What The Proposition 8 Ruling Means For California And The Country
The Court may have "punted" the Proposition 8 ruling, but it is likely to have a wide-ranging impact both in California and nationwide.
As I noted this morning, the Supreme Court’s ruling on Proposition 8 was limited to a procedural ruling that the party that was defending the statute on appeal, made up entirely of private parties since the state did not defend the law on appeal, lacked standing to handle the appeal. This means not only that they lacked standing to appeal the holding of the 9th Circuit to the Supreme Court, but also that they lacked standing to appeal the decision of Federal District Judge Vaughn Walker to the 9th Circuit.1 At the conclusion of the Court’s opinion in Hollingsworth v. Perry the case was remanded to the 9th Circuit with instructions that this Court lift the stay that had been placed on Judge Walker’s ruling when they accepted it for appeal. Practically, this means that Judge Walker’s ruling that Proposition 8 is unconstitutional and that same-sex marraiges must resume immediately in California is now, once again, the law of the case just as it was on the day the case was issued.
At first glance, this would suggest that same-sex marriages will resume in California as soon as practically possible, and this is the initial position that the state’s political leadership is taking:
Gov. Jerry Brown said county clerks must soon begin issuing marriage licenses to same-sex couples in the wake of the U.S. Supreme Court’s ruling on the issue Wednesday.
Brown has directed his Department of Public Health, which oversees marriage licenses, birth and death certificates and other such documents, to tell local officials the licenses should be issued as soon as a federal appeals court lifts a ruling that was temporarily making same-sex unions illegal.
The temporary ban is expected to be lifted now that the U.S. Supreme Court has upheld a lower-court ruling which held that Proposition 8, the voter-approved measure prohibiting gay marriage, is unconstitutional.
“I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted,” Brown said in a statement.
County clerks say they’re prepared.
“We’re pretty much ready to go,” said Cathy Darling Allen, the clerk for Shasta County and the head of the California Assn. of Clerks and Election officials. “In 2008, we had some assistance from the state Department of Public Health in making marriage license forms gender neutral. We continue to use those forms today. So the mechanics of the process are ready to go.”
There’s some discussion of a waiting period before the various Clerk’s Offices will be required to fully comply with the order and, to the extent that there may need to be changes made to the official forms and documents used in their offices with regard to marriages, this would seem to make some sense. In many of the states that have recently legalized same-sex marriage, there was a delay of some kind before the law went into effect precisely for this reason, and I don’t really see any objection to the same sort of delay for administrative purposes, as long as its a reasonable amount of time.
The one complication that some commentators about the impact of the Hollingsworth decision on California have noted is the potential problem of recalcitrant County Clerks who may resist complying with the Court Order. In this regard, it’s worth noting that the procedural history of the Proposition 8 case was a bit unique in that, in addition to having the State of California as a Defendant, it also had several, but not all, of the County Clerks in California as parties to the lawsuit. At the 9th Circuit level, there was some question over just how much of a statewide impact Judge Walker’s ruling actually had. In the end, that question ended up being a non-issue in the 9th Circuit’s handling of the case. However, it could potentially become an issue in a post-SCOTUS world if some Clerks who weren’t parties to the initial lawsuit refuse to perform same-sex marriage, arguing that they aren’t bound by the ruling since they weren’t parties to the ruling. Now, in the end, this legal argument won’t really go anywhere but it may require the State of California to engage in some litigation to force such Clerks to comply with the law, thus delaying the effective date of the ruling in some parts of the state. Of course, if California’s County Clerks all decide to go along with the ruling then this won’t be an issue and, at most, it would be just a minor delay toward the full legalization of same-sex marriage throughout the state.
It may be immediate, or it may take a little clean-up work, but the end result of the Supreme Court “punting” in Hollingsworth v. Perry is that same-sex marriage will soon be fully legally recognized in California, making it the thirteenth, and largest in terms of both population and size, to do so. The psychological impact of that on the national gay marriage debate should not be underestimated.
Nationally, the impact of the Court’s ruling will be far less immediate. The legal team behind the challenge to Proposition 8, led by the stellar team of David Boies and Ted Olsen, had at its ultimate goal a ruling that would have declared that all laws against same-sex marriage unconstitutional in the same way that Loving v. Virginia found all laws against interracial marriage unconstitutional. For many reasons, not the least of them being the Judiciary’s traditional reluctance to issue sweeping rulings on what are still issues of intense public debate. The ruling that the Court handed down doesn’t go that far, of course, and instead limits its immediate impact to California. In doing so, though, the Court has arguably planted the seeds for future legal challenges to laws against same-sex marriage across the country.
When he struck down Proposition 8 in August 2010, Judge Vaughn Walker, who has since retired and taken Senior Status on the Federal District Court, did so in a far reaching ruling that clearly could be used to apply to much more than just Proposition 8 itself. For example, Judge Walker held that gender is no longer a relevant factor in determining who can and cannot get married:
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
(…)
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages
Additionally, he found that a law against same-sex marriage could not survive even the lowest level basis of review under the Equal Protection Clause, the rational basis test:
Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest. Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality. See FF 48-50. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. Moreno, 413 US at 534.
(…)
In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).
(…)
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
None of this is binding law of any kind outside of California, of course. However, taken in connection with the Supreme Court’s broad ranging 5th Amendment Equal Protection analysis in the Defense of Marriage case, which James Joyner took note of earlier today, Judge Walker’s opinion is likely to be liberally relied upon by those seeking to overturn laws against same-sex marriage. How persuasive these arguments are likely to be in individual cases will depend on the facts of those cases and the Judges before whom they are argued. In contrast to Judge Walker’s opinion, the decision by the 9th Circuit in the Hollingsworth case, while it reached the same result, was far more limited as I explained in my initial post when that case was handed down. By making Judge Walker’s opinion the highest standing precedent ruling upon the validity of a state-level law against same-sex marriage, the Court has done much to advance the legal cause of marriage equality.
(Given its importance, I’ve embedded Judge Walker’s opinion before the footnote)
1 There are no standing issues with regard to Judge Walker’s opinion. That case was decided in August 2010 when Arnold Schwarzenegger was still Governor and the challenge to Proposition 8 was fully and vigorously defended by the Attorney General at trial. When Governor Jerry Brown and Attorney General Kamala Harris were elected in November 2010 and office in January 2011, they made the decision that they would not defend Judge Walker’s ruling on appeal.
Perry v. Schwarzenegger – Proposition 8 Unconstitutional by dmataconis
Separating this from the context of gay marriage, this seems to be a major blow to the idea of petition-driven amendments to state constitutions. This essentially means that even if a sufficient majority of the people want an amendment passed and go through the petition and balloting stage, it can be struck down if enough of the people who hold positions of authority want it struck down.
Previously, this was reserved for amendments that conflicted with the Federal Constitution. Now, though, the people of the several states have no absolute right to amend their Constitutions.
Pro same-sex marriage advocates in California should use this opportunity to launch an initiative to repeal Proposition 8. An injunction is not the same as the law, its reach is debatable, and future actors can choose to ignore it or have it set aside.
My question for the lawyer-types on OTB – would the impact of the 5th Amendment ruling on state Constitutional Amendments expected to be different than DOMA-type legislative efforts at the state level? In other words, does a state constitutional amendment differ somehow from “mere” legislation in terms of Federal mandate? And if not, would states be required to re-amend their constitutions to comply?
@Jenos Idanian:
Ummm… no. This really doesn’t change anything.
The state chose not to defend this — opening up the grounds for the punting.
But beyond that the reason the Amendment was being challenged on Constitutional grounds. And there is significant precedent to demonstrate that the Supreme Court has the ability to strike down anything that is found to be in violation of the Federal Consitution.
Explain to me how this enacts the change that you are claiming?
@Matt Bernius: The state chose not to defend this — opening up the grounds for the punting.
Which was part of what I was referring to with my “if enough of the people who hold positions of authority want it struck down.”
This lost because no one was allowed to argue in favor of it. The state, who has the obligation to defend such cases, chose not to, and they kept anyone else from stepping up.
It’s reminiscent of Arizona and its immigration laws. The feds refused to secure Arizona’s border, and argued that no one else could, either.
We lack a mechanism for cases where the responsible government authorities tasked with a responsibility not only refuse to uphold that responsibility, but prevent anyone else from doing the job. And we need one.
@Jenos Idanian:
Ah… ok I see your point. I don’t think this particularly new, but it is a fair point. This should have been officially defended by the State or a State proxy.
Well, at least when it comes to state government, there is the entire recall thing (which California has some experience with).
@Tony W:
The 5th Amendment’s Equal Protection Clause only apples to the Federal Government. States are covered by the 14th Amendment’s Equal Protection Clause. Legally, that’s basically a distinction without a difference at this point.
Again…total BS.
If your opinions are based on BS…then your opinions are BS.
Sort of a moronic statement, as there is no way to “secure” our borders. Even if we decided to build our very own Berlin wall (thousands of miles long!), there would still be our coasts, and air travel.
Of course, I seem to remember you getting excited about the concept of building a wall, putting machine guns on top of it, and opening fire on anyone who approaches, so maybe the Berlin wall thing sounds like a good idea to you.
Now, though, the people of the several states have no absolute right to amend their Constitutions.
A. That’s mostly false.
B. To the limited extent that it’s true, blame the conservative faction of the US Supreme Court, which for 30 + years has been consistently raising the bar on plaintiffs establishing standing to bring their case.
@Jenos Idanian: As I understand it, California law has a mechanism for designating a proxy to defend an initiative in state court, but this was brought in federal court. I also think that California initiatives are fairly unique in this country and probably anywhere else there would be far less of a gap between popular opinion and the politicians.
My guess is that this whole thing was an orchestrated compromise. I think Kennedy wanted a sweeping decision declaring any prohibition on SSM unconstitutional. Ginsburg had clearly signaled that she wasn’t comfortable with that. If he had done that with his DOMA ruling, he would have lost her vote. So, now we have a situation in which California passes an amendment to its state constitution banning SSM. A federal judge declares it unconstitutional based on equal protection grounds, and the SCOTUS basically upholds that ruling without declaring it unconstitutional. Apparently, the SCOTUS is saying that the U.S. Constitution means one thing in California, but something else in the 30+ other states that also have constitutional amendments banning SSM.
I agree with those who think the government should defend its laws, even if governers/presidents/etc don’t like those laws. I don’t like the precedent.
But in the end, all this continues to impress upon me the great importance of winning elections so one can get SC appointees who will make more rulings you like (as for the whole “impartial jurist” ideal, oh poppycock!).
@Tony W:
Speaking generally here – not in the specific context of Windsor:
State level constitutional amendments are equally as inferior as state laws with respect to federal laws (when Congress is acting within the scope of its constitutionally authorized powers) and the US Constitution (always).
In the event that these state level bans were to be overturned on an equal protection basis. the states wouldn’t have to re-amend their constitutions. Their courts would simply be bound to ignore the state constitutional amendment in favor of the determination of the higher authority (in that case, the federal courts.)
Text of the Supremacy Clause (for reference purposes):
@Coldfan:
Ginsburg is a fan of incrementalism. She’s the one, after all, who argues that Roe was a mistake, not because the outcome was bad, but because it would (in her opinion) have better been left to society to incrementally nullify abortion restrictions.
In a purely hypothetical sense, I can sort of see her point. At the time of Roe, abortion restrictions were already being gutted pretty systematically, and the decision swung the momentum in that trend towards one of incrementally reimposing de facto bans.
That said, that is a practical evaluation, not a legal one. The Constitution says what it says, and the purpose of a judge, any judge, considering a constitutional challenge is to evaluate challenged laws within the context of what the Constitution stipulates, not to worry about how the public might not be ready to deal with the ramifications. Justices have to a degree become politicians engrossed with public opinion (O’Connor, was, IMO, the worst in that regard), when they need to focus instead on being dispassionate arbiters of the law.
@Tony W: “would states be required to re-amend their constitutions to comply?”
I don’t think federal rulings that a state law or constitutional provision is invalid ever results in a requirement to amend the statute or constitution. I believe there are state constitutions with religious tests for office still in them, and there are state laws banning all abortion.
(This was an issue in the Wisconsin collective-bargaining litigation. The trial judge found the law invalid and ordered it not to be published. She did this because once the law was published she feared that workers for units of government that were not parties to the lawsuit would be harmed. But it was unconstitutional for her to do so because a judge cannot enjoin legislative functions. A judge enjoins executive officials from enforcing the law instead. That brings up some of the confusion or problems in California that Doug alludes to. It would be easier if the Proposition was withdrawn by initiative.)
@Coldfan:
WE’re reading tea leaves here, but I actually think that Sotomayor is the one who would have been all in on the 50 state solution. Remember, Kennedy is a conservative. I agree that Ginsburg has signaled that she would be uncomfortable with a 50 state solution. I agree that too there aren’t 5 votes for a 50 state solution-yet.
I think SCOTUS probably wants to see some states move politically to amend their constitutions to remove the anti-SSM provisions first. If a number of them do this, then we might see a 50 state pro SSM ruling.
The next step in the pro-SSM legal strategy will be a challenge to Section 2of DOMA. I expect the ACLU is writing its lawsuit right now. I think SCOTUS throws out Section 2 sometime around 2016, but leaves the state constitutions untouched.This may affect the 2016 Presidential election
Its possible you might also see some Congressional action on that, but even if a bill passes the Senate, its DOA in the House. The Democrats might want to get the Republicans on record as defending bigotry , though before the 2014 elections.
The political, and legal implications of all this are fascinating, I must say.
There are plenty of dumb laws across the country that aren’t enforced. This was just another dumb law. Even Scalia’s dissent comes down to whining in disgust at those homos. It’s not based on rational argument. That is because there really is no rational argument against Marriage Equality.
I’d prefer we didn’t have dumb laws. But failing that..my hope is that more rational minds prevail..
@HarvardLaw92:
According to Mr. Dooley, it was ever thus.
Here’s a paper that argues that the Supreme Court always did follow the “illiction returns.”
It’s been clear for quite some time that the surest way to figure how the supreme Court Justice would vote on an important case is to consider the political leanings of the President who appointed him/her. There are some surprises, but it’s the way to bet.
@stonetools:
The reason I think Kennedy wanted a sweeping decision was his dissent on the Prop 8 ruling. He made it very clear that he thought the plaintiffs had standing and that the case should have been decided on the merits. Given his opinion on DOMA, it’s pretty clear where he came down on the merits. A ruling by the SCOTUS that overturned Prop 8 on equal protection grounds would have been a 50 state solution.
@Coldfan:
You may be right. I think we agree that there weren’t 5 votes for a 50 state solution. I’m deeply skeptical that there will be 5 votes for such a solution unless there is substantial political movement in favor of SSM in the states and maybe a couple of changes on the court. I think Ginsburg may be gone by 2016 and her replacement (should the Republicans allow him/her to be seated) is likely to be be in favor of a 50 state solution. A lot too will depend on whether the Democrats hold the Presidency in 2016. Scalia can’t live forever.Not wishing him ill, but just sayin’….
I think the next stage in the struggle is likely to be political at both the state and federal level.
@Tony W: My question for the lawyer-types on OTB – would the impact of the 5th Amendment ruling on state Constitutional Amendments expected to be different than DOMA-type legislative efforts at the state level? In other words, does a state constitutional amendment differ somehow from “mere” legislation in terms of Federal mandate? And if not, would states be required to re-amend their constitutions to comply?
Here’s a non-lawyer’s answer, based on observations and common sense: no, they wouldn’t. I recall several years ago when one of the southern states — I think it was Alabama — finally amended its Constitution to outlaw slavery. That it was still there well over a century after the Civil War settled the issue seems to say that such laws are simply nullified, and don’t have to be changed per se.
@Rob in CT: agree with those who think the government should defend its laws, even if governers/presidents/etc don’t like those laws. I don’t like the precedent.
Lawmakers take an oath to defend the Constitution, and state lawmakers for their state Constitution. The Proposition was properly passed and therefore part of the Constitution; therefore the state has an obligation to defend it.
@anjin-san: Sort of a moronic statement, as there is no way to “secure” our borders. Even if we decided to build our very own Berlin wall (thousands of miles long!), there would still be our coasts, and air travel.
You’re right, I phrased it poorly. I should have said “enforce the existing immigration laws,” which is more accurate.
@stonetools:
Don’t worry, I got the “wishing him ill” base covered for about 50 people. The man is a disgrace, not just to the Judicial Branch of gov’t but lawyers in particular and all of humanity in general.
@Jenos Idanian #13:
Of course, considering that Obama has enforced those laws far more stringently than any one since…. Since I don’t know when, What’s your objection?
“He only cut it to half what it was when Bush was in office!”
The best answer to “If ________ got hit by a bus tomorrow we’d be much better off” would be the four reliable conservatives on the SCOTUS, in order from youngest to oldest. So the best answer is John Roberts.
@Jenos Idanian #13:
Well, Illegal immigration is at a 35 year low, we have more border enforcement than in any time in the past 30 years, and Obama has deported more illegal immigrants than any president in recent history.
I suppose from those reality-based facts one could conclude that existing immigration laws are not being enforced …
But if Nino plopped face first into tonight’s linguini alfredo, I’d throw a party and serve Limoncello shots.
That’s way out of bounds. It is OK to privately hope that the SOB has a night of crummy TV viewing choices.
Yes, and the deficit is falling fast. The stock market has recovered from the Bush crash, and the real estate market has come a long ways back. Health care costs just fell for the first time since the 70s. Unemployment has been improving slowly, but steadily for years after the train wreck Obama inherited. Bin Landen sleeps at the bottom of the sea.
So what can we conclude from this? Oh yea, Obama is Jimmy Carter.
A law that gets passed is part of the Constitution? Then how can anything be Un-Constitutional?
What a maroon you are.
@anjin-san:
Hmm, did you learn all that good news from OTB? Because I don’t seem to recall some of that being mentioned ’round these parts.
@steve:
I want to keep Scalia around. He’s the living refutation of the notion that conservative legal theory is about anything but sucking up to the rich and screwing anyone else.
I still recall the days when conservatives would praise him as an intellectual giant. You see less and less of that nowadays. Scalia’s nasty, narrow bigotry is showing through. Scalia is on his way to Taney-hood, an embarrassment to the right. He’s 10 years away from being openly repudiated as an embarrassing relic by conservatives.
@C. Clavin: Will you apologize to Jenos if you are wrong?
James Fallows
Truth be told…this ruling was a no-brained. Scalia’s whining dissent shows that. But it does not excuse the joke they pulled on the VRA yesterday. Today the south is going full bore on suppressing people’s right to vote. If you do t have any good ideas or policies to sell…cheat. Game the system.
Todays Republicans and the people who vote for them are dispicable. Absolutely dispicable.
@ PD…
The key word there is “can”.
Obviously an un-constitutional initiative…especially one driven by religious zealots from Utah…does not.
@C. Clavin: You miss the point, Mayday. Big surprise there.
Proposition 8 was a State Constitutional Amendment. Amendments are part of the Constitution. Therefore, by definition, they are Constitutional.
Now, they might conflict with the US Constitution, but they cannot be in conflict with California’s Constitution. If that was the case, then the 14th Amendment that outlawed slavery could have been struck down, because the US Constitution, as written, permitted slavery.
But the State officials have an obligation to defend their Constitution, as written and amended. They refused to do so.
@PD Shaw:
You can´t blame him. One of the reasons that I never really liked Hugo Chávez is precisely because he created a Constitution via referendum. One of the biggest institutional problems that I see in my country, Brazil, is precisely that the Constitution is too long and has too many amendments.
I´m sorry to the nice people that lives in California, but amending the Constitution via a popular vote(And to deny rights to a group of people) is the very definition of Banana Republic. A Constitution should be constructed to curb the excesses of the political system, not to create them.
@OzarkHillbilly: Of course, considering that Obama has enforced those laws far more stringently than any one since…. Since I don’t know when, What’s your objection?
“He only cut it to half what it was when Bush was in office!”
Immigration went down as the economy tanked. If you wanna give Obama credit for that, I might see my way to concurring. And now that
amnestycomprehensive immigration reform is looking more promising, it’s ramping back up.By the way, people that talks about the California Constitution and gay marriage reminds me of John Calhoun, Jefferson Davis and other slave holders talking about the Fugitive Slave Clause and other parts of the US Constitution.
@Jenos Idanian:
No, they have no such obligation. There is no law on the books in the state of California which requires the state’s constitutional officers to “defend to the utmost” any part of the state’s laws or constitution which have been ruled in court as violative of the state or federal constitutions. It is a matter left to executive discretion. Which the duly-elected governor of the state of California exercised.
If you want to change the laws or constitution of California to require the state to appeal every decision striking down its laws all the way to SCOTUS, you are welcome to propose such a change.
@Andre Kenji: That’s a good reminder that if you don’t like something that’s in the Constitution, you should change it. Don’t just ignore it or pretend it isn’t there or whine about people who point out that it’s the law of the land.
The proponents of slavery worked a lot of bad things into the Constitution, and better-minded people accepted it in the interest of getting the Union formed. It’s too damned bad it took most of a century to root it out.
@Travis Mason-Bushman: No, they have no such obligation. There is no law on the books in the state of California which requires officials to uphold or “defend to the utmost” any part of the state’s constitution or laws which have been found to be unconstitutional in court. It is a matter left to executive discretion.
Au contraire. The California State Constitution, Article 20, Section 3, lists the oath of office all elected officials must swear:
That’s pretty black and white right there. Every elected official swore an oath to defend the Constitution. The Proposition was a Constitutional Amendment, and therefore part of the Constitution, and they refused to defend it.
Oh, look, comments expressing glee at the thought of Supreme Court justices dying. And not a single down-vote.
I can just imagine what would happen if I had said that it would be a good day if Justice Ginsberg were to fall asleep at the bench yet again, and not wake up…
The proposition was un-constitutional…ipso facto it could not be part of the constitution.
I know the world is complex…and beyond your comprehension.
Sucks to be you.
I guess you missed the whole part where the economy started to improve pretty much from the moment Obama took office after he inherited the Titanic taking on water. Guess that’s what happens when you spend all your time whining.
@HarvardLaw92: Everyone should be a fan of judicial incrementalism but not for consensus building–there was a consensus that blacks were inferior–defying the will of that majority is sometimes necessary and proper. It’s why they are appointed for life and the least accountable to the people. Incrementalism is the extending of accepted rights to those heretofore not accepted. We don’t need to “find” any more constitutional rights. We simply have to apply them to all. You can argue our entire history is “incremental”–the gradual inclusion of excluded people
Also, I disagree strongly with Ginsburg about tip-toeing to Roe would have been wiser. Abortion is the most emotional and controversial issue since slavery. The opposing sides are no more likely to find a middle ground then an abolitionist and a slave owner. If you believe a fetus is a person an unwanted pregnancy is irrelevant; if women are in charge of their own reproduction a strangers ideas about conception are irrelevant. There never was going to be and never will be a consensus on the issue of abortion. Would Roe in 1985 or 2002 have been amenable to religious conservatives? Not the one’s I’ve heard.
So…once in awhile you have to go all in (roe, brown). Most of the time you can let history unfold by just nudging it along. MLK was right about that arc of history….
Gee Jenos, you are a self described supporter of marriage equality. Funny how you don’t seem to be happy about the good news. Instead you are having some sort of meltdown.
Could it be that you were, you know, seriously full of it when you were telling us about your support for the cause?
@Jenos Idanian: Please find any court which has ever ruled that an oath of office at any level of government requires an elected official to appeal to the highest possible authority any ruling striking down any law or constitutional provision overseen by that official.
You won’t find such a ruling, because it doesn’t happen. Different levels of government decide all the time that further appeals of such cases are wasteful, unnecessary, pointless or simply bad public policy.
@C. Clavin: The proposition was un-constitutional…ipso facto it could not be part of the constitution.
I’ve already explained — and shown through example — how a Constitutional amendment can not be unconstitutional. But I can’t understand it for you, Cliffy.
Ron White is right — “you can’t fix stupid.”
@anjin-san: Yes, I support same-sex marriage. I also believe in the rule of law and democracy more. When gay marriage is pushed by means that conflict with those other principles, I oppose those tactics.
Reading above and seeing the death wishes for Justice Scalia, I see that some of the proponents don’t share my principles. Color me gobsmacked.
@anjin-san: I guess you missed the whole part where the economy started to improve pretty much from the moment Obama took office after he inherited the Titanic taking on water. Guess that’s what happens when you spend all your time whining.
What’s the current unemployment rate? What would it be if the workforce was the same size as it was the day Obama took office?
Simple logic tells us that as the nation’s population keeps growing, the number of people in the workforce would also increase. But it keeps falling.
Here’s an article from April:
And here’s another fun observation about the “unintended consequences” of Obama’s policies: ObamaCare regulations and the proposed immigration reform create a situation where employers will have a financial incentive to fire Americans and hire newly-amnestied aliens.
Let me spell it out once again: in states where same-sex marriage has been approved in some kind of democratic fashion, it’s a settled matter. The opponents have essentially given up, as they see that they had their say and their chance, and lost fair and square. In states where it was passed in a non-democratic fashion (like California, where it lost a popular vote), they’re still fighting like hell over it, and will continue.
So tell me why you insist that taking the hard way, why you need to win by any means necessary, especially when the democratic way works so much better? My hunch is that it’s ego. You NEED to see yourself as the noble warrior, taking on the forces of hate and bigotry. You NEED to have other people cast as the villains, so you can play the hero.
Too bad for actual gay people who have to live with the consequences, but as long as you can play the hero, that makes it all better, right?
@Jenos Idanian:
Oh no, not me, credit where credit is due. Bush get’s the credit for blowing up the economy in 2007. But then, you always were fact challenged. I would not expect that to change now. Just like you ignore @al-Ameda:
Then again, it has been proven time and again by conservatives that Obama is a time traveler, so maybe the recession is his fault?
@Jenos Idanian: Then I’d say you’re as out of line as the other guy, but you’re not a spammer or str0mfnord escapee so you don’t get a downvote. It’s OK to hope her favorite TV show gets preempted tonight though.
@Jenos Idanian:
But this let stand a ruling that Prop 8 in fact violated the Constitution. And people have never had a right to put measures in state constitutions in violation of the Supremacy Clause of the US Constitution. Nothing has changed here in that regard.
@James Joyner: I think we’re disagreeing about semantics here. An amendment to the California state constitution cannot, by definition, be unconstitutional in regards to the California Constitution. It can conflict with the federal Constitution, and that’s grounds for an argument, but an amendment to a Constitution cannot be held to be unconstitutional to its own Constitution. If that was the case, then things like the 13th Amendment could have been struck down on grounds that it conflicted with the parts of the Constitution that sanctioned slavery.
I hold that the California officials had a duty to defend Proposition 8 after it was passed, as it was then part of the California Constitution which they had sworn to uphold. If they didn’t, then we have empowered the government of any state to ignore and circumvent any amendments they don’t approve of by 1) refusing to defend it against a challenge (that they could easily arrange with some political allies) and 2) preventing anyone else from defending it in court. In that case, the amendment would be defeated by default, as there would be no one defending it in court.
I thought lawyers were supposed to represent their clients to the best of their ability, regardless of their personal feelings or opinions or beliefs. I guess that principle goes out the window when it’s a politically incorrect issue at stake.
Just how does this ruling effect other groups and their claims for “marriage” rights, which will surely come ? Polygamists and those who want to marry small children?
For an thoughtful, fair view of this see Al Mohler’s site.
Jenos…you ignorant sl*&.
The measure was always un-constitutional. Therefore it could not be part of the constitution. That’s not semantics. It’s logic.
You are proposing that people enforce and or support measures that they know to be flawed. Which is not suprising given your partisan team sport outlook.
That logic followed to it’s conclusion would have a host of stupid f’ing laws being enforced. We don’t do that in this country. I suggest you move to a country more to your liking. You clearly hate this one.
Jenos…
But it was just ruled to be un-constitutional. If you are correct…how could this be? Clearly you are not correct (shocking)
Your analogy falls flat on it’s face (shocking) because the 13th righted a wrong and expanded the rights of those harmed.
Proposition 8 created a grevious wrong and trampled on the rights of a group of people.
Just because you type something it isn’t automatically correct.
Just because some religious zealots from Utah got a proposition passed in Cali doesn’t make it constitutionally correct.
Fianally – you claim to support marriage equality. But then you advocate trampling the rights of gay people across California because…well who knows why. Maybe you don’t support marriage equality at all. Only you can figure that out.
@Jenos Idanian:
But the state of California (under Schwarzenegger) DID defend Prop 8 at the trial level. And they lost. Governor Brown decided not to appeal. Are you saying that the losing party has a duty to appeal every single decision where they lost, in order to be judged to have “defended” something?
And who are you considering “the client” in your second paragraph? The State itself is the client, and the client can always choose not to appeal a decision, and simply take it as a loss.
@Rob in CT: “I agree with those who think the government should defend its laws, even if governers/presidents/etc don’t like those laws. I don’t like the precedent.”
I agree. This will justify more outrageous conduct on the other side and we’ll be left with no respect for the rule of law.
@Tyrell:
Of these two issues, one is immediately moot – Legal consent is a critical component of the entire idea of entering into a contract (which marriage is). There is no right to marry small children because they are not able to give legal consent to marry. Period. Ditto Animals and inanimate objects. So that’s always been a stupid arguement.
Polygamy is a harder one. And I’m not entirely sure. I suspect that the best argument is that in the US a marriage contract has always between two people/parties (remember that territories that allowed polygamy had to alter their laws to join the Union). Changing the sex rules around that (allowing same sex marriage) doesn’t alter the two-person form of marriage. The argument that Kennedy’s words can somehow be used as support that “two person marriages somehow belittle polyandrous marriages” seems like a slippery slope argument at best.
All that said, if everyone involved is a consenting adult, it’s possible to imagine a future where polygamy (or more likely polyandry) again becomes legal.
This is one of those statements that says far more about your view of “thoughtful” and “fair” than it speaks to the argument at hand. I visited Mr Mohler’s site and scanned his extremely long post on the subject, and found very little of it to be particularly thoughtful or fair from a legal analysis perspective. It was, however, very representative of a particular line of fundamentalist Christian thought which, not surprisingly, found this decision to be further evidence of the destruction of our culture.
@Ben:
The more I’ve been thinking about this, the more I keep running into this fact/question.
One of the aspects (and arguably problems) of California’s proposition system is it essentially circumvents state government in changing the constitution. Hence a proposition can pass which the majority of state government believes to be unconstitutional. Given the not insignificant cost of litigation, at what point is it correct for a State Government to abandon defense (especially if it believes it’s going to continually lose on appeal)?
I’d be interested in @PD Shaw‘s and other lawyers opinions on this. Should a government be required to automatically defend its constitution and laws always to the highest level? Or just aspects of its constitution?
From some things I have read a California amendment can’t be ruled unconstitutional until it is declared so by an appellate court.
The district court ruling was appealed by people with no standing therefore the prop 8 is still a constitutional amendment in California.
This is going to end up back in court but the likely easiest route would be another proposition overturning prop 8 (and from polls it appears this would likely work).
Much cheaper than going back to court and likely in hindsight brown should have continued with the appeal-the case would have likely been decided on the merits rather than the punt.
@Matt Bernius:Just in terms of cost of litigation, the problem with what happened here is that Californians are left with a non-precedential decision by a trial court judge. If the State has to enforce that decision against non-parties, it may end up in a number of lawsuits across California re-arguing the case. Just on costs, it would have made the most sense for California to appeal to the Ninth Circuit, whose decision would have been binding precedent over all California courts and it wouldn’t have cost that much anyway. The high number of interested advocates has meant the courts have amicus briefs on any conceivable issue.
I’m not sure why opponents of Prop8 are not mad today that California didn’t appeal to the Ninth Circuit. There is a lot of scholarship on the existence and scope of the government attorney’s duty to defend the law. The attorney also has a duty to the courts not to advance frivolous or untenable positions. Some scholars argue that even if the government attorney thinks that a law might be struck down, there is a duty to make sure that judicial review is afforded so that the state of the law is made clear.
Here is Orin Kerr on the implications of the Justice Department’s refusal to defend DOMA:
@Jenos Idanian: Yes. This court seems to have turned upside
down the Constitution where it states that powers not specifically spelled out to the Federal level are retained by the states. Based on their thinking, the people have no rights to amending their own states’ constitution. And we now have the dangerous precedents in which Gov. Brown and Obama choose not to defend laws. Even though the executive branch of state and Federal government is charged with enforcing the law even if they do not like it.
@PD Shaw:
All excellent points. Thanks so much for taking the time to respond so thoughtfully.
I definitely agree that California should have at least defended this law once at the federal level (or as with DOMA, allowed someone to argue the case in the place of the state).
I realize for California it isn’t as nice as a court decision but a referendum to repeal prop 8 still seems to be the best solution to saving the courts time and money on the issue of SMM.
I would blame Bush little for that, and I hated his administration. I’d apportion much more blame to Phil Gramm, Larry Summers, Robert Rubin, and Alan Greenspan. The last three were supposed to be experts, and they advised the politicians everything would be awesome. Because economics is roughly today where alchemy was in the 1700s. Alchemy eventually lead to chemistry, had some insights, but lots of ignorance and BS.
@Tyrell:
Again, please refer to — you know — actual legal experts before making statements that are as inaccurate as this. While this decision has a number of implications, this is really not one of them.
In fact, this ruling did everything within its power to avoid making any decision (one way or the other) akin to the one you are suggesting.
@Just Me: The Proposition is better because the underlying complaint is that even though civil unions have all of the same legal rights under California law, creating a new vehicle just for same-sex couples could only have been intended to stigmatize and publicly shame same-sex relationships. To the extent we are talking about intangible feelings of self-worth, I don’t think judges fix that, they are removed elites, I think a popular referendum fixes that.
@Matt Bernius: I appreciate your well written reply. There are
some states in which parents could sign for their child to marry, but at what age does that go to?
The state of Utah seems to be a place unto itself concerning this. There are groups there involved in both polygamy and under age marriage. Some have been prosecuted, but it appears the law steers clear of those cults in a lot of cases as it seems they have a lot of power and influence.
Actually, I just NEED to see an end to second class citizenship in America. There is a time for justice and liberty, and that time is always now. Not at some nebulous future date when a little pissant like you is ready to give the green light.
I have a friend who’s partner died last year. They were not able to marry. I have another friend who is battling cancer. He want’s to get married now, because he might not live long enough for the bigots to decide he can exercise his constitution right to equal protection.
@Tyrell:
A summary of what you are looking for can be found here: http://en.wikipedia.org/wiki/Child_marriage#United_States
Here’s the key information:
As noted, parents can provide consent for children to marry — however in most cases it appears that there needs to be a court review for younger children. This is a prime example of a regulated “right” — parents are able to enter into marriage contracts for their children — however those contracts are subject to state review.
This is entirely different than suggesting that this law somehow must lead to unregulated child marriage.
The rest of the wikipedia entry notes the complex legal findings around marrying children:
As for the polygamy thing, I’d suggest reading the wikipedia page for “Polygamy in the North America” which is pretty extensive:
http://en.wikipedia.org/wiki/Polygamy_in_North_America
Rather than seeing these decision as being about “power and influence” I would suggest that the law steers clear of these cults because dealing with them creates huge pains and often PR disasters (see Wako, the above Texas raid, etc). They often have proven to be far more trouble than they are worth.
@ Jenos
Heres a yes no question for you. If you could wave a magic wand and go back to the day before Obama took office and ruined everything, would you? Yes or no?
Keep in mind job losses were running in excess of 500K a month. last month we gained 175K jobs, the latest in a long string of monthly job gains.
Of course there are many other factors to consider (you know, the ones you pretended do not exist earlier in the thread) fully recovered stock market, rapidly recovering real estate market, foreign capital flowing back to the US, historic energy boom, and so on.
@Matt Bernius: I’m curious as to the reasoning behind this statement. Could you explain, please?
I’m specifically asking about why polyandry, not polygamy as a whole.
@Sam Malone: Shorter Mayday: I don’t like Prop 8, so it’s good that it was overturned. I do like the 13th Amendment, so it’s good that it stood.
Your preferences — or, for that matter, anyone’s — don’t apply. The two are perfectly analogous, and you won’t see that because… well, you’re an idiot.
I would have voted against Prop 8, but it did pass. I also didn’t vote for Obama, and that didn’t take, either.
You really are stuck at the “it all depends on whether I like it or not” mentality, aren’t you? You have absolutely no regard or understanding of procedure and the rule of law.
Just hang it up, Cliffy.
Jenos…your rants are amusing if ill-informed…but if you don’t like the Constitution and what it stands for … you should just join Snowden and Putin in Russia.
By the way Jenos…analogies are an effective means of communication; but by their very nature are imperfect.
Everything…absolutely everything you type is wrong…just plain wrong.
@Tyrell:
It will force any legislation against it to provide actual proof of negative effects instead of a banal “we don’t like it so you can’t do it”. In short, it forces Government to do its job properly.
And the Mohler piece is really “same old, same old”. The first half is a pointless dig at Kennedy, he then proceeds to laud Scalias foresight (without noticing that Scalia was not right because his argument had merit but simply because the proponents of DOMA didn’t find a single argument able to withstand rational, non-religious scrutiny in the intervening 10 years) and lastly makes a prediction about the onset of polygamy (which may be right but is, again, based on a complete misunderstanding of the central argument).
In total, a complete intellectual fail, albeit one that is good, if dry, reading.
@Sam Malone: OK, I reread your argument about why the 13th Amendment and Prop 8 were different.
Still an incredibly stupid argument, still boils down to “one was bad and one was good,” and no actual principles or consistent rules. But even your stupid argument is easily countered with a bit of advocatus diaboli: the 13th Amendment deprived a significant number of people of their rights to property, to wit slaves, as duly authorized by the Constitution.
By your rules, that seems to be a very valid argument. And one that held great sway in the slave states at the time.
Jenos…you don’t think that the expansion of individual rights…eg. abolishing slavery and providing for marriage equality…is a consistent principal that may be worth pursuing? They both are actually very Conservative ideals. And therein lies the problem with Republicanists like you who have forgotten, if you ever were even aware of, real Conservative principals.
So far Jenos you have argued for the enforcment of a un-constitutional law, the abridgement of the rights of gays, and now repealing the 13th Amendment. Why do you hate America so?
@ Sam Malone
“I was just following orders…”
Shorter Jay Tea/Jenos:
The majority is welcome to tyranny as long as they use it against people who annoy me.
Closure.
I’ve been trying to figure out why this latest ruling gives me such a bad taste in my mouth, and I think that’s it.
I doubt that I will ever be “for gay marriage”; that said, I think the US deserved better than this. If the Majority passes a constitutional ammendment, it can be overturned on a bare technicality — without any sort of closure? We deserve Closure.
Even if the court rules against us, we deserve to be heard.
It’s bad precedence at best. What would have happened if the federal government refused to uphold, say the 14th ammendment voting rights …
Oh, wait …
Right. You need “closure” far more that your fellow citizens need to live their lives as they see fit.
Tell me it did not take 87 comments for people to figure out that Jenos is dim.
Stand by for a screed from Jenos about how witty his “banter” is…
A lot of this type of argument is ignoring the actual history.
After Prop 8 passed it was challenged in federal court and defended by state officials. It was found to be in conflict with the US constitution.
After this decision California had an election for Governor and Atty General. One candidate for each office promised to appeal the decision and one candidate for each office promised not to appeal what they believed was a correct decision. The candidates who promised not to appeal won both offices.
State officials are obligated by their oath of office to defend both the US and the State constitution, and the US Constitution has primacy. A state official has an arguable responsibility to defend the state constitution against a charge that it is conflict with the US constitution, but if the official believes that the conflict exists, there is a higher responsibility to defend the US constitution. Certainly no official has any obligation to appeal a ruling that the conflict exists, when the official believes the ruling is correct.
I believe Jerry Brown was correct in his original argument that prop 8 should not have been allowed on the ballot. An amendment removing equal protection from a minority group should have been ruled a constitutional revision, which requires much more than a simple majority vote of the people.
@Sam Malone: Jenos…you don’t think that the expansion of individual rights…eg. abolishing slavery and providing for marriage equality…is a consistent principal that may be worth pursuing? They both are actually very Conservative ideals. And therein lies the problem with Republicanists like you who have forgotten, if you ever were even aware of, real Conservative principals.
Good god, your stupidity, it burns.
I’m not arguing the merits of the issues, but the methods. Do it the right way, it’s more likely to stand the test of time and be accepted. Do it the wrong way, you leave people pissed off AND set a precedent for ignoring the rules when you really, really, really want to and believe it’s for the greater good.
Your argument remains “as long as the cause is important enough, how it’s achieve doesn’t matter.” Repeating and emphasizing just how strongly you believe in the cause doesn’t change the basic matter. Hell, it just reinforces that you’re arguing your feelings, and believe that if you believe in something strong enough, that’s sufficient.
There’s a saying that you can’t persuade a fanatic, you can only convert them. And I don’t do that.
@Jenos Idanian:
Same sex marriage will stand the test of time just fine. Just like when the Supremes invalidated state laws against interracial marriage. Just like when the Supremes knocked down segregated schools. Ten years from now no one but your white-haired granny will still give a rat’s ass who marries who. No one will be arguing that it should be rolled back.
As for California and Prop 8, I can tell you that already no one gives a damn. The Mormon money is no longer involved and African-Americans have evolved along with Mr. Obama.
It’s a dead issue in California. We are relieved to no longer have that embarrassment hanging around our necks.
@michael reynolds:” Tell me it did not take 87 comments for people to figure out that Jenos is dim.”
I’m still waiting for Clavin to apologize to Jenos for being wrong; I’m probably the biggest idiot in the thread for thinking that could ever happen.
@michael reynolds: From your lips to God’s ears.
But your new rhetorical tactic is kind of interesting. I can best characterize it as “aggressive apathy.” You assert that an issue is over because “nobody cares.” Meaning, you don’t care, and nobody in their right mind (meaning, agrees with you) doesn’t care, either, so everyone should just shut up and let the issue die.
Obviously, that would be convenient as hell, but I don’t recall anyone ever electing you in charge of deciding what’s acceptable for investigation and discussion. But you always seem to be speaking in the plural. I’ll acknowledge that you’re a royal pain, but I doubt you’re entitled to the royal “we.” And I’ve always described your mental condition as sociopathic, not MPD, so that’s right out, too.
I stand where I always have: the best way to get gay marriage accepted is to give people on both sides their chances to make their cases, and trust the American people and the American system to get it right. When the opponents have their say and let the people decide in some fashion, it tends to be accepted a lot more smoothly.
@Jenos Idanian:
Dude, lemme ‘splain here.
First of all, I’m a professional writer. As in, I get paid lots of money to put words on paper. (Or pixels on screens.) Which is part of how I come to sound authoritative in print. It’s technique. It’s “voice.” It’s what I do.
But as it happens, I also speak that way in real life, to the eternal irritation of my wife, who is herself obviously a professional writer. (Newbery prize and all.) And what’s worse is I sounded this way long before I became a professional writer, way back when I was waiting tables and cleaning toilets. I speak extemporaneously in complete, well-constructed paragraphs. If you ever hear me say, “Um,” that’ll be acting. I just naturally sound like the voice of God. It’s my superpower. And you’ll never beat me because, again: superpower. There are so very many things I suck at, but I own words.
I’m aware that this irritates the sh!t out of some people. I don’t care, which is probably why it works. There’s great power in not giving a fwck whether people like you. And oddly enough, people generally do like me. You’d probably like me if we met. I’m told I’m quite charming. In Hollywood parlance, I’m, “Good in the room.”
Just between us, of the few remaining “conservatives” around here, you are the best of the bunch.
Now, see how that made you feel kinda warm and fuzzy? Don’t deny it, you know it’s true.
So then, everyone should have a say in how others live their lives.
Well, here at OTB, we have a lot of bright, accomplished, and successful people who think you probably should not be trusted with anything as complex as a pair of tweezers. What rights are you ready to give up?
For sure. Just look at how Rosa Parks, Brown v. Board of Education, and Ike sending in the troops failed. We still have segregated drinking fountains, blacks can’t sit at lunch counters, and the best bands only play on the chitlin circuit.
If black folks had just left it to Bull Connor & the klan to decide when the time was right, things would be better now.
@ Jenos….
I was wrong about the oddity in California law that allows people to make in-constitutional law part of that states constitution. A technicality that has given PD a chubby.
@Jenos Idanian: Agreed. Kevin Drum pointed this out.
@Jenos Idanian:
That technique is great for highway placement and energy policy. We have a long history, however, of allowing the tyranny of the majority to trample minority civil rights and there is no longer tolerance for any delay to allow people to “make their cases” when people with limited life spans are simply trying to achieve equality.
The bible-thumping bigots have lost this fight – and by doing it so badly, they may have lost the whole war. My hope is that this battle makes it harder and harder to ostracize minority groups over time, and people instead focus inward and do the work to be the best people they can be.
A guy can dream….
@PD Shaw:
It would be more reasonable to expect that if Jenos were to admit that he was incorrectly treating State Constitutions as being co-equal with the US Constitution (comparing Prop 8 with the 13th amendment). In substance Clavin was correct. If you treat the term Constitutional as a single entity, then people in a state can not make something constitutional by adopting an amendment to the state constitution. If it violates the US Constitution it is still unconstitutional.
@C. Clavin:
No, you were only wrong to use the faulty terminology Jenos introduced to the argument. Given that terminology you were right. Regardless of any state’s laws, adding an unconstitutional rule to the State constitution does nothing to make it constitutional, since it does nothing to modify the US constitution.
I have one other issue to address. The reason that Prop 8 can not be defended at the appellate level is that there is no appellant who can show they are harmed by the failure to enforce it. State officials could have appealed based on the harm to the initiative process, but they validly decided that the harm to equal protection was greater than the harm to the process.
If proposition 8 had any valid purpose then the proponents could have shown the harm to themselves of the failure to enforce this particular law. They were not able to do so. The fact that they were not able to do so was the basis for the district court decision that it failed even a rational basis test. The Supreme courts decision was not “just” a technicality, it was a silent confirmation of the district courts finding (though not of all his reasoning). It does not set any dangerous precedent for the initiative process, because any law with any valid purpose will have appellants who can show some harm related to the actual initiative, rather than just to the initiative process.