ruled Prop 8 was lawful
-Same-sex marriage proponents sued in federal court
-The defendents (state of CA, AG Brown and Gov Schwarzenegger) declined to defend the law but indicated that proponents of Prop 8 could defend in their stead and the case should be heard
-US Federal District Court (Walker) overturned Prop 8
-Proponents of Prop 8 appealed to 9th Circuit
-9th Circuit when addressing the issue of whether the proponents had standing to defend, kicked the question back to the CA SPCT
-CA SPCT ruled that they did
-9th Circuit heard case and upheld Walker's decision 2-1 that Prop 8 remain overturned
-Proponents of Prop 8 appealed decision to SCOTUS
-SCOTUS granted certiorari in the case and are now hearing arguments as to standing
It is not a given that SCOTUS denies standing to the proponents at all. As Kennedy said, it opens up a dangerous precedent that States could abuse in order to have an oversized impact on how citizen-led ballot initiatives function. It allows a one-way ratchet whereby the State can abandon duly-passed initiatives by simply refusing to defend them in court. In addition, if SCOTUS rules that these proponents somehow do not have standing now, they could (and should) rule that these proponents had no standing in the first place in Walker's trial. Vacating that original decision and having the whole thing start over is possible in that case.
As for the prospects of Prop 8 assuming the proponents are given standing, they are not that bad under the law (obviously as I said before, the law takes a back seat to politics in this day and age even at the SCOTUS).
The issue in terms of Consititutionality has to do with which equal-protection standard is applied in the case. "Rational basis" standard is the loosest and the one that has most often applied to sexual orientation discrimination cases. All that is required to uphold the law under this standard is to find that the state has some interest in the issue of marriage and that Prop 8 is rationally related to the interest.
If a higher form of scrutiny is applied, like "strict" scrutiny then law is less likely to be upheld, but that would be an unusual level of scrutiny for these kinds of cases.
DOMA does not regulate marriage at all. It defines the word so that there is no misunderstanding as to the effects of the various federal laws that contain the word. The "federalism" argument against DOMA is extremely weak. States have the same rights to decide their own definition of marriage as they always have.
As Alito wisely asked, "Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term “married” from the United States Code and replacing it with something more neutral. It could have said “certified domestic units,” and then defined this in exactly the way that Section 3 — exactly the way DOMA defines “marriage.”
Would that make a difference? In that instance, the Federal Government wouldn’t be purporting to say who is married and who is not married; it would be saying who is entitled to various Federal benefits and burdens based on a Federal definition."
And obviously, if one is to conclude that DOMA's definition in some way impinges states' rights, then so would a federal definition of marriage that included same-sex marriage.
The bottomline is, much like the Obamacare decision, the Court could rule in any number of ways, and it is as or more likely it rules based on politics as law at this point.
I don't understand the idea that marriage rights is a states issue. Marriage is, like it or not, a government institution and as such is expected to conform to constitutional guidelines in regards to equal protection clause of the constitution. States can regulate marriage licenses and what not, but they can't decide who has the right to marry outside of federally defined age of majority and in rare cases, determine competency (a mentally handicapped person who wants to marry for example.) it's unconstitutional to ban interracial marriage for example, why shouldn't it be equally unconstitutional to bar same sex marriage?
Universal suffrage was probably once considered a states issue as well but I'm sure there are women and blacks in the Deep South who were glad that it was decided on the federal level.
Federal law does have to conform to constitutional guidelines.
The Equal Protection Clause has limits. It does not mean that laws cannot operate differently for different classes of people. It just sets rules in terms of how the classifications can be set up.
In general, any classification must be ruled to be reasonable and not arbitrary ('rational basis' scrutiny). Also in general, the burden of proof in challenges to laws lies with the challenger.
There are however higher levels of scrutiny of laws that classify people ('strict' scrutiny) that apply to established "suspect classes," defined as people that have been historically subject to greater discrimination. Race is a suspect class. National origin is a supect class. Disability is not (thusfar). Thusfar, sexual orientation has not generally been considered a "suspect class."
The arguments involving equal protection (not the ones regarding standing) are focusing on both whether sexual orientation should be considered a "suspect class", i.e. whether strict scrutiny should be applied to the classification test, and whether, if rational basis scrutiny is applied, whether the classification is reasonable and not arbitrary.
Hence, we hear arguments over whether same-sex marriage proponents have political power or not, which relates to whether they should be considered a suspect class, and whether there is any rational case to be made that promoting opposite-sex marriages benefits society (in childrearing, presumably), which relates to whether the law passes scrutiny.
BTW, the gays atty is Ted Olson who was the Solicitor General under W's administration and W also gave us Roberts. Galen should be thanking W instead of all the mockery he did.
You keep giving me the lineage of the Prop 8 case. I understand how it was ruled upon and the issues it addresses.
And I don't think you're properly using "standing". SCOTUS hears cases from those who did not get relief from their lower court case (either in a lower state court or in a lower federal court).
Prop 8 was eventually ruled unconstitutional in federal court, giving relief to gay rights supporters. They won. But it's those same gay rights supporters who petitioned SCOTUS to hear prop 8. That's the conflict with this case -- the petitioners, who won their lower court case, are the same ones that brought this issue to SCOTUS. Prop 9 supporters are not the ones who took this to SCOTUS. That's why its unprecedented and why pretty much all of the justices were asking why the case was even in front of them since gay rights supporters got their relief.
To have standing with SCOTUS, you must show you were injured in a lower court. The petitioners, those opposed to Prop 8, were not injured by the lower courts ruling. They won their challenge and Prop 8 was nixed.
Click on "Standing" here for a better summation. DOMA is in jeopardy of the same fate.
The DOMA case is strange in that the US government has appealed its loss on DOMA despite the Administration publicly saying they think the law is unconstitutional (since Obama flip-flopped on gay marriage). So the strangeness is that they could have just refused to appeal since they want(ed) to lose, but yet they appealed just so they can argue against their own side and lose (read: now win after flip-flop) at a higher, more important, and final level. Now for DOMA the entity defending the law, since the Administration will not, is Bipartisan Legal Advisory Group of the House of Representatives (the BLAG). There is a question as to their standing as well. But this is different than the Prop 8 situation.
The petition (appeal) for Prop 8 was filed by proponents of Prop 8. Look it up. You can even click the Read the petition for certiorari under the Prop 8 section of your own link to see the petitioners. Or check Wikipedia or any other mention of Hollingsworth vs. Perry. Like here:
I understand Standing and the aspects of both cases very well. I already mentioned the nuances of the Standing issue in these cases.
And, no, to get Standing you do not always need to show injury. The State can designate other parties to defend or assert its interest. That is what happened here, the State of California stopped defending Prop 8 but designated the Proponents to do so. And they have, up until this point.
Unanimous CA SPCT ruling:
“it is essential to the integrity of the initiative process” that “the official proponents of an initiative (in light of their unique relationship to the initiative measure under [California law])” be able to “assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so.”
"As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order 'to guard the people's right to exercise initiative power'"
As Kennedy said, this makes sense considering the one-way ratchet that would exist if proponents of initiatives had no standing.
He also said that regulating marriage is equivalent to a police state. He's definitely struggling with the decision but appears to be leaning left as far as I can see.
But that's what we've been doing for 250 years. Gay marriage has just come up. It was never even discussed til now.
As far as states rights, that's what the country was founded on til the states decided to leave it and the federal gov't said no. The states never contested the gov't again. Then the gov't started supporting people with FDR and has gone even further than ever before with this administration so states have no say on anything now but there was a time when the average person never even heard from the fed gov't. NO tax forms to file, no nothing. My grandfather didn't pay taxes 100 years ago as a young adult and neither did my dad when he started working in 1936. Only the rich paid taxes til WW2.
Now half the country gets some form of gov't wellfare including me with my Soc Sec checks but I"m getting back what I paid into it for now. If i'm still getting the checks 10 yrs from now I'm officially on well fare. Soc Sec is the main pension check for 80% of all retirees. Fortunately, that's not me. I'm getting 80% of my salary plus SS. There was no SS 100 years ago.
Well I'm a dolt. Lol.
Yeah, I confused the two cases. Excuse me while I beat my head against the wall.