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.
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.
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.
The rulings of a district are not binding precedent even in the same jurisdiction; in completely different jurisdictions between completely different parties, it is of only persuasive authority.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.
Re: How does the striking down of DOMA affect cities?
So, if this turns out to be the case then individuals in same sex marriages in cities that are in states that do not recognize these marriages should still be able to have their Federal rights, if not State rights?
The Windsor decision reiterated that only the states, not the federal government, have the power to define marriage. Regardless of what happens in Bisbee the state of Arizona does not recognize same-sex marriage. Therefore gay couples in Arizona cannot apply for Federal benefits as married couples would. Federal benefits, as far as I know, do not extend to civil unions in the same way as they do to marriage thus the equal protection argument for "marriage" in Windsor against DOMA.
The Federal government can still treat marriage differently from civil unions and domestic partnerships. What the Feds can no longer do is treat "married" as defined in one state different than married as defined in another state. This puts, in Federal eyes, all California married couples (including gay) on an equal footing with Arizona's hetero-only married couples.
Re: How does the striking down of DOMA affect cities?
Wasn't that the whole reason the term Civil Union was coined, so the states could call it something other than marriage, but give same-sex partners the same state rights?
Somewhat, yes, since at the time, early 2000, no one wanted to allow gay marriage. Depending on the state different property rights attach to civil unions than to marriage. I'm no sure about other rights, priviledges, obligations vis-a-vis marriage which will very state by state. Today, in states that allow same-sex marriage, civil unions are no longer needed.
In Arizona, we don't even have civil unions. If you're gay, you stay "single" or move to another state.
Won't that run into a legal issue now that they can get state, but not Federal? Especially because the entire talking point of "You get everything they get from us" is no longer true?
You can see it coming. If a state allows civil unions but not gay marriage then a case can be made that this distinction is made to discriminate against gays. The same 14th Amendment issue could be argued. The California Prop 8 case, Hollingsworth v Perry, sets a precedent such states will find difficult to overcome. If they now allow civil unions expect them to allow same-sex marriage in its place right soon.
Arizona, and a few others, that do not allow gay marriage AND have no civil union/domestic partnership laws are a totally different matter. If the state has every right to define "marriage" in accordance with its own values and customs, can a federal court compel the state to allow same-sex marriage? Windsor says only the state can define marriage, not the federal government, and that includes the courts. Interesting isn't it?
In Hollingsworth the district court said the California Constitutional Amendment banning same-sex marriage violated 14th Amendment rights.
Arizona's Constitution contains a similar amendment. Keep in mind that we, as well, are in the 9th Circuit and, even though their judgement was vacated, we have a real good idea what will happen if when suit comes to the Arizona District court.
So that kinda answers my question above. Yeah, the Federal courts can force a state to define "marriage" any way it wants.
What of the ruling on interracial marriage in Loving v. Virginia? How did that play out in all the other states?
The last of the Anti-miscegenation laws was repealed in 2001 in Alabama. 35 years. Of course it hadn't been enforced since 1967 but bigotry dies hard and we still ain't there yet vis-a-vis race.
For the Big Bird of Tempe:
I'm with NoNukes on this one.
I do not think a Loving like ruling from SCOTUS should be expected anytime soon. I think the Hollingsworth decision from the district court in California is the more important decision for the gay movement since it sets the precedent of using the 14th Amendment argument against the anti-gay laws and state amendments.
I would expect a rash of suits in Federal District courts over the next couple years. It will take awhile for these to bubble up to SCOTUS. Who knows the composition of the court then?
If you believe in the societal-shaping powers of SCOTUS over generations as I do then our grandchildren, or in my case great-grandchildren, will see the end of the legal stops to gay marriage. The bigotry, however, will go on for many generations yet.
It appears they will be taking the same route as the plaintiffs in the California case, by claiming that the ban on same sex marriage is unconstitutional because it breaches the Fourteenth Amendment and it's equal protection.
The gates are open. Here come the water.
By the way, how many of these lawsuits do you think will be backed by the ACLU? I know they are the fighters for equality in many instances, but will they take up all of the cases?
It depends on the local ACLU council. Each local council is free to pursue those cases it desires. Depending upon the local resources a case under consideration may be kicked up to the national council.
In a lot of these kinds of cases the ACLU loves to become involved because it's what the ACLU does. In addition to enhancing their public stature these folks are quite adamant about protecting constitutional rights, especially where some minority or unpopular people are being trampled by the state. There are too many examples to cite but one of my favorites was when the ACLU filed suit on behalf of the American Nazi Party seeking their right to peacefully demonstrate and march in Skokie, Illinois, a predominately jewish community in the Chicago area. Up to SCOTUS and they won. You can expect to see the ACLU involved in a number of these suits about to come flooding in.
Depending upon the plaintiffs and the local community, some other local or regional right's group may lead and fund the case. The California suite was brought to the Federal District Court by an organization put together specifically for this suit. They went out and raised the funds, hired the attorneys and funded the entire action.
I haven't heard about any actions contemplated in Arizona. This, it seems to me, would be one of the prime places to hit.
"Ones with whom we vehemently disagree" at one time might have included ...
... different political platforms.
But not nazis or any other political philosophy you find to be bad.
... about forms of church services, ...
But not Islam or any other denomination you find to be bad.
Now it applies to murderers, rapists, child molesters, etc.
Really? Where? Show me. Give me an example.
Do you repudiate an accused's right to the presumption of innocence? Do you repudiate an accused's right to council? Do you repudiate an accused's right to a jury trial? Do you repudiate an accused's right to not be tortured?
The ACLU will defend these rights regardless of the charged offense. Whether you're an embezzler or a baby-raping priest these rights are there and need to be defended.
NAMBLA yet, you know, the "right" of gay men to molest little boys?
The ACLU does not defend the "right" of gay men to molest little boys. That is your bullshit.
What the ACLU defends is NAMBLA's right to speak, as abhorrent as it is. To have a web site where they discuss their ugly philosophy. Only a defense attorney defends the molester and he does that by saying "he didn't do it."
The right defended is "freedom of political speech," not molestation.
Is there nobody here that gets this point, are you ALL twisted?
You do not get the point, do you! To you constitutional rights are only for those you think are worthy. Maybe I should be in charge and find your violent, bloody religion to be not worthy.
The ACLU defended the right to free political speech, not any right of the NAZIs to burn jews. Only by hearing the NAZIs spew their garbage can society abhor and reject their philosophy. That is what "freedom of speech" is all about. And the ACLU defends it at every turn.
quote:The only rights we have are the ones we can defend. When we cannot defend these rights for the least of us, for the ones with whom we vehemently disagree, then we ourselves have no rights.
With all its talk of original sin, hell, lake of fire, the bloodshed you hope to see one day in Revelations, plus your god's history of murdering innocent civilians, non-combatant women and children, ethnic cleansing writ large, not to mention the wholesale slaughter of the population of an entire planet, then you must feel that there can be no right to "free speech" for this criminal and sociopathic sort nor for the adherents of such a vile, sick and demented philosophy.
Edited by AZPaul3, : No reason given.
Edited by AZPaul3, : I'll get it right, eventually.
Even if the whole society says it's OK a child is going to know there's something wrong with the situation.
No, that is a lie. Something you made up.
Actually I think there is quite a bit of truth to this.
If our society sanctioned gay parentage we would still have entire communities of religious bigots rubbing the childrens' young innocent faces in the mud telling them their "parents" are sinners and that they are all going to burn in hell because they are not normal.
That will certainly give a child pause.
If the christian bigots would practice their creed and treat all the little ones with the love they deserve then there would be no sad little faces being taunted by christian bullies in the schoolyard.
So Faith is correct. The poor children will have concerns because the christians will keep throwing stones at them.