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Author Topic:   Landmark gay marriage trial starts today in California
NoNukes
Inactive Member


Message 391 of 759 (702055)
06-29-2013 3:22 PM
Reply to: Message 388 by subbie
06-28-2013 7:52 PM


Re: Breaking news update
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

This message is a reply to:
 Message 388 by subbie, posted 06-28-2013 7:52 PM subbie has replied

Replies to this message:
 Message 392 by subbie, posted 06-29-2013 11:19 PM NoNukes has replied

  
subbie
Member (Idle past 1254 days)
Posts: 3509
Joined: 02-26-2006


Message 392 of 759 (702061)
06-29-2013 11:19 PM
Reply to: Message 391 by NoNukes
06-29-2013 3:22 PM


Re: Breaking news update
Well, since the state was the defendant, the lawsuit applies to the whole state, even though it's only a federal district court decision. Another district couldn't decide it a different way because if another suit were filed, it would be dismissed as res judicata.

Ridicule is the only weapon which can be used against unintelligible propositions. -- Thomas Jefferson
We see monsters where science shows us windmills. -- Phat
It has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate
Howling about evidence is a conversation stopper, and it never stops to think if the claim could possibly be true -- foreveryoung

This message is a reply to:
 Message 391 by NoNukes, posted 06-29-2013 3:22 PM NoNukes has replied

Replies to this message:
 Message 394 by NoNukes, posted 07-01-2013 11:29 AM subbie has seen this message but not replied

  
Dr Adequate
Member (Idle past 284 days)
Posts: 16113
Joined: 07-20-2006


Message 393 of 759 (702072)
06-30-2013 4:01 PM
Reply to: Message 390 by subbie
06-29-2013 1:31 PM


Re: Supreme Court punts
OK, that's fairly convincing.

This message is a reply to:
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NoNukes
Inactive Member


Message 394 of 759 (702098)
07-01-2013 11:29 AM
Reply to: Message 392 by subbie
06-29-2013 11:19 PM


Res judicata, maybe...
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:
But what about the county clerks in other counties, counties that weren’t named in the Proposition 8 lawsuit in Judge Walker’s court? If they feel bound by Judge Walker’s order, and none complains, then perhaps Proposition 8 will not be enforced at all, and marriage will be available to all qualified same-sex couples in the state.
Yet, there are a few wrinkles here. First, some individual who supports Proposition 8 might sue one of these county clerks and ask a court to clarify that Judge Walker’s injunction does not apply to that clerk. The plaintiff here might argue that the clerk in question is not bound by Judge Walker’s injunction because he, the clerk, was not a party to that lawsuit and is not under the control or supervision (the term Judge Walker used) of any of the parties (such as the Governor.) Any such suit would probably be brought in state court, because it’s not obvious who would have standing in federal court to object to a clerk’s issuing of same-sex marriage licenses.
For Marriage Advocates, a Day to Celebrate | The Recorder
quote:
Some law professors said Wednesday it could reasonably be argued that the injunction only applies to Alameda and Los Angeles counties, the legal entities that denied the couples marriage licenses. "I'm not saying it's a winning argument," said UC-Hastings civil procedure expert David Levine. "But it's not frivolous by any means."
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

This message is a reply to:
 Message 392 by subbie, posted 06-29-2013 11:19 PM subbie has seen this message but not replied

Replies to this message:
 Message 395 by dwise1, posted 07-01-2013 3:09 PM NoNukes has replied
 Message 396 by AZPaul3, posted 07-01-2013 5:53 PM NoNukes has replied

  
dwise1
Member
Posts: 5930
Joined: 05-02-2006
Member Rating: 5.8


Message 395 of 759 (702111)
07-01-2013 3:09 PM
Reply to: Message 394 by NoNukes
07-01-2013 11:29 AM


Re: Res judicata, maybe...
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, and the US Supreme Court returned it to the appellate court. What current California law is left for the opponents of marriage equality to use?

This message is a reply to:
 Message 394 by NoNukes, posted 07-01-2013 11:29 AM NoNukes has replied

Replies to this message:
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AZPaul3
Member
Posts: 8513
From: Phoenix
Joined: 11-06-2006
Member Rating: 5.3


(1)
Message 396 of 759 (702135)
07-01-2013 5:53 PM
Reply to: Message 394 by NoNukes
07-01-2013 11:29 AM


Re: Res judicata, maybe...
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.
The order from the Federal District Court (Northern District for California) specifically bars the official defendants from enforcing Prop 8 and further "directing the official defendants that all persons under their control or supervision" shall not enforce it.
The governor was named as an official defendant. Under California law the marriage laws are state laws and the county clerks act as "agents" of the state (stemming from the executive branch) in issuing licenses. Every official from state to county (as extensions of the Governor's executive powers) are now barred from enforcing Prop 8.
Missed this.
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.
I'm not understanding this. There has not been any state court action here. 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. The state system no longer has any say in this matter.
Edited by AZPaul3, : No reason given.

This message is a reply to:
 Message 394 by NoNukes, posted 07-01-2013 11:29 AM NoNukes has replied

Replies to this message:
 Message 402 by NoNukes, posted 07-02-2013 5:40 PM AZPaul3 has replied

  
subbie
Member (Idle past 1254 days)
Posts: 3509
Joined: 02-26-2006


Message 397 of 759 (702140)
07-01-2013 6:46 PM
Reply to: Message 395 by dwise1
07-01-2013 3:09 PM


Re: Res judicata, maybe...
...the appellate court upheld Judge Walker's ruling, and the US Supreme Court returned it to the appellate court.
Actually, the Supreme Court returned it to the Ninth Circuit with instructions to vacate their opinion. That means that the only opinion left in force is the District Court's. It is exactly as if the appeal had never happened.

Ridicule is the only weapon which can be used against unintelligible propositions. -- Thomas Jefferson
We see monsters where science shows us windmills. -- Phat
It has always struck me as odd that fundies devote so much time and effort into trying to find a naturalistic explanation for their mythical flood, while looking for magical explanations for things that actually happened. -- Dr. Adequate
Howling about evidence is a conversation stopper, and it never stops to think if the claim could possibly be true -- foreveryoung

This message is a reply to:
 Message 395 by dwise1, posted 07-01-2013 3:09 PM dwise1 has not replied

  
Minnemooseus
Member
Posts: 3941
From: Duluth, Minnesota, U.S. (West end of Lake Superior)
Joined: 11-11-2001
Member Rating: 10.0


Message 398 of 759 (702155)
07-01-2013 10:11 PM


Side note - Bill Clinton, DOMA, then and now
There was an interesting little thing over at "Dispatches from the Culture Wars"
The Chutzpah of Bill Clinton
Read there, including the comments, but the short version:
DOMA passed by House and Senate with 2/3+ majorities (veto override levels). Clinton thought it was a bad and unconstitutional law, but he signed it anyway, and then defended it. But did DOMA passage derail what could have been an anti-gay marriage constitutional amendment? Something bad that stopped something even worse?
See the stuff at the link.
Moose

Professor, geology, Whatsamatta U
Evolution - Changes in the environment, caused by the interactions of the components of the environment.
"Do not meddle in the affairs of cats, for they are subtle and will piss on your computer." - Bruce Graham
"The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness." - John Kenneth Galbraith
"Yesterday on Fox News, commentator Glenn Beck said that he believes President Obama is a racist. To be fair, every time you watch Glenn Beck, it does get a little easier to hate white people." - Conan O'Brien
"I know a little about a lot of things, and a lot about a few things, but I'm highly ignorant about everything." - Moose

Replies to this message:
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AZPaul3
Member
Posts: 8513
From: Phoenix
Joined: 11-06-2006
Member Rating: 5.3


Message 399 of 759 (702163)
07-01-2013 11:58 PM
Reply to: Message 398 by Minnemooseus
07-01-2013 10:11 PM


Re: Side note - Bill Clinton, DOMA, then and now
Now that is interesting. It gives a new power to the court's decision in Windsor.
In the Windsor case SCOTUS acknowledged very strongly that the states and only the states have the power to define marriage. Further, that any couple declared lawfully married by any state must be treated so for all purposes by all Federal systems.
The only way to overcome this now is by amendment taking that exclusive power away from the states. I cannot see the states accepting this diminution.
Edited by AZPaul3, : the usual

This message is a reply to:
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yenmor
Member (Idle past 3655 days)
Posts: 145
Joined: 07-01-2013


Message 400 of 759 (702174)
07-02-2013 1:54 AM
Reply to: Message 398 by Minnemooseus
07-01-2013 10:11 PM


Re: Side note - Bill Clinton, DOMA, then and now
Clinton could have gone all out and lost his second term. Which would have meant a republican would have won and we'd be set back by about 30 years in regard to gay rights issues. Bush was pretty tame about being anti-gay, and look how far back he managed to set the movement.
What Clinton did was strategic. And being strategic doesn't always make you look consistent.

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NoNukes
Inactive Member


Message 401 of 759 (702244)
07-02-2013 5:32 PM
Reply to: Message 395 by dwise1
07-01-2013 3:09 PM


Re: Res judicata, maybe...
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

This message is a reply to:
 Message 395 by dwise1, posted 07-01-2013 3:09 PM dwise1 has not replied

  
NoNukes
Inactive Member


Message 402 of 759 (702245)
07-02-2013 5:40 PM
Reply to: Message 396 by AZPaul3
07-01-2013 5:53 PM


Re: Res judicata, maybe...
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

This message is a reply to:
 Message 396 by AZPaul3, posted 07-01-2013 5:53 PM AZPaul3 has replied

Replies to this message:
 Message 403 by AZPaul3, posted 07-02-2013 6:51 PM NoNukes has replied

  
AZPaul3
Member
Posts: 8513
From: Phoenix
Joined: 11-06-2006
Member Rating: 5.3


Message 403 of 759 (702250)
07-02-2013 6:51 PM
Reply to: Message 402 by NoNukes
07-02-2013 5:40 PM


Re: Res judicata, maybe...
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.
So true. And keep in mind that, though vacated in effect, the 9th Circuit has already made its judgement known. The other three District Courts in California already know what will happen.
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.
If some Prop 8 proponents file suit in state court seeking to revive Prop 8 enforcement within the other three Federal Districts they will find that the State District court will dismiss since the issue is already in the Federal courts.
The only further action on this would be if the State takes a U-turn and decides to appeal the Northern District order back to the 9th Circuit.
I think this is a dead issue. Prop 8 is gone ... everywhere ... forever.

This message is a reply to:
 Message 402 by NoNukes, posted 07-02-2013 5:40 PM NoNukes has replied

Replies to this message:
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NoNukes
Inactive Member


Message 404 of 759 (702256)
07-02-2013 9:07 PM
Reply to: Message 403 by AZPaul3
07-02-2013 6:51 PM


Re: Res judicata, maybe...
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

This message is a reply to:
 Message 403 by AZPaul3, posted 07-02-2013 6:51 PM AZPaul3 has seen this message but not replied

  
Tempe 12ft Chicken
Member (Idle past 335 days)
Posts: 438
From: Tempe, Az.
Joined: 10-25-2012


Message 405 of 759 (702267)
07-03-2013 11:58 AM


How does the striking down of DOMA affect cities?
So, I have an interesting question about the results of the SCOTUS decision about DOMA.
First some background on what my question is exactly. I am in Arizona, a strong Red State, with no gay marriage allowed in our laws. However, recently we had a small older, hippie-esque, art community city called Bisbee pass an ordinance that same sex civil unions would be allowed in the city of Bisbee.
Source
Now, the Attorney General originally threatened to take legal action but has declined to do so instead. This means that the state Attorney General is going to allow same sex civil unions to occur in this city. Will the changes to DOMA take effect toward the individuals who receive a same sex civil union in the city of Bisbee or will the Federal Government rely upon the laws of the State of Arizona to determine whether or not to pay federal benefits to those with same sex civil unions? It seems like in this scenario the Federal Government can play the "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."

The theory of evolution by cumulative natural selection is the only theory we know of that is in principle capable of explaining the existence of organized complexity. - Richard Dawkins
Creationists make it sound as though a 'theory' is something you dreamt up after being drunk all night. - Issac Asimov
If you removed all the arteries, veins, & capillaries from a person’s body, and tied them end-to-endthe person will die. - Neil Degrasse Tyson
What would Buddha do? Nothing! What does the Buddhist terrorist do? Goes into the middle of the street, takes the gas, *pfft*, Self-Barbecue. The Christian and the Muslim on either side are yelling, "What the Fuck are you doing?" The Buddhist says, "Making you deal with your shit. - Robin Williams

Replies to this message:
 Message 406 by NoNukes, posted 07-03-2013 1:10 PM Tempe 12ft Chicken has replied
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