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Tweets from the Court House

Jim Burroway

March 26th, 2013

It’s looking good so far:

Update: The question of standing has also come up. Proposition 8 is not being defended by the state of California, but by proponents of Prop 8. Kennedy appears uncomfortable with this, which also bodes well:

Update: An important caveat:

Comments

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cowboy
March 26th, 2013 | LINK

I wonder if Scalia has been reading BoxTurtleBulletin?

Jack
March 26th, 2013 | LINK

Edie Windsor is the more important case. I don’t much care about Prop 8 which will be in the dustbin one way or the other soon. If SC doesn’t strike down DOMA Sec. 3, it could be a long time before Congress acts.

jpeckjr
March 26th, 2013 | LINK

Where is the scientific evidence to support opposite gender marriage as being good for children?

I mean the evidence from before the first opposite gender couple got married, you know, the evidence used to support the establishment of marriage in the first place?

No, I didn’t think so.

Priya Lynn
March 26th, 2013 | LINK

Scalia: “considerable disagreement” about the “consequences” of same-sex couples raising children.

Not amongst the medical and mental health experts there isn’t. There’s “considerable disagreement” about the “consequences” of same-sex couples raising children in the same way there’s considerable disagreement about whether or not evolution is true – the experts all agree it is and a bunch of loud ignorant people with nothing to support their position say it isn’t.

Pacal
March 26th, 2013 | LINK

Scalia lies again. Typical.

Priya Lynn
March 26th, 2013 | LINK

Scalia is an lying bigoted blowhard.

Timothy Kincaid
March 26th, 2013 | LINK

“bigoted blowhard” seems to get it about right, but I think “lying” isn’t the right word.

But I suspect Scalia believes the nonsense he spouts. I don’t think he’s lying, I think he’s too obstinate and opinionated to ever consider that his opinion is not accurate.

Tony
March 26th, 2013 | LINK

Can someone please explain why standing is even an issue? If the state of California says that the proponents have standing to represent when the state won’t, then why would the SCOTUS have any say? If I give someone the right to represent me in court, the judge can’t say it isn’t valid.

Priya Lynn
March 26th, 2013 | LINK

“But I suspect Scalia believes the nonsense he spouts. I don’t think he’s lying”.

If Scalia isn’t aware that the major medical and mental health organizations all agree that children of gay couples do just fine then he is inexcusably uninformed on the topics he’s been asked to rule on and should recuse himself.

Timothy Kincaid
March 26th, 2013 | LINK

Tony,

Only the Supreme Court can say who has standing to present a case to them. States don’t have the right to make that call.

If a state has a set procedure in law about giving proponents standing, then SCOTUS may honor that. But in this case, it wasn’t the State of California in their law which gave proponents standing. The Ninth Circuit got the opinion of California’s Court, but that’s all it was; an opinion. The Ninth Circuit (not the state of California) gave standing to the Proponents, and SCOTUS can override the decision of the Ninth.

Timothy Kincaid
March 26th, 2013 | LINK

I would say “inexcusably uninformed” is probably accurate.

But Scalia will recuse himself from an issue on which he can strike a blow for his church on the day that pigs grow wings and fly around pooping on his head.

gsingjane
March 26th, 2013 | LINK

@ Tony – probably a good idea to familiarize yourself with the concept of standing, because my guess is, the Prop. 8 case goes away because of it. It’s a shame, really, that so much time, energy and money got spent, with the aim of having a sweeping 50-state declaration, and it will wind up coming down to what’s a really narrow, technical legal issue so far as most people are concerned.

The problem that the petitioners in the Prop. 8 case have is that they really aren’t “aggrieved” or damaged in any literal or actual sense. Yes, the folks who aren’t allowed to marry under Prop. 8 – those people are injured, so they have standing, but not someone, like the petitioners here, who has moral or philosophical objections at issue but nothing more, no tangible injury. I think that the lower court (whether it was the district or the appellate court, I don’t remember) that decided that the petitioners could “take over” from California, probably made the wrong decision.

It’s the same in any situation, if I’m injured, say, in a car accident, I can’t just “give” or sell to you, the right to bring suit on my behalf. (I could do something like assign the rights to my recovery to you, but I’d still have to be the one suing, personally, because I’m the one injured). That’s why it doesn’t really matter whether California agreed to the substitution of plaintiffs or not. If you lack standing, you just do, regardless of whether there was a side agreement or not.

Here, I think ruling on standing is actually more than just a convenient way to sidestep the issue and I don’t think the Supreme Court would be wrong to do it. Call me old-fashioned, but regardless of the presentation or the parties or the issues involved, courts really shouldn’t make rulings that blatantly ignore the law (even rulings in our favor!).

Lindoro Almaviva
March 26th, 2013 | LINK

Bottom line, if Prop 8 goes away because of standing and not because it is discriminatory, the stage is set for several couples in what, 30 something states to challenge their own DOMAS and constitutional amendments.

I think the bigger door is tomorrow’s case, because if DOMA is invalidated then there will be a clear case of discrimination at the federal level because of marriage inequality.

CPT_Doom
March 26th, 2013 | LINK

I also believe that if the Court refuses standing, the Ninth Circuit Court decision is nullified and the original, very sweeping, ruling by Judge Walker becomes the resolution to the case. That leaves a very strong LGBT rights decision as precedent, at least in the Ninth Circuit, and can be used in other states to fight their bans.

If DOMA section 3 is also overturned, which I think is very likely (although we’ll know more tomorrow), the potential for future challenges to the anti-gay state hate amendments will be very strong, because couples will end up having federal, but not state, recognition of their relationships.

Hunter
March 26th, 2013 | LINK

I’m not sure I agree with the idea that the DOMA case is more important. If Section 3 of DOMA is struck down, that does nothing to call into question the state DOMAs and amendments and leaves Section 2, which deals with full faith and credit, standing. Strategically, Prop 8 being struck down has a lot more implications for bringing marriage equality to the country as a whole. Even if the Court finds that the proponents have no standing for appeal, that means the decision of the trial court will stand. Not only does marriage come back to California, but the groundwork is there for challenges to every other state constitutional amendment.

Timothy Kincaid
March 26th, 2013 | LINK

Lindoro, I agree. If DOMA3 is overturned then there is an immediate cause for a discrimination case in the 8 all-but-the-name states.

CPT_Doom, yes. It sets very strong precedent.

Together they buy SCOTUS a couple more years but pretty much determine the issue.

Priya Lynn
March 26th, 2013 | LINK

“I think the bigger door is tomorrow’s case…”.

They’re not going to decide the entire prop 8 case today, are they?

F Young
March 26th, 2013 | LINK

@Prya Lynn “They’re not going to decide the entire prop 8 case today, are they?”

Yes, my understanding is that that was it for the Prop 8 case, at least officially. The written decision will come out in June.

Tomorrow is the hearing of the Windsor case only. However, I suppose it is possible that the arguments on the level of scrutiny in Windsor could impact the written decision on Prop 8 unofficially, provided the Prop 8 case is not decided on standing or other grounds.

Helen Ireland
March 26th, 2013 | LINK

@Timothy and others, with regard to the question of standing:

I read a short while ago on another blog that on the National Review’s site the discussions is that – if the proponents have no standing, then Judge Walker should not have heard the case in the first place. They seem to think that this would dismiss the District court’s verdict and Prop 8 would still be valid!

I am not a lawyer, and so I wondered if anyone could clarify this point?

Jim Burroway
March 26th, 2013 | LINK

I don’t know how that would work. Perry, et al., were clearly harmed by the law, which is why they sued the state of California. If only California can defend the law — and California said they wouldn’t defend it — then it would have been a very quick trial indeed, with a summary judgement by default.

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