Post subject: Re: Prop 8 Struck Down in Federal Court
Posted: Tue Aug 10, 2010 2:32 am
Of Counsel
Joined: Sun Oct 17, 2004 1:14 am Posts: 37778 Location: OmaGOD!!! Gender: Male
Chris_H_2 wrote:
Also, another thing that bothered me was the Judge's dicta that the 7,000,000 people that voted for Prop 8 were largely motivated by bigotry or ignorance. To be sure, I'm fine with the outcome. But this statement by a gay judge, without the electorate testifying, caused me to question why the judge felt the need to include it.
Isn't it more accurate to say that the judge was looking for a rational basis (ANY rational basis) for the denial of gay marriages, and finding none, by process of elimination, determined the voters' motivations were largely bigotry or ignorance, especially since the motivations of the proponents were demonstrated to be bigotry and the promotion of ignorance?
_________________ Unfortunately, at the Dawning of the Age of Aquarius, the Flower Children jerked off and went back to sleep.
Motion To Stay Prop 8 Ruling Denied; Stay Will Lift Next Week Rachel Slajda | August 12, 2010, 3:42PM
A federal judge in California today lifted his stay on same-sex marriages, effective Aug. 18 at 5 p.m. Pacific time.
Judge Vaughn Walker ruled last week that Proposition 8, which defined marriage in California as heterosexual, is unconstitutional. He issued a temporary stay -- meaning same-sex couples can't get married yet -- and today ruled that his stay will continue until next Wednesday. After that, gay couples will be able to marry in California.
That is, unless the Ninth Circuit Court of Appeals, the court which will hear the appeal of Prop 8 supporters, issues its own stay in the meantime.
"Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner," Walker wrote in his ruling.
Post subject: Re: Prop 8 Struck Down in Federal Court
Posted: Thu Aug 12, 2010 8:06 pm
Of Counsel
Joined: Sun Oct 17, 2004 1:14 am Posts: 37778 Location: OmaGOD!!! Gender: Male
The opinion is really a beautiful thing to read. In addition to shooting down any idea that proponents a) have a likelihood of success upon appeal, and b) will suffer ANY harm at all absent a stay, the judge also adequately addresses the standing issue, and gave a very damning analysis that shows that proponents, absent a named defendant joining in an appeal, will probably not even have standing to appeal the case.
No half-measures from this judge. He is just 100% on the money on every detail and question surrounding gay marriage bans. The world needed this.
_________________ Unfortunately, at the Dawning of the Age of Aquarius, the Flower Children jerked off and went back to sleep.
Monday, August 09, 2010 Ballot Initiative Sponsor Standing
In my latest FindLaw column I consider the possibility of backlash against Judge Walker's ruling in Perry v. Schwarzenegger. Although I basically agree with Judge Walker on the merits, I nonetheless remain quite nervous about this case getting to the SCOTUS too early: Either we'll lose and lock in a bad decision for a decade or more, or we'll win and risk a constitutional amendment. I don't say that backlash is inevitable but I do think the risk is real.
I note briefly in the column that Judge Walker had one way to avoid a decision on the merits: He could have held that there was no live case or controversy. The key state defendants declined to defend Prop 8, but Judge Walker permitted Prop 8's sponsors to intervene to do so. Yet that decision was dubious in light of Arizonans for Official English v. Arizona. Speaking for a unanimous Court there, Justice Ginsburg expressed "grave doubts" about the Article III standing of the sponsors of a ballot initiative to defend it when its constitutionality is challenged.
Here I want to express some of my own doubts about the Supreme Court's doubts. To translate, I think that the 9th Circuit was right in allowing a ballot initiative's sponsors to have standing to defend it when the relevant govt officials refuse to defend it. In the interest of full disclosure, I should say that I was a law clerk to 9th Cir Judge Stephen Reinhardt when he wrote the decision finding such standing, and about which Justice Ginsburg expressed her grave doubts.
I am not a big fan of ballot initiatives, but if a state permits them it is typically because of a preference for direct democracy over republicanism. The risk in the latter is that elected officials do not identify the common good sufficiently closely with public opinion. (Again, I think that this is a virtue of republicanism, but the premise of the ballot initiative process is contrary.) The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will. Thus, when elected officials decline to defend a ballot initiative in court, they are directly frustrating the whole point of the ballot initiative process. Perhaps that is their prerogative, but if so, it makes sense for someone else to come in to defend the ballot initiative's constitutionality.
To my mind, this situation is closely analogous to the one the Court faced in Dickerson v. United States. There, the appeals court had sustained the defendant's conviction on the ground that a federal statute had overruled the Miranda decision. The Clinton Justice Dep't declined to defend the statute, and so the Supreme Court appointed a leading academic critic of Miranda to do so. True, there was a technical difference: The U.S. continued to be a party, arguing that even under Miranda, the defendant's conviction should be affirmed. But the only real contested issue in the SCOTUS--and the issue the Court took the case to decide--was the constitutionality of the statute.
Modern standing doctrine was more or less made up about 40 years ago. The underlying textual basis for it--the requirement that there be a "case" or "controversy"--seems readily satisfied by a contest pitting people who want to challenge a law's constitutionality against the sponsors of the ballot initiative that led to the law's enactment.
So to recap: I agree with Judge Walker on the merits; I also think that given the stakes, perhaps he should have tried to duck the merits; given what the SCOTUS said in Arizonans for Official English, he could have ducked by finding no standing for the sponsors of Prop 8; but I also think that the dicta in Arizonans for Official English is wrong (to the extent that mere grave doubts can be wrong).
_________________ Unfortunately, at the Dawning of the Age of Aquarius, the Flower Children jerked off and went back to sleep.
Post subject: Re: Prop 8 Struck Down in Federal Court
Posted: Wed Feb 23, 2011 7:09 pm
Got Some
Joined: Sat Jul 29, 2006 7:04 pm Posts: 1875 Location: Atlanta, SE of Disorder Gender: Male
As good as thread as any put this headline:
Justice Department will no longer defend DOMA in legal challenges By: CNN Wire Staff
Washington (CNN)– President Barack Obama has ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which defines marriage as only between a man and woman, according to a statement Wednesday from Attorney General Eric Holder.
"The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Holder said.
The key provisions in the law "fails to meet that standard and is therefore unconstitutional."
"Given that conclusion, the president has instructed the (Justice Department) not to defend the statute" in two pending cases in New York state, Holder said. "I fully concur with the president's determination." ---------------
One way or the other I think the gay marriage question will be one that will ultimately be decided by the Supreme Court.
_________________ From under my lone palm i can look out on the day
Key Proposition 8 Ruling Expected Tomorrow By Steve Clemons
Feb 6 2012, 1:57 PM ET
The 9th Circuit Court has just issued a release that it expects the Court to file an opinion tomorrow morning at 10:00 am in the case of "Perry v. Brown" (case numbers 10-16696 and 11-16577) regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgment in the case.
The release says that "A summary of the opinion prepared by court staff will be posted along with the opinion."
Here is a pretty good backgrounder on the legal back-and-forth that has taken place since the passage of California's Proposition 8 which made the following line part of California's Constitution: "only marriage between a man and a woman is valid or recognized in California."
Because this proposition would take away rights previously granted to those who married under California's marriage laws which for a window of time recognized same sex marriages, the law was later declared unconstitutional by a panel of judges. In an appeal, parties supportive of Proposition 8 then challenged that US District Court Judge Vaughn Walker, who is himself gay, should have recused himself in the judgment.
So, tomorrow's decision should clarify whether Vaughn Walker was in the right or wrong in participating in a judgment on this case.
10:00 am PST -- should be interesting.
It should be noted that of the three judges that were assigned to this case on the Ninth Circuit, one of them is Stephen Reinhardt, who has long been assigned by the right wing as a boogeyman of theirs. Just for my curiosity, I'm also interested in how another assigned judge, N Randy Smith of Idaho, will side in this case.
Also, looking back at this thread I might have some comments about the case that PD posted a while back. I'll likely wait until after this opinion gets released, though.
Post subject: Re: Prop 8 Struck Down in Federal Court
Posted: Tue Feb 07, 2012 5:38 pm
Administrator
Joined: Sat Oct 16, 2004 10:53 pm Posts: 20537 Location: The City Of Trees
Everyone just crashed the Ninth Circuit's website looking for the ruling, but it appears that they affirmed Walker's ruling of finding Prop 8 unconstitutional.
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