Quickly -- my takeaway of today's announcement:
As I've said before, I'm not sad about DOMA going away, but I think punting on Prop 8 was a very bad thing to do. Basically what it means is that the referendum and initiative system in California is a dead letter if (a) you can find the right federal judge and (b) the governor decides to abdicate the responsibility to defend duly enacted laws. That's going to bite California in the butt and it will have implications everywhere else. It's no damned good if government officials can simply ignore laws they don't like and get by with it. It's even worse if they use federal judges to backstop them.
Fearless prediction -- someone is already preparing a lawsuit to send to the 9th Circuit that would make Prop 13 unconstitutional. Have fun with that one, California.
25 comments:
That, and they apparently ignored a series of places where judges really ought to have recused themselves. Not a pretty day for the SC.
The process exists to serve justice. Not the other way around.
This is a great day for this country.
BB,
who should have recised themselves? Scotus Justices. The 9th? Please explain.
Thanks,
Rich
Mr D.
you say the Court punted. I can understand your point, but can't it just as easily be interpreted that the Court decided not to break centuries old precedent? It's a double-edged sword for those claiming the mantle of being anti-judicial activist. Dontcha think?
Rich
The process exists to serve justice. Not the other way around.
And how is justice served when an elected official abdicates his responsibility to enforce duly enacted law?
If a law is unjust, the citizen can embark on a course of civil disobedience. A public servant needs to work to change the law. It's a crucial distinction.
I can understand your point, but can't it just as easily be interpreted that the Court decided not to break centuries old precedent?
There are two issues here. First, the action of the rogue judge who struck down Prop 8. Second, and more crucial, the action of the Governor of California (at that point, Schwarzenegger, by the way) in walking away from defending a law that was duly enacted. The reason there wasn't a litigant with standing was that he walked away, so there was no available remedy to what the judge did.
It's too clever by half. And I'm sure you can imagine how a conservative federal judge could pull a similar stunt with the acquiescence of a conservative governor on some other issue that you hold dear.
Either we have the rule of law, or the rule of man. Choose carefully.
"the action of the rogue judge who struck down Prop 8."
So I assume you were pretty upset yesterday when SCOTUS struck down the enforcement sections of a law that had been enacted in 1968, and re-authorizedonly only 7 years ago. A re-authorization, BTW, that was unanimous in the Senate, passed by an 11 to 1 margin in the House. You forgot to write about that today;)
Activism is in the eye of the beholder.
Regards,
Rich
You forgot to write about that today;)
I'll write what I choose to write about, by your leave. If you want to write about the Voting Rights Act, start your own blog, dude.
So I assume you were pretty upset yesterday when SCOTUS struck down the enforcement sections of a law that had been enacted in 1968, and re-authorizedonly only 7 years ago. A re-authorization, BTW, that was unanimous in the Senate, passed by an 11 to 1 margin in the House.
Good grief. The voting rights case got to the Supreme Court because the federal government defended the law. The point I'm making is that if a judge does something that's problematic, the government ought to defend the law. Had California defended Prop 8, the standing issue wouldn't be a problem. And we'd also have a decision about the constitutionality of the law itself. As it stands, we don't know whether Prop 8 was properly decided or not. It's a Catch-22.
I think the judge behaved badly. I think Arnold Schwarzenegger behaved abominably.
We have a ruling on the constitutionality of Prop 8. It was ruled unconstitutional by the 9th Circuit.
We have a ruling on the constitutionality of Prop 8. It was ruled unconstitutional by the 9th Circuit.
The case was remanded back to the 9th today. But their work was vacated because of the standing issue. So no, we don't have a ruling.
OK, yes, please pardon my imprecision.
There is nonetheless a ruling on the constitutionality of Prop 8 by the US District Court of Northern California, which will be upheld when the 9th dismisses the case as instructed to do so by SCOTUS.
There is nonetheless a ruling on the constitutionality of Prop 8 by the US District Court of Northern California, which will be upheld when the 9th dismisses the case as instructed to do so by SCOTUS.
Which will, again, be dismissed because of the standing issue, not the merits of the decision. And if a plaintiff emerges who does have standing, it could come back, so the issue of the constitutionality of Prop 8 remains in doubt. And while DOMA takes the federal government out of the mix for now, the laws of over 30 states that ban gay marriage still stand as of today. Including a number of states that are in the 9th Circuit.
Rich: the first judge to hear Proposition 8 did not even reveal his long term homosexual relationship (and interest in teh result) before issuing a ruling, and the judge who wrote he decision for the 9th Circuit, Stephen Reinhardt, is married to a woman who was advising the opposition to Proposition 8.
Along with the refusal to defend the law by the Governor, and the refusal of standing to those who had put the measure on the ballot, there are a lot of legal issues with the decision, agree with it or not.
I expect better than this out of any of the justices, and at least five of them dropped the ball on some very basic issues.
Along with the refusal to defend the law by the Governor, and the refusal of standing to those who had put the measure on the ballot, there are a lot of legal issues with the decision, agree with it or not.
Another issue -- there's an argument to be made that the original ruling only applies to the Northern District of California, where the judge had jurisdiction. Imperial County, which is in the Southern District, attempted to intervene and was denied the opportunity to do so. Since the case will be dismissed without a ruling on the merits, Imperial County will now have a chance to get back in the game. And they might do so, from what I've heard. And if the Court determines that they have standing, which they likely do since marriage licenses are issued at the municipal and county level, the whole thing might get revved up all over again.
If things had been done properly, we'd likely know now whether or not Prop 8 is constitutional or not. More importantly, we'd know if the initiative and referendum process in California is constitutional. At this point both questions are open and may not be resolved for many years.
Had Prop 8, and more importantly the initiative and referendum process, been upheld, it would have been possible to go back to the people of California via the same process and amend the state constitution yet again to allow gay marriage. Given the swing in public opinion on the matter, it would have been a good bet to pass. And since the legality of the process would have been upheld, there would be no possibility of a court challenge. Instead, you have a situation where litigation is going to be ongoing for years in California on this issue.
I go back to the Minnesota example for a reason -- there is no disputing state law on gay marriage and there won't be any jurisdictions that will refuse to issue marriage licenses to gay couples.
There's a reason why process matters, folks.
the first judge to hear Proposition 8 did not even reveal his long term homosexual relationship (and interest in teh result)
By this reasoning, Thomas should recuse himself from all cases dealing with race, Sotomayor and Ginsburgh from all cases dealing with women, and Scalia from all cases dealing with @ssholes.
"the first judge to hear Proposition 8 did not even reveal his long term homosexual relationship (and interest in teh result) before issuing a ruling"
Bubba,
I really hope you are joking about that.
I understand your complaint about Stephen Reinhardt. Without knowing any patrticulars, I can see where that could be problematic. (So I will assume that you must be outraged every time Clarence Thomas votes on an issue that his wife works on in her professional capacity...Right?)
But your comment about the first judge is way out of bounds. By these standards, wouldn't any married judge have to recuse themselves from any case involving marriage? Wouldn't any judge who drinks alcohol have to recuse themselves from drunk driving cases? And why do you assume that the first judge had a vested interest in the case? Was he cast into the limbo of having been married to his long-time partner, only to have that marriage revoked? Did he have chilkdren who were bastardized by the votes of 52% of the people who voted in California that year? Should human judges bow out of cases involving human rights? I know that sounds absurd. It should.
Regards,
Rich
"Another issue -- there's an argument to be made that the original ruling only applies to the Northern District of California, where the judge had jurisdiction. Imperial County, which is in the Southern District, attempted to intervene and was denied the opportunity to do so. Since the case will be dismissed without a ruling on the merits, Imperial County will now have a chance to get back in the game. And they might do so, from what I've heard. And if the Court determines that they have standing, which they likely do since marriage licenses are issued at the municipal and county level, the whole thing might get revved up all over again."
So Mark, it's back with the States. I thougfht that is what you guys wanted. States Rights, Federalism, and all that (which is why that fervent Federalist Rand Paul is moving a Bill to the Senate to nationalize a "Right To Work" law...but I digress).
This is why I still don't get your complaint: SCOTUS punted, and kicked this back to the State of California. In fact, both decisions today diminished or kept neautral Federal Powers. Shouldn't that be a good thing for a Federalist?
Regards,
Rich
"I'll write what I choose to write about, by your leave. If you want to write about the Voting Rights Act, start your own blog, dude."
You might want to consider switching to decaf. Just a suggestion.
Rich
"I'll write what I choose to write about, by your leave. If you want to write about the Voting Rights Act, start your own blog, dude."
HAHAHAHAHAHA!! Yeah, right. Cutting and pasting talking points from the Daily Kos et al is utterly pathetic in and of itself. But a whole blog of that content?!?! Downright pitiful.
This is why I still don't get your complaint: SCOTUS punted, and kicked this back to the State of California. In fact, both decisions today diminished or kept neautral Federal Powers. Shouldn't that be a good thing for a Federalist?
What would have been better for federalism would have been for the Court to toss the judge and his depredations to the curb and let the citizens of California decide the matter themselves. As they had by voting in the referendum in the first place. If the Court had told the judge to butt out, the citizens of California would have been free to revisit the issue on their own terms. That's federalism, not the sophistry you're throwing out there.
You might want to consider switching to decaf. Just a suggestion.
Let me put this as delicately as I can. Every blogger I know dislikes the "I see you're not writing about X" meme, because it's (a) disrespectful and (b) a thinly veiled attempt to hijack the blog. I don't think it's unreasonable to say that I get to pick the topics I discuss on my own blog. And just because you put a winking emoticon on your initial comment doesn't make the behavior any less rude.
Put another way -- do you go to someone's house and say "I see you're not serving X for dinner? Why is that?" You wouldn't do that, now would you?
Does that help?
its easier to criticize the blogging of another than to accept the criticism of your own blogging.
some do.
some fear to do.
just like life.
Mark,
I am unaware of these 'blog rules' you mentioned, so I gotta plead ignorance. But even if I were aware, and I wasn't, I fail to see how the two issues aren't related. It's not like I leapt from the overturning of DOMA to latest development in the IRS non-scandal. I would never do that. I was merely pointing out that while you love to complain about supposed Left-leaning judicial activism, you never acknowledge the same thing from the Right. We were talking about judicial activism. We had two fairly major SCOTUS decisons within 24 hours of each other that both sides could easily lay claims of activism on. If pointing that out is trying to hijack your blog, then I need to get out of the hijacking business. What one side calls activism, another side calls justice. And when either side does it, it usually means they lost, and they are not happy about it.
If I had done something wrong, I would apologize. Since I didn't, I won't.
Lastly, Brian is right: It's a great day for this country.
Take care,
Rich
What one side calls activism, another side calls justice. And when either side does it, it usually means they lost, and they are not happy about it.
I didn't lose anything yesterday. And I'm not "unhappy," either. But I suspect California lost something very important.
I am unaware of these 'blog rules' you mentioned, so I gotta plead ignorance.
Etiquette and rules are different things. And I know you're not ignorant of that.
Brian, Rich; the judge in question was one who could personally benefit from the ruling. In contrast, I can't think of any ruling on race where Clarence Thomas would personally benefit.
I'd have thought you gentlemen would have understood that recusal follows most strictly a personal interest in the outcome, and not just a bias. You have disappointed me.
Gay Marriage is going to happen anyway, so making a mockery of our court system to get there is really a bad thing, particularly because our system is one that is based on legal precedents. Mr D is 100% correct when he asserts that this decision will come back to bite someone on a different issue that they hold near & dear.
In other words, people may feel that the battle was won, but the war may be lost. What a total travesty. I guess travesties are ok if your side wins.
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