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Why Is the ACLU, Lambda Legal, and NCLR Pushing for Perry to Be Limited to California Only?

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Denied — by both Chad Griffin’s American Foundation for Equal Rights and Judge Vaughn Walker — to join Perry v. Schwarzenegger as co-plaintiffs, the ACLU, Lambda Legal, and NCLR on Wednesday filed a joint amicus brief, notifying the judge that, in case he was wondering, he could find Prop 8 unconstitutional based on a very narrow interpretation, which only has to do with California laws. So, uh, what does that mean about knocking down gay marriage bans across the land?

Bad news.

Nan Hunter, the Georgetown University law professor, says the instructions in the brief add a “scalpel-like argument,” whereby Walker could conclude, based on California’s laws and nobody else’s, that Prop 8 is invalid. This could help ensure the federal court knocks down Prop 8 and reinstates gay marriage in California, and that the ruling remains safer upon any appeal to the Supreme Court. But if Walker goes in that direction, it could also have the effect of, uh, ruining the argument that other states’ gay marriage bans are unconstitutional, and DOMA too. The brief reads in part (full brief here, PDF):

…The ban on same-sex couples marrying brought about by Proposition 8 … is different from …other states’ laws in at least two important respects. First, unlike the law in every other jurisdiction, Proposition 8 amended the state’s constitution after same-sex couples’ right to marry had been conclusively held to be a component of that constitution’s guarantee of equality, and it did so by creating an exception to the state’s equal protection clause that applies only to gay people. Second, and again unlike every other state’s law adopted to restrict marriage, Proposition 8 stripped from lesbians and gay men the right to the privileged designation and status of marriage, while leaving the substantive, legal rights and obligations of same-sex, registered couples both intact and, under state constitutional requirements, identical to the rights and obligations of different-sex married couples. Both of these circumstances establish beyond question that the purpose of Proposition was to declare same-sex couples unequal under the law to different-sex couples.

At first glance, this looks like sour grapes, with the ACLU, Lambda Legal, and NCLR trying to insert themselves into the lawsuit against its proponents (AFER), which would make sense, given the on-going in-fighting between the two parties. But AFER’s website yesterday made note of the briefs, saying the filings were “supporting our plaintiffs,” which suggests AFER is on board with the strategy.

Either way, it’s not like Judge Walker has to listen to this, or any other argument provided. He can make his decision based solely on his interpretation of the state and federal constitutions. This brief’s argument is just a fail-safe measure. But is it too safe?


  • 33 Comments
    • Brian NJ
      Brian NJ

      Don’t you love to see cold feet? Thank God Olson and Boise, and not Jan Brady and Herbert Milktoast, are running the show.

      Feb 5, 2010 at 10:34 am · @ReplyReply to this comment ·
    • rainfish2000
      rainfish2000

      The Amicus Brief reads in part: “Proposition 8 amended the state’s constitution after same-sex couples’ right to marry had been conclusively held to be a component of that constitution’s guarantee of equality, and it did so by creating an exception to the state’s equal protection clause that applies only to gay people…”

      OK, the California state Supreme Court already ruled that Prop 8 was not in violation of the State Constitution — the state’s equal protection clause notwithstanding. So then it moved on to become a federal matter or why else would a federal district court hear it? It seems to me that SCOTUS is still free to issue a narrow ruling — like the Colorado Amendment 2 decision. But even that case, which struck down Amendment 2, still established a precedent should a similar case arise in another state. I believe the current case is using some of those same arguments in Romer regarding SCOTUS’s former rejection of “animus” being constitutionally acceptable as a rational basis to further state interest in creating government policy.

      Many people have already said this current court lacks the courage to issue an all-encompassing ruling like in Loving v. Virginia for same-sex marriage equality. But they may strike down California Prop 8 and also set a precedent, which will eventually strike down other state anti-marriage equality amendments. That may also lead to other future SCOTUS rulings which could mandate reciprocal benefits for all same-sex couples in “marriage-like” or actual marriages across the United States — as well as, in effect, striking down DOMA.

      I believe they may adjudicate that California technically violated its own equal protection clause after the Cal. Supreme Court designated homosexuals as a “suspect class” requiring a higher level of judicial scrutiny — which a protected class demands.

      I don’t know. Maybe. But, I think many on the current SCOTUS are keenly aware that a future SCOTUS will most likely overturn any anti-gay ruling like it did in Lawrence v. Texas regarding Bowers v. Harwick. It is always a shameful legacy to have a discriminatory ruling by the nation’s highest court rebuked by the next generation’s SCOTUS. I think they are aware of the lessons in Dred Scott, Plessey and, most recently, in Bower’s.

      Feb 5, 2010 at 11:19 am · @ReplyReply to this comment ·
    • Wade macMorrighan
      Wade macMorrighan

      Hey guys, here’s a question: If the SCOTUS rules in favor of Prop 8, what would that do to those states which now have marriage Equality, like Iowa (where we are a Suspect Class)? Would it revoke our rights to civil marriage?

      Feb 5, 2010 at 11:30 am · @ReplyReply to this comment ·
    • rainfish2000
      rainfish2000

      When @Wade macMorrighan:

      When SCOTUS ruled that there was no Constitutional right to engage in “Sodomy” in 1986 in Bowers v. Hardwick there were about thirty states that still had Sodomy laws. When SCOTUS revisited Hardwick during the Lawrence v. Texas ruling 2003, which not only struck down Texas’ sodomy law but reversed Bowers, only a handful of states had sodomy laws still on the books.

      So, yes, more states could continue to enact laws to legally marry same-sex couples — even if SCOTUS ruled in favor of Prop 8. The US Supreme Court doesn’t have the power to stop that. But the precedent set could limit constitutional challenges to anti-same-sex marriage laws and amendments, both state and federally.

      A federal anti-gay marriage amendment would have to be added to the US Constitution to halt and/or annul same-sex marriages throughout the US, and even that is problematic as such a Federal Constitutional Marriage Amendment could come in conflict with existing US Constitutional amendments regarding state’s rights and the fourteenth amendment itself.

      At least that’s how I understand it. Let’s hope it goes the other way.

      Feb 5, 2010 at 12:08 pm · @ReplyReply to this comment ·
    • Brian NJ
      Brian NJ

      If Prop 8 is ruled unconstitutional under the Federal Equal Protection laws and other legal traditions by the US Supreme Court, then that Opinion in binding in future cases challenging state bans on gay marriage. Those State constitutional bans won’t be able to stand a challenge because the Supreme Court had ruled the constitutional right to marriage includes same-sex couples.

      However, the Supreme court may do what the New Jersey Supreme Court did in Lewis v. Harris, which is to say state laws must give the legal equivalent of marriage, but they are not required to give those identical rights the identical name. The New Jersey legislature chose “civil unions.” Civil Unions don’t work, as has now been shown in NJ, and the Supreme Court could reject the concept of “separate but equal” for the right to marriage, as they did with blacks.

      Feb 5, 2010 at 12:25 pm · @ReplyReply to this comment ·
    • romeo
      romeo

      I think, if they decide to hear this, they will decide to rule separate but equal. In other words, everything but the “m” word. In which case, it will be up to us to hold the government to that in all of its manifestations. The conservatives will have lost the battle at that point. Since there won’t be any difference, the “m” word will follow not long after that. LOL

      Feb 5, 2010 at 2:36 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @rainfish2000: Speaking theoretically, is there anything keeping the SC from banning same-sex marriages in all states, or making any ruling they like on any subject? What I mean is, if for some reason five justices declared, in their decision on this case, that the second amendment prohibits double-paned windows, what’s to stop them?

      Feb 5, 2010 at 2:47 pm · @ReplyReply to this comment ·
    • Lonnie
      Lonnie

      This, once again, show why the state-by-state strategy is a failure and never should have been used in the first place. You are either equal or you are not. Full federal equality in all 50 states NOW! Put the pressure on HomophObama!

      Feb 5, 2010 at 2:59 pm · @ReplyReply to this comment ·
    • George
      George

      There is a slim chance of a favorable ruling on appeal to SCOTUS. I think it’s a good thing that the scope of the case might be narrowed so that there’s less collateral damage when they rule in favor of homophobic discrimination.

      Then again, the current SCOTUS is fine with changing the questions of the cases before them so that they can make wider-reaching, more policy-influencing decisions (see campaign finance reform two weeks ago). So I wouldn’t be surprised that even if CA decided to rule on this case as a narrow question, SCOTUS might decide to revisit in much broader brushstrokes.

      Feb 5, 2010 at 3:03 pm · @ReplyReply to this comment ·
    • George
      George

      There is little chance of a favorable ruling on appeal to SCOTUS. I think it’s a good thing that the scope of the case might be narrowed so that there’s less collateral damage when they rule in favor of homophobic discrimination.

      Then again, the current SCOTUS is fine with changing the questions of the cases before them so that they can make wider-reaching, more policy-influencing decisions (see campaign finance reform two weeks ago). So I wouldn’t be surprised that even if CA decided to rule on this case as a narrow question, SCOTUS might decide to revisit in much broader brushstrokes.

      Feb 5, 2010 at 3:04 pm · @ReplyReply to this comment ·
    • TommyOC
      TommyOC

      There has long been the suspicion that SCOTUS would rule in favor but only on the premise that this entire case exists because of Prop 8. SCOTUS has done this with many cases in the past, where they go out of their way to limit anyone’s misinterpretation of their ruling.

      Remember, kiddies, this case isn’t about the unconstitutionality of DOMA or even other states’ marriage laws. It’s about Prop 8. When the courts decide to rule, it will be over Prop 8 – their decision on whether to include other states’ laws (such as Texas v. Lawrence did) into the fold is the big catch.

      Even if SCOTUS limited the ruling to California only, fights can then be waged regarding the the constitutionality of other voter initiatives in other states. This may have to be a state-by-state battle or a broad stroke challenging them all.

      Or it can be a battle against DOMA. Which is what I think Olsen and Boies will target next. They can argue DOMA was written with the same accommodation for discrimination in mind – and they can argue that since CA marriages are ruled equal and inseparable (assuming we win), that the Interstate Commerce Clause trumps DOMA.

      Either way, this isn’t a bad development… it might just mean that people are hedging their bets that this court case isn’t the end-game, but the metaphorical equivalent to the Normandy landing. Securing the long-fought for beachhead with this victory starts the clock toward the ultimate defeat of the anti-Equality forces. We won’t be pushed back to sea this time.

      Feb 5, 2010 at 3:22 pm · @ReplyReply to this comment ·
    • Jo Hoenninger
      Jo Hoenninger

      There is no question that the current USSC is not friendly toward LGBT rights. The reason for the request to narrow the scope of the decision in the Northern District of California is so the case will not be taken up by the USSC. If the decision only applies to California, then the 9th Circuit could refuse to hear an appeal. If the 9th Circuit won’t hear an appeal, then it can’t get to the USSC. And, even if the 9th Circuit hears an appeal and rules in our favor (which is highly likely), the USSC would probably not hear an appeal because the issue is so narrow.

      Yes the USSC could decide to broaden the scope of the question, but by narrowing the decision, there is less likelihood that the USSC will rule on this issue. Keep in mind that, to date, much of the negative jurisprudence has said that that society needs to have a chance to “adjust” to the changing times. It is because of this that I think the USSC won’t take this up.

      Feb 5, 2010 at 3:25 pm · @ReplyReply to this comment ·
    • B
      B

      IMHO even a narrow ruling is good news, not bad news as QUEERTY suggests. The most narrow ruling possible against Prop 8 would include the well documented fact (courtesy of William Tam, with some help from others) that the measure was motivated by animus (bigotry, prejudice, whatever). As such Prop 8 could in fact be put up to a vote again, but the pro Prop 8 side would have to go to some lengths to make sure that there is no credible evidence of animus, which would mean a campaign that did not defame gays by calling them a risk to children, etc.

      If the Prop 8 people had run an honest campaign in 2008, arguing purely on the basis of actual issues, I strongly suspect they would have lost – as it is, they won by a couple of percent of the vote and it is credible that well more than 2 percent of the population were influenced by their scare tactics. So if, as I suspect, an honest campaign would have resulted in Prop 8 losing, then reintroducing the measure and having it go down in flames would be seen as a turning point nationally, and that would in fact be good news, not bad news. They might think twice before even trying – the last thing the pro-prop-8 side wants is a loss.

      In any case, even a very narrow ruling could put the other side on notice that you can’t get away with changing state constitutions by running a campaign that defames or otherwise vilifies a minority. That would apply to other states as well, with no issue for the Supreme Court to decide as it merely follows from an existing decision (Romer v Evans), although each state would have to have its same-sex marriage ban tried separately.

      Feb 5, 2010 at 5:38 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      One of the source of frustration for me is that the legal strategy side of this is being reduced to activist jingoism.

      I agree with those who understand the purpose of the strategy is to limit the impact on future cases. By the way, this would be a good thing as it would build case law at the federal level in a positive direction even if the case law is limited for a few years.

      Remember there are other cases pending that will add to the case law before hitting the S.Ct. such as the Doma Clause 3 case and the MA case.

      Feb 5, 2010 at 5:57 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @romeo: This is inaccurate. I am dealing with a case now involving these issues, and it is not as simple as you think. That’s part of the problem. So many people think they know the law, but do not. It can become extremely complicated really fast. It took me a month of research just to devise a strategy based on the law.

      Feb 5, 2010 at 6:02 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @Lonnie: The state by state strategy is different from the federal strategy, and actually the changes in state law is extremely valuable in the federal law because it creates controversy regarding changing laws and morays that can be a part of any S.Ct. case.

      Feb 5, 2010 at 6:04 pm · @ReplyReply to this comment ·
    • Steve
      Steve

      As I read that paragraph, it is not describing reasons to find that Prop8 violates CA constitution. The findings of CA Supreme court are conclusive on that issue — after the CA Constitution was changed, the new CA Constitution does not violate the new CA Constitution.

      The last sentence is the zinger:
      “Both of these circumstances establish beyond question that the purpose of Proposition was to declare same-sex couples unequal under the law to different-sex couples.”

      That is, these are reasons to conclude beyond any doubt that the purpose of Prop8 was to violate the Federal guarantee of equal protection.

      Feb 5, 2010 at 7:42 pm · @ReplyReply to this comment ·
    • Matt
      Matt

      @Jo Hoenninger: I was under the impression that the 9th Circuit could refuse to hear an appeal, even if the decision applied outside of California. Was I mistaken? Perhaps you or someone could clarify.

      Feb 5, 2010 at 8:48 pm · @ReplyReply to this comment ·
    • Matt
      Matt

      A narrow decision, it seems to me, would be the best possible outcome. The Supreme Court has apparently telegraphed, through their decision not to let the trial be broadcast, that they will vote in favor of Prop 8 if the case reaches them. A narrow decision now would reduce the damage from that future decision.

      If the SC unexpectedly rules in our favor, the benefit to us is immense. The largest state in the union will have the equal right to marry for the foreseeable future. Other states will follow, and in California, it won’t take long to realize that the sky hasn’t fallen.

      The media have ignored the fact that, in states with the right to marry, people have come to favor that right and no longer even want it put to a vote. California will be harder to ignore. We’ll also know how to craft future cases. Soon, we’ll win the right to marry in other states.

      Even if the SC decision is narrow but unfavorable, we’ll still know more about how to proceed.

      Feb 5, 2010 at 9:03 pm · @ReplyReply to this comment ·
    • bystander
      bystander

      I doubt very much that any judge, liberal or conservative will find a substantive difference between the constitutional ban on gay marriage in California and neither the constitutional bans nor the statutory bans on gay marriage in any other states as least from the point of view of the constitution.

      You’d have to define the right to equal protection in such a convoluted way it would be nonsensical. You wouldn’t have a right to marry who you wanted, you’d have the right to not have a right taken away via referendum? Federal courts would be essentially wading into debated over how states amend their constitutions. Federal Judges simply won’t do that.

      This is an all or nothing case. Either Prop 8 and all other bans are struck down nationwide, or they are upheld nationwide. There is however a loophole to that: If Prop 8 is overturned at the ballotbox before it gets to the Supreme Court than the case becomes moot, won’t be heard, and there will be no effect from this case.

      Feb 5, 2010 at 9:14 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @bystander: Your position is not the present case law on gay rights at the federal level. The Colorado case found that animus was a specifically unacceptable as a basis for discrimination under the rational basis test. Thus, a narrow ruling would grow out of the Colorado case law regarding animus. I am not even sure what liberal or conservative has to do with it since that decision was the product of liberal and conservative Supreme Court justices.

      Feb 5, 2010 at 10:21 pm · @ReplyReply to this comment ·
    • B
      B

      No. 20 · bystander wrote: “This is an all or nothing case. Either Prop 8 and all other bans are struck down nationwide, or they are upheld nationwide.” Not true due to Romer v. Evans. The court could rule that Prop 8 was motivated by “animus” against a particular class (as shown by testimony during the trial) and that it disadvantaged that class (also shown during the trial but pretty obvious anyway). That combination allows the plaintiffs to cite Romer v Evans as a precedent for invalidating Prop 8.

      It would not strike other bans down nationwide automatically because you would have to show that the preconditions held for those bans as well, which would require a trial for each case.

      That of course assumes a very narrow ruling, which is one possible outcome. The court could, however, rule so that all bans are struck down, but it is not “either or”. We’ll just have to wait and see what happens.

      Feb 6, 2010 at 12:28 am · @ReplyReply to this comment ·
    • rainfish2000
      rainfish2000

      @hyhybt wrote: “Speaking theoretically, is there anything keeping the SC from banning same-sex marriages in all states, or making any ruling they like on any subject?”

      ———–

      From what I understand, SCOTUS can rule that an existing law or statute is constitutional and enforceable, or that it is unconstitutional and unenforceable. They cannot legislate or create new law from the bench — although they are accused of doing just that lots of times by the losing side who often call them “activist judges”.

      Seven years after Lawrence, when “consensual” anti-sodomy laws were declared unconstitutional, several states still have those laws on their books — they are just not enforceable. Until recently a few Southern states even had prohibitions against interracial marriages still in their state statutes. It is insulting to not expunge them from state law, but they are meaningless nevertheless and have no force of law.

      The state of Virginia refused to amend their sodomy law, and still maintains that homosexual (non-private) sodomy can be treated more harshly than public heterosexual sex. As far as I know, it has yet to be challenged but it certainly seems like a clear violation of the spirit of the Lawrence ruling on equal protection grounds to have (even though public sex is clearly illegal) separate penalties for homosexual sex versus heterosexual sex.

      We had a similar case in my home state of Kansas, the Limon Case, where the very conservative State Attorney General tried a young man (barely of legal age) more harshly under the state’s Romeo and Juliet law simply because he was homosexual. The US Supreme Court demanded review after Lawrence and the sexual orientation disparity in the state statue was struck down.

      Still, regarding the issue of marriage equality going before SCOTUS, I am cautiously optimistic. And just remember, a negative ruling can be revisited by a future SCOTUS in any case — like it was in Bower’s. Of course, I may be eating strained peas and carrots in a wheelchair at the Shady Rest Nursing Home before that happens.

      But who knows? You got to have hope. What alternative is there?

      Feb 6, 2010 at 12:34 am · @ReplyReply to this comment ·
    • bystander
      bystander

      @B
      @Nodoublestanderds

      Romer v Evans is not a particularly good case for comparison as to the best of my knowledge no other state has before or after passed such a constitutional amendment. Is it anyone’s position that states under current precedent have the freedom to passed a constitutional amendment such as found in Romer if its not out of animus? Or does the effect and substance of such an amendment by definition contain such animus.

      In order to judge the effect a judgment striking down Prop 8 will have on other bans throughout the country we have far better examples, the most cogent is Loving v. Virginia. Anyone who thinks the Supreme Court did, or could have, structured their decision in Loving to apply ONLY to Virginia is completely out of touch with how the law works. I don’t care if you are a lawyer or have read cases before. I don’t know if there were subsequent trials after the Loving decision in order to compel holdouts to follow its precedent, but that’s not very relevant to the point. Any Supreme Court case may require further adjudication but i dare anyone to find a case where a Supreme Court opinion only applied to a single state, or where subsequent adjudication resulted in an expemption for a single or a few states.

      Brown v Board didn’t apply to just Topeka or Kansas, Roe V Wade didn’t apply just to Texas, Lawrence V Texas also had the effect of striking down all sodomy laws which applied diffrently to heterosexuals than to homosexuals and not just in texas. The notion that any of these cases or volumes more could have been decided in a manor as to only apply to certian geographical regions is silly.

      Determining facts in these cases after a landmark decision is fairly tedious. The facts of the effect of Prop 8 are no different than the facts of the effects of the equivalent Texas constitutional ban, or the Indiana statutory ban. This is an all or nothing case.

      Feb 6, 2010 at 8:52 am · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @bystander: You are all over the place in your response. Rather than reading all of what you wrote because it seemed disjointed, I have provided you links to the gist of the argument regarding Romer and its relationship to the Prop 8 case:

      “A key precedent is the Supreme Court’s decision in Romer, which invalidated a Colorado referendum excluding gays and lesbians from anti-discrimination laws. Like Prop 8, the Colorado initiative amended the state constitution. Supporters defended the Colorado amendment by arguing that landlords and employers had a right to avoid associating with gays and lesbians, and that the state had a legitimate interest in saving civil rights enforcement resources for other kinds of discrimination. The Court disagreed, and Justice Kennedy wrote that these reasons were so out of step with the sweeping nature of the amendment that animus had to be the true motivator. This inference was “inevitable,” Kennedy wrote. He also rejected Justice Scalia’s argument that the Colorado amendment was a permissible moral judgment by voters seeking to preserve “traditional sexual mores.”

      http://prop8.berkeleylawblogs.org/2010/01/23/animus-takes-center-stage/

      The post above goes on to discuss how the plaintiff’s take down of the defendant’s witnesses sets for the argument over animus. Indeed, the writer adds:

      “Winning on animus would not be the broad victory some hope for. Pro-plaintiff optimists want the Supreme Court to hold that marriage, including marriage between people of the same gender, is a fundamental right. Or they want it to find that the history of discrimination against gays and lesbians, among other factors, grants them the kind of protection enjoyed by racial minorities, religious groups, and women. This reasoning would apply nationwide and force courts to view laws similar to Prop 8 with a very skeptical eye. And while a decision for the plaintiffs based on the nature of Prop 8 would send a message that anti-gay measures are constitutionally problematic, it would leave intact similar laws in other states.”

      It would be a comprise position that builds on federal case law favorable for eventual overturn.

      Here’s the google list of the legal argument:

      http://www.google.com/search?hl=en&q=romer+prop+8+gay+marriage+animus&aq=f&aqi=&oq=

      Animus is necessary, but not sufficient to overturn other bans across the US. It would nevertheless provide a powerful intermediate tool as we try to get the wingnut conservatives off the S.Ct.

      Feb 6, 2010 at 1:01 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      Follow up: Romer stands for the rational basis test with teeth. We would still be subject to rational basis (which favors the state since the burden is on us to prove our claim of animus).

      However, under the traditional rational basis test almost anything is permissible even non-sensical or contradictory or completely made up arguments. so long as any reason is given, a law will be upheld. I am over simplifying, but this is a way for you to appreciate the concept.

      The animus test sets a limit on what is permissible with regard to the rational basis test. That the government can not do anything as it formally was able to do under rational basis.

      The paragraph about going further that I quoted above is an attempt to push the courts to find that gays should be subject to heighten scrutiny, and that the burden is on the government to prove a policy permissible.

      The animus test would build on future case law for the broader standard by providing the necessary evidence that would go into a broader ruling of the case law.

      It is actually an exceptionally smart strategy as it creates a noose that slowly draws down on the bigots. But everyone is a rush so that test may be out of the window because of the need for present rather than generational gratification.

      What I mean by that is in the NAACP Legal Defense Fund strategy that lead to overturning Brown v. Board of Ed took 50 years.

      We don’t even have to wait that long. With the test now pushing forward, it would probably be 10 years to full equality once we got some of the extremists off the court. The animus test could provide the necessary ground work for such a strategy.

      Personally, I like the strategy as it does not screw us over from revisiting the issue in a few years even if the ruling is bad in Prop 8.

      Feb 6, 2010 at 1:13 pm · @ReplyReply to this comment ·
    • B
      B

      No. 26 · NoDoubleStandards wrote, “The animus test sets a limit on what is permissible with regard to the rational basis test. That the government can not do anything as it formally was able to do under rational basis.”

      … and it is worth noting William Tam’s testimony – as one of the 5 individuals who filed Proposition Eight, he provided convincing evidence of animus, so you don’t have to infer animus from the text of the law.

      Showing animus is the reason Olsen and Boies called Tam as a witness. It’s not like he had anything else to contribute to the case, and the defense did their feeble best to try to prevent him from testifying, which is a pretty good indication of how damaging he is.

      Feb 6, 2010 at 3:39 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @B: Originally, I was against this case. However, with the prior precedent, I think it has value. My main problem with it remains that we need a perfect storm to achieve the change from rational basis to a heighten scrutiny that would shift the burden to the government to justify a lack of marriage equality AND that there is now my new concern is that they will not limit the opinion as judicial restraint requires to just deciding based on a narrow reading of the case. That they will be activist against us rather than for what the law clearly implies- that we should be given heighten scrutiny regarding how laws are legislated against us. My concern is that they will use the case as a way to freeze the laws in place now so that any justices in the next 10 years can not. I think we are talking 5 to 10 years before the right court would be in play , but if the conservatives win out, then we would be stuck with bad law for a decade or two.

      Feb 6, 2010 at 4:19 pm · @ReplyReply to this comment ·
    • B
      B

      No. 28 · NoDoubleStandards wrote, “My main problem with it remains that we need a perfect storm to achieve the change from rational basis to a heighten scrutiny that would shift the burden to the government to justify a lack of marriage equality AND that there is now my new concern is that they will not limit the opinion as judicial restraint requires to just deciding based on a narrow reading of the case.”

      That’s certainly a valid concern. I’d presume that Olsen and Boies did a careful risk assessment in advance, and they are supposedly two of the best lawyers in the U.S., but there’s always a chance of wishful thinking even when you are that capable.

      Feb 6, 2010 at 7:04 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @B: This is especially true of people who are regularly told that they are the best or the smartest at something because they can not imagine losing or they assume that they are entering a fight on even terms (i.e., assuming bigot justices will listen to good arguments is a bit of entitlement that only the majority can assume). Add to that both probably legitimately believe what they are arguing and that can skew objectivity about the risks involved. I recently had a case like that where I had to set aside my emotions about helping my clients to really help them, if that makes any sense.

      Feb 6, 2010 at 8:15 pm · @ReplyReply to this comment ·
    • bystander
      bystander

      @NoDoubleStandards

      Its good to know you are capable of commenting on the substance of my post without reading it. I will treat your subsequent posts with the same respect.

      Feb 6, 2010 at 9:04 pm · @ReplyReply to this comment ·
    • NoDoubleStandards
      NoDoubleStandards

      @bystander: I am not going to pretend that you know what you are talking about when in the first paragraph you indicate you don’t.

      Feb 6, 2010 at 9:57 pm · @ReplyReply to this comment ·
    • Michael Ejercito
      Michael Ejercito

      Bystander is right. It would be very silly to argue that the 14th Amendment requires California, but not Oregon or Colorado, to “marry” people of the same sex. There is in fact no precedent that the scope of U.S. constitutional protections differ by state.

      Is anyone trying to campaign for a U.S. constitutional amendment to require Congress and the states to define marriage as between two persons regardless of gender, and to forbid the denial of the rights and privileges of marriage on the basis of gender? Remember that in 1874, the Supreme Court ruled in Minor v. Happersett that the 14th Amendment does not prevent states from denying suffrage to women based on their gender. The 19th Amendment was ratified in 1920, gutting Minor’s relevance to suffrage. The 46th anniversary of Baker v. Nelson is only eight years away…

      Jul 8, 2010 at 12:41 pm · @ReplyReply to this comment ·

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