SCOTUS hearing Prop 8 and DOMA cases this week

[Alyeska]

SCOTUS just heard the Prop 8 case today. Interesting commentary from the judges via their questions. As usual Scalia is a douchebag. But the tone of the questioning seems to be implying they are going for a more limited ruling. The Prop 8 case isn't just about gay marriage, it also covers citizens iniatives and state constitutional ammendments. Based on comments from both Roberts and Kennedy it seems likely SCOTUS will dismiss the case on the ground that California citizens do not have standing when the government elects not to defend a law. That would leave gay marriage legal in California but have effectively no precedent anywhere.

DOMA is the far more interesting case, and it gets heard tomorow. DOMA is a blatant violation of the Full Faith and Credit clause. It shits on the concept of Reciprocity. The legal theory behind DOMA would make it legal for Texas to refuse to recognize interracial marriages from other states. I could see SCOTUS striking DOMA because of this particular constitutional issue. Texas can continue to refuse marrying homosexuals, but due to the Full Faith and Credit clause would be required to recognize such marriages from other states.

This is an exciting week in civil rights, and I am eager with anticipation to see these rulings.

[Pint0 Xtreme]

The audio and written transcripts of the oral hearings can be found here: http://www.afer.org/blog/everything-you ... eme-court/

[ChaserGrey]

Am I the only one who thinks a limited ruling on Prop 8 would be a really, really bad thing? My understanding is that the current defendants stepped in after the government officials concerned declined to defend Prop 8 in court. If the Supremes find that nobody else has standing to defend the law, it seems to me that leaves an easy way for various groups to nullify legislation they don't like:

1. Wait for change in executive administration
2. File suit against the law
3. Administration declines to defend it
4. Since no one else has standing to do so, trial ends in a default judgment for plaintiff. Law is overturned.
5. Profit!

I despise Prop 8, but I'm not seeing how this couldn't be applied to (say) the ACA after a Republican's in the White House. Am I missing something?

It seems there's also a chance the Supremes could bunt on the DOMA case as well, since they apparently asked parties to brief on why the defendants have standing there as well.

[Pint0 Xtreme]

According to an article here on ScotusBlog, it doesn't seem to be the only way to limit the ruling on Prop 8.

The Proposition 8 oral argument

Much will be written about the Proposition 8 oral argument. The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new. He also noted the doubts about the petitioners’ standing. So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.

(The puzzle will be what judgment the Court will enter if there are, for example, three votes to dismiss as improvidently granted, two to find no standing, three to reverse, and one to affirm.)

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.

[Pint0 Xtreme]

Also, keep in mind that the standing issue is really a poignant one because the defendants have been unable to claim direct injury of the case. I believe Article 3 standing allows someone to defend a law if they can prove that the issue could be injurious to the party.

[Omega18]

DOMA is the far more interesting case, and it gets heard tomorow. DOMA is a blatant violation of the Full Faith and Credit clause. It shits on the concept of Reciprocity. The legal theory behind DOMA would make it legal for Texas to refuse to recognize interracial marriages from other states. I could see SCOTUS striking DOMA because of this particular constitutional issue. Texas can continue to refuse marrying homosexuals, but due to the Full Faith and Credit clause would be required to recognize such marriages from other states.

You're seriously confused on what being challenged in this particular case. The DOMA court cases challenge only Section 3 which is the part about federal recognition, (in areas such as taxes, social security, and immigration rules) but would leave the rest of the law intact. In other words, there is simply no way the DOMA case in question directly leads to Texas having to recognize marriages from other states. A broad ruling affecting gay marriage everywhere would have to come from the Proposition 8 case.

[Alyeska]

DOMA is the far more interesting case, and it gets heard tomorow. DOMA is a blatant violation of the Full Faith and Credit clause. It shits on the concept of Reciprocity. The legal theory behind DOMA would make it legal for Texas to refuse to recognize interracial marriages from other states. I could see SCOTUS striking DOMA because of this particular constitutional issue. Texas can continue to refuse marrying homosexuals, but due to the Full Faith and Credit clause would be required to recognize such marriages from other states.

You're seriously confused on what being challenged in this particular case. The DOMA court cases challenge only Section 3 which is the part about federal recognition, (in areas such as taxes, social security, and immigration rules) but would leave the rest of the law intact. In other words, there is simply no way the DOMA case in question directly leads to Texas having to recognize marriages from other states. A broad ruling affecting gay marriage everywhere would have to come from the Proposition 8 case.

Wait, thats all they went after? The state component is a direct violation of the Full Faith and Credit clause.

[Alyrium Denryle]

DOMA is the far more interesting case, and it gets heard tomorow. DOMA is a blatant violation of the Full Faith and Credit clause. It shits on the concept of Reciprocity. The legal theory behind DOMA would make it legal for Texas to refuse to recognize interracial marriages from other states. I could see SCOTUS striking DOMA because of this particular constitutional issue. Texas can continue to refuse marrying homosexuals, but due to the Full Faith and Credit clause would be required to recognize such marriages from other states.

You're seriously confused on what being challenged in this particular case. The DOMA court cases challenge only Section 3 which is the part about federal recognition, (in areas such as taxes, social security, and immigration rules) but would leave the rest of the law intact. In other words, there is simply no way the DOMA case in question directly leads to Texas having to recognize marriages from other states. A broad ruling affecting gay marriage everywhere would have to come from the Proposition 8 case.

Wait, thats all they went after? The state component is a direct violation of the Full Faith and Credit clause.

It is, but the federal recognition is a 14th amendment case, which is a LOT easier to argue. It is also easier to show standing, because couples denied say, immigration or tax filing, have a way of directly showing how they were injured in that case. And, because the federal government does not have even a rational basis reason to restrict marriage immigration or changes in tax filing status*, it can be done without applying Strict Scrutiny at all. This leaves the court with the option of not applying strict scrutiny (or pointedly saying they dont need to) and still strike down that section of DOMA.

* The supreme court has in the past ruled that states MUST have marriage on the books. Must. The government has an interest in promoting marriage (stability of society etc). So why then, if it has such an interest, would it need to restrict its definition, save for animus against those filthy filthy homosexuals? None. None whatsoever.

[Pint0 Xtreme]

It seems like Section 3 of DOMA is in hot water. Kennedy (considered the swing vote) seem ready to strike it down on the basis of its encroachment on states' rights. That being said, if DOMA is struck down, wouldn't there be this situation where if a couple got married in New York and moved to Texas, it would be recognized by the Federal government but not by the Texas government?

[Alyrium Denryle]

It seems like Section 3 of DOMA is in hot water. Kennedy (considered the swing vote) seem ready to strike it down on the basis of its encroachment on states' rights. That being said, if DOMA is struck down, wouldn't there be this situation where if a couple got married in New York and moved to Texas, it would be recognized by the Federal government but not by the Texas government?

Yes. That is exactly what would happen.

And I am not sure Kennedy is really the swing vote here. I need to read the trascript (i prefer the transcript over voice) for this one (I am still working my way through yesterday's). But I dont think this is going to be a 5-4.