Leave a Comment Sagesse
BREAKING: Prop 8, DOMA cases have been distributed for September 24 conference at the Supreme Court
September 5, 2012
By Scottie Thomaston
The Supreme Court docket page for Hollingsworth v. Perry, the Prop 8 case, has a new notice that the case has been “DISTRIBUTED for Conference of September 24, 2012.” The September 24 conference is the first time this term that the Justices will meet privately and look at petitions for certiorari to decide which cases they will accept for review. Usually, the Court announces its orders from conferences on the Monday following the conferences, however if they do take up the Prop 8 case on September 24, they could announce as early as the next day whether the full Court will review the case. It takes four votes to grant review.
If the Court denies the petition, the Ninth Circuit Court of Appeals’ decision stands, and Proposition 8 will be invalidated, though the case won’t set a nationwide precedent. If they decide to review the case, they’ll reach a final decision on the merits at the end of June 2013.
The Court could also potentially ‘relist’ the case for a later conference. This would mean instead of making a decision at the September 24 conference, the case would be held and listed for a subsequent one.
Also distributed for the September 24 conference is Windsor v. USA, challenging Section 3 of the Defense of Marriage Act. Windsor was petitioned to the Supreme Court for review before judgment at the Second Circuit Court of Appeals, where oral arguments are currently scheduled for September 27.
SCOTUSBlog lists the Golinski v. OPM and all of the Massachusetts DOMA petitions as distributed for the September 24 conference, however, the Supreme Court docket page for those cases does not reflect this yet.
h/t Kathleen
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
133 Comments Leave a Comment
1.
Seth from Maryland | September 5, 2012 at 1:20 pm
my 19 days countdown begains now
2.
Anthony | September 5, 2012 at 1:21 pm
What are the chances they won't take the case?
3.
Scottie Thomaston | September 5, 2012 at 1:24 pm
It depends really. The Ninth Circuit's opinion really is very California-centric. They may not want to get involved in such a narrow dispute. On the other hand Justice Kennedy and maybe others might want to make their opinions known on such an important issue (at least to the extent it involves marriage equality.)
I'd say there's a good chance of denial. But not certain.
4.
Steve Rosenberger | September 5, 2012 at 1:31 pm
Scottie, if the court denies review, does that mean marriage in CA is instant and with no further challenges?
5.
Seth from Maryland | September 5, 2012 at 1:35 pm
its over , theres no other appeals after the Supreme Court, Marriage Equality will become legal again in Cal, maybie a week's delay to give the time to get ready , but it will be over
6.
WhistlinDave | September 5, 2012 at 1:43 pm
I really don't see how they can find grounds to review the case. I read the entire ruling and it's as airtight as a legal ruling can be. Judge Walker laid it all out in great detail and the facts are clear. The state has no legitimate interest in keeping gays from having the same right to get married that everyone else has. I'm no lawyer but I just don't see how they can have any viable grounds for appeal.
7.
Scottie Thomaston | September 5, 2012 at 1:46 pm
Yes, if they deny review Prop 8 is gone.
8.
MightyAcorn | September 5, 2012 at 1:47 pm
Oh boy. White knuckles now….
9.
Seth from Maryland | September 5, 2012 at 1:49 pm
lol
10.
Kathleen | September 5, 2012 at 1:52 pm
@Steve, there are no other challenges possible, but the question of whether marriage in CA is "instant" is a procedural question I don't have an answer to. I suspect it will require the 9th Circuit issuing its mandate, which has been stayed pending resolution of the cert petition. Per Per FRAP 41(d)(2)(D), "The court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed."
http://www.law.cornell.edu/rules/frap/rule_41
I know someone with Marriage Equality USA is researching this question and looking into what preparations the state might be making for the possibility of marriages resuming following a decision. If I hear anything, I (or Scottie) will report back.
11.
W. Kevin Vicklund | September 5, 2012 at 1:57 pm
Keep in mind that it'll be 20-26 days before we hear anything.
12.
Seth from Maryland | September 5, 2012 at 1:59 pm
yea ur right lol
13.
Carpool Cookie | September 5, 2012 at 1:59 pm
Oh my….
14.
W. Kevin Vicklund | September 5, 2012 at 2:05 pm
Not exactly instant, as there will still be some clerical issues to resolve. There might still be some challenges to side issues, but they shouldn't affect entry of judgment. Depending on how the courts decide to handle it, expect anywhere from a couple of days (unlikely) to 60 days, unless the state petitions for a delay (for instance, to get enough time to create and distribute new forms). It seems doubtful the state would need the delay, as I believe they already have forms that can accommodate marriage equality. Also, weekends may add delays (for instance, if SCOTUS denies cert on a Friday, the lower courts won't be able to do anything until Monday at the earliest)
15.
Kathleen | September 5, 2012 at 2:10 pm
What "side issue" challenges are you referring to?
16.
Troy | September 5, 2012 at 2:15 pm
I bet they put it off until after Nov.
17.
Franck | September 5, 2012 at 2:17 pm
September 24, eh? Funny that, it happens to be my 28th birthday… *crosses fingers*
– Franck P. Rabeson
Days spent apart from my fiancé because of DOMA: 1902 days, as of today.
18.
W. Kevin Vicklund | September 5, 2012 at 2:20 pm
I could see several reasons to review the case. My worst fear is the factioning that has polarized the court, which has resulted in very questionable jurisprudence in the last 15 years or so. But almost as bad: there is a very real possibility that the Court could decide that the 9th Circuit improperly applied Romer, in which case it could very well kick it back to the 9th Circuit to decide on broader grounds, adding several years to the whole process. Fortunately, the recent filings have pointed to another precedent, Crawford, which covers the specific point I am concerned about. A third possibility is that they might want to partner it with some of the DOMA cases, or Brewer v. Diaz (AZ domestic partner case being heard at the same conference).
All that said, I think the odds are better than even that SCOTUS denies cert, possibly with a note pointing at Crawford.
19.
JeffM | September 5, 2012 at 2:21 pm
I think they will deny it on standing.. After the hoops that were gone through to get standing for appeals, I think that SCOTUS (who is typically very picky about standing) will deny review.
20.
MightyAcorn | September 5, 2012 at 2:46 pm
I've also sent an FB message to the L.A. County Clerk's office about whether a protocol's been put in place for announcing/commencing marriage license issuance….will let you know if I hear anything back.
21.
Kelly | September 5, 2012 at 2:47 pm
Can someone explain what effect the Supreme Court ruling on Prop 8 would have on DOMA if any?
22.
MightyAcorn | September 5, 2012 at 2:51 pm
@W. Kevin, you are correct, current marriage license forms are already built to accommodate same-sex couples. I think the County Clerks will have to wait for the State to shoot off the starting pistol after any necessary court actions, but I believe that will happen as expeditiously as possible. It's a funny, nervous-making game of dominoes, but can't wait to see it played!
23.
Bill S. | September 5, 2012 at 2:57 pm
Would FRCP 62 be applicable here? Enforcement of a judgement cannot take place (in most circumstances) until 14 days after it has been entered.
24.
W. Kevin Vicklund | September 5, 2012 at 3:08 pm
Oh, stuff like attorney's fees. Ancillary things, that don't really affect the outcome of the case itself.
25.
Jon Davidson | September 5, 2012 at 3:12 pm
While it of course is possible that the Supreme Court will decide whether or not to hear the Perry case at the September 24th conference, they may well wait until they decide whether or not to hear the Gill and Goinski cases, which are not scheduled for conference at the moment until October 5th. (I believe SCOTUSBlog is wrong about Golinski; a reply has not yet been filed by DOJ to BLAG's opposition to DOJ's petition for cert. before judgment in that case, so, as the Supreme Court's docket reflects, it has not been set for the September 24th conference. SCOTUSBlog also says that Diaz has not yet been set for conference, but the Supreme Court's docket says it has been — for September 24th. I think SCOUTUSBlog just go these mixed up.) So, people should not be counting on knowing about Perry on September 25th. It could be we won't know until October 9th at the earliest (because the 5th is a Friday and the 8th is Columbus Day). — Jon Davidson, Lambda Legal
26.
Kathleen | September 5, 2012 at 3:26 pm
Aha. Yes, the issue of attorneys' fees was stayed pending final resolution of all appeals. That issue will go back to the district court.
27.
Kathleen | September 5, 2012 at 3:29 pm
FRCP (Federal Rules of Civil Procedure) govern proceedings in district court, not the appeals courts.
28.
W. Kevin Vicklund | September 5, 2012 at 3:36 pm
If they deny review, they probably won't say one way or another about standing. They don't have to provide a reason for denying review (unlike in Baker v. Nelson), so the only reason to say anything about standing would be to create precedent or dicta. Also, they'd probably have to review the case just to be able to get to the standing issue. Now, if they did grant cert, then they will have to address standing. I'd bet on them bypassing the standing issue if they see no need to address the merits.
29.
Kathleen | September 5, 2012 at 3:40 pm
Jon, thanks for stopping by and clarifying the situation!
30.
sfbob | September 5, 2012 at 3:43 pm
As much as I hate to say it, it has struck me that applying Romer directly to Prop 8 is not without some pitfalls, depending on how the precedent is viewed. The one area where I have any sympathy at all for the arguments the proponents of Prop 8 are making is the point that CO Amendment 2, apart from overturning any and all local anti-discrimination protections from one specific group, permanently enjoined the state from providing such protections, again to one specific group. It does strike me that Prop 8, as wrong as it is on many levels, involves a narrower sort of deprivation of rights. Therefore, hanging a decision respecting Prop 8 directly on Romer is not without some risk.
31.
sfbob | September 5, 2012 at 3:44 pm
That would be a good way for them to duck the issue. Just because California law, as interpreted by the state's Supreme Court, gives standing to the proponents of a ballot measure, that does not necessarily provide the proponents with Article III standing at the federal level.
32.
Jonh | September 5, 2012 at 3:47 pm
It is incredible how slow the US system works. It sometimes appears that those involved in the US justice system are proud of this.
33.
Tony | September 5, 2012 at 3:47 pm
If Cert is granted – do we get to find out which 4+ judges voted for it?
34.
W. Kevin Vicklund | September 5, 2012 at 3:53 pm
Usually not, though sometimes you find out who voted for it when cert is denied.
35.
Sagesse | September 5, 2012 at 4:18 pm
@
36.
Scottie Thomaston | September 5, 2012 at 5:08 pm
Thanks Jon!
37.
Carpool Cookie | September 5, 2012 at 5:20 pm
Mmmmm…good idea! Those of us in our various little pockets of California can do the same, locally.
38.
SHOES THROWER | September 5, 2012 at 5:20 pm
I can understand that. Reversing the judgments in Gill and Golinski would cast doubt on the Ninth Circuit's decision in Perry, and possibly its decision in Diaz. (While Diaz was not a decision on the merits of the lawsuit, it did rely on the likelihood of the plaintiffs' success, which would be undermined if the Supreme Court rejected constitutional challenges to DOMA.)
39.
Carpool Cookie | September 5, 2012 at 5:23 pm
Well….things that are well-crafted and thorough take time. I don't think anyone wants a totally automated, knee-jerk-reaction system.
40.
John | September 5, 2012 at 5:35 pm
I dont this this info is accurate. According to SCOTUS blog it's not on the Sept 24 conference
41.
Joy | September 5, 2012 at 6:05 pm
These 2 couples have been waiting for over 3 years. They have won on 2 levels and still cannot get married. This is hardly knee-jerk. The US system could learn from Canada and Mexico and many other judicial systems around the world; but of course the US never learns anything from anyone else.
42.
Steven | September 5, 2012 at 6:31 pm
John, it said it d be on Sept 24th………. How soon will we get a decision on whether or not they will hear the case?
43.
echamberlain | September 5, 2012 at 7:17 pm
What could we learn? How does Candian and Mexican jurisprudence differ from American jurisprudence?
44.
Seth from Maryland | September 5, 2012 at 8:05 pm
its possible it be the next day after the 24th, but most likely we know the monday after the conference
45.
John | September 5, 2012 at 8:19 pm
Look at the SCOTUS blog. Someone is trippin lol
46.
dong90806 | September 5, 2012 at 10:47 pm
Scottie, using general terms, the Prop 8 case is a "take-away" case. Both straights and gays had the right to marry, then that right was taken away only from the gays and for an unconstitutional reason. The case of Brewer v. Diaz also has a Cert Petition pending. It's a 9th Circuit case from Arizona where gay and straight state employees were entitled to put their "spouse" on their health benefits. Then the Arizona legislature took those benefits away from gay "spouses" of state employees, but not from the straights. The 9th Circuit said "No way!" It's seems to me that Brewer is another "take-away" case. In addition, there are 4 or 5 cases pending in trial courts on this issue. IMHO, this increases the likelihood of their granting cert increases.
47.
dong90806 | September 5, 2012 at 10:51 pm
When Prop 2 passed in Colorado, 3 cities in Colorado already had anti-gay discrimination ordinances. With the passage of Prop 2, these ordinances were declared null and void. Isn't this another example of "take-away" rights as it is in the Prop 8 case? Doesn't that make Romer more relevant?
48.
dong90806 | September 5, 2012 at 10:55 pm
C'mon, Joy. Do you really know how the judicial systems in Canada and Mexico work? Mexican jurisprudence has nothing to be proud of.
49.
dong90806 | September 5, 2012 at 10:58 pm
Scotusblog has it WRONG. If you go to the Supreme Court website and check the docket numbers for the cases, you will see that Windsor and Hollingsworth (Prop 8) have been scheduled for Sept 24. No others have been scheduled. The docket numbers are as follows:
Windsor–12-63; Hollingsworth–12-144; Gill — 12-13, 12-15, 12-91; Pederson — 12-231; Golinski — 12-16.
50.
rick jacobs | September 5, 2012 at 11:18 pm
And what if the Supremes decide to "relist" the case or even to hear it but to hold off for a term? I have heard that as a possibility. Regardless, we're entering the final days of legal inequality for marriage and soon, we hope, for employment. Then the real work begins: making it okay for kids from Tennessee or Lompoc, California to grow up gay. We'll be there for that, too.
Oh and thanks again to Jon Davidson at LAMBDA legal for keeping us "straight." LAMDA's work has propelled our community forward when no one else was really looking. We are blessed to have great advocates all around, including Shannon at NCLR and our smart folks at the Williams Institute. Long term infrastructure really matters.
51.
Steven | September 5, 2012 at 11:29 pm
No. 12-144
Title:
Dennis Hollingsworth, et al., Petitioners
v.
Kristin M. Perry, et al.
Docketed:August 1, 2012
Lower Ct:United States Court of Appeals for the Ninth Circuit
Case Nos.:(10-16696, 11-16577)
Decision Date:February 7, 2012
Rehearing Denied:June 5, 2012
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jul 30 2012 Petition for a writ of certiorari filed. (Response due August 31, 2012)
Aug 2 2012 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents Perry, Stier, Katami, and Zarillo.
Aug 3 2012 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioners Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com
Aug 10 2012 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondent City and County of San Francisco.
Aug 24 2012 Brief of respondents Kristin M. Perry, Sandra B. Stier, Paul T.Katami, and Jeffrey J. Zarrillo in opposition filed.
Aug 24 2012 Brief of respondent City and County of San Francisco in opposition filed.
Aug 30 2012 Brief amici curiae of Judge Georg Ress, and The Marriage Law Foundation filed.
Aug 30 2012 Brief amici curiae of William N. Eskridge, Jr., et al. filed.
Aug 31 2012 Brief amicus curiae of Center for Constitutional Jurisprudence filed.
Aug 31 2012 Brief amici curiae of Public Advocate of the United States, et al. filed.
Aug 31 2012 Brief amici curiae of National Association of Evangelicals, et al. filed.
Aug 31 2012 Brief amicus curiae of American Civil Rights Union filed.
Aug 31 2012 Brief amici curiae of Judicial Watch, Inc., et al filed.
Aug 31 2012 Brief amicus curiae of Eagle Forum Education & Legal Defense Fund, Inc. filed.
Aug 31 2012 Brief amicus curiae of Foundation for Moral Law filed.
Aug 31 2012 Brief amici curiae of Indiana, et al. filed.
Sep 4 2012 Reply of petitioners Dennis Hollingsworth, et al. filed. tbp
Sep 5 2012 DISTRIBUTED for Conference of September 24, 2012.
52.
Mike in Baltimore | September 6, 2012 at 12:18 am
"Sep 5 2012 DISTRIBUTED for Conference of September 24, 2012"
(per the link embedded in the first line of the article)
Also, remember that SCOTUSblog is run by humans, and humans are notorious for making mistakes. They might have overlooked it or made an error in coding it.
In any event, I'd trust the primary source (in this case, the Supreme Court docket page) than another source.
53.
Lynn E | September 6, 2012 at 12:45 am
I say we all send our requests to Kern County.
54.
Steve | September 6, 2012 at 3:41 am
A big point in Romer was that it removed ALL rights. It was called both "too narrow" (only affecting one group" and "overbroad" (affecting too many rights). Prop8 affects only one right – even with it, CA still has some of the most pro-gay laws in the country. A conservative judge can easily latch onto that.
55.
Steve | September 6, 2012 at 3:43 am
Also consider that the fucking Obamacare case made it the Supreme Court in less than 2 years
56.
William | September 6, 2012 at 5:35 am
If they decide not to hear Prop 8, then Prop 8 falls in CA, gay couples can get married in CA, and nothing else.
If they hear it, and rule in favour of the appeal, then the status quo remains in CA. I doubt it has much effect on DOMA.
If they hear it, and go with the Circuit Court logic, against taking away rights without a specific reason, gay couples can get married in CA, and possible other states down the line, but only in specific cases. No direct effect on DOMA, but it could play a part in later decisions on DOMA.
If they hear it, and go with the District Court logic, equal marriage in 50 states, and DOMA is a spent law.
57.
chad | September 6, 2012 at 5:50 am
there is no reason to put Perry off to consider Golinski. they might both effect gay marriage, but legally speaking they have absolutely nothing to do with each other. They will conference it on the 24th and release the order on 1 Oct.
58.
chad | September 6, 2012 at 5:52 am
justice delayed is justice denied! there is pride in efficiency
59.
CHRIS | September 6, 2012 at 7:24 am
Oh, I can see all the happy Chick Fil A supporters starting to foam at the mouth again!
60.
jay | September 6, 2012 at 7:42 am
well that was states suing the federal gov't. those cases are fastracked.
61.
Brian | September 6, 2012 at 10:03 am
It seems to me that the Supreme Court might be more interested in taking the national cases than in the California-centric Prop 8 case. So I would expect them to take all the DOMA cases (can they be consolidated for purposes of Supreme Court review?) and to leave the Perry case alone.
Also, I wonder about the possibility of a Supreme Court Justice retiring after oral argument on any of these cases, but before an opinion is written. I believe in that situtation a case typically would be reargued once a new Justice is sworn in so he or she could participate. That would delay things even further. I guess that's why retirements usually come at the end of a term, but with Justice Ginsburg's health issues, you have to wonder if she wouldn't retire if President Obama is reelected….
62.
Sebastian | September 6, 2012 at 10:32 am
If a Justice retires or falls ill then what happens, at least here in Canada, is that the remaining Judges make the decision. Generally we do not have all nine sitting on every case with many minor issues to be dealt with or overturned in such high volume with and such a small court. It is usually only major cases (like this one) where you have the full court in attendance but I believe they do not have to and can make a ruling with fewer.
If you do bring in a new Judge you do have to redo all hearings again and only use those arguments and evidence and would cause serious delays.
63.
jason walter | September 6, 2012 at 10:41 am
<img src="http://storeshopnow.com/mm/imada/otot.jpg"/> Yep, the countdown starts today.<img src="http://storeshopnow.com/mm/imada/toto2.jpg"/>
64.
Dace | September 6, 2012 at 10:45 am
Well, I've got my fingers crossed. Of particular interest will be the response of the pro-Prop 8 folks if SCOTUS refuses to hear the case. That would, as noted, result in SSM being restored to CA. But it would not preclude a second attempt to ban SSM. A second attempt could, in theory, avoid the pitfalls of Prop 8. For example, a second attempt could craft new arguments that do not appeal to discriminatory animus. Also, a second attempt could be "cleaner" in that it could sweep out all existing same-sex marriages and abolish domestic partnerships. This would avoid the irrational patchwork that Prop 8 created and which helped Boies and Olson in their constitutional arguments.
In theory, a more sweeping, draconian version of Prop 8, coupled with a campaign that focused on different rationales, could survive a challenge. The only problem is that such an effort would very likely fail at the ballot box. So do the proponents accept defeat after spending $38 million and 4 years? Or do they plow ahead with another massive effort on the theory that it is better to roll the dice than to quit?
Of course, all of this depends upon SCOTUS not hearing the case or taking it and deciding our way. But this issue of a sequel match is out there and it could come up as soon as the end of this month.
65.
Dace | September 6, 2012 at 10:51 am
Here's an interesting question: If we win, AFER gets its fees paid. Those fees are very substantial, reflecting 4 years' of work from 2 expensive law firms. But the state of CA took our side; the litigation was conducted by ProtectMarriage.com. They wanted standing and they got it. So now, who would be responsible for AFER's fees? Is the state of CA on the hook for fees for a litigation that it didn't want to fight, including multiple appeals that it opposed?
66.
Sharon R | September 6, 2012 at 11:06 am
Imperial County would be better…. I'm sure the clerk would love that one.
67.
Jon G | September 6, 2012 at 11:55 am
Seems very unlikely. To get there, SCOTUS would have to not review or strike down Prop 8, and give a nuanced answer that leaves an opening for such a law. Supposing that the draconian legal option was the only one, you would then have a pass an initiative that dissolves a hundred thousand marriages and possibly bans civil unions. Given that another Prop 8 would be a toss-up today, a more severe ban seems very unlikely to pass.
68.
W. Kevin Vicklund | September 6, 2012 at 1:45 pm
While it is possible for intervenors to be responsible for part or all of the attorney's fees, it is rare. It also effects the issue of standing – they now have a direct stake in the outcome. However, even then it is not sufficient all by itself to award standing. I can't remember the exact precedent (and I believe it was a Second Circuit precedent, in any case) because I last looked it up about 6 years ago.
69.
Mike in Baltimore | September 6, 2012 at 1:51 pm
The Monday after the 9-24 conference is October 1, 2012, which just happens to be the first day for the 2012 SCOTUS term, and the first day for oral arguments. Since SCOTUS has nothing scheduled for September 25-28, it would make MUCH more sense for SCOTUS to announce late (DC time) on the 24th, or on the 25th, 26th, 27th or 28th of September.
The calendar for the 2012 SCOTUS term is at: http://www.supremecourt.gov/oral_arguments/2012te…
70.
Mike in Baltimore | September 6, 2012 at 2:05 pm
I believe you are correct in what you stated.
In the US SC, if a case is argued, and one of the Justices recuses themselves, it would be the equivalent of a Justice missing because of death or illness. In cases where a Justice recuses themself, a ruling is still handed down, with the usual rules still in place – if a majority, then the SC ruling goes through, if a tie, then the lower court rule is upheld.
One major difference between the Canadian SC and the US SC (that I'm aware of) is that the Canadian SC can, in effect, hear a case about a law before the law is even introduced, and report back to Parliament on how they'd probably rule. I believe that is how marriage equality came into existence in all provinces in Canada. In the US, the SC cannot 'prejudge' a law, but must allow the law to pass (if not even go into effect) before a case can be brought.
Question – does the Canadian SC have as much discretion on what cases to accept as the US SC has?
71.
Mike in Baltimore | September 6, 2012 at 2:20 pm
The earliest date for such a new attempt would be the next General Election in California, which I believe is 2014, as the deadline for ballot initiatives for the 2012 General Election is past.
Considering the trend in polling, the farther into the future, the lower the probability of a new Prop H8 passing goes down. Remember, Prop H8 was in 2008, and just barely passed. By 2014, if the current trend in polling continues, it would be defeated at the polls. And I don't think as many people would be so complacent about it not passing, but make a concerted effort to vote for it's failure.
72.
W. Kevin Vicklund | September 6, 2012 at 2:26 pm
Recent practice, it appears, has been to announce grants on the Tuesday after, and other orders (such as denials and holds) the Monday after. So good/bad news likely won't be announced until the 1st, finger-crossing news on the 25th. It's doubtful anything will be announced on the 24th, or 26-30th.
73.
grod | September 6, 2012 at 4:09 pm
Mike, you have a fair understanding of the Canadian system. 8/13 jurisdictions had ruled that the federal government's definition of marriage was unconstitutional between 2003 and the end of 2004. The feds did not appeal these rulings. The ‘reference’ to the Supreme Court was of a bill that had been introduced into the parliament (lower house). That Court’s opinion was rendered in Dec 2004. By the time that the bill passed the federal parliament/signed in July 2005 only two provinces (one the smallest province) and two territories had not ruled on it.
So you are right in the sense of "all", but if the feds had delayed longer, their actions who have had even less impact as hearing were in process in most of the remaining four jurisdictions. It is fair to say that civil marriage equality came to Canada by way of the courts, but the law on the definition is in the federal sphere – as affirmed by the Supreme Court reference.
Not sufficiently familiar with Canadian/American systems to comment but to say our Supreme Court has wide discretion on what cases it accepts. It does not explain its declines.
74.
Steven | September 6, 2012 at 4:38 pm
Sorry, if US Supreme Court decides to deny the appeal or upholds lower's decisions opponents of marriage equality groups CAN'T GO BACK TO THE BALLOT to override the court decisions. Prop 8 was about taking rights away… CA Supreme Court didn't decide this only it was proper amendment to the constitution
75.
Sean | September 6, 2012 at 7:45 pm
Mass. suing over the govt. over DOMA was not fast-tracked though.
76.
Lymis | September 7, 2012 at 5:30 am
Yes, and we've seen some incredible legal and logical gymnastics out of some anti-gay judges.
But it's also important to realize that the right to marriage isn't just a single right, but it's the gateway to a whole package of rights, privileges, immunities and responsibilities, many of which aren't available any other way, especially at the federal level. DOMA gums that up, but it doesn't change the fact it's the way that marriage in this country is structured. Even the California laws aren't independent of marriage – they simply say that a Domestic Partnership grants all the same benefits that marriage does, they aren't an independent parallel set of laws.
So Prop 8 is both too narrow and overbroad, in much the same way that Amendment 2 was. It focuses specifically on taking away a right that, at the time of passage, was available to all from a single group of politically unpopular people, without actually accomplishing its stated goals, and at the same time, disenfranchises those people from a huge body of rights, many of which have nothing to do with those stated goals.
But I could live with Romer being unnecessary, if SCOTUS would just stop doing the back somersaults involved in not applying the clear rules for strict scrutiny to LGBT people. There is no justification for our not being a suspect class, which would make applying Romer redundant.
77.
Lymis | September 7, 2012 at 5:42 am
While in theory a new law or proposition could be written that "do not appeal to discriminatory animus," in decades of dealing with this issue, nobody has come up with one that isn't either transparently discriminatory or blatantly false.
Any set of laws that allow a woman who had a hysterectomy or a man who had a vasectomy to marry, but deny the same right to a same-sex couple appeal either to tradition, bad science, religion, or anti-gay animus.
If someone could come up with a justification for one of these laws that passed constitutional muster, don't you think they would have done so by now?
78.
Lymis | September 7, 2012 at 5:46 am
People keep saying that Prop 8 was about taking rights away, but that's an oversimplification. It is about taking rights away from only a specifically targeted group without a sufficient justification.
The Prop 8 ruling didn't even imply that you can't take rights away via the Amendment process, just that it is an all or nothing thing unless you have a clear and specific governmental interest in taking them away from the group in question.
Laws which put people in prison take away rights from a targeted group, but there is sufficient justification and a clear governmental interest in doing so. Picking an unpopular group to take marriage away from isn't the same sort of thing.
79.
SHOES THROWER | September 7, 2012 at 1:22 pm
It should be noted that only two county clerks were involved in the litigation; the other county clerks were not.
Would the other county clerks drag their feet? They would not face contempt proceedings since they were not enjoined.
80.
SHOES THROWER | September 7, 2012 at 1:24 pm
What the state supreme court said essentially is that the proponents have standing to assert the state's interest, much like how one person can have standing to assert another person's interest if authorized by law.
81.
SHOES THROWER | September 7, 2012 at 1:26 pm
The court could have limited its holding to invalidate Amendment 2 to the extent it affected pre-existing privileges and rights, but it struck down Amendment 2 on its face, meaning it was invalid to the extent it prohibited new legal protections.
82.
SHOES THROWER | September 7, 2012 at 1:28 pm
Scottie,
would not the Ninth Circuit's opinion apply directly to the Arizona benefits case (assuming that the Supreme Court denies cert to that case)? I can not imagine a rationale that would support Arizona's Section O without also supporting California Proposition 8.
83.
MightyAcorn | September 7, 2012 at 1:37 pm
Wrong as usual. The Clerks take their marching orders from the State, not the court. When the State says "start issuing marriage licenses to same-sex couples" all the Clerks must comply…..or face consequences. If Chuck Storey wants to puff and posture as he has so many times before, he's welcome to, but if he denies same-sex couples licenses my guess is he'll be dealt with swiftly and severely.
Plus, once the State orders him to comply, Imperial County will become civilly liable for any harm he causes, so my guess is their County supervisors will boot his sorry butt themselves. It'll be fun to watch.
84.
SHOES THROWER | September 7, 2012 at 2:22 pm
The problem is that it differentiated between withdrawing a right, and refusing to offer the right in the first instance. It held that “[w]ithdrawing from
a disfavored group the right to obtain a designation
with significant societal consequences is different
from declining to extend that designation in the first
place, regardless of whether the right was withdrawn
after a week, a year, or a decade.” Romer v. Evans, 517 U.S. 620 (1996) was cited in support of that contention.
But this can not be correct. As the ACRU brief in support of certiorari noted,
ACRU Brief in Support for Petition of Writ to Certiorari, Hollingsworth v. Perry, at 17
85.
SHOES THROWER | September 7, 2012 at 2:24 pm
That would leave a possibility of overruling Perry if the Supreme Court upheld DOMA against equal protection challenges.
86.
SHOES THROWER | September 7, 2012 at 2:26 pm
Reversing Golinski and thus upholding DOMA would implicitly overrule Perry.
87.
SHOES THROWER | September 7, 2012 at 2:29 pm
It would depend on if the Supreme Court takes the DOMA cases. A ruling upholding DOMA would cast doubt on the Ninth Circuit's decision.
88.
SHOES THROWER | September 7, 2012 at 2:30 pm
Kern County was not among the litigants in the case, so the mandate would not apply to them.
89.
DJB | September 7, 2012 at 2:51 pm
@JeffM–I'm inclined to agree with you. There's some very good (IMHO) U.S. Supreme Court precedent out there holding that an intervenor has no standing to appeal a judgment striking down a statute when the state real party in interest chooses not to do so. Diamond v. Charles is one example. And SCOTUS has, especially recently, had many occasions to dismiss cert because one party lacked standing. Frankly, I wouldn't mind if SCOTUS denied cert on this ground, if for no other reason than because it is a rationale the entire Court can get behind in order to preserve as precedent the very well-reasoned, landmark decisions by Judge Walker and the Ninth Circuit.
90.
Guest | September 7, 2012 at 4:33 pm
Indeed. Mexico presumes its criminal defendants guilty unless and until proven innocent. Not exactly the lessons we should be learning after Gitmo.
91.
fiona64 | September 7, 2012 at 4:36 pm
I am becoming more and more convinced that you are that annoying Michael character, the failed realtor who liked to pretend he was a lawyer.
Guess what, pookie? WHEN Prop 8 is thrown out? Kern County (whose county clerk tried to be a defendant-intervenor, which is why it's pertinent to this discussion) will indeed be part of the mandate.
Idiot.
92.
fiona64 | September 7, 2012 at 4:37 pm
On what planet? The Ninth Circuit's decision is narrowly tailored to CA. And that's all aside from DOMA being found unconstitutional in several cases already.
93. Prop 8 Trial Tracker &raq&hellip | September 7, 2012 at 5:23 pm
[...] BREAKING: Prop 8, DOMA cases have been distributed for September 24 conference at the Supreme Court [...]
94.
MightyAcorn | September 7, 2012 at 5:56 pm
Michael Esposito you mean, who (just like the Proponent's attorneys) can't come up with any good rationale for Prop 8, so he has to lie and posture. Real estate must be reeeeeal slow right now.
Kern County will tow the line like every other county in CA, because they have to do what the State tells them to. Once the final court mandate allowing same-sex marriage to resume is issued, the State will order the counties to comply. Kern will be as successful in evading the order as they were the first time CA had marriage equality, back in 2008. They announced they would stop doing all wedding ceremonies, gay and straight–and they were permitted to do that, as ceremonies aren't a mandate–and the next day Kern burst into flames. Hmmm. That's what happens to haters, I guess.
95.
MightyAcorn | September 7, 2012 at 6:12 pm
Nope. Wrong again. Shoes Thrower should maybe try throwing shoes that aren't firmly stuck in his mouth along with his foot.
There's no such thing as "implicitly overruling" a court case. Duh. I don't know why the jabberers at the hater websites you trawl for this crap don't do a better job sourcing some kind of credible argument. Oh wait, BECAUSE THERE AREN'T ANY, MAYBE??
Hey Michael, we know the advanced level of discourse displayed at the DNC this week makes you jealous, but don't you have something else to do with your life than try trolling here? Where you are exquisitely outclassed? Or maybe you've forgotten that we here all know what it *really* means when men are obsessed with gay-bashing?
96.
MightyAcorn | September 7, 2012 at 6:17 pm
Clearly you don't understand anything about SCOTUS at all, or the law, but it's entertaining watching you pretend things. How will you amuse us next, I wonder?
97.
MightyAcorn | September 7, 2012 at 6:21 pm
Tee hee! He's pretending to be a lawyer again! Shoesie, you're a funny funny clown today!
98.
SHOES THROWER | September 7, 2012 at 6:28 pm
Kern County never intervened, nor moved to intervene.
Where did you get the idea that Kern County will be part of the mandate? It was not sued, and indeed the plaintiffs lacked standing to sue Kern County, as they did not allege the county violated their rights.
99.
MightyAcorn | September 7, 2012 at 6:31 pm
Ha ha! It just gets better! He can't even format out the line breaks from the hater site he copied this from! And the goofy gun totin' ACRU–which nobody here will confuse with the ACLU, of course–is shouting after the horse that already left the barn! Why didn't they appear alongside the Proponents in court to bring this argument, if it's so great? Um…maybe because it's nonsense, that smells? Keep it up, Michael….we're rolling on the floor here.
100.
SHOES THROWER | September 7, 2012 at 6:39 pm
Were that the case, the governor and attorney general of Oklahoma would have been proper defendants in the Oklahoma marriage suit, and they would not have been able to dismiss the claims against them, leaving the county district court clerk the only defendant with respect to the challenge to the marriage amendment. But see Bishop v. Oklahoma, No. 06-5188N.D. Okla. (D.C. No. 04-CV-848-TCK) (unpublished) (dismissing Oklahoma governor and attorney general as defendants in a constitutional challenge against Question 711) (10th Cir. 2009) The Tenth Circuit held, "The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit. "
If your theory was correct, the Tenth Circuit would not have dismissed the claims against the governor and attorney general, as they of course could have redressed the plaintiffs' injuries, which was denial of a marriage license, the same injuries suffered by the Proposition 8 plaintiffs. But like the Oklahoma plaintiffs, the California plaintiffs' injuries were caused solely by the two county clerk defendants.
101.
SHOES THROWER | September 7, 2012 at 6:40 pm
How could Proposition 8 fail to satisfy equal protection if DOMA does?
102.
SHOES THROWER | September 7, 2012 at 6:44 pm
Wrong
103.
MightyAcorn | September 7, 2012 at 6:44 pm
Um….I got the idea from being in the County and State's marriage arm for over ten years, and actually knowing how it works. The named parties in the court case don't matter.
But you can keep valiantly trying to upset people with your lies, if you want. And hey, even the Teabag media admitted Dan Savage won the debate with your friend Brian Brown…you DO read Dan Savage, don't you Michael ?http://joemygod.blogspot.com/2012/08/hate-groups-agree-dan-savage-won-his.html
104.
MightyAcorn | September 7, 2012 at 6:51 pm
Hee hee! Nice attempt at changing the subject to something completely unrelated–another cut and paste job, I see–but we're hardly dazzled. Oh Michael, is your life really so empty that you have nothing better to do on a Friday night but prove how foolish and peevish you are?
Off to dinner with friends…yes Michael, if you were a better man, you too could have friends. We'll spend a few minutes pitying you before we go have fun.
105.
Mike in Baltimore | September 7, 2012 at 8:28 pm
"They will conference it on the 24th and release the order on 1 Oct."
Or they might release the order late (DC time) on September 24, or soemtime September 25, or September 26, or September 27, or September 28 (the dates after September 24 are dates that SCOTUS has not scheduled anything), or some date after September 24.
I seriously doubt that there will be anything except of SUPREME significance announced on October 1, as that would take attention away from the beginning of, and first day of oral arguments, for the October 2012 term of SCOTUS.
106.
Mike in Baltimore | September 7, 2012 at 8:32 pm
"Someone is trippin"
I know it's not me.
You 'trippin'?
107.
Mike in Baltimore | September 7, 2012 at 9:08 pm
Actually, there is precedent for denying rights previously granted, then taken away, then restored. And by amendment to the US Constitution, not just in a state constitution.
In the 1800s and early 1900s, people could manufacture, transport and consume alcoholic beverages. Then (on 1/16/1919) the 18th Amendment was ratified (effective one year later), and Congress passed the Volstead Act (Wilson vetoed it, but the House overrode the veto on October 28, 1919 and the Senate on October 29, 1919), prohibiting the transportation, manufacture or consumption (except for medicinal or religious reasons) of alcohol. On 12/5/1933, the 21st Amendment was ratified, immediately repealing the 18th Amendment.
SCOTUS was not directly involved in any of the above, but to state that something once available cannot be taken away is incorrect.
Same with marijuana (Jefferson, Franklin and others advocated the growing and use of 'hemp' for various purposes), and many other things (except SCOTUS was involved in many of the laws prohibiting previously legal subjects. One famous case was the obtaining of a license to possess marijuana. The law said anyone could apply for the license, but to get the license, you had to prove the possession of the 'product'. As soon as you did that, you were arrested since you couldn't lawfully get the 'product' without a license, but to get a license you had to prove you had the 'product'. SCOTUS ruled that such a law was ludicrous. In effect, the Federal government was trying to create a 'heads I win, tails you lose' situation.
108.
SHOES THROWER | September 8, 2012 at 9:50 am
They were an amicus, just like Citizens for Ethics and Responsibility were for the plaintiffs in the First Circuit DOMA appeal.
109.
SHOES THROWER | September 8, 2012 at 9:54 am
Part of that was the fault of the Department of Justice, whose change in position delayed briefing.
110.
Brian | September 8, 2012 at 2:24 pm
They can't go to the ballot to override the 9th Circuit decision, but they can go back to the ballot to enact a new constitutional amendment. In theory, this new amendment could achieve the same result as Prop 8 if it avoided certain pitfalls identified by Walker and the 9th Circuit. The 9th Circuit's decision does not operate as a bar on eliminating marriage rights under any and all circumstances once they have been granted. There is a theoretical way for the proponents to do this again and to do it in a way that satisfies the 9th Circuit. However, it is exceedingly unlikely that such an effort could succeed at the ballot, since it would require the proponents to push a more sweeping measure while abandoning their most effective rationales, i.e., policy rationales based on discriminatory animus.
111.
Straight Dave | September 8, 2012 at 5:25 pm
One big difference in that example…
Alcohol was prohibited for *everyone*, so there was no equal protection question in play.
Marraige was eliminated only for one unpopular group. At the time, there was plenty of reasonable basis for banning alcohol, but no reasonable basis for making a distinction between groups for marriage rights..
112.
Mike in Baltimore | September 8, 2012 at 6:30 pm
Remember, Amendment 2 did say forever. But in Amendment 2's case, just like Prop H8, forever is only as long as the Amendment to the state Constitution is on the books.
In Amendment 2's case, forever wasn't long, and hopefully that will also be the case with Prop H8.
113.
Mike in Baltimore | September 8, 2012 at 6:51 pm
"standing to assert the state's interest" in a state court. However, Federal courts are NOT state courts, and the rules can be, and are, different between state court and Federal courts, ESPECIALLY where questions of standing occur.
And aren't CONS eager to state the the 9th is the most overruled court in the US? Wouldn't telling the backers of Prop H8 they don't have standing in a Federal court in effect be overruling the 9th's decision that they have standing?
114.
Mike in Baltimore | September 8, 2012 at 7:10 pm
I think there was a VERY efficient organization in Central Europe in the 1930s/early 40s. And they took a LOT of pride in their efficiency, and still kept searching for additional ways to become efficient.
Are we looking for efficiency like they provided?
115.
Mike in Baltimore | September 8, 2012 at 7:27 pm
And oral arguments are scheduled for October 2.
Besides, the first Tuesday after September 24 is September 25, all the more reason for an announcement during the week of September 24-28. Besides, if you take a look at the court calendar, you should notice that SCOTUS has no scheduled oral arguments, non-argument sessions or conference days scheduled on September 25,26,27, and 28.
And is there any law or rule that mandates when SCOTUS releases information?
116.
Mike in Baltimore | September 8, 2012 at 7:52 pm
And your argument about alcohol applies to the hemp situation, how?
Disclosure – I've used hemp in the past, but not recently. And I stopped using it for personal reasons, not involving the police, etc.
117.
DougV | September 8, 2012 at 11:54 pm
You are wrong, the State it self along with the Governor and AG were named plaintiffs in the case as such they are bound by the ruling. As agents of the state all counties will be compelled to follow the courts ruling, if they refuse the AG will go to the courts who will order the counties to comply.
118.
DougV | September 8, 2012 at 11:59 pm
You see the 9th Circuit ruling was against the state it self, so what you posted is irrelevant. The 9th did not remove the state as plaintiffs.
119.
Bill S. | September 9, 2012 at 8:40 am
But didn't the CA Supreme Court decision, in deciding that Prop 8 was a valid amendment to the Constitution, say they would have ruled the exact opposite way if Prop 8 actually did take away concrete rights (as opposed to the symbolic distinction of marriage vs. domestic partnerships)? This would seem to indicate that such an amendment would have to go through the constitutional revision process, which requires approval from the legislature of California.
120. Prop 8 Trial Tracker &raq&hellip | September 9, 2012 at 11:08 am
[...] BREAKING: Prop 8, DOMA cases have been distributed for September 24 conference at the Supreme Court [...]
121. Watch out for Sept. 24&hellip | September 9, 2012 at 9:02 pm
[...] read original statement, click here. Buffer COMMENTS POLICY: Comments are limited to 1500 characters, and should not contain [...]
122.
John Stark | September 9, 2012 at 9:55 pm
I wish yo be included in any fact finding for the Repeal of DOMA..I wish this to be said it has negatively impacted my life …Causing severe Financial reprisal … and even in so far a real sense of humiliation as a Tax payer and owner of personal property.That being said I do not like having to pay taxes 2 and 3 times the going rate on inheritance that is observed in married couples at 0% with held vs being in a Registered Domestic partnership where a 5 year income can be levied at a % = to 5 years Taxable in one years income tax upon the non wage earning should they survives a spouses death!
.
123.
fiona64 | September 10, 2012 at 3:39 pm
Michael, stop being deliberately obtuse. And you know that's what you're doing.
124.
Mike in Baltimore | September 10, 2012 at 8:36 pm
DOMA has negatively impacted EVERY member of the GLBT community, some to a greater extent than others. And in many cases, it's not a tax issue, or only a tax issue.
It also has allowed people like 'SHOES THROWER' to think that they can influence people by posting misinformation at sites like Prop H8 Trial Tracker, meaning that we have to put up with his (and his ilk's) delusions.
125.
Mike in Baltimore | September 10, 2012 at 8:42 pm
'grod',
When I stated marriage equality became law "in all provinces in Canada", I wasn't stating it became law in each province because of Canadian SC rulings, but the Canadian SC ruling (in effect) made marriage equality immediately nationwide when it ruled as it did.
126.
Mike in Baltimore | September 10, 2012 at 8:46 pm
"Alcohol was prohibited for *everyone*. . . ."
And that is incorrect, as there were exceptions for medicinal and religious use (wine at Mass, anyone?).
127. Equality Roundup: Equalit&hellip | September 12, 2012 at 1:58 pm
[...] also bracing for September 24, when the U.S. Supreme Court could certify Hollingsworth v. Perry, the Prop. 8 case. If they decline to grant certification, then the freedom to marry is restored in [...]
128.
fiona64 | September 13, 2012 at 2:19 pm
Ejercito. Doesn't matter, really; his pedantry is readily identifiable … and he's still no more a lawyer than he was when he was banned from posting here.
129.
MightyAcorn | September 13, 2012 at 4:46 pm
You're right, Ejercito; clearly my brain doesn't want to waste the real estate (as it were) on details about the poor cut-and-pasty fellow.
130. Courtwatch 2012 | Uniting&hellip | September 24, 2012 at 10:59 am
[...] to Scottie Thomaston, at the Prop 8 Trial Tracker website, it means that the members of the Supreme Court are deciding TODAY whether they will hear the [...]
131.
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