Gay Marriage Ruling!

--by Sebastian

 

The Supreme Court got it right on DOMA.  DOMA involved the federal government trampling all over one of the traditional areas of state power--definition of marriage.

I'm also thrilled to have gay marriage in my home state of California.  I believe that is the best ultimate policy result, and should I ever find someone silly enough to marry me, I'll love having the option.

I'm not going to hash out the fine legal points of gay marriage--I expect that will be done all over the internet.

I'm a little troubled by the method of the California ruling.  The Supreme Court ruled that it didn't have jurisdiction to hear the case, because the proponents of the initiative didn't have standing.  The governor and attorney general would have had standing, but they declined to defend the initiative--presumabely because they disagreed with it.  This guts the ability of the initiative system to act as a reforming tool.  The concept of initiatives is that the people identify issues which for whatever reason the legislature or governor refuse to act on, or identify issues where the legislature or governor choose to act against the wishes of the populace.  These issues can then be voted on directly, acting over the heads of the legislature and governor. 

Recently, the main function of initiatives has been to provide cover for a legislature or governor which didn't want to take responsibility for decisions.  Initiatives have also been plauged by monied pressure, though that particular criticism rarely gets the "compared to what? legislators?" treatment that it deserves.  These types of initiatives have been bad for California, but at least the potential usefulness of initiatives remained available.  The standing decision of the Supreme Court knocks down the main legitimate function of initiatives--going around the governor and legislature--while leaving the most corrupt parts intact.  If the proponents of initiatives can't support them in federal court, it is hard to see how initiatives can function to overrule the governor and legislature.  Their main progressive function has been destroyed. 

Comments

[hairshirthedonist]

I believe that is the best ultimate policy result, and should I ever find someone silly enough to marry me, I'll love having the option.

I may not be unmarried or gay enough to marry you, but I have to think I'm more than silly enough, FWIW.

[Priest]

Thing is, at least how it worked in California, is that the initiative was blocked after a trial in Federal District Court. The initiative proponents were allowed to provide support in that venue, and they failed. Had Walker ruled in their favor there would have been no need to appeal. As long as initiatives actually serve a public purpose that can be demonstrated by evidence, then the circumstances present in this case are unlikely to come up again.

[Sebastian H]

"Had Walker ruled in their favor there would have been no need to appeal."

That's true, but if we could trust district court judges to always get things right we wouldn't bother allowing appeals at all.

[Doctor Science]

I'm hoping one of you legal eagles will explain the strange-bedfellows lineup in the Perry decision:

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined.

WTF?!? It almost looks like a *legal* decision, not a *political* one.

[Snarki, child of Loki]

Time for an initiative that sets up a way that initiatives can be properly defended if the state officials decline.

I'm sure that the legal challenge to actually making USE such an initiative would be amusingly labyrinthine.

[Countme-In]

Congratulations, Sebastian.

[bobbyp]

Sebastian,

Scott Lemieux may agree with you on this narrow point? See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1981744>this paper he cited in his commentary on these cases at LG&M. I have not had a chance to download and read it, but based on the synopsis, it looks quite interesting.

[Priest]

This was the first instance of non-state appellants trying to defend an initiative in a Federal appeal, and the facts of this case were very specific, so it seems unlikely that the concerns about the process will manifest themselves in concrete harm anytime soon.

But perhaps a solution would be an initiative that would require the state to defend all legal challenges to inititiatives, and/or create an "independent" legal agency for such purposes.

[Sebastian H]

Doctor Science, I cynically tend to agree with Scott Lemieux on the standing lineup--nobody wanted to trust Kennedy on the merits so they punted.

[wj]

It is hard to reconcile the decision in Windsor that the House Republican caucus (which helped enact the law) does have standing to defend a law which the executive branch declines to defend. But in Perry, when the state government declines to defend a state law (constitutional amendment, actually), the groups which were responsible, via the initiative process, for enacting it do not have standing to defend it. Does anyone see a consistent legal position by the Court here?

As for Perry itself, I continue to maintain that the California Attorney General (now Governor) was seriously remiss in his official duties by declining to defend the law. It should never matter to a defense lawyer (which is what he effectively was) whether or not his client is guilty -- his job is still to defend him. Not to mention that, if Brown had simply done his d*mn job originally, there would never have been an appeal -- he may have to defend a law, but there is no burden on him to appeal when he loses. There is something bizzare about Brown not taking serious political damage for his decision.

[dr ngo]

Not directly to the point, but the SCOTUS decision on voter rights may trump both the gay and abortion issues, if voter suppression kicks in as hard and fast as its proponents hope - six voter registration (= restriction) proposals within the first 24 hours after the decision: http://www.pbs.org/wgbh/pages/frontline/government-elections-politics/with-voting-rights-act-out-states-push-voter-id-laws/

In another ten years, just imagine what legislatures - and justices - chosen under these circumstances are going to be deciding about marriage and reproduction!

[von]

I agree with Sebastian -- as I frequently do -- on the legal issues. But allow me to also express the following:

Hell, yes.

13 down. 37 to go. I've been saying it here for a long time and de-lurk to say it again: it's frustrating, unfair and downright evil to deprive gay folks of getting married to those whom they love. But the good people are winning. We are winning.

If you're of the mind and have the means, please consider contributing to your local Marriage Equality group or Lambda Legal Defense. They do good work.

von

p.s. There are good people -- good and sincere and genuinely nice people -- who oppose gay marriage. But that doesn't make opposing gay marriage "good". When you're loving the sinner, please don't forget to hate the sin.

p.p.s. re: "I believe that is the best ultimate policy result, and should I ever find someone silly enough to marry me, I'll love having the option." I've had the pleasure of meeting Sebastian. The man is selling himself short.

[Ugh]

von: 13 down. 37 to go.

Why not immediately 51 for 51 (you miscounted)?

[Slartibartfast]

13 down. 37 44 to go.

Fixed!

[sapient]

Not directly to the point, but the SCOTUS decision on voter rights may trump both the gay and abortion issues, if voter suppression kicks in as hard and fast as its proponents hope

This. I'm thrilled for gay Americans that their marriages will be recognized by the Feds. The decision is seriously compromised by the VRA decision.

It's hard to hope too hard, but maybe, just maybe, Congress will do the right thing here.

[Turbulence]

Part of me is still pissed off about the SC's refusal to strike down section 2 of DOMA (which allows states to refuse to recognize gay marriages performed in other states). That seems like such an egregious violation of the full faith and credit clause of the constitution. And without section 3, gay marriages performed by the Commonwealth of MA have no federal sanction.

I know it is wrong, but part of me wants MA to enforce reciprocity for marriage recognition so that it refuses to recognize marriages performed by states that don't recognize ALL MA marriages. We shouldn't let other states pick and choose which MA marriages they recognize: they should be forced to either recognize all of them or none of them, and if they don't want to recognize all of them, well, I don't see why MA needs to recognize any VA or TX marriages at all.

I know that's not a good idea because it would burden a bunch of people who didn't do anything wrong, but there's got to be some (mostly) symbolic punishment MA can inflict on other states that don't recognize all of its marriages.

Some of my friends are getting gay married on monday at city hall; they'd been planning to get married next summer, but wanted to celebrate the decision (and MA has a waiting period on marriage licenses so monday's the earliest they could do it). We'll be there cheering them on.

[hairshirthedonist]

I know that's not a good idea because it would burden a bunch of people who didn't do anything wrong, but there's got to be some (mostly) symbolic punishment MA can inflict on other states that don't recognize all of its marriages.

Not exactly to your point, Turb, but at least MA and other states that do recognize gay marriage will disproportionately benefit from the talents, skills, efforts, business, etc. that gay couples have to offer. If the other states want to be podunk backwaters, they'll have to deal with all that that implies. Small consolation, maybe, but it's something.

[wj]

Turb, since Section 2 was not at issue, it would have been a stretch for the Court to say anything about it. (And the Court was pretty clearly not in the mood to stretch on the whole issue.) But it is completely obvious that, at some point in the extremely near future, someone who was married legally in one state, and is now living in a state which does not recognize his marriage, is going to sue. And that suit will get to the Supreme Court (since both sides will appeal if they lose). At which point, Section 2 will go, and the staters will be once again expected to grant "full faith and credence" to marriages performed in other states.

I don't know that anybody can get their case far enough along to catch the next term. Trials and appeals just take too long. But it may well happen year after next.

[Hartmut]

...provided of course that the court composition does not change unfavourably, e.g. if one 'left' judge retires or dies, the GOP senate prevents the confirmation of a replacement until Obama is out and a GOP/TP president is in and nominates Scalia's evil twin. Remember, precedents have become essentially worthless.

[dr ngo]

Surely in the phrase "Scalia's evil twin," the word "evil" is redundant.

[Hartmut]

No, it increases the horror to imagine what would be, if Scalia was the good one.

[von]

Confused. candidly. Explain it for me, Ugh and Slarti? Use small words.

[Slartibartfast]

There must be...57 states up there.

Can't pull up a Steve Martin link to save my life.

[Turbulence]

Hey front pagers, russell's latest post isn't working properly. Going to the comment page leads to a blank page or error.

[Ugh]

Surely we must include the District.

"Immediately" being, just rule the states' sex discrimination in marriage unconstitutional in toto. (Maybe they did this and I missed it, but that doesn't seem to be the case).

[liberal japonicus]

I just posted a comment there, Turb, so I'm not sure what is the problem. If you keep having a problem, let me know the details either here or off list (libjpn at gmail)

[doretta]

wj asks: "Does anyone see a consistent legal position by the Court here?"

The stated position was that only governments, and not private parties, have standing to defend a law.

[Jay C]

This guts the ability of the initiative system to act as a reforming tool.

While your cavils about the legal specifics of the Prop. 8 appeal aren't without merit, the above comment (IMO, anyway) sounds more than a little naive (to say the least). As far back as I can recall, the "initiative system", in California anyway, has mostly been (ab)used to either enact - or try to - special-interest "goodies" (tax breaks, etc.), or else to attempt to enshrine one or another prejudice into law via the ballot box that even the Legislature might balk at. While I can't recall the exact percentage, IIRC, something like half (?) of CA's citizen-initiative Propositions had been later declared unconstitutional by one court or another. Not exactly an admirable record.