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As most Kossacks know, marriage equality is before the U.S. Supreme Court today (and tomorrow); today's case is the challenge to California's anti-gay Proposition 8. Press accounts have described several different decisions that the Court could reach in the case; one common sentiment goes like this (here, in the words of Robert Barnes' WaPo primer this morning):

A panel of the U.S. Court of Appeals for the 9th Circuit ruled for the couples [challenging Prop 8] more narrowly. It said that once California had extended the right to marry — about 18,000 same-sex couples wed before Prop 8 was approved — it could not be withdrawn.

The U.S. Supreme Court’s affirmation of that decision would limit the impact to California.

I'm writing this diary because that final sentence--though you can find a version of it in just about every discussion of Prop 8 in front of the Supremes--is wrong. Flat wrong. An affirmation of the Ninth Circuit decision would absolutely not "limit the impact to California."

An explanation why is after the jump.

Again, most Kossacks know the background of today's case: in May 2008, the California Supreme Court issued a decision (In re Marriage Cases) holding that refusing civil marriage to same-sex couples violated the state constitution. Anti-gay forces responded with the infamous Proposition 8, an amendment to the California Constitution that provides that "only marriage between a man and a woman is valid or recognized in California." California's voters passed Proposition 8 by a 52.2%-to-47.8% margin in the November 2008 general election.

Lawsuits quickly commenced; after the California Supreme Court refused to invalidate Prop 8, a federal lawsuit filed by two married same-sex couples resulted in the federal district court for the Northern District of California ruling, in broad terms, that Prop 8 violated the Due Process and Equal Protection clauses of the U.S. Constitution.

Defenders of Prop 8 appealed to the Ninth Circuit Court of Appeals, which affirmed the district court's ruling (in a 2-1 split decision) on narrower grounds, and very interesting ones. Writing for the majority was Ninth Circuit Judge Stephen Reinhardt, a jurist known to atheists like yours truly as the judge who wrote the opinion holding that it violates the Establishment Clause for public-school officials to lead students in recitation of the version of the Pledge of Allegiance that was marred in the 1950s with the insertion of the phrase "under God." Reinhardt's majority decision declared that there was no need to reach the broader issue of whether bans on same-sex marriage violated the U.S. Constitution, because the history of Prop 8 included an additional fact: the proposition represented not just a ban on same-sex marriage, but the removal of a same-sex marriage right that had already been granted. Reinhardt, writing for the majority, held that even if the U.S. Constitution doesn't prevent states from banning gay marriage in the first instance (a question he loudly declared he was not answering), it does ban them from taking away a right to gay marriage that already exists.

As many observers have noted, Reinhardt's strategy here appears fiendishly clever: his entire "you can't take the right away" argument is founded on Romer v. Evans, a 1996 U.S. Supreme Court decision (which, until at least 2003, was the greatest gay-rights victory in Supreme Court history) holding that states couldn't pass laws barring local governments from including GLBTs in their anti-discrimination ordinances. The notably clever part of the strategy is that Romer was a decision written by Justice Anthony Kennedy, who is widely believed to be the swing justice in the Prop 8 case, among many other cases before the Supremes.

So: Reinhardt's hope, quite clearly, is that he was providing Kennedy, and thus the Supreme Court, with a narrower platform for striking down Prop 8 that wouldn't require the Court to mandate marriage equality nationwide.

Which leads us to the widespread error committed by the WaPo's Barnes (quoted above), among so many others--such as Adam Liptak in today's NYT:

The [C]ourt could also adopt a rationale that would apply only to California along the lines of the one endorsed by the Ninth Circuit.
But again, this just isn't true. If the Supreme Court adopts Reinhardt's "No Take-Backs" rule as an authoritative interpretation of the Constitution, that will have immediate implications far beyond California. Commentators who paint this outcome as something that would affect California alone just aren't thinking very hard about how the marriage-equality movement is currently going.

-    -    -

As is well known, there are currently nine states that have recognized full marriage equality, plus five more that allow same-sex "civil unions" and four that provide some variety of domestic-partnership rights. (California is currently in the third group, because the lower-court decisions in the Prop 8 case have been stayed pending the Supreme Court decision.) Here is a nice map created by the folks at Talking Points Memo showing the "state of the states" with regard to marriage equality.

If the Supreme Court affirms both the outcome and the rationale of the Ninth Circuit's decision, that will indeed be the death knell for Prop 8--but it will also make it impossible, for the foreseeable future (and probably forever), for the seventeen other states with some form of legal recognition of same-sex couples to take that away. Maine, Maryland and Washington State just affirmed marriage equality at the ballot box in 2012; if Reinhardt's legal analysis is adopted by the Supremes, those states' decisions will become permanent and irrevocable.

The state besides California in which a simple affirmation of the Ninth Circuit decision would have the most significant immediate effect, I think, is Iowa. Iowa is currently the only one of the nine marriage-equality states that isn't on a coast (my apologies, Vermont!) within ninety miles of an ocean; it also holds the unhappy distinction of being the marriage-equality state in which marriage equality is least popular. A 2010 poll (cited in an NYT article here) found that only 44 percent of Iowans support allowing same-sex marriage. That number has risen since, but I don't believe Iowa has jumped past any of the eight other marriage-equality states over that time.

Marriage equality exists in Iowa thanks to Varnum v. Brien, a 2009 decision in which the Iowa Supreme Court unanimously (!) held that state law barring same-sex marriage violated the equal protection clause of the Iowa Constitution. As anyone who has watched Republican presidential caucuses knows, however, Iowa is home to a significant number of severely right-wing voters, including plenty of theocons who have pushed candidates like Mike Huckabee and Rick Santorum to caucus victories there.

That sector of the state electorate did not take kindly to the Varnum decision; since 2009, right-wing (mostly religious) organizations, backed by the odious National Organization for Marriage, have pushed hard to turn the justices who issued it out of office, with an eye toward eventually reversing Varnum and re-establishing the ban on same-sex marriage. In the 2010 election, these forces succeeded in defeating three of the seven Varnum justices. A fourth won his retention election in 2012, and the remaining three are up for theirs in 2016.

Into this milieu, now, comes the U.S. Supreme Court and the Prop 8 case. If the Supremes adopt Judge Reinhardt's "No Take-Backs" rule, NOM and its Iowa cohorts might as well pack up their anti-gay garbage and go home: Varnum could then never be overturned. (More precisely, in order to overturn it they'd need to either (1) swing the U.S. Supreme Court even further right with future appointments and then overturn the Prop 8 decision first, or (2) adopt an anti-gay amendment to the U.S. Constitution. Good luck!)

-    -    -

In other words, the supposedly "California only" outcome that the Supremes might reach would have a major impact on state law in the nine states that have recognized marriage equality: the decision would immediately decapitate any attempt (and, in Iowa and other states, there very much are such attempts afoot) to overturn the current equality statute or judicial decision. As a result, the notion that an affirmation of Reinhardt's decision "would limit the impact to California" is utterly wrong.

Indeed, there will be more indirect effects as well--regardless of how the Supremes' decision comes out. In one slightly perverse potential consequence, I suspect a "No Take-Backs" rule could make it slightly harder for states currently debating marriage equality statutes--such as Illinois and Minnesota--to pass them, given that legislators would learn that such a statute could effectively never be repealed.

For that matter, the outcome that the gay couples in the Prop 8 case are arguing for--full marriage equality, nationwide--could well have the perverse consequence of helping the Republican Party by taking same-sex marriage off the political table, just when it was starting to hurt the party's electoral prospects. ("Those damn activist judges! Oh, well. Now, as I was saying about that fabulous tax cut…")

Anyway. The next time someone tries to tell you that affirming the Ninth Circuit's decision would only make a difference in California, please point out that that's just not true.

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Comment Preferences

  •  Thanks for the fine analysis (6+ / 0-)

    Which makes a lot of sense.

    Pedantic note - Vermont has gay marriage, and it along with Iowa is not a coastal state.

  •  ignoring how CA only can be accomplished (4+ / 0-)
    Recommended by:
    sfbob, rigcath, fenway49, davidincleveland

    by simply ruling appellants lack standing because private parties (a) do not have standing on a matter of public law, and/or (b) appellants cannot show any actual harm to them in how the case was decided previously the ruling in CA stands WITHOUT addressing the issue of whether rights once granted can be rolled back or not.

    While I am not a lawyer, it seems very clear that to deny standing offers nothing about the underlying issues of the case, and thus has no impact beyond the fact that the California referendum remains oveturned

    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

    by teacherken on Tue Mar 26, 2013 at 10:01:17 AM PDT

    •  So in order for the diarist to be correct (2+ / 0-)
      Recommended by:
      davidincleveland, fenway49

      the court would have to rule on the merits of the Prop 8 case.

      The first set of tweets seemed to be quite pessimistic, but later reports appear to have given a more nuanced view and additional reporting on the substance of the discussion, as can be seen here.

      •  ? (0+ / 0-)

        Seems to me that my point (i.e., my assertion that pundits talking about "California only" are incorrectly describing the potential outcome in question) stands regardless of how the Court rules.

        Nobody I'm responding to (until, now, teacherken) is talking about the possibility of the Court kicking the case on standing grounds. Ergo it makes no difference to my point whether the Court kicks it or not.

        Two reporters I quoted (and a whole bunch of pundits I didn't) have asserted that affirming the Ninth Circuit on the merits would be a California-only outcome. They're wrong about that. That's all.

        •  Kennedy (1+ / 0-)
          Recommended by:
          skrekk

          appears to have raised the standing argument in court this morning. Apparently the "liberal" Justices started chiming in for it too, seeing this as a way to get Kennedy's vote to leave the 9th Circuit decision in place (see my comment below responding to you about that).

          If the Court did affirm the 9th Circuit on the merits, you're absolutely right that it would not be a California-only outcome. No state in the nation would be able to go backwards. But dismissing cert. as improvidently granted on standing would mean the 9th Circuit decision stands, but there's no such binding precedent outside the 9th Circuit.

          Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

          by fenway49 on Tue Mar 26, 2013 at 11:43:57 AM PDT

          [ Parent ]

    •  Correct (0+ / 0-)

      The post appears to be premised on the Supreme Court affirming the 9th Circuit's decision and using the same reasoning.

      But even punting on standing grounds leaves the 9th Circuit's decision as good law within the 9th Circuit, which covers no small number of states, including Washington and Oregon (which I believe has an initiative coming soon).

      For any laws adopted by the voters or already on the books, or if the courts in any other 9th Circuit states determine that their discriminatory laws are unconstitutional, not being able to go backwards would be significant.

      Other circuits also may (or may not) adopt the 9th Circuit's reasoning if similar cases arise there.

      Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

      by fenway49 on Tue Mar 26, 2013 at 10:21:17 AM PDT

      [ Parent ]

      •  Huh? (1+ / 0-)
        Recommended by:
        ebohlman
        But even punting on standing grounds leaves the 9th Circuit's decision as good law within the 9th Circuit....
        It does?

        Seems to me that that outcome leaves the Ninth Circuit opinion as a decision issued in a case whose defendant-appellants had no standing to contest it in the first place. I.e., it's not a "case or controversy" under Article III of the Constitution, and the federal courts have no jurisdiction to hear it (beyond entering a default judgment at the district level) at all.

        So if the Supremes kick the case for lack of standing, that necessarily means vacating the Ninth Circuit's ruling. Which is far from leaving it "as good law."

        Now, presumably the circuit decision would have some persuasive effect on California, Washington, etc., federal courts--but I don't think there's any question that it wouldn't be binding precedent.

        •  I don't think so (0+ / 0-)

          The issue is only whether the Prop 8 proponents who are listed as "Petitioners" have standing to bring the case to the Supreme Court.

          There was no question plaintiffs in the district court and the 9th Circuit had standing to challenge Prop 8, as citizens affected by it. The defendants below were Gov. Brown and other state officials in their official capacities. They chose not to petition the USSC for cert., and the issue is whether Prop 8's proponents can appeal for them.

          If the Supreme Court says no, the appeal to the USSC is dismissed but the 9th Circuit decision stands. In that event it's binding precedent for lower federal courts within that circuit.

          Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

          by fenway49 on Tue Mar 26, 2013 at 11:39:17 AM PDT

          [ Parent ]

          •  Nope (1+ / 0-)
            Recommended by:
            fenway49

            There's no distinction between standing before the SCOTUS and standing before a circuit court. It's simply standing to appeal and it follows the Article III rules. It's distinct from being able to defend at the district court level; nobody's questioning whether the proponents could legitimately be designated intervenors (as they were) for purposes of defending the original case. The question is whether or not intervenors have standing to appeal.

            Writing in all lower-case letters should be a capital offense

            by ebohlman on Tue Mar 26, 2013 at 01:23:41 PM PDT

            [ Parent ]

            •  I had thought (0+ / 0-)

              the state defended the law in the 9th Circuit. Looked at the 9th Circuit opinion and now see the state did not appeal from the district court and the 9th Circuit held that the proponents had standing to appeal. A Supreme Court ruling that there is no standing to appeal for the proponents would necessarily trump that finding. My apologies for having the facts wrong.

              So, according to ScotusBlog, if the USSC rules on standing grounds the 9th Circuit decision is vacated but the district court opinion stands. A broader decision but obviously not binding precedent throughout the 9th Circuit. So in this case the state not appealing to the 9th Circuit may have hurt the cause of marriage equality in a sense.

              If, on the other hand, the Supreme Court dismisses cert. as improvidently granted because they can't get 5 votes for anything, the 9th Circuit decision stands.

              Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

              by fenway49 on Tue Mar 26, 2013 at 01:34:32 PM PDT

              [ Parent ]

            •  It took me (0+ / 0-)

              an hour to find the opinion texts to prove that. Wish I could bill it.

              [N]obody's questioning whether the proponents could legitimately be designated intervenors (as they were) for purposes of defending the original case.
              Well, shit, why not? The standing analysis that the Supremes are apparently considering is such a dumbassed cop-out (they did the same thing to Reinhardt in the Pledge of Allegiance case--kicked it on ridiculous grounds regarding standing), exactly why shouldn't it blow up these people's right to maintain the case as intervenor-defendants in district court, after the "real" (i.e., standing-possessing) defendants take a powder?

              There's no Article III for district courts that's separate from the one for appeals. If the appeal--either Ninth Circuit or at the Supreme Court via cert--is not a "case or controversy" because of the intervenors' lack of standing, exactly how could it have been a "case or controversy" in January 2010, when the plaintiffs and intervenor-defendants (but not state-official defendants) faced off in a trial?

              Why should there be standing requirements for district courts that are different from the ones for appellate courts?

          •  Not so. (0+ / 0-)
            There was no question plaintiffs in the district court and the 9th Circuit had standing to challenge Prop 8, as citizens affected by it. The defendants below were Gov. Brown and other state officials in their official capacities.
            Again, both of those statements are simply false.

            First, the Ninth Circuit explicitly addressed the standing question:

            Before considering the constitutional question of the validity of Proposition 8's elimination of the rights of same-sex couples to marry, we first decide that the official sponsors of Proposition 8 are entitled to appeal the decision below, which declared the measure unconstitutional and enjoined its enforcement.  The California Constitution and Elections Code endow the official sponsors of an initiative measure with the authority to represent the State's interest in establishing the validity of a measure enacted by the voters, when the State's elected leaders refuse to do so. See Perry v. Brown, 265 P.3d 1002 (2011).  It is for the State of California to decide who may assert its interests in litigation, and we respect its decision by holding that Proposition 8's proponents have standing to bring this appeal on behalf of the State.  We therefore conclude that, through the proponents of ballot measures, the People of California must be allowed to defend in federal courts, including on appeal, the validity of their use of the initiative power.
            Perry v. Brown, 671 F.3d 1052, 1064 (9th Cir. 2012) (emphasis added) (parallel citation omitted).

            So the Ninth Circuit did address the "question [whether] plaintiffs in the district court and the 9th Circuit had standing to challenge Prop 8, as citizens affected by it." And it directly answered in the affirmative--an outcome that (according to this afternoon's conventional wisdom) the Supremes are now thinking about reversing. (The court also performed a much more detailed analysis of the standing question; the passage quoted above is just the court's opening summary. Also, for whatever it's worth, the Ninth Circuit specifically asked the California Supreme Court to decide whether, under California law, the intervenors had the power to bring the appeal on the behalf of the people of California. The state court ruled that they did. Perry v. Brown, 265 P.3d 1002 (Cal. 2011).)

            Second, "the defendants below" were not "Gov. Brown and other state officials in their official capacities." Again, you can read from the Ninth Circuit's opinion the (lengthy) list of parties and counsel who appeared before the court; you won't find Brown, California A.G. Kamala Harris, or any other state official listed anywhere in there.

            Brown, Harris, and other state officials were named in the original complaint because it was a suit against the state government. As the district court explained, those officials immediately refused to defend Prop 8:

            PROCEDURAL HISTORY OF THIS CASE

            Plaintiffs challenge the constitutionality of Proposition 8 under the Fourteenth Amendment, an issue not raised during any prior state court proceeding. Plaintiffs filed their complaint on May 22, 2009, naming as defendants in their official capacities California's Governor, Attorney General and Director and Deputy Director of Public Health and the Alameda County Clerk-Recorder and the Los Angeles County Registrar-Recorder/County Clerk (collectively “the government defendants”). Doc. # 1. With the exception of the Attorney General, who concedes that Proposition 8 is unconstitutional, Doc. # 39, the government defendants refused to take a position on the merits of plaintiffs' claims and declined to defend Proposition 8. Doc. # 42 (Alameda County), Doc. # 41 (Los Angeles County), Doc. # 46 (Governor and Department of Public Health officials).

            Defendant-intervenors, the official proponents of Proposition 8 under California election law (“proponents”), were granted leave in July 2009 to intervene to defend the constitutionality of Proposition 8. Doc. # 76.

            Perry v. Schwarzenegger, 704 F.Supp.2d 921, 928 (N.D. Cal. 2010).

            That--in mid-2009--was the end of California state officials' participation as defendants in the case. If they were the only proper defendants to the lawsuit, that lawsuit could and would have ended in a default judgment in favor of the plaintiffs. Instead, a list of defendant-intervenors took up the task of defending Prop 8, including pursuing the appeal to the Ninth Circuit and the certiorari petition to the Supremes.

            So your comment is based on two false premises. And that throws the conclusion into serious doubt: if the district and appellate courts were wrong to decide that the intervenor-defendants had standing to defend Prop 8, then the entire lawsuit ceased to be a "case or controversy" under Article III sometime in mid-2009. If that's true, I don't see how either the district court decision (finding a broad federal right to marriage equality) or the Ninth Circuit one (finding a narrower "no take-backs" right) could possibly survive: under the hypothetical Supreme Court decision we're talking about, both of those decisions were issued in a case that the federal courts had lost jurisdiction over months or years earlier.

            So I'm just not seeing it. If the Court kicks this for lack of standing, it certainly appears to me that both courts' decisions below go up in smoke.

    •  Er... (0+ / 0-)

      Yes, that would be the outcome if the Court determined that the appellants/petitioners here don't have standing.

      But that's not what we (starting, in this diary, with Barnes’ WaPo piece) are talking about. We're discussing a potential Supreme Court decision directly affirming the Ninth Circuit decision, not throwing the case out on standing grounds. It's the former, not the latter, that is being inaccurately described as California-only.

      Even a decision on standing wouldn't actually be California only; that decision would apply to any state whose law (or just state-constitutional amendment?) was challenged in court, only to have the state's executive branch refuse to defend the law. That kind of decision, too, would have nationwide import; it's just that that import would probably have little to do with marriage equality outside of California.

      You never know, though; what happens if Minnesota's anti-gay-marriage law gets challenged in federal court, and the (current Democratic) governor and attorney general refuse to defend it?

      So: "California only"? The answer is still no.

      •  True (0+ / 0-)
        Even a decision on standing wouldn't actually be California only; that decision would apply to any state whose law (or just state-constitutional amendment?) was challenged in court, only to have the state's executive branch refuse to defend the law.

        Republicans...think the American standard of living is a fine thing--so long as it doesn't spread to all the people. And they admire the Government of the United States so much that they would like to buy it. Harry S. Truman

        by fenway49 on Tue Mar 26, 2013 at 11:45:35 AM PDT

        [ Parent ]

  •  Not sure if I agree with this idea: (0+ / 0-)

    "For that matter, the outcome that the gay couples in the Prop 8 case are arguing for--full marriage equality, nationwide--could well have the perverse consequence of helping the Republican Party by taking same-sex marriage off the political table, just when it was starting to hurt the party's electoral prospects."

    As we have seen with abortion and ObamaCare, just because the Supreme Court has ruled, winger Republicans never give up the fight.

    “The future depends entirely on what each of us does every day.” Gloria Steinem

    by ahumbleopinion on Tue Mar 26, 2013 at 10:08:35 AM PDT

    •  Sure. (1+ / 0-)
      Recommended by:
      fenway49

      Well, clearly Republican officials who (for good demographic/political reasons) would like to get out of the anti-gay business would have an excuse to sidestep the issue. Maybe that excuse wouldn't work with the base, but they'd sure as hell try.

  •  Things are going to stay complicated (1+ / 0-)
    Recommended by:
    ebohlman

    I think it is a foregone conclusion that today's discussions will be reference, repeated and expanded upon in tomorrow's hearing on DOMA.

    There are reasons to think that the Court might find it easier to rule against DOMA. Here is the most important one: even if the court refuses to deal with the question of whether laws that discriminate on the basis of sexual orientation must be subject to heightened scrutiny, there is every reason to believe that the court could strike DOMA using rational basis or rational basis "with bite." The central fact of DOMA is that it EXCLUDES a particular class of legally-contracted marriages from federal recognition. This is unprecedented and the justices cannot avoid noting it. So it won't matter what class of legal marriages is being excluded, a law that makes that sort of distinction will, so to speak, stink. Either laws assigning rights and obligations based on marriage must recognize all legally-contracted marriages or they must recognize NONE. There is no middle ground. The only exceptions to that general rule in the past have related to whether a marriage took place for the express purpose of circumventing other laws, mainly having to do with immigration. It would beyond a stretch to conclude that ALL same-sex marriages were fraudulent or were undertaken for fraudulent purposes.

    Now, if the court rules that Section 3 of DOMA is unconstitutional, any state law or constitutional amendment that deprives gay couples of the right to marry perforce deprives them of a whole set of rights and benefits conferred by federal law. Under that condition, even if the court were somehow to uphold Prop 8, Prop 8 could immediately be litigated once again.

    •  Do you think (0+ / 0-)

      that Reinhardt's Romer-based analysis is unlikely to appeal to the Supremes?

      •  I really don't know (1+ / 0-)
        Recommended by:
        Rieux

        It seemed as though he was making an appeal to Kennedy's sensibilities but whether or not that worked is truly open to debate.

        •  Guess so. (1+ / 0-)
          Recommended by:
          sfbob

          Based on the ACA example from last term, I'm holding out hope that all today's prognostications based on the tenor of the questions the justices asked will turn out to be flatly wrong. (This is, in part, because I find the potential of the Court throwing the thing out on standing so disgusting.)

          Who knows what King Anthony is going to do? Oh, well.

          •  On the one hand I agree with you (0+ / 0-)

            It would amount to a technicality and it would be better to have a definitive ruling based on the merits.

            On the other hand it does seem to me to be entirely possible that the court took the case in the first place (despite someone's...Kennedy's perhaps?...question as to why the case had been granted cert at all) was not to rule on the more obvious constitutional issues but to render some sort of definitive guidance on the issue of standing as it relates to ballot measures or on how ballot measures and their proponents are to be treated when a case involving them rises to the federal level.

            In addition, given some of the comments made by certain justices I'd say we might be better off if no ruling on the merits was issued at this point. While its entirely possible that at least some of those questions were rhetorical, or intentionally misdirectional or in some other aspect based on something other than they way the appeared on the surface, it is also entirely possible that they are unable or unwilling to grant that gay people should have equality under the law, at least where marriage is concerned. That prospect is rather frightening really.

            I have heard any number of possibilities mentioned if the standing issue is used to return things to the district level. First that such an action could be construed as to granting ONLY the actual plaintiffs and no other parties the right to a marriage (or alternatively that marriage equality would obtain only in San Francisco and Los Angeles Counties) and thus requiring that every gay or lesbian couple seeking to marry in California would need to first to bring legal action. The second thing I've heard is that that any attempt on part of the state to resume issuing marriage licenses to same-sex couples would be litigated once again with the ballot measure's proponents using the California Supreme Court's grant of state-level standing as a justification. I don't know how plausible any of that is of course.

    •  I think the scenario in your last paragraph (0+ / 0-)

      would only apply to the "marriage lite" states, as civil unions/domestic partnerships would lose all pretense of being "separate but equal". If the SCOTUS doesn't rule that way in Hollingsworth then it will just pop up next term via Jackson v. Abercrombie and/or Sevcik v. Sandoval (the two would likely be consolidated since they address the exact same issue).

      Writing in all lower-case letters should be a capital offense

      by ebohlman on Tue Mar 26, 2013 at 01:35:42 PM PDT

      [ Parent ]

  •  supremes want no part of this (0+ / 0-)

    This will be kicked back to Ca because the court knows they will be pissing off a whole lot of people no matter how they rule.
    Find no standing, gay marriage is back on in Ca and no one is all that upset. I would be surprised if they do anything concrete on this case. we are 20 years away from a loving type ruling.

  •  How does it affect states... (0+ / 0-)

    Which have 'separate, but equal' arrangements such as civil unions?  I'm thinking of Colorado in particular.

    'Guns don't kill people, video games do - paraphrased from Lamar Alexander (Sen-R-TN)'

    by RichM on Tue Mar 26, 2013 at 11:56:57 AM PDT

    •  It doesn't (1+ / 0-)
      Recommended by:
      Rieux

      at all.  If the court kicks the case based on imprudent granting of hearing, then it does nothing at all for CUs.

      I'm afraid, after reading the transcript, that will be the result, but the arguments should NEVER be taken as a guide for the final decision.  (See the Affordable Care Act [NATIONAL FEDERATION OF INDEPENDENT
      BUSINESS v.SEBELIUS
      ] and CITIZENS UNITED v. FEDERAL ELECTION COMMISSION for examples of this).

      I hope they rule on its merits, even if that ruling is unfavourable to my cause.  I would rather a decision that can be handles by legislation rather than a non-decision that can only be handled by chaos.

      "Never argue with an idiot. They will drag you down to their level, and beat you with experience every time." --Unknown

      by Subwoofer of the House on Tue Mar 26, 2013 at 12:26:21 PM PDT

      [ Parent ]

      •  Typos are fun. (0+ / 0-)

        handles => handled

        "Never argue with an idiot. They will drag you down to their level, and beat you with experience every time." --Unknown

        by Subwoofer of the House on Tue Mar 26, 2013 at 12:26:59 PM PDT

        [ Parent ]

      •  But striking down Section 3 of DOMA (1+ / 0-)
        Recommended by:
        RichM

        would definitely bring up the "9-state question" because state CU/DP laws would no longer be "marriage in all but the name" since CUs and DPs aren't recognized as marriages by Federal law.

        Writing in all lower-case letters should be a capital offense

        by ebohlman on Tue Mar 26, 2013 at 01:39:57 PM PDT

        [ Parent ]

      •  Agreed. (0+ / 0-)

        All of this blather about standing is pissing me off. Messing with basic constitutional principles about the jurisdiction of the federal courts for the mere purpose of sidestepping a politically uncomfortable question is just deeply irresponsible jurisprudence.

        The Court has done much the same thing with Establishment Clause jurisprudence, and it's just seriously shameful. Do your damn job, assholes.

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