It couldn’t have happened to a better couple of laws.
No, really. If they were better laws, it probably couldn’t have happened.
I don’t have much commentary on this. It’s a blow for equality, and a blow against irrational prejudice. The inability of the DOMA defenders and Prop 8 defenders to articulate convincing harms from same sex marriage was striking, and humiliating for them. It turns out that the kind of lies you can repeat ad nauseum in a blog’s comments don’t really fly in front of a judge. There is simply no coherent reason to deny same sex couples the same rights that different-sex couples already enjoy. This is long overdue.
Links!
First, two general explanatory posts from the Washington Post Blog:
The Supreme Court ended Proposition 8. Here’s what that means.
The Supreme Court struck down part of DOMA. Here’s what you need to know.
An incredibly insightful post from Ta-Nehisi Coates. (But, then, does he even write any other sort?)
The prohibitions against same-sex marriage are not simply about witholding the right to be pretty in a dress or dashing in a tux (though I would deny no one their day.) It is about ensuring that only certain kinds of people, and certain kinds of families, are able to amass power, and with that power, influence over the direction of our society.
It is wrong to strip people of wealth because you are bigot. It is wrong to strip people of the right to name their caretakers because you are afraid. It is wrong to make war on people because you can not get over yourself.
Finally, The Onion weighs in:
Gay Marriage Opponents Warn Supreme Court Ruling Could Put Nation On Slippery Slope To Rationality
Kevin Moore, 43, who warned that the landmark ruling will likely lead to “an unspeakable amount of enlightened discourse and thoughtful compromises across the country.” “I mean, we’re talking about granting people their basic human rights on the basis of written law and common decency here. What’s next? Using sound judgment and compassion to foster a more humane culture and system of government?
Well, no. Probably not that.
Hm. The Washington Post blog says this:
That seems to be in error. The ruling of the district court was NOT left in effect. If you read the text of the ruling, you’ll see that the ruling of the Ninth District Court of Appeals was vacated and remanded. That doesn’t mean it was left in effect. That means it was cancelled, and the Ninth District has been told to reconsider the matter.
The case of Prop. 8 was not decided on the merits, folks. It was decided that the appellants did not have standing to bring suit. What I’ve seen is that as of this particular moment, Prop. 8 is the law in California until the Ninth Circuit rules again. According to breitbart.com, the California State Constitution says:
Ah, CRAP. I’m missing a close on my last link, Amp – and I can’t go back and fix it. Can you help me out?
Fixed it for you, Ron. Also fixed the link, which was broken.
Grace
Breitbart seems wrong.
Not a CA lawyer. But it’s likely that the context of “appellate court” means “court with the authority to overrule an administrative decision.” And it’s entirely possible that “determination” is not at all the same thing as “appellate opinion.”
Breitbart makes a sneaky semantic substitution, but it is not at all clear that the constitution requires “an opinion issued by a court of appeals.”
For example, if I apply to the state of MA and try to be a dentist, and MA denies me, then I will “appeal that decision” to a court. However, the court will not actually be an appellate court.
It would be extremely odd for there to be a requirement for an appellate-court-level decision. The language is probably intended to hit the situations where an administrative decision (like “no, you can’t have a marriage license”) has been “appealed to” a court. Not to mention that the statute, if you’re in a literal mood, would oblige the state to ignore a temporary “don’t enforce this” injunction of a trial court, pending appeal. Right? Suffice to say that this seems quite unlikely.
Breitbart is wrong. But then, that’s the kind of error one makes when one has already decided something is wrong and then runs to one’s favorite echo chamber for backup. The result of Prop 8 is really not rocket science, though the FRC researcher quoted by RonF is spinning as hard as he can manage.
(I don’t think you need to be a CA lawyer to note that the paragraph RonF selectively quotes means that an administrative agency (say, the DMV) cannot on its own decide that something is unconstitutional; it has to wait for a court to say so.)
It’s really pretty simple, as was pointed out in the link Myca posted and which RonF ignored: there was a federal court ruling invalidating Prop 8; that opinion
was upheld by the Ninth Circuit. Prop 8’s proponents have no standing to fight on behalf of Prop 8, which is therefore not the law in California (or at least shortly won’t be, once the reconsideration period is over).
RonF, people who have been following these matters closely, and unlike you may actually have read the opinion in question, are aware that it was struck down on procedural grounds – deliciously, the exact same procedural grounds that conservatives have trumpeted for years as favoring judicial restraint and separation of powers (e.g. Lujan). But in a way, really, it is a substantive decision. It notes that the Prop 8 proponents could not articulate any harm from same-sex marriage existing.
I didn’t selectively quote it, breitbart.com did. I quoted from them. And I’m no CA lawyer either. But there’s plenty of them in California, so I imagine that at least one of them will sue holding that “appellate court” is distinguished from “trial court”. Which may well tie this thing up for a while on that basis.
Which would be moot if the Supremes actually had declared Prop. 8 to be unconstitutional. But they did not. And therein, it seems, lies the problem. Now, I did read the link that Myca references. But I also read the Supreme Court decision, and what I read there raises a question in my mind as to whether that link is correct. At the end of the syllabus the Supreme Court order says: “671 F. 3d 1052 is vacated and remanded”. Now, my understanding of what that means is that the decision of the 9th Circuit of Appeals (which is what ‘671 F. 3d 1052’ is) is declared null and void as if it had not been issued and the matter is sent back to the 9th Court of Appeals for reconsideration. Am I wrong about that?
And if that’s true, does that not mean that Prop. 8 remains in effect until the appeals process is complete – until the 9th Circuit rehears the case and makes another decision (which might possibly go back to the Supreme Court)?
Of course, that could be a quick death if the 9th Circuit just says “O.K., so no one who has standing is willing to defend this, so Prop. 8 is unconstitutional”.
It’s interesting, though. The whole idea of the citizen initiative is to give the people a check on the government when the government itself is not willing to do so. There’s an analogous process in the Federal Constitution in Section V where the States can on their own amend the Constitution without involving the Congress, giving the States the ability to limit the Federal government’s power in a way that the Federal government cannot negate.
Now let’s say that the people of a given State want food produced with GMO techniques or hormones or antibiotics labelled as such. The State government, in thrall to the corporations that fund their campaigns, declines to pass such a bill. So the people pass such a bill using the citizen initiative process. A group of food producers then sues in Federal court claiming that this initiative violates Federal law and/or the Constitution. According to the Supreme Court the government can negate the citizen initiative by simply refusing to defend the law in Federal court.
No, you’re right.
No. As explained by me (poorly) and Mythago (betterly,) this is incorrect.
In other words:
– A federal court invalidated proposition 8.
– Circle 9 upheld that decision.
– The supreme court decision means that Circle 9 should not even have considered the appeal, thereby voiding their upholding of the decision. However, they did not void the original federal court decision, which still stands. Hence, proposition 8 is invalid.
As to your worry about states being able to cancel initiatives by refusing to defend them – I’m not a lawyer, but in my understanding, that’s not true, because the original federal court can decide to uphold the initiative even if the state does not defend it (for example, if the initiative clear did not violate federal law). Also, if it can be shown that the people defending the initiative actually were damaged by its cancellation, then they do have standing. So the Supreme Court has not decided that voter initiatives can be easily invalidated by federal courts if the state allows them to. It has decided that if the state refuses to fight, then voters who may have supported the initiative but are not actually affected by it can’t defend it in the state’s stead.
The breitbart drivel is nearly as reliable as The Onion for factual reporting. Lying is a core part of their mission. I say this because I have a former friend who is a paid troll for that site (as well as to write content for it). He routinely lies about his history in order to provide support for his opinions. He is paid to do this. That whole org is a propaganda organ in the most literal sense of the term.
Eytan Zweig:
I am not sure about that. You have one judge in one district making a decision about one couple. The decision would be final as to them, but not necessarily anyone else. A different judge in the same (or different) district could decide the opposite tomorrow (possibly based upon either of the 2 SCOTUS decisions (have not read either of them)). It would seem that, until the 9th Circuit decides the issue, the District Court judges could be all over the place (at least, in theory). And, with the State’s decision not to appeal the first case, appellate review may be difficult (if the State continues to take the same stance), even if EVERY District Court Judge rules against it. You would almost have a de facto de jure ruling that it is unconstitutional.
But, at the same time, every license might only be granted at the conclusion of a lawsuit because the decision would only be binding as to that pair of litigants.
-Jut
Here is a good interview discussing some of the details.
Governor Brown has instructed counties to start issuing marriage licenses once the decision becomes final and the 9th circuit lifts its hold on Judge Walker’s injunction.
At that point, it seems like a county clerk could refuse to issue marriage licenses and sue the state, but it seems highly unlikely that a judge would enjoin the state from issuing marriage licenses while the court case went forward (or, more importantly, that the 9th circuit would uphold an injunction). So some bigoted clerks will make life difficult for some people for some time, with the backing of some bigoted judges, but they won’t be able to hold-up marriage equality across the state anymore.
On the issue of proposition sponsors not having standing, that was a fuck-up on the part of the prop 8 writers. The redistricting proposition on the same ballot included language formally appointing the sponsoring organization as having standing to defend the proposition in court if the state government declines to, the prop-8 writers just didn’t think to include that language.
I actually didn’t know that! With that, my sole reservation about this evaporates.
I mean, as others have pointed out before, even without that language in the bill, the will’s proponents would still have standing if they could demonstrate an actual harm. The fact that they have failed so utterly to do so is instructive.
Absent that harm, they’re in the same position I’d be in if I was suing RonF to force him to divorce his wife. It’s Not My Fucking Marriage, it doesn’t affect me one way or the other, and there is no harm. Neither their marriage nor their divorce is any of my business, and I should probably just butt out.
You’d think conservatives would be in favor of that, as a general principle, the ‘this is none of your business’ clause.
—Myca
It works for me.
Does that mean that you are a True Scotsman or not a True Scotsman, Robert?
I am of Scots descent in part; I’ll leave my fidelity to Truth for future generations of philosophers to debate.
That’s a gift those philosophers will cherish for all their days.
@JutGory, have you read the decision?
As to your worry about states being able to cancel initiatives by refusing to defend them
This worry can be alleviated, again, by reading the decision.
Hm. So as of this moment nobody’s issuing same-sex marriage licenses until the 9th Circuit lifts their hold, the which I’d expect rather quickly unless someone can dream up grounds for an appeal. O.K. Makes sense.
As to the other issue of cancellation of citizen initiatives – Eytan, that looks like a list of things that CAN happen, not a list where at least one of them MUST happen.
There are procedural things that must happen before Hollingsworth is baked in, so to speak, so it’s true that California is not issuing marriage licenses yet.
Why isn’t there a harm? There are clearly loads of them. Marriage effects insurance benefits, and inheritance, and rights over children, and taxation, etc. I appreciate you will view SSM as having a net benefit on the whole – it it seems odd to say it won’t have a negative impact on anyone who isn’t a party.
Sure, in the same sense that different-sex marriage has vague, diffuse ‘harms’ for people who aren’t members, but that’s not enough to establish standing.
Otherwise, I could sue to force RonF and his wife to divorce.
—Myca
Or, put another way:
Alex, if two women you don’t know marry each other, what specific harm does it do to you?
—Myca
Single sex marriage will harm people in the same way that regular marriage harms people – when I was single, my taxes were being used to give a better deal to hypothetical married couple who did not have children. One could argue that I was being harmed. A brother could have been deprived of ‘his’ inheritance because of his sister’s widower. Now it could be his sister’s widow instead. Whoop-dee-doo-dah…
Seriously, I could spare a few seconds to listen to arguments that married couples are getting too good of a deal. I doubt I’d have been sympathetic even when I was single, but I find it theoretically possible.
On the other hand, I have even less time for arguments that SSM is worse than heterosexual marriage (except that it makes me vaguely uncomfortable, but that’s my own problem) Sure, gay couples can do a terrible job at raising their (possibly adopted) kids, their quarrels may make their community a worse place to live, and their PDA may make neighbors squirm. But until we heterosexuals stop being guilty of the same, homosexuals should get the same deal as we do.
RonF – yes, that is a list of things that *can* happen. But even if the state does choose to defend an initiative, then federal courts up to and including the supreme court *could* still decide to strike it down on the grounds of constitutionality.
The point is that the government cannot just negate laws by refusing to defend them. They can certainly make it easier for a law to be negated by refusing to defend it, but there still has to be some reason for the courts to decide to negate it.
Are you suggesting that state governments should be compelled to spend time and resources defending propositions when they feel that they are going to be on the losing side anyway?
There are clearly loads of them. Marriage effects insurance benefits, and inheritance, and rights over children, and taxation, etc.
Yes, it does. How does this create a “harm” to Prop 8’s supporters sufficient to grant them legal standing?
Yeah. That’s what I’m asking. Why isn’t it sufficient?
There are obviously plenty of harms (in the sense of negative impacts on third parties). The reasons suggested – de minimis and relative thresholds -don’t seem to make any sense.
Myca is wrong when she says they are vague and diffuse – some, like inheritance and parental rights are going to be pretty direct and substantial to particular people. And why should diffuse harms not count, poisoning 1 person is a harm, but if I very mildly poison everyone the courts can’t act? . The ‘straight marriage is just as bad’ argument seems odd. If a pollutant or drug is legalised, am I only ‘harmed’ if the harm is worse than that of any other pollutant/drug currently legal? The notion of that harms are only relative seems weird – rather than am I worse off with x than without.
What’s up with the legal sense of harm being so different from the normal meaning of the word? The above might all be true, but it just looks like the exploitation of a twisted notion of harm designed to allow capitalists to get away with shit without being rightly hammered by the courts.
Alex, where did you get the idea that ‘harm’ in general should be illegal? When I get a contract, someone loses it. When I married my wife, a lot of men (and women, for that matter) lost a non-zero chance to spend their lives with her. When you get on the highway, you make everyone else’s drive slightly more difficult. Hell, the emissions from almost all cars make the air worse, even the ones from Ultra Low Emissions Vehicles. And anyway, the manufacture of any goods pollutes somewhat, or at least increases entropy.
If you want to deny something to someone else, you should prove that there’s a better reason than ‘I do not like it’ or ‘My religious texts say so’. Even if you can show that there is some measurable harm to someone, it is not enough. And ‘but you allowed X to harm others in this way, how is my case different?!’ is a perfectly good question.
Do you honestly believe that you do not harm anyone in the Universe with your day to day existence?
Yeah. That’s what I’m asking. Why isn’t it sufficient?
Good question. I guess you could find the answer by, for example, reading the opinion?
Alex, you seem confused. Allow me to help.
Go here.
More like, “Beer is already legal, so all of these harms you’re bringing up for #newbrandofbeer have already been considered.”
They’re looking for harms specific to same sex marriage not consequences of marriage in general, because marriage is already legal.
Also, as the above link explains:
1) “A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court.” That is, the Prop 8 defenders can’t say, “well, this will harm some people, somewhere,” they have to be the ones harmed.
and
2) “… the general rule is that there is no federal taxpayer standing, as complaints about the spending of federal funds are too remote from the process of acquiring them.” In other words, “I’m a stinking bigot, and I’m harmed by having my taxes go up a fraction of a cent in order to finance the tax cut for new same sex marriages,” is not a winning argument.
—Myca
I’ll let the more legal mind folks decide what the merits are of the SCOTUS decision that restored some important civil rights to many Californians. I’ll celebrate it until some group that simply views same gender relationships and those who engage in them as an abomination against God figure some way if there is one to try to take them away again.
It also made me less ashamed and embarrassed to be a native and life-long resident of this state. I can get married, screw up and contribute to the 50% divorce rate among heteros in my state but my friends can’t get married and be afforded the legal protections including those under the jurisdiction of federal law and that’s what the SCOTUS ruling focused on not “gay marriage”. Everyone knows or should know it’s about much more than dressing up and having a designated official or minister have you recite wedding vows.
The Ninth Circuit acted to lift a stay in place in the State of California and restore the civil rights to allow same sex marriages. In fact our SAG Kamala Harris presided over the marriage of the couple that initiated litigation in this state. Our State Governor Brown has issued an order to all counties to start issuing same sex marriage licenses including mine and hey, there’s going to be some weddings to attend in my future. :-)
The people (from frigging Scottsdale, Arizona which is a nice place but Prop. 8 wasn’t in effect there as far as I know) from the Alliance for Defending Freedom (a misnomer if there ever was one when you’re fighting to take it away) are trying to get SCOTUS to do an emergency restoral of the stay. Normally there’s a time period a little over a month before a SCOTUS ruling goes into effect but it’s not binding.
Prop 8 initially passed by less than 5%. The map below shows you that it “passed” in many of the coastal counties which tend to be more highly populated and more “liberal”. The inland counties, less populated (though all the fastest growing counties are here) and much more conservative politically though for many of them, at least in terms of two-party breakdown, quite a few are becoming more Democrat leaning. My city and county traditionally hardcore Republican elected two congress reps as Democrats out of three total (with the Republican district including a chunk of Orange County) and virtually everyone in the state assembly (including two new seats) and state senate were democrat.
Map of Prop 8 results by county
SCOTUS Justice Anthony Kennedy who’s our region’s Supreme rep just said no to halting same sex marriages in California.