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Author | Topic: Landmark gay marriage trial starts today in California | |||||||||||||||||||||||
NoNukes Inactive Member |
The early analyses I've seen strongly suggest Kennedy wants to punt it. I think all of the Justices are seriously considering doing that. Once the state declined to defend its own law, the standing of any one to challenge the law is extremely suspect. The court has already taken on a replacement case. I have hopes that Chief Justice Brown[1] won't want to get on the wrong side of history, but I think it more likely that the Court will punt the case. Yet another landmark case today. This one challenging DOMA. This can be framed as a Feds vs. States case. What will Scalia-Thomas do with that? Footnote ABE: [1] Should be Chief Justice Roberts. Thanks ooh-child for the correction. Edited by NoNukes, : No reason given. Edited by NoNukes, : No reason given.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
Yes, I'm an idiot. Thank you.
Chief Justice Roberts. Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
The California Supreme Court, in response to a questions from the Ninth Circuit, specifically said that this group did have the authority under California law to represent the state on challenges to Prop 8. Ah, but California law regarding standing really does not matter. The Supreme Court must use federal rules for determining whether the parties involved had standing and to determine whether there is a justiciable controversy. California's ruling on the question of standing is interesting, but irrelevant to the case at the SC. The Supreme Court literally does not have the authority to decide cases where there is no standing under federal law. Scalia and crew are also powerless to overturn a California court ruling on issues that do not involve federal law. It's a close question, but I think the SC ruling that there was no standing is consistent with their past rulings. Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
The state of California has standing to defend any law challenged as unconstitutional. The only question is whether the parties to this case have the authority to represent California in this proceeding. I'm not disputing whether California law allows . In order to challenge the California ruling in federal Court, you must have standing to be in federal court. No federal standing means no valid appeal.
Who has authority to represent the state's interests is a question of state law. Your premise is simply wrong. California law cannot subvert federal law. In an appeal in federal court, standing is a matter of federal law, not state law. I'm always ready to point out Scalia's gobbledygook, but he didn't actually write the opinion this time. Roberts did. Scalia agreed, but so did Ginsburg, Breyer, and Kagan. I agree that it is a close question, and the four Justices in the minority agree with you. What undermines standing for me is my belief that ultimately the parties were just ordinary citizens and the general electorate suffers no injury when the rights of another person are vindicated. This is particularly the case for the right to marry. The citizens' recourse in this matter to elect officials who will support proposition 8 if that is what the majority wants.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
However, it is also well-settled that the state has standing to appeal any decision declaring any portion of its constitution unconstitutional. Do you agree with this? Sure. I agree with that.
Question 2: Who has the authority to represent the state? This is a question of state law. Here I disagree. Standing before the federal court is simply not a question of state law. If the governor, or his designee (say the state attorney general) or says that citizen Y can represent the state, that's would pose a much closer question. But in this case we have something different. We have a CA court saying that some ordinary citizens can represent California. Well it turns out that for federal standing, the California court was incorrect. Ordinary citizen Y does not represent California for the purpose of pursuing a matter in federal court, they only represent themselves.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
Standing in federal court is and always will be a question of federal law for federal courts to construe. However, the identity of the person or persons that a state designates to represent its interests is a question of state law. You are simply asserting the point that is in dispute and are repeating the same argument as if it has not been responded to. I'll respond with a two fold argument. 1. I don't doubt that California officials could designate someone to represent its interest, but that's not exactly what happened here. A CA court simply ruled that the defendant's represented California. Well federal law does not allow that option. It is particularly farcial because the CA executives refused to defend the law. Under those circumstance, where does a CA court derive the ability to circumvent federal law. 2. The federal rules still apply. Just as the state cannot force the Supreme Court to accept a disbarred attorney as their chosen representative, the state cannot circumvent federal standing rules by designating an ineligible party as their representative. Regardless of what the CA Supreme Court said, it was pretty clear that at best the parties represented part of the electorate, but the electorate is NOT the state. The state is represented by CA executive and legislative branch, and neither of those parties picked someone to represent them.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
As I write this, same sex marriages in California have resumed. Good. I'm curious about the state of the law in CA from an academic standpoint. As I understand it, there is only a state district court decision that prop 8 is unconstitutional. What is the state of the law in every other CA state district? What happens if a different district court rules differently?Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
Another district couldn't decide it a different way because if another suit were filed, it would be dismissed as res judicata. I disagree. I don't think it is clear that res judicata applies. For one thing, the state need not be the defendant. The original defendants were county officials plus the governor and attorney general. The plaintiffs were one set of citizens. The state may or may not intervene to defend the constitutionality of the law, but it is not clear to me that either claim or issue preclusion would prevent a California citizen from suing a different county official in California courts as long as that count official were not subject to the jurisdiction of the original court. After all, there are no appellate rulings yet. And let's say that the new district court rules similar to the first state court. The plaintiff would have the option of appealing to the CA state supreme court rather than to the 9th circuit. In fact, all we really know is that the plaintiff cannot appeal to a federal court. The US Supreme Court of course would not take an appeal. And that is not just my opinion. If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? | Vikram David Amar | Verdict | Legal Analysis and Commentary from Justia
quote: For Marriage Advocates, a Day to Celebrate | The Recorder
quote: Edited by NoNukes, : No reason given.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
But on what grounds would they sue if Prop 8 has been struck down? As I understand it, Judge Walker ruled Prop 8 to be unconstitutional thus striking it down, the appellate court upheld Judge Walker's ruling, The appellate decision is vacated. What is left is a district court decision that does not necessarily apply to the entire state of California. ABE: Correction. I erred in saying that the litigation started in state court. Edited by NoNukes, : No reason given. Edited by NoNukes, : No reason given.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
The original suit was brought to the Federal District Court. Any other suit seeking to overturn the Federal injunction ordered would need to be brought to the Federal courts. Yes, you are right. The original suit was in federal court. Any future suit brought by ordinary citizens would have to be in state court since there is no federal standing. The issue is that US district courts can only issue rulings that bind parties that are subject to its jurisdiction. The rulings of a district are not binding precedent even in the same jurisdiction; in completely different jurisdictions between completely different parties, it is of only persuasive authority.
. Under California law the marriage laws are state laws and the county clerks act as "agents" of the state The sources I've look at seem to think that's at least an open issue. I agree that if the county clerks are bound to be agents of the state, then res judicata would end the dispute. Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
I may get surprised but I cannot see where any state court action can affect this in any way. If some clerk in the Eastern Federal District decides to not issue a license the couple files suit in that Federal court, not the State court. This is, after all, a Federal Constitutional issue. State courts can and do rule on decide federal constitution issues. In fact, state courts can rule on any issue except for those that are reserved only for federal subject matter jurisdiction. Those decisions can usually be appealed to federal court, but the plaintiffs have the option to start in state court. The scenario I have in mind is some group of ordinary citizens seeking to enjoin a county clerk from issuing marriage licenses using a local state court. But in reflecting on the issue, I see that there is no barrier to the sued party appealing any decision to the 9th circuit. It is only the citizens group that lacks standing to appeal. Looks like I made much ado about nothing. Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
Well, the State law says it is not okay, therefore no Federal benefits are required to be given to those with same-sex civil unions in the town of Bisbee." I think that's a great question. I would suggest that until Congress does something about the law, the executive branch has a substantial amount of latitude in responding to what the Supreme Court has done. Marital status affects an enormous number of things (e.g. immigration law, tax law, social security benefits, federal health and survivor benefits, tons of military benefits) I expect that Congress won't be happy with the executive branch having that kind of power and will legislate in this area pretty quickly. Meanwhile, I can imagine that in some cases, but not all cases, showing a valid marriage license will be enough to access federal benefits. The answer might well depend on what the president and his cabinet folk want the answer to be. ABE:Civil unions are most likely not quite marriages under federal law. My answer does not take that into account. And my state is redder than yours on this issue. NC's constitution prevents recognition of gay marriage or civil unions. And then there is this:EvC Forum: Login quote: Note here that the state prohibition on gays to marry created a situation where denying state benefits to unmarried gay couples was found to be discriminatory. How blue is that?? . Edited by NoNukes, : No reason given. Edited by NoNukes, : No reason given.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
So, with the prior case decisions, it is only a matter of time before marriage equality becomes the normal in America, which is definitely a good thing because it removes one more layer of the bigotry many nations still hold on to. Do you see the change in culture occurring extremely rapidly now or will it still take a good amount of time for the full change to occur? In some states, like NC and AZ, where there is a constitution provision against gay marriage as well as an electorate that wants it that way, I don't see a rapid path away from bigotry.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
I think I would have to look into how the Federal Government sees Civil Unions. Well, from what I could find quickly DOMA did specify against civil unions so, I would think that these cases would also apply to the newly available Federal benefits Arguably, the part of DOMA that was overruled seems to have applied only to marriages unless a state defines their civil unions to be marriages. I don't know if any state does that, but it is difficult to imagine a state that does not allow gay marriage doing that.
quote: On the other hand, the part of DOMA that was not overruled applies to any relationship "treated as a marriage". In my opinion, the in force part of DOMA is much more clearly unconstitutional than was the part that was overruled.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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NoNukes Inactive Member |
hat of the ruling on interracial marriage in Loving v. Virginia? How did that play out in all the other state The Supreme Court has the power to make a Loving v Virginia ruling that would end the sorry current state of affairs. I simply have difficulty believing they will do so, or that the makeup of the court is likely to change favorably any time soon. Edited by NoNukes, : No reason given.Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846) I would say here something that was heard from an ecclesiastic of the most eminent degree; ‘That the intention of the Holy Ghost is to teach us how one goes to heaven, not how the heaven goes.’ Galileo Galilei 1615. If there is no struggle, there is no progress. Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning. Frederick Douglass
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