Comments on: Supreme timing, part 1: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial

By: Bruce

Bruce — Fri, 15 Jun 2012 21:09:07 +0000

Is there any potential the 9th circuit court of appeals ruling could apply to Washington state if it is not appealed or if an appeal is denied by the Supreme Court?

By: Jacob Combs

Jacob Combs — Fri, 15 Jun 2012 14:50:41 +0000

Steve is right–and that's exactly the point I'm making. Judge Walker's findings of fact were tremendous, and his decision is excellent. But the Ninth Circuit set the case to follow a very different track, and I think it would be odd for the Supreme Court to instead go back to Walker's broader argument. That said, the findings of fact will still stand. But sadly, they're not really what's at issue in the case in its current form. Of course, that could change with the Supremes.

By: Jacob Combs

Jacob Combs — Fri, 15 Jun 2012 14:49:21 +0000

It's very true that the Supremes don't have to limit themselves to the Ninth Circuit's narrower holding. I would also agree with Dr. Zenobia that this Court (and Kennedy) don't want another Bowers, which is why I think it's very likely they won't take up the case. A Supreme Court ruling upholding Prop 8 would be extremely problematic, given where the country is heading. But I don't think this Court is ready for a marriage equality Loving v. Virginia.

By: Jacob Combs

Jacob Combs — Fri, 15 Jun 2012 14:47:25 +0000

Great points, Bill and Lymis. I addressed the scrutiny issue elsewhere in the series, to a point. I agree that we definitely need a heightened scrutiny/suspect class argument from the Supreme Court, but again, I don't know if this court is there yet. I think they probably know that we're getting to that point, but for now if they seek to be narrower they can just keep going on the rational basis with bite track. It would seem though that simple rational basis would no longer cut it for LGBT cases–thankfully.

By: NancyH

NancyH — Tue, 12 Jun 2012 20:17:39 +0000

@Steve “Also, Walker’s findings were pretty much ignored in the appeal trial. The case has a very different track now”

And from what I gather, good reason in terms of the fate of marriage equality just in California. The ruling was crafted to address the issue of taking away a right that was once given. Granted, that is completely different than Walker’s decision and it goes without saying that Walker’s decision was better for the entirety of marriage equality. But with Prop 8, we’re dealing with one law in one state.

Whatever prevents Prop 8 from being ruled constitutional by SCOTUS (a very real threat given the court’s make-up and recent rulings, I don’t trust them at all) is a win in my book.

By: Steve

Steve — Tue, 12 Jun 2012 14:19:40 +0000

All appeals court cases dealing with matters of law are reviewed de novo. They can take previous findings into account if they like, but they aren't bound by it.

Also, Walker's findings were pretty much ignored in the appeal trial. The case has a very different track now

By: Dylan

Dylan — Tue, 12 Jun 2012 14:16:44 +0000

Why can’t we just ban marriage at the gov’t level? I mean it’s just a flimsy paper contract me and the BF should be able to pony up to any gar bar and sign it in public making our relationship official on our terms. Just tax everyone evenly and then no one would have to bother anyone about this marriage BS. Marriage is obviously a failed institution that straight people should give up on since it never works. I don’t see why we have to waste time and money on such nonsense. Everyone gets taxed and in the eyes of the gov’t NO Relationship is special or even recognized since the laws cannot ever legislate every optional family configuration. Why don’t we move more towards that? Relationships are nothing unique or special and officially recognizing them for any reason is pointless since no one cares about your relationship except you.

By: Colleen

Colleen — Tue, 12 Jun 2012 13:27:55 +0000

Here's a question: if prop 8 goes to SCOTUS, will Judge Walker's findings of fact be binding, or will they have to argue it all again?

By: goldentriangleglbt

goldentriangleglbt — Tue, 12 Jun 2012 13:06:07 +0000

Hey thanks for the thoughtful comment and shepardized references they were helpful. However my point isn't just about the personality of the present court or particular justice. My point is that SCOTUS is not restricted to a lower courts attempt at throttling the scope of a case. Should SCOTUS take up Perry v. Brown it is not only possible but likely given the DOMA case that the Court will strike down Same Sex Marriage restrictions. Its even Possible that the Court will take up both of them at the same time using one for a ruling to cover both cases. let me be clear I said it was POSSIBLE not that they would actually do that. My underlying point is this SCOTUS has broad powers there is no voter backlash only a legacy. One thing is certain if they do NOT take up Perry or DOMA this issue is going to revisit them soon.

By: NancyH

NancyH — Tue, 12 Jun 2012 04:36:28 +0000

My money is on Prop 8 not being heard by SCOTUS. It’s too specific to one state and not every state has ballot initiatives. It doesn’t affect many people, despite the fact that California is the most populated state.