Comments on: BREAKING: Justice Department asks Supreme Court to review Ninth and First Circuit DOMA challenges

By: Critical Mass Progress | Part 1: What’s Next for DOMA and Marriage Equality on Trial?

Tue, 07 Aug 2012 15:20:41 +0000

[...] for certiorari, asking them to review the First Circuit’s opinion. Then, on July 3, the Justice Department petitioned the Supreme Court for certiorari; they did so in Gill and in another case, Golinski v. Office of Personnel [...]

By: Mike in Baltimore

Mike in Baltimore — Mon, 09 Jul 2012 01:33:48 +0000

Actually, Bill, if you look at the specific sentence you are referencing, it says:
"And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

It does NOT say that Congress can decide if any acts, records and proceedings can be deemed to be non-transferable from one state to another. It says Congress can, by law, determine how such records are to be proved, and the effect of them. The rule, the act, the records, the judicial proceeding, is/are still there, but the manner of the proof can, if it so desires, be determined by Congress. If it means a letter from one specified state official to one in another state is sufficient, so be it. if it means transmitting a copy, so be it. If it means transmitting the original, so be it. If it means the original is kept in place in the originating state, and an official of another state must travel, so be it.

Thus Congress does NOT have to 'voluntarily' repeal Section 2 for it to disappear.

By: Steve

Steve — Fri, 06 Jul 2012 21:52:46 +0000

I know and I certainly don't want to debate the pros and cons. I just wanted to point out that stating that virtually every country's legal system is based in precedential law is wrong.

By: Scott Wooledge

Scott Wooledge — Fri, 06 Jul 2012 21:20:26 +0000

Regardless, it's kind of silly for us to complain about the problems precedential law creates. It ain't going anywhere in the United States anytime soon.

By: Prop 8 Trial Tracker » DOMA: Analyzing plaintiffs’ answer brief in Golinksi v. OPM, challenging DOMA

Fri, 06 Jul 2012 17:32:36 +0000

[...] then, the Justice Department has petitioned for certiorari to the Supreme Court in Golinski, despite the fact that briefing continues in the Ninth Circuit and [...]

By: Defense of Marriage Act: Le Département de la Justice américain saisit la Cour suprême | Yagg

Fri, 06 Jul 2012 17:24:16 +0000

[...] Via Prop 8 Trial Tracker. [...]

By: Steve

Steve — Fri, 06 Jul 2012 12:27:59 +0000

Common law is based on precedent. Civil law isn't, and the vast majority of countries use it. In civil law systems, judges interpret only the law, not other judgments. They can look at other cases for guidance, but they aren't bound by them – except decisions by the highest court(s), which are the ultimate authority on how the law is to be interpreted. In practice, there is of course a certain legal tradition to be adhered to, but it's not just developed by the courts and can't just be based on a single case. Academic discourse about the law has a much greater rule and is cited in the rulings themselves.

By: Scott Wooledge

Scott Wooledge — Fri, 06 Jul 2012 08:45:40 +0000

Well, our entire judicial system, and virtually every other advanced one in the world is based on the concept of legal precedent.

It isn't going anywhere, except perhaps by nuclear holocaust.

By: Mike in Baltimore

Mike in Baltimore — Fri, 06 Jul 2012 07:51:15 +0000

And again, maybe the precedent was right and proper for the time and case it was instituted, but is it right for now?

Just the concept of precedent can cause problems. Anyone want to deny that Baker is causing problems? Or the Pep Boys case in the Ninth Circuit?

Precedent is holy writ, and you don't question holy writ? Maybe most RCCs don't, but that's not the way most Americans are taught. And maybe the legal profession should be taught what they are currently taught, but also that holy writ CAN be questioned, not just accepted like a sheep to the slaughter.

If something is rotten in Denmark, you attempt to find what is rotten and how to correct what is rotten. Where is it written that when precedent causes problems, you can't look ALSO at figuring out why it is causing problems and what can be done to fix it (or even what should be done, even it the Constitution won't allow it)? Court rules did not magically appear. Court rules came into existence because the court and the legal profession and legislators and others said 'this is the way we want it to be'. And not everyone agrees with the purpose of those rules, and/or the way they are used.

Tradition says a court shouldn't try to fix a problem if that solution isn't brought up in the arguments. Maybe a court should say "You didn't bring it up in arguments, but here is how we will fix this problem – by looking at another section, and proceed from there."

By: Scott Wooledge

Scott Wooledge — Fri, 06 Jul 2012 04:59:58 +0000

The explicit permission for interracial marriage came from Loving v. Virginia. Supreme Court declarations carry the weight of constitutional law (at least until they are overturned by a subsequent court).

The explicit permission for sodomy came from Lawrence v. Texas.

The Supreme Court has never weighed the question of if there is a Federal constitution right to same sex marriage, so there's no analogy to be made between your FEDERAL right to same-sex marriage, your FEDERAL right to interracial marriage and your FEDERAL right to sodomy.

We have the unquestioned FEDERAL right to marry outside our race and engage in sodomy.

We do not yet have the FEDERAL right to marry someone of our own gender. The Supreme Court has yet to declare it so.