What will the SCOTUS do with Perry vs. Schwarzenegger?

[NickCole]

The current Supreme Court of the United States is a lot of things.

Timid is not one of them.

 

[White Eagle]

It's too early for me to select, so my vote is one on a hope and a prayer.

 

[gaypiper]

Since they just gave the country away to big business, I shudder to think what they'll do.

 

[scream4ever]

I have no doubts at all that the Supreme Court will overturn Prop. 8. 2 questions remain:

1. On what grounds
2. How broad will the ruling be

 

[JB3]

I believe the SCOTUS will strike down Proposition 8 on technicalities related specifically to the constitutional gay marriage ban in California, as Shannon Minter said could happen. However, I believe the court to be too timid to declare broadly the right for same sex couples to marry anywhere in the US.

Well, if its down to technicalities dealing specifically to California, there is no chance in hell it would be a broad ruling. The only way that it would be as broad as most of us would like would be is if they declared the law unconstitutional based on its violation of our rights, not on technicalities.

 

[Kensei]

No idea, but I would think if they were to strike prop 8 down, they'd strike it all the way.

And for the record, after reading what Kennedy has sided with on gay rights, judging from his rulings, I believe he's on our side.

 

[scream4ever]

No idea, but I would think if they were to strike prop 8 down, they'd strike it all the way.

And for the record, after reading what Kennedy has sided with on gay rights, judging from his rulings, I believe he's on our side.

That's what I think too. Should they just apply it to California, other states could file identical lawsuits to overturn their own bans.

 

[JB3]

That's what I think too. Should they just apply it to California, other states could file identical lawsuits to overturn their own bans.

NOT if it deals with technicalities specific to California's law. It depends on how the majority opinion is written, and whether the basis of overturning it deal with specifics of Prop 8.

If it is broad, however, it could easily provide the foundation for similar lawsuits across the nation.

 

[construct]

I'm not sure whether the case really brings up "technicalities." If I ever read the complaint (and I think I did), it was more than six months ago. The testimony as it has been reported relates to rather straightforward fourteenth amendment claims.

I don't think the complaint addressed federal law. My recollection is that that was what kept the U.S. Justice Dept. out of the picture. So it doesn't specifically address DOMA. Nevertheless, if the Court concludes that Prop 8 violates the Fourteenth Amendment because it denies a fundamental liberty and/or because it discriminates illegitimately against homosexuals in protecting that liberty, well then, it would apply to all similar laws including DOMA.

Now, if the opinion is based solely on the benefits and responsibilities, well then, Prop 8 could be upheld since California has a pretty strong domestic partnership regime. If that's the reasoning, then we'd need another case coming out of a state that doesn't recognize civil unions or domestic partnerships, like Texas in the 5th Circuit, Tennessee in the 6th Circuit, or Alabama in the 11th Circuit. We'd surely lose in the 5th or 11th. I'm not sure about the 6th.

If they deny cert, it could well be that it's because there will not be a circuit split. So even if we win in the 9th Circuit, we might have to lose one elsewhere and file yet another in yet another circuit to actually get the case to the Supreme Court. That's sort of what happened in the recent Second Amendment case even though the various cases that created the circuit split were over a long period of time and were in almost every circuit.

So, my response? I don't have a clue what the Court will actually do.

 

[construct]

I was wondering if you could explain more about the circuit courts across the country.

I'll do my best. The country is divided into eleven circuits along state lines. The circuits are basically numbered from east to west, but some divisions of larger circuits have made some exceptions. There is also a separate circuit court for DC.

Circuit courts are courts of appeal that hear cases arising out of federal district courts--the trial courts. Each circuit court decides its cases more or less independently of the others. Sure, they look at what other circuit courts have done with similar cases, but that doesn't mean they feel any particular pressure to do the same thing.

Judicial appointments to the circuit courts are made by the President and confirmed by the Senate. These appointments are for life just like the appointments to the Supreme Court. Thus, the jurisprudential makeup of the circuit courts vary quite dramatically. Also because certain business sectors may be concentrated in one part of the country, circuits that cover those areas become expert in dealing with cases involving that area of law.

Right now, the 9th Circuit is viewed as being the most socially liberal of the circuits. It covers the Pacific states (including AK and HI), AZ, NV, ID, and MT

The 4th, 5th, and 11th are reputed (probably correctly) to be the most conservative right now. The 4th Circuit is the Atlantic states north from SC to MD and WV. The 5th Circuit was basically the Gulf states until the 11th was split off from it. Now the 5th Circuit is TX, LA, and MS. The 11th is AL, GA, and FL.

The 6th Circuit, somewhere in the middle as far as jurisprudence goes, forms an eastward crescent from TN through KY and OH to MI.

The second amendment cases were an interesting example of a circuit split. All the circuits except the 5th went with a militia type interpretation. The 5th took an individual interpretation. I believe that 5th Circuit case was before the division, so it applied to the 11th as well. The Supreme Court, breaking a seventy-year silence about the second amendment, took up a case out of the DC circuit and adopted the individual view which up to that time had applied only in the Gulf coast. That made the individual interpretation uniform throughout the country.

Perhaps this explanation is useful.

 

[Kulindahr]

I have no clue.

I could argue a case for anything from 6-3 in favor of human rights to 5-4 against.

 

[LoveIsNow]

I don't know. Like Kuli, I can see this going so many ways, it's nearly impossible to say.

 

[Kulindahr]

Interesting that you brought up the spectrum of possibilities. It does indeed vary greatly which is why it's so interesting to hear everyone's opinion.

One thing interesting to me is that some people talk about which justices are on "our side". To me that's part of the disease which afflicts America, the division into "sides", making everyone a special interest fighting all the other special interests.

I stand with Barry Goldwater on this: the supreme interest of the people is liberty, and it supersedes all other interests. The only sides in this case are human rights v. tyranny.

 

[scream4ever]

One thing interesting to me is that some people talk about which justices are on "our side". To me that's part of the disease which afflicts America, the division into "sides", making everyone a special interest fighting all the other special interests.

I stand with Barry Goldwater on this: the supreme interest of the people is liberty, and it supersedes all other interests. The only sides in this case are human rights v. tyranny.

Very true, especially since same sex marriage is about liberty

 

[Kulindahr]

Very true, especially since same sex marriage is about liberty

Yes, in a limited fashion -- it still concedes the State the power to rule on what relationships among adults are acceptable. Real liberty would tell the State to shut up and write down what people say about their committed relationships -- or go the last step and get the State out of regulating relationships at all. With all the legal benefits and privileges tied up in this, though, that's really reaching. I'd be happy with a system where consenting adults could walk in and say, "We're hitched. Write it down."

That would be a case of the people being in charge, and the government actually being a servant.

 

[TickTockMan]

I'm somewhat disappointed that only 12 people decided to weigh in on this poll.

For what it is worth, I was waiting until Walker gave his decision. I want to read it before I vote.

 

[Kulindahr]

For what it is worth, I was waiting until Walker gave his decision. I want to read it before I vote.

Good point. What and how he argues could have a big impact, because that's what those up the line will be looking at.

 

[TickTockMan]

Good point. What and how he argues could have a big impact, because that's what those up the line will be looking at.

That's what I was thinking. I should be able to narrow down my vote by what he writes.

 

[TickTockMan]

Technically you have until March of 2014.

I was hoping to capture the view from an early perspective.

Fine, I will vote, but I think there are going to be a lot of x factors in play involving Walker. Now knowing he is gay himself, I feel we have a worse chance than I did.


The reason I voted the way I did was because I don't see SCOTUS keeping three classes of people in CA. With their biases though. . . ?

 

[construct]

The reason I voted the way I did was because I don't see SCOTUS keeping three classes of people in CA. With their biases though. . . ?

Which three classes are you counting? As it is, there appears to be four if you are looking at the four levels of scrutiny used in fourteenth amendment cases.