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Liberal three-judge panel picked to hear marriage cases in Ninth Circuit next week

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
Yesterday, the Ninth Circuit Court of Appeals announced the three-judge panel that will hear same-sex marriage cases from Idaho, Nevada, and Hawaii. All three judges were appointed by Democratic presidents and are considered to be some of the most liberal appeals court judges in the country.

Judge Stephen Reinhardt, nominated by President Carter, is a highly respected liberal judge, known for writing the opinion in the Prop 8 case when it came before the Ninth Circuit; Judge Reinhardt also wrote the opinion in SmithKline Beecham v. Abbott Labs, which held that a heightened level of judicial scrutiny is required for laws that discriminate based on sexual orientation, and that jurors can’t be discriminated against on that basis.

Judge Marsha Berzon, nominated by President Clinton, once clerked for Justice William Brennan, and is considered to be a solidly liberal judge. She joined Judge Reinhardt’s opinion in SmithKline as well.

The third judge on the panel is Judge Ronald Gould, also nominated by President Clinton. Judge Gould wrote the Ninth Circuit’s opinion in Witt v. Dept. of Air Force, challenging Major Margaret Witt’s discharge from the military on the basis of her sexual orientation under Don’t Ask, Don’t Tell. That decision held that heightened scrutiny is required under the Supreme Court’s decision in Lawrence v. Texas, and it led to an eventual ruling that Witt’s discharge was unconstitutional.

The appeals court’s decisions in SmithKline and Witt had already ensured a more difficult path to victory in the cases for the state officials and groups defending the same-sex marriage bans. This panel makes it even less likely, though not impossible, the bans would be upheld.

Arguments in the three cases will take place on September 8, and they will be live-streamed.

The cases are Sevcik v. Sandoval, from Nevada, Latta v. Otter, from Idaho, and Jackson v. Abercrombie, from Hawaii.

63 Comments Leave a Comment

  • 1. LK2013  |  September 2, 2014 at 8:16 am

    Awesome line-up! Maybe listening to the audio here will be another refreshing and enlightening view into our justice system (unlike the 6th). Looking forward to this one!

  • 2. JayJonson  |  September 2, 2014 at 8:23 am

    And marriage equality comes to another Mexican state. The legislation was passed by a vote of 19-3. The state borders Texas.
    http://www.glbtq.com/blogs/mexican_state_legislat

  • 3. RnL2008  |  September 2, 2014 at 8:37 am

    I like the panel, but I do hope that they rule in a way as to ensure they are NOT overturned by SCOTUS.

    I was NOT happy with how Justice Reinhardt originally handled the Prop 8 and in the end had their ruling tossed by SCOTUS because of the standing issue.

    Hopefully this time it is a solid ruling in our favor:-)

  • 4. robbyinflorida  |  September 2, 2014 at 8:45 am

    I think there will be a lot of talk about the standing issue both for the clerk in NV and CPM.
    The atty. for both, Monte Neil Stewart, is a real piece of work, In his NV briefs he repeatedly refers to himself as an authority. And having lost in Utah and Idaho he's really bitter. Let's see how well that goes over with Judge Reinhardt. Remember Stewart was appointed special counsel by the Utah AG, the big gun, super lawyer from BYU.

  • 5. Ann_S  |  September 2, 2014 at 8:46 am

    I hope they rule in a way that they see the law governing the issues.

    Reinhardt's Prop 8 opinion was practically a love letter to Justice Kennedy, citing opinions Kennedy had written. You can hardly blame the standing issue on Reinhardt. And a win on standing is still a win.

  • 6. RnL2008  |  September 2, 2014 at 8:55 am

    Justice Reinhardt is to blame for the standing issue in my opinion strictly because instead of just denying Article 3 standing to the proponents of Prop 8 in the first place, the panel punted to the CSSC for guidance, thus delaying oral arguments, a ruling and more time of a stay while SCOTUS did what they did.

    Justice Reinhardt already knew that the proponents of Prop 8 lacked standing and tried to make some strange ruling that he thought would appeal to Justice Kennedy and it failed!!!

    Had the 9th just handled it correctly the first time, we might have had ME throughout the Country by now!!!

  • 7. Ragavendran  |  September 2, 2014 at 9:05 am

    Rose, it did appeal to Justice Kennedy – remember that he dissented? Being the federalist that he is, he was inclined to defer to the California Supreme Court in determining that the proponents did have standing. And he likely wanted to uphold the Ninth Circuit's reasoning and judgment (which would have still led to the same result – only CA would have obtained ME).

    Also, I don't see how it might have been different had the 9th just handled it correctly the first time, meaning they dismissed the appeal for lack of jurisdiction. How might we have had ME by now?

    It would have been different if Kamala Harris had continued enforcing the ban but not defend it, like what has happened in a few states now. That might have led to nationwide ME by now, but then again, that might have also made the Supreme Court less likely to grant cert.

  • 8. Zack12  |  September 2, 2014 at 9:15 am

    I think that they would have punted if standing hadn't been an issue.
    The Prop 8 case gave them an off ramp and they took it.

  • 9. Ann_S  |  September 2, 2014 at 9:16 am

    Reinhardt didn't "know" the proponents lacked standing — he is inclined to interpret standing requirements broadly. Just as the conservative members of the court are inclined to interpret them narrowly. And he didn't "fail", as Ragavendran points out.

  • 10. Zack12  |  September 2, 2014 at 9:16 am

    I'm glad Idaho is in the mix on this one.
    There are no standing issues here unlike in Nevada and Hawaii.

  • 11. Terence  |  September 2, 2014 at 9:23 am

    This is not quite as dramatic as it may seem. Mexico City became the first Mexican jurisdiction to approve marriage and family equality in 2009, also resisting strong opposition from the bishops. A later constitutional court ruling held that all marriages conducted in Mexico City must be recognized throughout the country, effectively making same – sex marriage available to any couple able to travel to the capital for the ceremony. Since 2012, same – sex marriages have also been conducted in the state of Quintana Roo, in the South of Mexico, after it was found that they were not specifically excluded by the state constitution.

    In addition. following a 2012 case in Oaxaca state, a particular Mexican judicial procedure (the "injunction" process), any couple in any state can secure approval for a same – sex marriage, by making specific application to the courts. Several individual couples in a range of states have done so, as this map shows.

    So in practice, ME has not only just come to Coahuila – it's already been available, throughout the country, to any couple willing to jump through some legal loops. Yesterday's vote formalizes this for the state – and is welcome, for that.

    (see the Wikipedia map at http://en.wikipedia.org/wiki/Recognition_of_same-

  • 12. Randolph_Finder  |  September 2, 2014 at 9:26 am

    I haven't seen any mention of the Governor of the state in this, has he already signed it or is this something where there is no possibility of Gubernatorial veto or something else?

  • 13. StraightDave  |  September 2, 2014 at 9:39 am

    The 9th circuit does live video. We saw it in the Perry case.

  • 14. Jen_in_MI  |  September 2, 2014 at 9:50 am

    All I can say is that historically, the circuit decisions most overturned by the SCOTUS come from the 6th CA. I expect this time will be no different – unless Sutton decides he wants to be on the right side of history, which seems doubtful given his pedigree.

  • 15. Dann3377  |  September 2, 2014 at 10:09 am

    Can someone clear up in a nut shell why Hawaii is still being mentioned? Thanks

  • 16. sfbob  |  September 2, 2014 at 10:13 am

    Actually Kamala Harris DID continue to enforce Prop 8 even while refusing to defend it. It might have been simpler if she had continued to defend the ban in court but it would have made little sense given that her predecessor, Governor Brown, had refused to defend the ban as Attorney General and even HIS predecessor, Arnold Schwartzenegger, a Republican, had refused to defend it. Whatever arguments her staff might have made would either have been viewed as highly insulting to us or else would have been viewed by those on the right as failing to be an adequate defense.

  • 17. RnL2008  |  September 2, 2014 at 10:21 am

    I'm not sure it appealed to Justice Kennedy and that's why he dissented……frankly, I was surprised by his dissent and even more surprised by Justice Scalia's siding with the 4 liberals…….either way, the 9th knows what it takes to have Article 3 standing and I believe they simply did not want to have to rule on that issue alone, as it was, that's what SCOTUS ruled on and nothing else.

    We will NEVER truly know if it might have helped ME or not, the fact is that neither the AG or the Governor opted to defend it in court and that only left the proponents to defend a proposition that was already UNCONSTITUTIONAL in my opinion.

    I didn't mean to cause a stir over an issue that has already been resolved……I only hope that Justice Reinhardt is able to be more specific regarding the issue at hand.

    As always thanks for the insight you provide, as well as all of the other comments:-)

  • 18. Ragavendran  |  September 2, 2014 at 10:22 am

    Oh yes, that's right! Thanks for pointing it out. I've mentioned this before, but in April 2013, Judge Walker (retired by then) gave a talk that I attended, where he discussed the (then) impending outcome of Hollingsworth in depth. And he said that after he threw out the ban in district court, he strongly encouraged the Government to be in the loop and involved as defendants so that there wouldn't be standing issues. They didn't have to actually offer arguments in support of the ban. For example, the federal government didn't argue for DOMA, but the Supreme Court held that they had standing anyway. If CA had been involved as passive defendants all the way, even if they took the side of the plaintiffs, there wouldn't have been any standing issue. Like what Virginia is doing now.

  • 19. Ragavendran  |  September 2, 2014 at 10:25 am

    Summary: Plaintiffs in the Hawaii case lost in district court way back when there was no marriage equality there. So they filed a proper appeal with the Ninth Circuit. Now that Hawaii has legislated ME, there is no longer any direct case or controversy, even though there are some pending legal issues with respect to the act that legislated ME and doubts whether that could be resolved in a way that voids Hawaii's ME law. So the parties were asked to submit additional briefing on whether the appeal should be dismissed as moot. That briefing is completed, and the issue will be argued on Monday. They only get 10 minutes per side to talk about this.

    In Depth:
    The AG and DAG, who are representing the director of the Hawaii Department of Health have already withdrawn from the case and have said they won't appear at oral argument or submit any further briefs.

    That leaves Governor Abercrombie as the sole remaining defendant, and he is arguing that the appeal is moot, despite there being pending legal challenges to the act that legislated ME. He argues that a vacatur of the district court order is therefore necessary. In the alternative, that is, if the Court determines that the appeal is not moot, he is arguing that Hawaii's constitutional amendment is unconstitutional and must be struck down.

    The Plaintiffs agree with the Governor on every issue, and their brief approves of the Governor's arguments that I've summarized above.

    There is also an Intervenor-Defendant here, the Hawaii Family Forum. Suffice to say they're all for upholding the ban – they argue that the appeal is not moot because of the pending legal challenges to the act that legislated ME, and in the alternative, Hawaii's exclusion of same-sex couples from marriage is constitutional.

  • 20. sfbob  |  September 2, 2014 at 10:25 am

    In Jackson vs Abercrombie, the District Court upheld the state's marriage equality ban (of course that happened prior to Windsor). So even though the state legislature subsequently passed marriage equality the case is still considered "live." Bob McDermott, a state legislator, is continuing to insist that the state's constitutional amendment passed in 1998 giving the legislature the ultimate say over whether to approve or ban marriage equality, was in fact a constitutional ban, because that was how voters understood it at the time. While the plain wording of the amendment refutes that and the courts have not bought McDermott's argument thus far, it's still considered theoretically possible, though unlikely, that he could prevail.

  • 21. JayJonson  |  September 2, 2014 at 11:14 am

    If you had read the link, most of this would have been explained. The difference here is that this is the first state after Mexico City (Federal District) to achieve marriage equality by legislation. The overwhelming vote validates popular sentiment and political support rather than petitioning a court to do the right thing.

  • 22. franklinsewell  |  September 2, 2014 at 11:18 am

    Dave is correct. Live VIDEO – Information on how to access here: http://www.ca9.uscourts.gov/content/view.php?pk_i

  • 23. franklinsewell  |  September 2, 2014 at 11:20 am

    I hope they refuse to stay their decision because 9th circuit precedent clearly requires a heightened scrutiny analysis.

  • 24. JayJonson  |  September 2, 2014 at 11:20 am

    The question of standing was not as simple or as obvious as Rose asserts. That too was a 5-4 decision that attracted a lot of unlikely allies.

    It is absurd to think that "Had the 9th just handled it correctly the first time, we might have had ME throughout the Country by now!!!" In fact, I don't even know what that means. If Judge Reinhardt and his ally on the panel had ruled that the proponents of Prop 8 lacked standing, that certainly would have been appealed to the Supreme Court, which would have ruled the same way. I don't think you understand how litigation works.

    I wish that the panel had not referred the question to the California Supreme Court, which has no jurisdiction over federal questions of standing in any case and wasted a lot of time (about nine months, iirc). But an appeals court cannot anticipate what the Supreme Court is going to do on such a muddled issue.

  • 25. franklinsewell  |  September 2, 2014 at 11:22 am

    The only standing issue in Nevada would apply to the non-state defendant intervenor if they tried to appeal a pro-ME decision to the Supreme Court; the case would be rejected for lack of standing.

  • 26. franklinsewell  |  September 2, 2014 at 11:23 am

    However, the Idaho case is much cleaner – with state appellees.

  • 27. Mike_Baltimore  |  September 2, 2014 at 11:23 am

    Unless there is a requirement for a unanimous override vote (and I don't think there is), the 19-3 vote pretty much assures that even if there is a gubernatorial veto, the veto will be overridden.

  • 28. franklinsewell  |  September 2, 2014 at 11:43 am

    By the way, no clerk in Nevada is defending the ban or making arguments before the 9th. Only the plaintiffs-appellees and the defendant-intervenor are arguing the case.

  • 29. Randolph_Finder  |  September 2, 2014 at 11:43 am

    I understand that, but I've also seen comments that it is expected to go into effect *next week* and I've never seen a US State, at least, where the governor has to decide whether to sign or veto that quickly and in the event of a veto, an override getting added to business that quickly.

  • 30. Dann3377  |  September 2, 2014 at 11:55 am

    Thank you. I appreciate you taking the time to explain.

  • 31. Randolph_Finder  |  September 2, 2014 at 11:58 am

    According to http://www.vanguardia.com.mx/gobernadordecoahuila… the Governor is in *full* support. Still not sure if he has to sign it though.

  • 32. mjnichol  |  September 2, 2014 at 12:04 pm

    "This panel makes it even less likely, though not impossible, the bans would be upheld."

    Really, I would say "impossible" is a fair statement. Can you really imagine two of these justices saying that denying marriage is constitutional? Impossible…

  • 33. Zack12  |  September 2, 2014 at 12:17 pm

    Plus, even though it is unlikely, there is always a chance a future legislature could turn equality back.
    Unlikely but just another reason to keep pushing foward.

  • 34. Zack12  |  September 2, 2014 at 12:23 pm

    THis panel has two of the most liberal jurists on the courts today, these bans have no chance.

  • 35. sfbob  |  September 2, 2014 at 1:07 pm

    I was referring to McDermott's suit, more so than Jackson vs Abercrombie. I don't think there's a realistic chance of McDermott winning there but in the unlikely event he did prevail it would invalidate the pro-marriage-equality law that the legislature passed and that Abercrombie signed. I do agree, it's almost unfathomable that a court would actually agree with McDermott.

  • 36. robbyinflorida  |  September 2, 2014 at 1:26 pm

    So CPM is the lone defender in NV?

  • 37. franklinsewell  |  September 2, 2014 at 1:41 pm

    CPM is the lone defender in NV. Sandoval through Catherine Cortez Masto declined to defined the la after the SmithKline decision. Alan Glover, the clerk from Reno, similarly declined to defend. The only reason the 9th is allowing CPM to appear before them is, presumably, because Defendants of a law need not show standing. CPM would have to show standing if they appealed any pro-ME decision to the Supreme Court.

  • 38. Mike_Baltimore  |  September 2, 2014 at 3:25 pm

    Doing some research, I find that Governors in Mexico have 10 days to veto a bill. If the legislature is not in session, the Governor, if he/she vetoes the bill, returns the bill to the chamber of origin when it next meets in regular session (not all Mexican states have a bicameral legislature).

    If the Governor vetoes the bill, it takes a 2/3rds vote of the chamber(s) to override the veto.
    ( http://books.google.com/books?id=mvTdHGuBiBYC&amp… )

    Since the original vote was 19-3, even losing 4 votes (making it a 15-7 override vote) would attain the 2/3 vote margin. And usually the veto override vote is the same as the original vote, or gains votes for the override.

    It appears to me that if the Governor can veto a bill (and it appears that the Governor can veto ANY bill passed by the legislature), it is a choice of signing it or vetoing the bill. Thus I presume the Governor also has the option of signing the bill, or allowing it to go into effect with no signature. In the US, the not signing a bill is when the executive does not support the bill, but acknowledges that there is enough legislative support for the bill for any executive veto to be overridden. It also sometimes is used as an excuse to keep the executive's 'fingerprints' off the bill.

    The Mexican Constitution is modeled after the US Constitution, with several differences, so I presume the process would be similar, if not the same.

  • 39. LK2013  |  September 2, 2014 at 3:38 pm

    Will there be audio available afterwards? I will most likely be at work during the actual hearing …

  • 40. KahuBill  |  September 2, 2014 at 3:52 pm

    Re the situation in Hawaii. Jackson v. Abercrombie was decided by a Mormon judge about to retire and was pre-Windsor. It was a lazy opinion relying entirely on Baker. A undistinguished end to an otherwise reasonable judicial career. ME became the law because Gov. Abercrombie called a Special Legislative Session to deal just with that issue – thus putting the State Legislators squarely on the line and obviating any horse trading over the issue. Rep McDermott, a religious zealot, is still bringing suit although I agree he is about as likely to succeed as NOM.

    Gov Abercrombie blames his loss on ME.That is unlikely when you look at the voting by precinct comparing this election with the last one. The politics in the Sate Legislature is very convoluted – nothing is simple. Abercombie has offended their sensibilitieis (the Special Session being only one reason). He also has alienated unions and is pushing a big development project that is unpopular in the neighborhood. Word has it that many Democrats in the State Legislature pushed Ige to run because 1. to put a stick in Neil's eye and 2. He would be more likely to beat Aiona in the general election.

    the LGBT community should concentrate on the general election. Gov. Abercrombie is and always has been a strong supporter of Marriage Equality and gay rights. "Duke" Aiona, the Republican candidate and Lt. Gov under Lingle is a really way out there religiously motivated enemy of the gay community and ME. "Mufi" Hannemann,former mayor of Honululu, is an independent party candidate also. He is Mormon and opposed to ME. Hawaii
    has one of the lowest voter turnout rates in the country. Look out – the religious faction will be out in force in November and with low turnout can be very disproportionately influential

  • 41. franklinsewell  |  September 2, 2014 at 3:59 pm

    I think the audio will be available later … http://www.ca9.uscourts.gov/media/

  • 42. brandall  |  September 2, 2014 at 4:13 pm

    Where is the data to support this coming from?

    Here is the 6th's ranking data from the StatPack @ ScotusBlog "Circuit Scorecard":

    Rank 2013: #6 highest for reversals
    Rank 2012: Tie for #1 with 4 other AC's for reversals
    Rank 2011: Tie for #1 with 3 other AC's for reversals
    Rank 2010: #2 highest for reversals
    Rank 2009: #1 highest for reversals

    This is not weighted by the number of cases. The 6th certainly ranks towards the top, but it is not "the most overturned."
    http://www.scotusblog.com/reference/stat-pack/

  • 43. Randolph_Finder  |  September 2, 2014 at 5:19 pm

    Cool.

    I'm seeing conflicting reports as to whether it passed 19-3 or 19-1, in either case, a veto override is both easy and not necessary. :)

    Coahuila has a unicameral legislature. I'm not sure of the distribution between uni and bicameral, but given that Coahuila is not alone, Mexico far exceeds the US 1/50 (Nebraska)…

    The governor was involved in this bill from the beginning on the pro- side, so I *guess* he signed it immediately.

    Mexico has had 5 different constitutions, and the 1st constitution was also in effect between the 3rd and the 4th…

  • 44. Zack12  |  September 2, 2014 at 6:49 pm

    That is my fear as well.
    Two out of the three candidates are bigots and if they can't repeal marriage equality, I fear they will push for the "religious" freedom bills we've all come to know and love.
    As for McDermott, he is merely a stooge of Mike Gabbard, a DINO in the State Senate who was behind the gay marriage ban in the first place.
    His daughter Tulsi is serving in Congress which is why I suspect he is keeping his mouth shut.

  • 45. Ragavendran  |  September 2, 2014 at 7:58 pm

    Kennedy's opening paragraphs in his federalist dissent (joined by Thomas, Alito, and Sotomayor) are particularly instructive on why, in his opinion, the panel was right to involve the California Supreme Court – clearly only state courts can decide issues of state law, and such decisions are binding even on the US Supreme Court:

    The Court’s opinion is correct to state, and the Supreme Court of California was careful to acknowledge, that a proponent’s standing to defend an initiative in federal court is a question of federal law. Proper resolution of the justiciability question requires, in this case, a threshold determination of state law. The state-law question is how California defines and elaborates the status and authority of an initiative’s proponents who seek to intervene in court to defend the initiative after its adoption by the electorate. Those state-law issues have been addressed in a meticulous and unanimous opinion by the Supreme Court of California.

    Under California law, a proponent has the authority to appear in court and assert the State’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the Court today concludes that this state-defined status and this state-conferred right fall short of meeting federal requirements because the proponents cannot point to a formal delegation of authority that tracks the requirements of the Restatement of Agency. But the State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.

    In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government. The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. See M. Waters, Initiative and Referendum Almanac 12 (2003). In my submission, the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court.

  • 46. 9th Circuit Names 3 Judge&hellip  |  September 3, 2014 at 2:08 am

    […] Stephen Reinhardt, Ronald M. Gould and Marsha S. Berzon. All three were appointed by Democrats and, as Equality on Trial points out, are considered to be “some of the most liberal appeals court judges in the […]

  • 47. JayJonson  |  September 3, 2014 at 6:29 am

    Thank you for the quotation from Justice Kennedy's dissent in Hollingsworth. He does endorse the choice of the Ninth Circuit panel to seek confirmation from the California Supreme Court. My criticism of that choice has less to do with the Ninth Circuit than with the California Supreme Court's taking so long to make its decision.

    On the general question, I don't know enough about the history of Article III standing to know whether I agree with Kennedy or the Chief Justice, both of whom would describe their opinions in Hollingsworth as federalist. But Kennedy's view of standing is a dissent. It did not prevail. In time, of course, it may hold sway, as some noted dissents have historically.

    What did prevail was the decision written by Chief Justice Roberts, who said that in order for the proponents of Proposition 8 to have standing to appeal in federal court, they would have had to demonstrate "a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision."

    Chief Justice Roberts pointed out that the District Court had not ordered the proponents to do or refrain from doing anything. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law, and they were neither agents of the state nor authorized to represent the state. "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

    And that view has served us well. Not only did it allow marriage equality to return to our largest state, but NOM and other proponents of same-sex marriage bans who cannot demonstrate any real injury are now unable to appeal the decisions against them.

    Of course, if I had my druthers, the Court would have ruled on the merits in Hollinsworth and decided that marriage is a fundamental right that extends to same-sex couples and must be permitted to same-sex couple throughout the nation.

    We can only speculate how these unlikely coalitions formed. Both Kennedy and Roberts would describe themselves as federalist. So would Scalia and Alito. I don't think Ginsburg and Breyer and Kagan and Sotomayor would. Yet they split in unpredictable ways on this question. (In her comment above, Rose is wrong to state that Scalia "joined the four liberals." He did not. He voted with Roberts, Ginsburg, Breyer, and Kagan–the decision was made by two conservatives and three liberals. The dissent written by Kennedy was joined by Alito, Sotomayor, and Thomas.)

    I found the question of standing in Windsor even more bewildering than in Hollingsworth. I can't see how BLAG had the right to appeal or even have standing to defend the DOMA in the first place.

    But the workings of the Supreme Court are often bewildering. They are certainly inconsistent.

  • 48. Zack12  |  September 3, 2014 at 7:37 am

    From what I heard, the fact Paul Clement was defending DOMA gave BLAG the credibility for standing.

  • 49. Ragavendran  |  September 3, 2014 at 9:08 am

    I agree that Roberts's majority opinion has served us well so far in preventing our opponent intervenors like NOM from appealing, but I tend to agree more with Kennedy that if the California Supreme Court gave the proponents the authority to step in, that authority must be respected. If Kennedy had prevailed, then it doesn't necessarily mean that proponents of an initiative will automatically have standing in every state with an initiative system – that would still be a question of that particular state's law and interpretation by that state's Supreme Court.

  • 50. ragefirewolf  |  September 3, 2014 at 9:28 am

    Raga, could the Ninth find that the Hawaii constitutional amendment which would normally allow an unfriendly legislature to take away ME to be a "persistent problem evading review" to allow the lawsuit to proceed despite being otherwise moot?

  • 51. LK2013  |  September 3, 2014 at 9:48 am

    Thank you!

  • 52. Ragavendran  |  September 3, 2014 at 10:16 am

    I doubt it. Both (proper) parties to the lawsuit are arguing that the case is moot. Only the intervenor CPM insists that it is not, but their reasons are that there is pending litigation about the legality of the act that legislated ME, not that there is a possibility that a future legislature could repeal ME.

  • 53. Ragavendran  |  September 3, 2014 at 10:27 am

    On BLAG's standing issue, the Supreme Court refused to decide whether BLAG had independent standing because it deemed it unnecessary:

    In this case the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court. The judgment in question orders the United States to pay Windsor the refund she seeks. An order directing the Treasury to pay money is “a real and immediate economic injury,” Hein, 551 U. S., at 599, indeed as real and immediate as an order directing an individual to pay a tax. That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not. The judgment orders the United States to pay money that it would not disburse but for the court’s order. The Government of the United States has a valid legal argument that it is injured even if the Executive disagrees with §3 of DOMA, which results in Windsor’s liability for the tax. Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.

    In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. [...] Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain,but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. [...] In these unusual and urgent circumstances, the very term “prudential” counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority.

  • 54. ragefirewolf  |  September 3, 2014 at 10:41 am

    So the constitutional amendment would need to be challenged directly on those grounds then (the evading review grounds), assuming it would be a proper party?

  • 55. Zack12  |  September 3, 2014 at 11:10 am

    From what I understand, the answer to your question is yes but I'm not 100% sure.
    That is why Idaho is important, there will be no issues of standing there.

  • 56. Ragavendran  |  September 3, 2014 at 11:19 am

    Of course – you're welcome :)

  • 57. Ragavendran  |  September 3, 2014 at 11:25 am

    I agree with Zack. I'm not sure. But it wouldn't matter at this stage. As I see it, the Ninth Circuit must definitely rule on the merits in the Idaho case. And we will know whether that ruling (which will certainly be in our favor) stands (through the Supreme Court's denial of cert and/or upholding nationwide ME) or falls (through the Supreme Court's upholding of state ME bans) by June 2015. If the ruling stands, as seems more likely at this point, then Hawaii's amendment is almost surely doomed, so no worries of a future legislature taking away ME.

  • 58. Zack12  |  September 3, 2014 at 11:44 am

    Indeed, highly unlikely to happen but it would be great to be 100% sure that none of these hateful amendments can be brought back to life.

  • 59. ebohlman  |  September 3, 2014 at 7:20 pm

    It's a pretty big deal considering that it's a 500-700 mile trip from Coahuila to Mexico City and even longer to Quintana Roo. Not everyone can afford a destination wedding.

  • 60. spy mobile phone&hellip  |  September 5, 2014 at 9:38 pm

    spy mobile phone

    Equality On TrialEquality On Trial ยป

  • 61. WyldeAbandyn  |  September 6, 2014 at 6:06 am

    Does anyone have any predictions as to whether Nevada will convert registered domestic partnerships into marriage as they did in Washington? And if my partner and I get married and then they convert the domestic partnership into marriage, does the actual marriage date supersede the conversion date? If they are going to convert, then we will have been married by conversion since 2010. I don't want to mess things up by getting married in 2014 and then having them come back and say that if we had waited, we could have been considered married since 2010 (when the domestic partnership was registered.) Anyone have any thoughts about this?

  • 62. _Schteve_  |  September 7, 2014 at 12:51 am

    "they were neither agents of the state nor authorized to represent the state"

    Of course they were authorized to represent the state! That was the whole point of the California Supreme Court's decision. Roberts's opinion made a distinction with there being no format agency relationship (which in my opinion was a load of crap).

    Furthermore, proponents weren't principally claiming to have "a concrete and particularized injury", and the California Supreme Court declined to decide whether they did. Rather, proponents claimed to represent the state, which obviously does suffer an injury when one of its laws is struck down. This is no different from an attorney general having standing to appeal even though she doesn't suffer a personal injury; she represents the state which undoubtedly is injured.

  • 63. LK2013  |  September 7, 2014 at 6:20 am

    I would recommend that you get married as soon as possible. You should also advocate with anyone who will listen for an inclusive conversion process.

    Here in New Jersey, we are still waiting for the ability to retroactively convert to marriage the civil union we entered into in 2007 – which we were repeatedly ASSURED was the absolute equivalent of Marriage.

    We chose to marry in New York shortly after the Federal government announced last August that we would achieve Federal marital benefits, even though New Jersey did not have marriage equality yet.

    I tirelessly emailed NJ State senators and assemblymen and assemblywomen about passing legislation to retroactively convert NJ civil unions to marriage – like Illinois is doing right now – but after early replies in support, I now hear only crickets in response to my missives. Obviously, even though there is a Senate bill submitted on this subject, no one will take any action with our bloviator-hypocrite-idiot Governor still in office.

    The only good thing about Christie running for President would be his early exit from the Governorship of our state.

    Meanwhile, I was hoping that we could convert our NJ civil union to a back-dated marriage through Illinois's process, but my inquiries about this to the Illinois Attorney General's office got me ONE return phone call when I was not home, and subsequent futile phone tag.

    Equality Illinois similarly has not responded to follow-up emails after they said THEY had inquired of the Illinois Attorney General and "would get back" to me with an answer ASAP.

    This is all to say – if there is no retroactive conversion process made explicit, and there is any political opposition to it in your state – you will be holding your breath for a long time.

    So just get married ASAP and nail down your Federal rights. In my opinion.

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