Perry vs. Schwarzenegger: on to the Ninth?

[TickTockMan]

FDA

and a lot more alphabet-soup government agencies.

Add seat belt laws, helmet laws, fireworks regulations....

But you are leaving out all of the things we can do. Those that you mentioned can be argued for the common good. I’m talking about we are still allowed to drink, smoke, over eat, under eat, take a pill for every little thing we may or may not have etc.

 

[scream4ever]

http://www.boxturtlebulletin.com/2010/08/17/25488

Here's another well written opinion on why the Prop. 8 proponents have no standing to appeal

 

[JB3]

But you are leaving out all of the things we can do. Those that you mentioned can be argued for the common good. I’m talking about we are still allowed to drink, smoke, over eat, under eat, take a pill for every little thing we may or may not have etc.

The argument is that by allowing marriages to go forward, it opens the possibility of anyone that gets married being harmed by a future decision that might reverse the lower court's decision.

The way its being used by those opposed to gay marriages is wrong, but the argument itself is quite sound. I mean, if you married your boyfriend tomorrow and then the supreme court said a day later that your marriage was invalid, would you not feel you were caused harm?

Its a similar situation to a doctor treating a patient with a severe disease. No doctor in their right mind will tell you that a treatment will work 100%. They will tell you it looks good or that there is a high likelihood, but they're not going to say that it'll cure you. In this case, even though the court has indicated that they don't see any major issues in Walker's ruling, they don't want to tell people they can go out and get married since they don't know yet what the final outcome will be.

 

[TickTockMan]

The argument is that by allowing marriages to go forward, it opens the possibility of anyone that gets married being harmed by a future decision that might reverse the lower court's decision.

The way its being used by those opposed to gay marriages is wrong, but the argument itself is quite sound. I mean, if you married your boyfriend tomorrow and then the supreme court said a day later that your marriage was invalid, would you not feel you were caused harm?

Its a similar situation to a doctor treating a patient with a severe disease. No doctor in their right mind will tell you that a treatment will work 100%. They will tell you it looks good or that there is a high likelihood, but they're not going to say that it'll cure you. In this case, even though the court has indicated that they don't see any major issues in Walker's ruling, they don't want to tell people they can go out and get married since they don't know yet what the final outcome will be.

A couple things about that though:


1) It has happened before.
2) Those that would be getting married would know the risk just as those that did it before them.


I seriously doubt any same sex couple looking to get married right now would not know that things are still being decided. A sign with a warning at places where marriage licenses are issued would pretty much cover the issue. It is after all the same thing “we” do for other things that may cause us “harm.”

 

[Stardreamer]

A couple things about that though:


1) It has happened before.
2) Those that would be getting married would know the risk just as those that did it before them.


I seriously doubt any same sex couple looking to get married right now would not know that things are still being decided. A sign with a warning at places where marriage licenses are issued would pretty much cover the issue. It is after all the same thing “we” do for other things that may cause us “harm.”

You really think the Prop 8 folks care? They are just looking for any lifeline to justify their appeal.

 

[braex27]

This is only slightly off topic and I admit absolute ignorance on this point - I understand that gay marriage is legal in number of US States (e.g., Massachussetts)... are gay marriages from these states recognised throughout the country or only within the state that conferred the marriage certificate?

 

[Stardreamer]

This is only slightly off topic and I admit absolute ignorance on this point - I understand that gay marriage is legal in number of US States (e.g., Massachussetts)... are gay marriages from these states recognised throughout the country or only within the state that conferred the marriage certificate?

Normally the Constitution requires states to recognized marriages in other states, However, the federal government passed the Defense of Marriage Act which specifically says that states don't have to recognize Gay Marriages and forbids the federal government from recognizing them. This is causing much harm as married couple are being denied federal benefits such as social security benefits. I expect DOMA to eventually be overturned as unconstitutional.

 

[Kulindahr]

http://www.boxturtlebulletin.com/2010/08/17/25488

Here's another well written opinion on why the Prop. 8 proponents have no standing to appeal

As before, there are some really weak points in there. The one that jumps out at me is the "Hey, that's my kid" part near the end:

One case that comes to my mind is Elk Grove Unified School District v. Newdow. Michael Newdow, a prominent atheist, sued the Elk Grove Unified School District for requiring his daughter to say the Pledge of Allegiance, including the words “one nation under God.”

A federal judge found the Pledge violated the Establishment Clause and the Ninth Circuit agreed. But the SCOTUS had an out. While three were ready to find that the Pledge is not unconstitutional (and Scalia recused himself), the four liberal judges and Kennedy all found that because Newdow’s ex-wife had full custody of their child, and because she was a Christian, then Newdow had no standing to sue over her education, religious or otherwise.

I’m thinking that if “Hey, that’s my kid” isn’t enough to have standing, then “Hey, that’s my initiative” isn’t going to fare much better if the court is not yet ready to hear a case on the constitutionality of same-sex marriage. Surely the father of a child has more standing than the father of a proposition.

The thing is that under the law, it wasn't his kid -- he didn't have custody. But the parallel remains anyway, though he screwed it up, because the Prop8ers don't have "custody" of the measure, either, especially once it was passed -- at that point, the State of California steps into the place of the wife in the Elk Grove case: it has full custody of the proposition/child, and the Prop8ers are, legally, outsiders.

The most useful part of that article is the summary of the Arizonans for Official English case; it shows the parallels rather well. What's interesting, though, is that SCOTUS took that case in spite of the lack of standing, and still made a ruling!

So... is it "on to the Ninth", or not?

 

[Kulindahr]

But you are leaving out all of the things we can do. Those that you mentioned can be argued for the common good. I’m talking about we are still allowed to drink, smoke, over eat, under eat, take a pill for every little thing we may or may not have etc.

A couple things about that though:

1) It has happened before.
2) Those that would be getting married would know the risk just as those that did it before them.

I seriously doubt any same sex couple looking to get married right now would not know that things are still being decided. A sign with a warning at places where marriage licenses are issued would pretty much cover the issue. It is after all the same thing “we” do for other things that may cause us “harm.”

What you're missing here is that the government arbitrarily decides we can do some things that harm us but not others. Yes, I can take a pill -- but only the ones they've allowed. Yes, I can smoke -- but only the substances they approve. Yes, I can eat -- but only the things they've certified.

And remember that in spite of the "At your own risk" warnings on amusement park ride tickets, the owners are still liable. So a warning such as you suggest would have no legal force.

What it comes down to is that "harm" is what the government decides it is, and whether we can harm ourselves is their choice, not ours. So deciding that keeping couples from making their own decision is preventing harm (instead of being harm) is in good, sound government tradition.

What would be fun is if some couples who would like to get married sued over the stay, claiming it did them harm, and invoking a paraphrase of an old adage: "Better to have married and lost it than never to have married at all".

 

[Kulindahr]

This is only slightly off topic and I admit absolute ignorance on this point - I understand that gay marriage is legal in number of US States (e.g., Massachussetts)... are gay marriages from these states recognised throughout the country or only within the state that conferred the marriage certificate?

Some states which recognize gay marriages honor those from other states -- I think Massachusetts is in that category.

It's a total patchwork mess.

 

[Kulindahr]

My thoughts exactly. What specious analysis on the writer's part.

Did AFOE vs. Arizona bypass the Ninth Circuit, with the Supreme Court opting to take up the case?

If so, I don't think that has a snowball's chance in hell of happening with this case. I seriously doubt SCOTUS is eager to rule on same-sex marriage at this juncture.

No, it went through the Ninth, it's just that SCOTUS took it even though they said the parties didn't have standing.

Apparently they can get away with that... whether lesser courts can is a different story.

 

[Kulindahr]

It has.

We're waiting for the Obama administration to either appeal the decision to the 1st Circuit Court or let the ruling stand in Massachusetts.

Wasn't that just a piece of it?

 

[TickTockMan]

You really think the Prop 8 folks care? They are just looking for any lifeline to justify their appeal.

No I don't and that was my point. The "Yes on 8" people shouldn't be allowed to argue both sides.

 

[construct]

This is only slightly off topic and I admit absolute ignorance on this point - I understand that gay marriage is legal in number of US States (e.g., Massachussetts)... are gay marriages from these states recognised throughout the country or only within the state that conferred the marriage certificate?

Normally the Constitution requires states to recognized marriages in other states, However, the federal government passed the Defense of Marriage Act which specifically says that states don't have to recognize Gay Marriages and forbids the federal government from recognizing them. This is causing much harm as married couple are being denied federal benefits such as social security benefits. I expect DOMA to eventually be overturned as unconstitutional.

I want to take these to posts as an aufgangspunkt for dispelling an often-expressed misunderstanding of the full faith and credit clause. The full faith and credit clause does not apply to marriages generally. It never has, and it never will.

The basis for a state's recognizing a marriage that took place in another state is the "place of celebration rule." The place of celebration rule is a common law rule. It is not statutory and it is not in the Constitution. It is something the courts created. It says that the state recognizes a marriage as valid if it was valid in the place where it was celebrated--even if it wouldn't have been valid if celebrated in the state where the couple now reside. The place of celebration rule exists in one form or another in all fifty states.

Nevertheless, there is an exception to the place of celebration rule. It is called the "strong public policy exception." It says that if there is a strong public policy for a particular limitation on marriage, a marriage violating that limitation will not be recognized even though the marriage was valid where it was celebrated. The strong public policy exception has been applied in various states to common law marriages and marriages between people related by blood or affinity as well as same-sex marriages.

In short, it does not violate the Constitution for one state to not recognize a marriage from another state.

 

[construct]

I think the court will likely entertain arguments regarding this question.

The legal process seems to be that judges assume a mentality of ignorance until advised by counselors and then "judge" what they feel is right by balancing the arguments. Though judges are not truly ignorant of proper established legal procedure, they have some freedom to invent it themselves. Much of the legal process established in US civil procedure was literally just invented as time went on, for instance, the assumed right of judicial review in Marbury vs. Madison. It's bewildering to me the fluidity of technical procedure allowed in the judicial system.

Construct's expertise would be useful here regarding how the parties will move forward arguing the ability of the defense to appeal, and what that process is, how it works, and so forth.

Will this be an issue for preliminary briefs?

Let's start by saying that the issue of standing is an issue for the first briefs in this appeal. The Ninth Circuit expressly demanded that the issue be briefed in the initial briefs. It will be the first issue dealt with in the appeal. If the court decides that the appellant has no standing to appeal, the case ends right there without going on to the merits of the case. Whether that will be in a separate preliminary hearing or part of the full-scale appeal I don't know. Since the first briefs will also brief the other issues on appeal, my bet is that they'll hear the whole thing and then issue their ruling on standing as part of their final opinion. If the appellants fail to establish standing, the court won't proceed to any further analysis despite their having heard the arguments. This procedure would speed things along, wouldn't it?

I'm pretty sure it isn't the governor's call to make; it would seem to be in his job description to send someone to defend it, or at least to appeal it. What I would expect is that the governor would tell the AG, "You think it isn't constitutional under the U.S. Constitution. Fine, but the way we establish that is to appeal it. So go and sign onto the appeal, and submit a brief that says it isn't our place to decide if the law can stand, but it's our law, so we want you to examine it."

But what do I know about how that works?

The administration can certainly make a decision not to act on a law that it considers unconstitutional. It even has an obligation to do so. In this case, if the governor and the attorney general believe Prop 8 is unconstitutional, they have every right not to defend it.

Submitting a brief saying merely that the state wants the court's opinion about the constitutionality of the law probably would fall outside Article III. It wouldn't keep the controversy alive and would, in my opinion, be tantamount to requesting an advisory opinion--something not allowed in federal courts.

 

[construct]

I assume you mean generally.

So where and when has that been tested? And why doesn't the FFCC necessarily apply? I think the Constitution is pretty clear on this. It doesn't immediately stand to reason why "strong public policy" exempts certain legal acts and proceedings and not others.

But you see, a marriage is not a legal act or proceeding. If it were, the full faith and credit clause would apply. There are situations in which such a marriage would secondarily be included under the FFC, but it doesn't apply to marriage all by itself. For example, if a court grants a divorce settlement on the basis of a disputable marriage, that settlement is valid everywhere under the FFC. That is because the settlement was the result of a proceeding. A will contest would also be a proceeding that would fall under the FFC. A marriage isn't a proceeding, so it's not covered by the FFC. That is why I used the word 'generally.' It may look like the marriage was covered under the FFC in the settlement example, but it is recognized only secondarily. What is actually required to be valid everywhere is the settlement--not the marriage on which it was based.

 

[hotatlboi]

It is a legally binding contract issued by a state or county often times in the setting of a courthouse itself by a duly appointed or elected officer of the state or county.

While not an expert, perhaps the contract is a more analogous example then.

States are not necessarily required to honor contracts made in others states, as sometimes the state law regarding contracts differs and would make some contracts invalid under the laws of a differing state.

For example certain states forbid certain measures from appearing in contracts because they consider them to be unfair or onerous.

I would marriage is treated similarly. If the state law regarding marriage differs from the state in which it was enacted, then the marriage is not recognized.

 

[Kulindahr]

No I don't and that was my point. The "Yes on 8" people shouldn't be allowed to argue both sides.

For standing, they can't: the harm has to be to them.

But you see, a marriage is not a legal act or proceeding. If it were, the full faith and credit clause would apply. There are situations in which such a marriage would secondarily be included under the FFC, but it doesn't apply to marriage all by itself. For example, if a court grants a divorce settlement on the basis of a disputable marriage, that settlement is valid everywhere under the FFC. That is because the settlement was the result of a proceeding. A will contest would also be a proceeding that would fall under the FFC. A marriage isn't a proceeding, so it's not covered by the FFC. That is why I used the word 'generally.' It may look like the marriage was covered under the FFC in the settlement example, but it is recognized only secondarily. What is actually required to be valid everywhere is the settlement--not the marriage on which it was based.

So why are driver's licenses recognized everywhere? or car titles?

 

[construct]

I entreat you to entertain my curiosity

Why is marriage not considered a legal act?

It is a legally binding contract issued by a state or county often times in the setting of a courthouse itself by a duly appointed or elected officer of the state or county.

Well, let me see what I can find. I may take several posts to do it, but I want to let you see what I can find. Here are some passages from an article from Yale Law School professor Lea Brilmayer originally published in the Wall Street Journal, but it doesn't cite precedents, and it may not speak directly to your particular question. It is about why a constitutional amendment is not necessary to preserve other states' right to refuse recognition of Massachusetts same-sex marriages.

The fly in the ointment was that nobody bothered to check
whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state's marriages. It hasn't. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses.

. . . .

The assumption that there must be a single national definition of marriage --traditional or open-ended -- is mistaken and pernicious. It is mistaken because the existing constitutional framework has long accommodated differing marriage laws. This is an area where the slogan "states rights" not only works relatively well, but also has traditionally been left to do its job. We are familiar with the problems of integrating different marriage laws because for the last 200 years the issue has been left, fairly successfully, to the states.

. . . .

If today's proponents of a marriage amendment are motivated by the fear of some full faith and credit chain-reaction set off in other states by Massachusetts, they needn't be. If they are motivated by the desire to assert political control over what happens inside Massachusetts, they shouldn't be. In our 200-year constitutional history, there has never yet been a federal constitutional amendment designed specifically to reverse a state's interpretation of its own laws. Goodridge, whether decided rightly or wrongly, was decided according to Massachusetts' highest court's view of Massachusetts law. People in other states have no legitimate interest in forcing Massachusetts to reverse itself -- Massachusetts will do that itself, if and when it wants to -- and those who want to try should certainly not cite the Full Faith and Credit clause in rationalizing their attempts.

http://www.law.yale.edu/news/4174.htm

 

[construct]

Here is an explanation for The New American that may help Kuli with his question about licenses.

The exact wording of the Full Faith and Credit Clause requires that states give "full faith and credit" to the "public acts, records, and judicial proceedings of every other state." Marriages, strictly speaking, are not judicial acts; they are licensed acts and as such they do not fall under the Full Faith and Credit umbrella, any more than a license to practice law in one state guarantees that same right in a neighboring state. The Full Faith and Credit Clause, then, would not only not require one state to validate same-sex unions entered into in another, but would actually protect it from having to do so.

http://findarticles.com/p/articles/mi_m0JZS/is_5_21/ai_n25105657/pg_2/?tag=content;col1