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Tue Nov 13, 2012, 02:56 PM

Supreme Court Pushes Date of Prop 8 Announcement

The U.S. Supreme Court has pushed the date of the announcement of whether it will take on the case challenging California's Proposition 8, known as Hollingsworth v. Perry.

The court was supposed to announce whether they would take on the case on November 20, but the date has been pushed to November 30.

Hollingsworth v. Perry has been submitted to the justices along with a handful of other cases challenging the constitutionality of the so-called Defense of Marriage Act and other legal hinderances to marriage equality. A federal district court that found Proposition 8 in 2010, and the U.S. court of appeals for the ninth circuit upheld that decision in February 2012. In July, the case was submitted to the Supreme Court.

http://www.advocate.com/politics/marriage-equality/2012/11/13/supreme-court-pushes-date-prop-8-announcement

I wonder if this is a sign of good news or bad news?

12 replies, 1312 views

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Response to William769 (Original post)

Tue Nov 13, 2012, 03:00 PM

1. IMHO, probably good news. It could mean that in light

of the national electoral success of all four marriage equality referenda this past Tuesday, those on the court who thought nobody cared about this issue ... they are beginning to realize that it could be more complicated now than it was before November 6.

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Response to William769 (Original post)

Tue Nov 13, 2012, 03:05 PM

2. Who knows?

 

I wouldn't be surprised if the overturned Loving vs. Virginia at this point.

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Response to Anthony McCarthy (Reply #2)

Sun Nov 18, 2012, 11:23 AM

12. Four of the votes for that are already there.

 

Only one of the two Republican "moderates" would have to swing in that direction.

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Response to William769 (Original post)

Tue Nov 13, 2012, 03:25 PM

3. Split on a decision to take up the appeal or let the District Court ruling stand?

Maybe balancing arguments / considerations for a state-by-state approach vs a broader federal approach. If they let the District Court ruling that CA Prop 8 is unconstitutional stand, it only applies to California. Great result for California. Prop 8 would be struck down. Period. Yet it sidesteps a broader challenge to DOMA at a federal level, for now.

My gut take is they will choose that course and deal with appeals from district courts as they work their way up the review process. I also think that all parties know it will eventually come down to a federal SCOTUS decision. And I'd bet all realize that DOMA will eventually be found unconstitutional across the board.

(disclaimer - no constitutional scholar here, be any means. Interested gay observer to the process and CA resident.)

http://www.lambdalegal.org/in-court/cases/perry-v-schwarzenegger

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Response to William769 (Original post)

Sat Nov 17, 2012, 01:49 PM

4. I think the court may be close to a tipping point on this.

The election brought two new states into the marriage equality group. The number of states with marriage equality keeps increasing. At some point, the court is going to have to accept that full faith and credit applies, given that several states have marriage equality on the books. California would be one more, and I don't think they have a decent way not to let the Prop. 8 ruling stand.

Of course this affects DOMA, too. Each state added to the marriage equality group makes it more and more difficult to justify not recognizing marriages on the national level.

I think the SCOTUS pushing this decision off again means that there is about to be a breakthrough decision coming. The court has to weigh states rights and deal with the states that already have marriage equality. They can't make that go away, and it's clear now that more states will enact marriage equality in the future. So, what can the SCOTUS do? Not much, under the Constitution.

Anyway, my fingers are still crossed in anticipation of a good decision. It will probably end up being 5-4 on both cases, with 5 for the marriage equality side. The Constitutional argument is almost impossible to ignore, even for this court.

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Response to MineralMan (Reply #4)

Sat Nov 17, 2012, 02:45 PM

6. I think you're right about this.

The full-faith-and-credit clause takes priority over states' rights, even though marriage is one of those issues "reserved to the states." When marriage between heterosexuals, including common-law marriage, is fully recognized regardless of the state in which the parties marry, it gets harder and harder to push equal marriage out from under the Constitutional umbrella.l

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Response to okasha (Reply #6)

Sat Nov 17, 2012, 03:16 PM

7. Yes. That's one of the arguments that is the most powerful.

Another good example is the disparity among the states over marriage between first cousins. About half the states allow first cousins to marry. But, every state recognizes those marriages as valid, even if they don't allow them in their own state. That's "full faith and credit." Now, when you have several states with marriage equality in place, it's a great comparison to make. Since the Constitution says nothing whatsoever about who may marry, and since some states allow people of the same sex to marry, the argument is almost impossible to refute.

That will kill DOMA, I'm sure. Prop. 8 is another issue altogether and Prop. 8 was shaky on constitutional grounds when it passed, I always thought, especially given California's State Constitution.

There's lots of squirming on seats at the SCOTUS right now. This delay seems like an indication to me that someone's about to make a logical leap. I wouldn't predict who might switch positions, though.

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Response to MineralMan (Reply #7)

Sat Nov 17, 2012, 03:31 PM

8. The more SCOTUS squirms, the better.

The Constitution set the Court up as a for-life appointment, not an elective office, precisely to allow squirming to result in positive action for equality of minorities and/or perceived "outsiders." That's what resulted in expansion of legal protections under Brown, Loving, and others.

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Response to MineralMan (Reply #4)

Sat Nov 17, 2012, 05:36 PM

9. Scotus is not ruling of Prop 8...just deciding to hear the case or not...

If they do not hear the case it is over for Prop 8...marriages will start in December in Cali...

I predict SCOTUS will not hear the case. Why would they? There is no need to do so...

DOMA is the same way. All rulings by Federal judges and appeals have been against DOMA....on Equal Protection....so fr the Judical challenges are in agreement. Unless I am missing an appeals case in some district...

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Response to Evasporque (Reply #9)

Sat Nov 17, 2012, 08:24 PM

10. That's true, but if they don't agree to consider the current case,

Prop. 8 is dead and marriage equality will be in place in CA. So, effectively, their decision will be significant.

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Response to William769 (Original post)

Sat Nov 17, 2012, 02:43 PM

5. I wonder if there are other rulings expected between these days from a lower court.

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Response to William769 (Original post)

Sun Nov 18, 2012, 11:18 AM

11. Is Sotomayor trying to get Roberts and Kennedy onto her side?

 

We already know Alito, Thomas, and Scalia are firmly against anything resembling equality. Kagan has said there is no right to marriage, so she's with them. Sotomayor, Breyer, and Ginsburg need Roberts and Kennedy to both come on board with the decision.

The delay means that right now Prop 8 would be allowed to stand, but there's still hope.

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