Supreme Court strikes down DOMA

[ulmont]

Declining to hear Prop 8 means the California SC decision to overturn stands, right?  Or do I have it backwards?

The district court's decision enjoining the enforcement of Prop 8 stands, I believe.

This is right. 

The Prop 8 one is a bullshit decision, because not letting proponents of a referendum defend that referendum in court means that the defense is at the mercy of the California government / AG...severely undercutting the point of a popular referendum.

[OttoVonBismarck]

I would argue two things in opposition to that point, ulmont. Firstly, the proper remedy would probably be a Constitutional Amendment to the California State Constitution legally requiring the executive branch to defend in court any legal challenges to voter referendum. In that sense the controversy would never arise, and the SCOTUS would not have to break longstanding rules on standing.

Kleves, I thought that in the DOMA case since the Obama DOJ declined to defend DOMA or contest the ruling the House hired a former Solicitor General to defend the case on behalf of the House of Representatives, and unlike private citizens in the Prop 8 case the House did have valid standing to defend a law the White House declined to defend. The guy they hired was one of Bush's SGs and to my knowledge provided a vigorous defense of DOMA in his oral arguments, but maybe I'm incorrect. There's a WSJ article that outlines the arguments he made as to why DOMA was valid Federal law, so it doesn't sound as if he was working for it to be struck down.

[The Minsky Moment]

You know, I think that Obama is really smart, but damn, does he have some shitty litigators working for him.  According to Scalia's dissent, the government's appeal brief took a non-adversarial position? 

I think its safe to assume that position was driven by political considerations and not by litigation tactics.

[Admiral Yi]

Thanks Kleves.

What I don't get though, is if no one was challenging the district court's decision, why did it make it first to the circuit court then to the Supreme court?  Why didn't the district court decision just stand?

[Kleves]

BTW, if you're going to read some portion of a Supreme Court decision for entertainment value, I would recommend Scalia's dissents. He is often extremely scathing, and he is IMO probably the best (or most readable) writer on the Court. Here's a portion of his dissent today:

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority armswell every challenger to a state law restricting marriage toits traditional definition. Henceforth those challengerswill lead with this Court's declaration that there is "no legitimate purpose" served by such a law, and will claim that the traditional definition has "the purpose and effect to disparage and to injure" the "personhood and dignity"of same-sex couples, see ante, at 25, 26. The majority'slimiting assurance will be meaningless in the face of language like that, as the majority well knows. That is whythe language is there. The result will be a judicial distortion of our society's debate over marriage—a debate that can seem in need of our clumsy "help" only to a member ofthis institution.

As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Courtpawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA's passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that "[m]arriage between one man and one woman is theonly domestic legal union that shall be valid or recognizedin this State") (approved by a popular vote, 61% to 39% on May 8, 2012),6 are offset by victories in other places for others, see Maryland Question 6 (establishing "that Maryland's civil marriage laws allow gay and lesbian couples toobtain a civil marriage license") (approved by a popular vote, 52% to 48%, on November 6, 2012).7 Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting "theState of Maine to issue marriage licenses to same-sex couples") (approved by a popular vote, 53% to 47%, onNovember 6, 2012)8 with Maine Question 1 (rejecting "the new law that lets same-sex couples marry") (approved by apopular vote, 53% to 47%, on November 3, 2009).

In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's politicalopponents are not monsters, especially in a struggle likethis one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriagecan still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution.We might have let the People decide.

But that the majority will not do. Some will rejoice intoday's decision, and some will despair at it; that is thenature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winnersof an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

[Neil]

Well, it's a shame.  Still, at least we can take comfort knowing that the next civilization to arise out of our ruins will learn from our mistakes and not allow an overdose of tolerance to poison their society.

[Kleves]

Kleves, I thought that in the DOMA case since the Obama DOJ declined to defend DOMA or contest the ruling the House hired a former Solicitor General to defend the case on behalf of the House of Representatives, and unlike private citizens in the Prop 8 case the House did have valid standing to defend a law the White House declined to defend.

That's more-or-less what the Court ruled today. I don't think it was a sure thing that the Court would allow amici curiae (i.e. outside groups) to carry the adversarial burden when the parties themselves were in agreement about that they would like to see happen.

[garbon]

Declining to hear Prop 8 means the California SC decision to overturn stands, right?  Or do I have it backwards?

The district court's decision enjoining the enforcement of Prop 8 stands, I believe.

This is right. 

The Prop 8 one is a bullshit decision, because not letting proponents of a referendum defend that referendum in court means that the defense is at the mercy of the California government / AG...severely undercutting the point of a popular referendum.

That said, thank god. We have some stupid ass referendums.

[OttoVonBismarck]

Now that it is legal in California that makes 13 States + DC where gay marriage is legal. But I've not heard anyone explain how this effects the other 7 jurisdictions where States perform gay civil unions but not gay marriages. Does this mean persons in such civil unions are entitled to Federal marriage benefits? Or not? Since they are not technically married under State law but in a "civil union"?

[OttoVonBismarck]

BTW states where it is legal: CA, CT, DE, IA, MA, MD, ME, MN, NH, NY, RI, VT, WA + DC
States with Civil Unions: CO, HI, IL, NJ, NV, OR, WI

[alfred russel]

Now that it is legal in California that makes 13 States + DC where gay marriage is legal. But I've not heard anyone explain how this effects the other 7 jurisdictions where States perform gay civil unions but not gay marriages. Does this mean persons in such civil unions are entitled to Federal marriage benefits? Or not? Since they are not technically married under State law but in a "civil union"?

isn't it essentially 50 states now? Okay, technically not, but what really matters is federal law. All a couple has to do is get a plane ticket to a same sex marriage state and now under federal law they are married.

Maybe the state in question will be able to decline to recognize the marriage, I don't know. But federal law I presume will apply to benefits, federal taxation, immigration, etc.

[PDH]

That said, thank god. We have some stupid ass referendums.

California's propositions are preposterous most of the time.

[ulmont]

I would argue two things in opposition to that point, ulmont. Firstly, the proper remedy would probably be a Constitutional Amendment to the California State Constitution legally requiring the executive branch to defend in court any legal challenges to voter referendum.

I suspect you would not get the same quality of representation if people are arguing / advancing positions they do not believe in, but potentially allowing the supporters to be explicit agents of the state might work.

In that sense the controversy would never arise, and the SCOTUS would not have to break longstanding rules on standing.

There are no longstanding rules on defending referenda that the state has refused to support; it doesn't come up that often.  The Supreme Court's decision was solely to duck deciding the case.

Thanks Kleves.

What I don't get though, is if no one was challenging the district court's decision, why did it make it first to the circuit court then to the Supreme court?  Why didn't the district court decision just stand?

Yi, the referendum's supporters attempted to appeal in California.  The 9th Circuit asked the Supreme Court of California "Is that cool?"  And the Supreme Court of California said "Yeah, that's cool," after which the 9th Circuit affirmed the district court's opinion and the referendum's supporters appealed to the Supreme Court.

Now that it is legal in California that makes 13 States + DC where gay marriage is legal. But I've not heard anyone explain how this effects the other 7 jurisdictions where States perform gay civil unions but not gay marriages. Does this mean persons in such civil unions are entitled to Federal marriage benefits? Or not? Since they are not technically married under State law but in a "civil union"?

There are a lot of logistical issues to sort out now with respect to Federal marriage benefits, starting with but not limited to joint taxation where income is from a mix of gay marriage, gay civil union, and no gay marriage states...

[OttoVonBismarck]

isn't it essentially 50 states now? Okay, technically not, but what really matters is federal law. All a couple has to do is get a plane ticket to a same sex marriage state and now under federal law they are married.

Maybe the state in question will be able to decline to recognize the marriage, I don't know. But federal law I presume will apply to benefits, federal taxation, immigration, etc.

There are a few things left unclarified to me. If you live in North Dakota and fly to Maryland to get married, but continue to reside in North Dakota then the State doesn't recognize your marriage. But are you entitled to Federal benefits when you have a valid marriage but not recognized by your resident State? I haven't read the whole decision, but none of the articles I've read about it clarify this point.

Plus, the seven civil union states ostensibly have lots of people united under that legal mechanism, they will need some guidance on whether or not they are entitled to Federal benefits under their current legal status or if they are required to get married somewhere.

[garbon]

Maybe the state in question will be able to decline to recognize the marriage, I don't know. But federal law I presume will apply to benefits, federal taxation, immigration, etc.

I think states still can as section 2 wasn't struck down.