CA Law

[Digit]

According to this, the ruling that Prop 8 in California is unconstitutional was upheld. How long can something declared and upheld by judges to be unconstitutional remain law?

[Katya]

According to this, the ruling that Prop 8 in California is unconstitutional was upheld. How long can something declared and upheld by judges to be unconstitutional remain law?

My understanding is that the previous ruling was stayed because it was so likely to be appealed. (I.e., they wanted to avoid a whiplash effect of gay marriage potentially becoming legal and then illegal, again.) If the same mindset holds this time around, the ruling may be stayed all the way up to the Supreme Court.

[wired]

There's a few different parts of the litigation going on right now. This article is referring to a group that challenged the ruling based on Judge Walker's decision to not recuse himself. They argued since he is gay (and had a gay partner at the time of the trial) he had a stake in the outcome of the case and, as a result, should have recused himself. (He didn't and didn't openly reveal he had a gay partner at the time.) The judge in this case said Judge Walker didn't have to recuse himself. (For the record, I agree with that ruling.)

However, there is another part of the litigation that is still going on that challenges the validity of Judge Walker's ruling. The ruling made by Judge Walker that prohibiting same-sex marriage is unconstitutional was stayed by the appeals court (nice job Katya!). That means that the ruling won't go into effect until the appeals court has had time to hear and rule on the issue. The appeals court (the Ninth Circuit Court of Appeals) has heard arguments on the issue. There's some complex procedural issues going that affect the case - even though it is a federal court hearing the action, part of it depends on whether the group appealing the ruling has the legal right to appeal (called standing). Whether they have standing depends on California law, so the federal court has formally asked the Supreme Court of California whether one of the parties would have standing under California law. That's where the case is right now. Once the Ninth Circuit gets that answer back, they'll likely make a full ruling on the constitutionality of prohibiting SSM. If they decide it is unconstitutional (affirm Judge Walker's decision) they will likely stay their own judgment pending appeal to the Supreme Court - that is to say, they'll order that their ruling not go into effect until the Supreme Court has decided if they will hear the case. If the Supreme Court chooses not to hear the case, their ruling will go into effect immediately. If they choose to hear the case, it will likely remain stayed.

[Katya]

The ruling made by Judge Walker that prohibiting same-sex marriage is unconstitutional was stayed by the appeals court (nice job Katya!).

I'm so smart! ( http://xkcd.com/903/ )

[Digit]

On social issues, what's the approximate right/left barometric reading of the Supreme Court? It seems like the upside outweighs the downside for pro-gay marriage people because if the final answer was that forbidding SSM is constitutional, that wouldn't necessarily affect the places where it is, but if the final answer was that forbidding SSM is unconstitutional, that would seem to necessarily make it legal everywhere (if it's illegal to make X illegal, then X must be legal).

[Katya]

On social issues, what's the approximate right/left barometric reading of the Supreme Court? It seems like the upside outweighs the downside for pro-gay marriage people because if the final answer was that forbidding SSM is constitutional, that wouldn't necessarily affect the places where it is, but if the final answer was that forbidding SSM is unconstitutional, that would seem to necessarily make it legal everywhere (if it's illegal to make X illegal, then X must be legal).

Or the Supreme Court could simply refuse to hear the case and let the lower rulings stand, which is good for anyone who liked the lower ruling, but wouldn't have as broad an effect.

[wired]

On social issues, what's the approximate right/left barometric reading of the Supreme Court? It seems like the upside outweighs the downside for pro-gay marriage people because if the final answer was that forbidding SSM is constitutional, that wouldn't necessarily affect the places where it is, but if the final answer was that forbidding SSM is unconstitutional, that would seem to necessarily make it legal everywhere (if it's illegal to make X illegal, then X must be legal).

Or the Supreme Court could simply refuse to hear the case and let the lower rulings stand, which is good for anyone who liked the lower ruling, but wouldn't have as broad an effect.

On social issues the spectrum is as follows (liberal to conservative):

Sotomayor - Ginsburg - Kagan - Breyer / Kennedy / Roberts / Scalia - Thomas - Alito

I tried to put breaks where they occur naturally. Most people wouldn't put Roberts in with Kennedy on social issues - I think that he is less socially conservative then the three to the right of him. Scalia, Thomas, and Alito will not find a constitutional right to SSM - period. I doubt Roberts will either and most people don't think he will. However, I think he is more of a wildcard. He tends to be a consensus builder and as the Chief Justice, I think he likes coalitions more. I think if you were to ask him alone what he would do, he would not find any sort of constitutional right, but if there are 5 solid votes for it, I could see him joining and tempering the vote.

Kennedy is known as the swing vote. Really, what he does will be absolutely critical. He is the fifth vote that can go either way. (He's been very open to striking down death penalty sentences and was part of a critical group in the early 90s who upheld Roe v. Wade; since then, he's been a bit more conservative on his abortion jurisprudence, but still wanders into liberal territory on some issues. Most notedly, there seems to be little coherence to how he votes other than a case-by-case decision so he can be VERY unpredictable.)

Ginsburg through Breyer would be very likely to vote to find a constitutional right to SSM. Some postulate they wouldn't go that far, but I think that a hot-button issue like this would prompt them to hone their strongest liberal tendencies and find a broad right to gay marriage.

Katya makes a very good point - they could just decline to hear the case. In that instance, Prop 8 would be unconstitutional and it is likely that other states in the Ninth Circuit (Arizona, Idaho, Washington, Oregon, Alaska) would see challenges to their gay marriage laws. But, every other state would not be bound by the Ninth Circuit's decision and those circuits would be free to find how they wished.

Another option the Supreme Court has is to dismiss the case for a procedural issue. If the Ninth Circuit affirms Judge Walker's decision (i.e. find that SSM is constitutionally protected) I personally think the Supreme Court will take this route. They could vacate the lower court's ruling for some issue related to standing. That would mean that SSM would still be prohibited in California, but the Supreme Court could later discuss the constitutionality of it or another SSM law.

EDIT: I should also note that Kennedy provided swing votes in two other critical gay rights cases -Romer v. Evans and Lawrence v. Texas (Romer is kind of complicated; Lawrence basically made all gay sodomy laws unconstitutional.)

[wired]

On social issues, what's the approximate right/left barometric reading of the Supreme Court? It seems like the upside outweighs the downside for pro-gay marriage people because if the final answer was that forbidding SSM is constitutional, that wouldn't necessarily affect the places where it is, but if the final answer was that forbidding SSM is unconstitutional, that would seem to necessarily make it legal everywhere (if it's illegal to make X illegal, then X must be legal).

Oh, and you are exactly right as to the effect of the decision. If the Supreme Court says prohibiting SSM is unconstitutional, every state has to allow gay couples to married.

This is why I think resolving SSM through the courts is particularly dangerous. There's also some significant problems with the logic that would be employed. If you find a broad right to marry anyone you want, consensual incest and polygamy seem to naturally follow. The only thing that really stops the reasoning is individual "ick" factor as opposed to any serious logic. (Bestiality probably doesn't follow - an animal can't consent.)

Further, I personally think churches would benefit from coming to the table regarding SSM and carving out religious exceptions that preserve the institutional interests of the churches. For instance, a broad carve out that exempts all religious facilities from performing SSM would be beneficial. (Some argue that this shouldn't be a worry in the first place because other constitutional safeguards will prevent that; in my opinion, that's just sales talk on why SSM should be legal. There's been serious movement in Massachussets and in Europe that have degraded religious institutions' ability to condemn homosexuality.)

Some other interesting tidbits - some of the most divisive decisions in history have been ones where there wasn't broad, state-by-state consensus for the decision. Roe v. Wade invalidated laws in an amazingly large amount of states. Compare that with Brown v. Board of Education. It invalidated laws in only a third or less of the states. In retrospect, Roe is looked at as poorly reasoned and overly-political; Brown is looked at as great for our nation. Even if this is to be resolved in the courts, the court will certainly be aware of this type of trend and possibly wait till there is broader support for SSM.

[Katya]

Further, I personally think churches would benefit from coming to the table regarding SSM and carving out religious exceptions that preserve the institutional interests of the churches. For instance, a broad carve out that exempts all religious facilities from performing SSM would be beneficial. (Some argue that this shouldn't be a worry in the first place because other constitutional safeguards will prevent that; in my opinion, that's just sales talk on why SSM should be legal. There's been serious movement in Massachussets and in Europe that have degraded religious institutions' ability to condemn homosexuality.)

What's going on in Mass.? The only thing I'd heard of is a Catholic-sponsored adoption agency not being able limit child placings to heterosexual couples because the agency was also taking federal funding (or maybe state funding).

I was under the impression that religious organizations who don't want to marry same-sex couples had been protected in every situation where same-sex marriage was made legal. (As a friend of mine pointed out, Mormons already discriminate against non-Mormons when it comes to temple marriages, which is a far broader prohibition, and that hasn't been challenged.)

[wired]

Katya, the adoption is primarily what I was speaking about. There was also an issue with an evangelical church who owned property that they let individuals use for low cost to perform marriages. They prohibited gay couples from using it and were threatened with losing their tax exempt status on the property. Let me see if I can find an article on it.

[wired]

http://www.nytimes.com/2007/09/03/nyregion/03ocean.html

It was Jersey. My second read through on it makes me think my previous description isn't that great. But, I'll look into it.


'

[Katya]

Katya, the adoption is primarily what I was speaking about. There was also an issue with an evangelical church who owned property that they let individuals use for low cost to perform marriages. They prohibited gay couples from using it and were threatened with losing their tax exempt status on the property. Let me see if I can find an article on it.

Ohhh, I do remember that.

[Katya]

I will say that the LDS Church strikes me as pretty well protected from either of those situations, by virtue of the fact that we don't take federal funding to support our social services and we don't open our temples to the public (although I don't know, offhand, what the restrictions are for being married in an LDS meetinghouse). But these legal cases are certainly something that other churches should be aware of.

[Laser Jock]

Oh, and you are exactly right as to the effect of the decision. If the Supreme Court says prohibiting SSM is unconstitutional, every state has to allow gay couples to married.

This is why I think resolving SSM through the courts is particularly dangerous. There's also some significant problems with the logic that would be employed. If you find a broad right to marry anyone you want, consensual incest and polygamy seem to naturally follow. The only thing that really stops the reasoning is individual "ick" factor as opposed to any serious logic. (Bestiality probably doesn't follow - an animal can't consent.)

I've wondered about this before, and I have yet to hear a solid argument about why SSM should be allowed but polygamy/incest still be illegal. The only real reason I've heard is that polygamy and incest have approximately zero support (as you said), not that there's any substantial reason why SSM should be allowed and they shouldn't, if we open up the definition of marriage. Can anyone present a good reason why one should be allowed and not the other?

(As a disclaimer, I don't personally want incest or polygamy made legal either. I'm just looking at the logic used by supporters of SSM and seeing where else it can be applied—playing the devil's advocate, if you will.)

[krebscout]

I always kinda thought polygamy should be legal, for those who consent and are of sound mind and age to make that decision. There really isn't a good secular reason for it not to be.

As for incest, aren't there some health issues involved for any potential progeny?

[Digit]

Right now there is no logical implication that since two people of opposite sexes have the right to marry, two people of opposite sexes with the same parents have the right to marry. Is there a logical implication that if the law were to state that two people of the same gender have the right to marry, two people of the same gender with the same parents would have the right to marry? Is it the opposite-gender trait (which would be the piece of language this legislation seeks to change) that allows the current allowance of man and woman but not brother and sister to marry?

[Katya]

Right now there is no logical implication that since two people of opposite sexes have the right to marry, two people of opposite sexes with the same parents have the right to marry. Is there a logical implication that if the law were to state that two people of the same gender have the right to marry, two people of the same gender with the same parents would have the right to marry? Is it the opposite-gender trait (which would be the piece of language this legislation seeks to change) that allows the current allowance of man and woman but not brother and sister to marry?

No. Consanguinity (how closely two people are related) as it relates to marriage is a separate issue from whether two people of the same gender are allowed to marry. (For what it's worth, different US states have slightly differing rules for allowing relatives to marry, mainly having to do with whether or not 1st cousins are allowed to marry.)

[Marduk]

I wasn't aware that any state outright prohibited the marriage of first cousins.

[D.A.R.E.]

It's banned in a majority of US states and is actually a criminal offense in eight of them (Nevada, Utah, Arizona, North Dakota, South Dakota, Oklahoma, Texas, and Wisconsin). Interestingly enough, California allows it, despite what we've all seen in Arrested Development.

(Cite.)

And back to lurking.

[wired]

It's banned in a majority of US states and is actually a criminal offense in eight of them (Nevada, Utah, Arizona, North Dakota, South Dakota, Oklahoma, Texas, and Wisconsin). Interestingly enough, California allows it, despite what we've all seen in Arrested Development.

(Cite.)

And back to lurking.

"Has there been new legislation on this matter?!"

Digit, to answer your question, it comes into how broadly you define the right. The clamor for a constitutional right to marry is based on a vague notion that an individual ought to be able to choose whom he/she marries, regardless of their gender. If you say an individual has a constitutional right to marry whomever he/she wishes, polygamy and incest are avoided.