prop 8 denied on en banc appeal

EvanKeel
EvanKeel Posts: 1,904 Member
One step closer. Even if they file it with SCOTUS, I'm not sure it would be heard.

Replies

  • treetop57
    treetop57 Posts: 1,578 Member
    You don't think there are four votes on the Supreme Court to hear the case? That would surprise me. I'm not sure what happens if the Supreme Court denies certiorari. Presumably the trial court would then lift the stay, and marriages would proceed in California. I can count four votes on the Supreme Court against letting that happen.

    When the Supreme Court does take the case, it's harder to count five votes on either side. The ruling was obviously written with Kennedy in mind and I suspect he will be the fifth vote for equality, just as he was in Romer v. Evans and Lawrence v. Texas.
  • EvanKeel
    EvanKeel Posts: 1,904 Member
    The basis for the ruling only applies to states that have legalized same-sex marriage and then taken the right away with subsequent legislation. It's not exactly an issue of national policy. The MA case against the federal DOMA, on the other hand...
  • treetop57
    treetop57 Posts: 1,578 Member
    In a logical world, you would be 100% correct. But Scalia and company rule based on results, not logic. I have no doubt that the Supreme Court will take this case. It's too shiny and interesting to refuse, even if the rulings so far have been narrowly written to apply only to California. I don't think there is any way Scalia, Thomas, Roberts, and Alito will let stand a precedent that says a gay marriage ban violates the 14th amendment's equal protection clause, even if it's a precedent only in the 9th circuit.
  • EvanKeel
    EvanKeel Posts: 1,904 Member
    In a logical world, you would be 100% correct. But Scalia and company rule based on results, not logic. I have no doubt that the Supreme Court will take this case. It's too shiny and interesting to refuse, even if the rulings so far have been narrowly written to apply only to California. I don't think there is any way Scalia, Thomas, Roberts, and Alito will let stand a precedent that says a gay marriage ban violates the 14th amendment's equal protection clause, even if it's a precedent only in the 9th circuit.

    Would SCOTUS rule on what Vaugh Walker said or what the appeals courts said? The former is an issue of due process and equal protection, while the latter is an issue of Romer v Evans.
  • treetop57
    treetop57 Posts: 1,578 Member
    They can base an opinion on the appeals court ruling or the trial court ruling or they can come up with their own rationale independent of either one. That's the good thing about being the highest court!

    I don't remember the details of Walker's ruling nor of the 9th circuit's ruling. But there's not really any distinction between equal protection and Romer. Romer was based on equal protection. Due process is another question. I'll have to refresh my memory about how that applies in this case.
  • EvanKeel
    EvanKeel Posts: 1,904 Member
    Due process refers to the government not depriving someone of life, liberty and the pursuit of happiness without due process of law. It's the liberty part of that that's been qualified a fair bit over the years. I believe it's the basis for Loving v. Virginia where bans interracial marriage became illegal.
  • aoikirin
    aoikirin Posts: 143
    Let's cross our fingers. I am hopeful, if not optimistic. At least we have the sway of public opinion on our side. In another 10 years Prop 8 would be 48 52 instead of 52 48. Things are changing.
  • FitLink
    FitLink Posts: 1,317 Member
    Let's cross our fingers. I am hopeful, if not optimistic. At least we have the sway of public opinion on our side. In another 10 years Prop 8 would be 48 52 instead of 52 48. Things are changing.

    Oh, absolutely, the times they ar a changin'. I have to say where we stand now is more than I dreamed I'd live to see.
  • treetop57
    treetop57 Posts: 1,578 Member
    Drip, drip, drip.
    N.Y. Federal Court Rules DOMA Unconstitutional

    U.S. District Court Judge Barbara S. Jones of the Southern District of New York ruled Wednesday that the section of the Defense of Marriage Act (DOMA) that defines marriage as between a man and a woman is unconstitutional. . . .

    http://livewire.talkingpointsmemo.com/entries/federal-court-in-new-york-rules-doma-unconstitutional
  • treetop57
    treetop57 Posts: 1,578 Member
    This latest NY case give the lie to the oft-stated claim that same-sex couples don't need marriage because they can get all the rights and responsibilities of marriage through private contractual arrangements. In this case, Edie Windsor had to pay federal estate tax after the death of her wife Thea Spyer. No private contractual arrangement can change that only. Only legal marriage, recognized by the federal government can change that.

    The judge ruled that section 3 of DOMA has no rational basis serving a legitimate government objective.

    6a00d8341bfae553ef01761518780d970c-320wi
  • EvanKeel
    EvanKeel Posts: 1,904 Member
    This latest NY case give the lie to the oft-stated claim that same-sex couples don't need marriage because they can get all the rights and responsibilities of marriage through private contractual arrangements. In this case, Edie Windsor had to pay federal estate tax after the death of her wife Thea Spyer. No private contractual arrangement can change that only. Only legal marriage, recognized by the federal government can change that.

    The judge ruled that section 3 of DOMA has no rational basis serving a legitimate government objective.

    6a00d8341bfae553ef01761518780d970c-320wi

    It's an interesting discussion. I think there's going to be confusion though. I can very easily see someone saying "Wait. How can we call DOMA unconstitutional because it's the fed getting in the way of how the state defines marriage and at the same time say prop 8 is unconstitutional--which is basically the fed getting involved in how a state defines marriage."

    The fact that there are federal benefits to marriage means the fed gets to weigh in on marriage, at least for those benefits. I would be mildly amused to see a situation where federal benefits of marriage were allowed to same-sex couples, but any state recognition would be barred due to that state's constitution.
  • treetop57
    treetop57 Posts: 1,578 Member
    One thing I found strange reading the opinion in this New York case (http://lawprofessors.typepad.com/files/windsor_doma.pdf) is references to the "Fifth Amendment's Equal Protection Clause." But unlike the 14th amendment (which says individual states cannot "deny to any person within its jurisdiction the equal protection of the laws."), the 5th amendment doesn't explicitly say that the federal government must provide equal protection.

    But at least since 1954, the Supreme Court has said that the 5th amendment's due process clause implies that the federal government must provide equal protection at least to the extent that the lack of equal protection would mean a violation of due process.
    The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. Bolling v Sharpe (1954)

    The extension of the Bill of Rights to the states by the 14th amendment is usually called "incorporation." This extension of equal protection back onto the federal government is called "reverse incorporation." http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights#Reverse_incorporation

    Apparently is such settled law that the judge in this case can talk about the "Fifth Amendment's Equal Protection Clause" without even mentioning that the Fifth Amendment has no explicit equal protection clause.
    Amendment V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • treetop57
    treetop57 Posts: 1,578 Member
    It's an interesting discussion. I think there's going to be confusion though. I can very easily see someone saying "Wait. How can we call DOMA unconstitutional because it's the fed getting in the way of how the state defines marriage and at the same time say prop 8 is unconstitutional--which is basically the fed getting involved in how a state defines marriage."

    The fact that there are federal benefits to marriage means the fed gets to weigh in on marriage, at least for those benefits. I would be mildly amused to see a situation where federal benefits of marriage were allowed to same-sex couples, but any state recognition would be barred due to that state's constitution.

    No doubt it's confusing when federal benefits are decided based on marriage, which is traditionally defined by the states. An example is the federal tax rules for people in domestic partnerships or marriages in community property states like California or Washington. The IRS under the Bush administration said DOMA overruled state community property laws so community income was separate for federal tax purposes. The IRS under the Obama administration said that the federal government has always allowed the states to define community property and DOMA has nothing to do with it. So domestic partners (and same-sex married couples) in California and Washington should divide their income even though they file separate "single" returns.

    My partner and I did exactly that . . . and got a letter from the IRS inquiring why I had neglected to declare all my income since the income on my 1040 was less than the income on my W-2. He of course got no letter since the IRS was perfectly content that he had declared more income on his 1040 than shown on his W-2.

    I wasn't too surprised since I had read that the couple who got the original IRS ruling saying that California domestic partners must divide their income got such a letter when they first filed their amended returns. My accountant said that other clients in the same situation got the same letter the day before I called him. I sent all the information explaining how we had divided our income based on the IRS's own rules and eventually heard back that they were satisfied, but I was a little tense for a couple of months!
  • owndbycatz
    owndbycatz Posts: 90 Member
    I can answer the question about Walker's original ruling in Perry (the Prop 8 case). It was a sweeping ruling based on both Due Process (fundamental right to marriage) and Equal Protection claims under the 14th Amendment. As you likely know, the 9th Circuit panel decision was quite narrow, based on only a few of the facts presented at trial, and based entirely on an Equal Protection claim.

    And, yes, the question of Equal Protection under the 5th Amendment is well-settled law. The arguments in cases involving EP or DP under the 5th and 14th Amendments are essentially the same.

    The DOMA cases all only implicate Equal Protection. All the plaintiffs are already considered married in their home states, so don't need to argue a fundamental right to marriage. No one is claiming a right to federal benefits, only that if they are given, they must be given in a way that comports with the Equal Protection guarantees of the 5th Amendment. (for the non-legally initiated, the 5th Amendment applies to the federal government and the 14th Amendment applies to the states and local govs)

    I watch these cases closely, attend many of the hearings/oral argument, and am developing a website that will give everyone free access to the court filings, etc. Hoping to launch in the next month or so. In the meantime, I've uploaded 1,000s of documents filed in these cases to my Scribd account. If there's anything you want to see, let me know and I'll give you the link.

    I don't check the boards here every day, so feel free to send a message if you're looking for anything.
  • owndbycatz
    owndbycatz Posts: 90 Member
    I also wanted to add... I don't see the arguments in Perry (Prop 8) and the DOMA cases as being in conflict. In general, marriage is a matter left to state law, and pre-DOMA the feds deferred to the state's determination of whether or not a couple is married in deciding issues of federal benefits.

    However, while it's true that state law governs marriage, these marriage law, like all laws in the individual states, must not run afoul of the U.S. Constitution. We saw that principle most clearly in Loving v. Virginia (the case that struck down Virginia's laws against inter-racial marriage). The allegation in Perry is that Prop 8 violates the U.S. Constitution.
  • treetop57
    treetop57 Posts: 1,578 Member
    Thanks, owndbycatz! Great summaries.

    For anyone who wants to follow the details of these things but gets lost in the jargon of "rational basis," "strict scrutiny," "heightened scrutiny," "suspect classes," etc., yesterday's NY ruling has a great summary of Equal Protection law in Section II D.

    http://lawprofessors.typepad.com/files/windsor_doma.pdf
  • owndbycatz
    owndbycatz Posts: 90 Member
    Another great resource if you want to get a succinct explanation of equal protection claims along with an interesting take on the question of GLBT political clout is Kenji Yoshino's closing keynote talk at a recent Williams Institute event. I HIGHLY recommend it.

    It's the last video on this page:
    http://williamsinstitute.law.ucla.edu/2011-12/11th-annual-update/

    I don't practice but have a law degree and this is my area of interest. Always glad to answer any questions.