Judge doubts gay marriage ban's backers can appeal

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Wreckem

Diamond Member
Sep 23, 2006
9,461
996
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I suspect the appeals court has a good chance to follow the CA Supreme Court opinion; if they had their minds made up, why would they have asked for the opinion.

Also, it makes some sense for this ruling to move up the chain, so that one way or another there's more consistency across the country on the issue.

They, from what it appeared, already had made their mind up on the merits.

They had/have to solve the standing issue because they don't want to say oh you have standing, and then have SCotUS reverse on standing and not have to deal with the merits. I believe the 9th would like to see this go to SCotUS so it would be effective nationwide, not just in the 9th.

What I was saying is they should use past precedent from the 9th/SCotUS, but like I said, said precedent is lacking consistency and is confusing(even to judges it seems).

I have no doubt they will use the CA Supreme Court ruling to buttress their standing argument, but under normal circumstances they wouldn't give it much deference.
 

classy

Lifer
Oct 12, 1999
15,219
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Prop 8 is going to stand at the end of the day. Regardless of the issue, Prop 8 was a completely legally executed ballot initiative. It may be socially wrong or even morally wrong, but legal. This is very similar to abortion, no matter how controversial, its still legal. Marriage is still a social issue that from a legal standing can be shaped by the people of the country. There is no federal gudielines to oversee the states on this matter, so state law will apply. An under state law this was done. Until marriage is defined to include gay marriage either at the state or federal level, it will still be subject to the rule of law.
 

Whiskey16

Golden Member
Jul 11, 2011
1,338
5
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:thumbsdown:

classy, how lame. Your post is typical of those who desire to dwell in an echo chamber.You have repeated the same crap that has already been retorted and defeated.

Your post in advocating the tyrany of the majority to harm a minority is in absoute oblivion to the legally valid arguments posted just above you and absolutely trump your ignorant position of the "rule of law" as being whatever a voting majority desires.
 

thraashman

Lifer
Apr 10, 2000
11,103
1,550
126
Prop 8 is going to stand at the end of the day. Regardless of the issue, Prop 8 was a completely legally executed ballot initiative. It may be socially wrong or even morally wrong, but legal. This is very similar to abortion, no matter how controversial, its still legal. Marriage is still a social issue that from a legal standing can be shaped by the people of the country. There is no federal gudielines to oversee the states on this matter, so state law will apply. An under state law this was done. Until marriage is defined to include gay marriage either at the state or federal level, it will still be subject to the rule of law.

The problem is that Prop 8 by its nature violated the US Constitution and will likely be seen as that. It's virtually identical to the same reason why interracial marriage bans were overturned.
 

Craig234

Lifer
May 1, 2006
38,548
350
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A reply to the ignorant bigot:

Prop 8 is going to stand at the end of the day.

Let's look at the reasons for your opinion. They fall apart.

Regardless of the issue

Can't blame you for not wanting to discuss the merit of the issue.

Prop 8 was a completely legally executed ballot initiative.

Which has zero to do with the issue.

They could pass a ballot initiative saying 'blacks can only speak when spoken to' perfectly legally, and it would be struck down for violating the constitution.

No one is arguing that the measure was passed illegally. They're arguing that the measure itself has unconstitutional provisions. So you made a straw man.

It may be socially wrong or even morally wrong

Not that you think so, but it's progress you admit it's possible.

, but legal.

That's your argument on the constitutional issue the entire case is about, you ignore all the legal issues and just state your opinion there aren't any? Pathetic and wrong.

This is very similar to abortion, no matter how controversial, its still legal.

Not that it has anything to do with this issue, it's 'still legal' as far as the Supreme Court says, which has been within one vote of saying it's not (that states can ban it).

States are still pushing measures that make it 'effectively illegal' to the point there are zero to one providers in some states. One state recently tried a novel approach in which they passed absurd 'building code' requirements for any provider that none could meet that would have closed the doors for every provider in the state.

Marriage is still a social issue that from a legal standing can be shaped by the people of the country.

Withing the bounds of the constitution.

How soon you forget when the societies of some states 'shaped' the institution by saying it did not include inter-racial couples, which was also struck down as unconstitutional.

There is no federal gudielines to oversee the states on this matter, so state law will apply.

Yes, there is. The federal constitution.

An under state law this was done. Until marriage is defined to include gay marriage either at the state or federal level, it will still be subject to the rule of law.

The court recognized that the constitutional protections include protecting gays from denying them equal rights. That IS the rule of law.
 

sactoking

Diamond Member
Sep 24, 2007
7,582
2,817
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The 9th really isn't going to defer to the CA Supreme Court for Federal standing either. State courts never decide federal or constitutional standing before a Federal Court. The 9th should base the issue of standing on their own circuit opinions on standing, other circuits, and SCOTUS. I am still not entirely convinced the supporters have standing for the appeal, but standing is a screwy subject that makes no sense, nor are any of the opinions consistent.

I believe, though I may be wrong, that the Federal court asks for the State's opinion on standing because the issue at hand, whether a proposition's backers can defend in lieu of the state gov't, is purely a state legal matter. The challenge itself is on Federal Constitutional grounds but many of the procedural matters defer to state law.

Put another way, the CA proposition system exists purely outside of the Federal system. As such, the Federal court will often defer to the State court for guidance on how the system works. This is because the CA proposition system might differ from a proposition system in Oregon and the Federal court cannot hold a CA plaintiff or defendant to the Oregon standard.
 

fskimospy

Elite Member
Mar 10, 2006
85,586
50,771
136
Prop 8 is going to stand at the end of the day. Regardless of the issue, Prop 8 was a completely legally executed ballot initiative. It may be socially wrong or even morally wrong, but legal. This is very similar to abortion, no matter how controversial, its still legal. Marriage is still a social issue that from a legal standing can be shaped by the people of the country. There is no federal gudielines to oversee the states on this matter, so state law will apply. An under state law this was done. Until marriage is defined to include gay marriage either at the state or federal level, it will still be subject to the rule of law.

Sure it will. Go look at the trial and see how badly prop 8 was demolished. Didn't you see that it failed the 'rational basis' test? You realize that's the equivalent of the federal courts saying 'this law is so stupid that only an irrational person could have created it', right?

The idiots appealing this are just going to make gay marriage legal everywhere. I hope some gay people get married on your front lawn.
 

fskimospy

Elite Member
Mar 10, 2006
85,586
50,771
136
I believe, though I may be wrong, that the Federal court asks for the State's opinion on standing because the issue at hand, whether a proposition's backers can defend in lieu of the state gov't, is purely a state legal matter. The challenge itself is on Federal Constitutional grounds but many of the procedural matters defer to state law.

Put another way, the CA proposition system exists purely outside of the Federal system. As such, the Federal court will often defer to the State court for guidance on how the system works. This is because the CA proposition system might differ from a proposition system in Oregon and the Federal court cannot hold a CA plaintiff or defendant to the Oregon standard.

Nope. Nothing in any federal court defers to state law. If it is an area that the feds have jurisdiction over, state law is irrelevant. If the feds don't have jurisdiction over it, then it can't be in federal court anyway.

The 9th circuit was looking for an advisory opinion from the CSC to use as more evidence for their position on standing. They are under zero obligation to use anything from California in making their decision however.
 

waggy

No Lifer
Dec 14, 2000
68,143
10
81
Prop 8 is going to stand at the end of the day. Regardless of the issue, Prop 8 was a completely legally executed ballot initiative. It may be socially wrong or even morally wrong, but legal. This is very similar to abortion, no matter how controversial, its still legal. Marriage is still a social issue that from a legal standing can be shaped by the people of the country. There is no federal gudielines to oversee the states on this matter, so state law will apply. An under state law this was done. Until marriage is defined to include gay marriage either at the state or federal level, it will still be subject to the rule of law.


hehe..

i find it ironic a black man would be saying this.

how is this any different from KKK members saying white's can't merry blacks?

I hope this gets overturned. NOBODY regardless of race, religion or sexual preference should be banned from anything that anyone else does (well that's legal heh). to pass a law (unconstitutional at that) just blows my mind.

seems society has a little farther to go..sigh.
 

classy

Lifer
Oct 12, 1999
15,219
1
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The problem is that Prop 8 by its nature violated the US Constitution and will likely be seen as that. It's virtually identical to the same reason why interracial marriage bans were overturned.

Interracial marriage was banned because African Americans were elevated to equal status. Not on the right to marry whites in itself.

The problem is and always will be, marriage inherently, whether good or bad never had a true definition, it was always implied to mean man and woman. Now I am not going to go down that road. Gay marriage is more closely related to abortion more than anything else.

Same argument there, does the woman's right over-ride the rights of the child she is carrying. Why is it similar? Marriage has never been denied to a gay man or gay woman. They just couldn't marry the same sex.

That is the problem, the right to marry is implied not defined. Blacks have always by the constituion had implied rights, but not until 1964 were rights truly defined for blacks.

Two things need to happen. One the Supreme Court will eventually have to rule whether marriage is a guaranteed right to all people and whether or not states have the right to impose laws defining marriage.

States have always been the definers of marriage. The federal government will honor common law marriage in states that recognize common law marriage.

I stated before I knew they would have the right to appeal this decision, because the law was passed inaccordance to state law. You can't change that fact. At the moment this happened it was according to legal law. The question is whether the law violates a person's rights. But as I stated before that is something that ultimately the Supreme Court will have to decide.

You can support gay marriage, thats fine. But to pretend that marriage or the concept of marriage is not rooted in the joining of opposite sexes is just plain stupid.
 
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sactoking

Diamond Member
Sep 24, 2007
7,582
2,817
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Nope. Nothing in any federal court defers to state law. If it is an area that the feds have jurisdiction over, state law is irrelevant. If the feds don't have jurisdiction over it, then it can't be in federal court anyway.

The 9th circuit was looking for an advisory opinion from the CSC to use as more evidence for their position on standing. They are under zero obligation to use anything from California in making their decision however.

I'm pretty certain you're both wrong and right. You're right that federal courts don't let state law supercede but you're wrong that federal courts don't follow state law. I've been involved in a few cases that went federal and were kicked back to the state for certain procedural opinions relating to state matters. While they may not be tachnically obligated to follow the state's advice, I've not yet encountered an instance where they do not.

Since federal courts also adjudicate certain interstate or multi-state cases, they do have to account for state law.
 

fskimospy

Elite Member
Mar 10, 2006
85,586
50,771
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I'm pretty certain you're both wrong and right. You're right that federal courts don't let state law supercede but you're wrong that federal courts don't follow state law. I've been involved in a few cases that went federal and were kicked back to the state for certain procedural opinions relating to state matters. While they may not be tachnically obligated to follow the state's advice, I've not yet encountered an instance where they do not.

Since federal courts also adjudicate certain interstate or multi-state cases, they do have to account for state law.

I didn't say that federal courts don't follow state law, it is simply that they are applying federal law to state law, and federal law always wins. ie: it is entirely irrelevant to what the CSC told the 9th circuit as to the status of their standing in CA. While they may take it under advisement, in a strictly legal sense it is utterly meaningless as to what actions the 9th circuit can take if they choose to. State standing is not equal to federal standing.

In this case, the CSC has ruled in the past that proposition backers have the necessary particularized interest necessary to have standing to intervene in court cases based on it. No such particularized interest has been recognized on a federal level.
 

sactoking

Diamond Member
Sep 24, 2007
7,582
2,817
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I didn't say that federal courts don't follow state law, it is simply that they are applying federal law to state law, and federal law always wins. ie: it is entirely irrelevant to what the CSC told the 9th circuit as to the status of their standing in CA. While they may take it under advisement, in a strictly legal sense it is utterly meaningless as to what actions the 9th circuit can take if they choose to. State standing is not equal to federal standing.

In this case, the CSC has ruled in the past that proposition backers have the necessary particularized interest necessary to have standing to intervene in court cases based on it. No such particularized interest has been recognized on a federal level.

Ah, I get what you're saying now.

I would bet money that the 9th accepts CA's statement on standing since the federal system has no comparable proposition mechanism.
 

JEDIYoda

Lifer
Jul 13, 2005
33,986
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Ah, I get what you're saying now.

I would bet money that the 9th accepts CA's statement on standing since the federal system has no comparable proposition mechanism.

I would bet you are correct. But to be honest your correct IMO because the Fed`s really do not want to open this can of worms more than it already is what with an election year coming upon them!
 

Whiskey16

Golden Member
Jul 11, 2011
1,338
5
76
Interracial marriage was banned because African Americans were elevated to equal status.
Elevated, eh? You are quite inconsistent:

Blacks have always by the constituion had implied rights, but not until 1964 were rights truly defined for blacks.
The words you desired were RECOGNISED and ENFORCED.

Language is important. Your misuse of it in terms of law and history is quite telling of your tyranical slant and of demeanure to homosexuals.

Not on the right to marry whites in itself.
No. Such marriage and through to desegregation were legally enshrined as per the US constitution. Any such bigoted state acts were not legally enactable by the state nor public.

The rights were present. It's just that legislatures and the public at large denied those rights.

You are so ignorant with your bigotry as to imply that the acted recognition of equality is a favour granted by the population at large to the disenfranchised.

No. You fail to recognise universal rights of equality and those afforded constitutionally for differing sexual persuassion.
 

fskimospy

Elite Member
Mar 10, 2006
85,586
50,771
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Ah, I get what you're saying now.

I would bet money that the 9th accepts CA's statement on standing since the federal system has no comparable proposition mechanism.

I agree. Someone else said it here and I think they are right, the 9th circuit already knew what they had decided, they just wanted more ammo to support their decision.
 

classy

Lifer
Oct 12, 1999
15,219
1
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Elevated, eh? You are quite inconsistent:

The words you desired were RECOGNISED and ENFORCED.

Language is important. Your misuse of it in terms of law and history is quite telling of your tyranical slant and of demeanure to homosexuals.

No. Such marriage and through to desegregation were legally enshrined as per the US constitution. Any such bigoted state acts were not legally enactable by the state nor public.

The rights were present. It's just that legislatures and the public at large denied those rights.

You are so ignorant with your bigotry as to imply that the acted recognition of equality is a favour granted by the population at large to the disenfranchised.

No. You fail to recognise universal rights of equality and those afforded constitutionally for differing sexual persuassion.

You are wrong, 100%. Inter-racial marriage was banned because blacks were not considered equal, even after the civil war. But especially after the civil rights act was passed it made any practice that was enforced solely on the basis of race illegal. Period. When blacks wanted to marry a white person many states did allow such and others did not. But it was legal because the complete bannishing of any practice based on race had not been establlished.

When blacks and whites married the implied definition, of marriage between a man and woman was not changed, or altered.

The question is and needs to be answered, does the public have the right as a majority to set social policy? This is not a rights issue as many try to make it out to be. This is a social issue just like abortion. Abortion laws vary from state to state. The argument here is when this law was passed, was it legal to do so? The answer is yes. And unless marriage, the definition is defined to say that of two consenting adults, guess whats going to happen?

I liken this a lot to abortion, I am on the fence. I believe on one hand a woman has the right to choose, but on the other hand these partial birth abortions are hideous and should be outlawed.

I could care less as I have said before. I ain't gonna vote for support of it and I won't vote against it either. I have been and always will be torn on the subject. But when you look at how far reaching this stuff its kinda sad. I believe kids should be raised according to their gender and allow them to make the choice of their own sexuality. It should be allowed to be found by themselves. But sadly, more and more its being forced on kids.

It is a joke that one kids parents is transitioning their son who is 7, thats right 7, to be a girl.
 
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JSt0rm

Lifer
Sep 5, 2000
27,399
3,947
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you can't withhold rights from people via laws. The constitution forbids this type of thing. The many can not withhold rights from the few.
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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The 9th really isn't going to defer to the CA Supreme Court for Federal standing either. State courts never decide federal or constitutional standing before a Federal Court. The 9th should base the issue of standing on their own circuit opinions on standing, other circuits, and SCOTUS. I am still not entirely convinced the supporters have standing for the appeal, but standing is a screwy subject that makes no sense, nor are any of the opinions consistent.

But I do think they will find standing based on the CA Supreme Court though, because they desperately want to find standing so they can affirm the lower court. The CA Supreme Court rulings gives them cover, because they can cite inconsistent at best standing opinions + the CA Supreme Courts ruling.

The 9th should have their opinion out this term(it should be near) as its been clear how they were going to rule on the merits since they heard the case. Hopefully SCotUS will pick it up shortly there after.

I also still wonder what the Prop 8 proponents have to hide, they are the ones trying to keep the district court video from being released.

Re: The bold-en bit.

As you no doubt know, Baker v Nelson IS the controlling SCOTUS set precedent regarding this issue... The HOW it got to SCOTUS is what makes it controlling as I see it... In that case both EP and DP of the 14th were involved along with the 1st, 8th and 9th...
I can't see the 9th circuit NOT ruling that Prop 8 indeed does violate the (at least) EP of the 14th which is the issue before them. Assuming the convoluted 'standing' issue is not handled correctly I'd hate to have the SCOTUS sending it back due to that issue and not ruling on the underlying issue of merit...

But, let's assume all is well with standing and the 9th does affirm the court below. Why would the SCOTUS now having already decided not to hear a similar issue and considering they ruled on the merits in Baker hear this one?
 
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Craig234

Lifer
May 1, 2006
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Why would the SCOTUS now having already decided not to hear a similar issue and considering they ruled on the merits in Baker hear this one?

To resolve the conflict between this decision by the 9th if they make it and the rest of the nation, presumably.
 

sportage

Lifer
Feb 1, 2008
11,492
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Since when does mass rule have anything to do with civil rights?
Law should decide the issue, as has always been the case, not the public.
Laws are stable and equally applied. Mass rule attitudes can change from day to day.
The whole idea of putting to a vote any civil rights issue is absurd.
And the gimmick thought up by anti same sex marriage groups.
And BTW... same sex marriage doesn't necessarily have to be a gay thing.
Two male business owners, in business together, could also marry just for the legal protections. Or two women joint property owners. Marriage has nothing to do with religion or family, unless the couple wishes to inject that reference into their private personal ceremony.
A hell of a lot of atheist get married every day, by a judge, or on a boat at sea.
The religious right fundies love to hijack social issues, apply their perverted twist, then repack and resale back to society as a whole.
Nada goin to work much longer.... sorry fundies.
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
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To resolve the conflict between this decision by the 9th if they make it and the rest of the nation, presumably.

To overturn the 9th is what you mean... cuz -imo- they will not grant cert if the 9th overturns the court below because of Baker. Which sort of means to me at least that to affirm the district court the 9th has to avoid the Baker decision... somehow.

The judge in the district court wrote directly to Justice Kennedy it seems to me and others so he expects it to be heard and hopes Kennedy will move away from Scalia, et al.

I get a chuckle out of Scalia. He and Breyer think so differently on the same issue it seems as if they speak to different issues...
 

LunarRay

Diamond Member
Mar 2, 2003
9,993
1
76
Since when does mass rule have anything to do with civil rights?
Law should decide the issue, as has always been the case, not the public.
Laws are stable and equally applied. Mass rule attitudes can change from day to day.
The whole idea of putting to a vote any civil rights issue is absurd.
And the gimmick thought up by anti same sex marriage groups.
And BTW... same sex marriage doesn't necessarily have to be a gay thing.
Two male business owners, in business together, could also marry just for the legal protections. Or two women joint property owners. Marriage has nothing to do with religion or family, unless the couple wishes to inject that reference into their private personal ceremony.
A hell of a lot of atheist get married every day, by a judge, or on a boat at sea.
The religious right fundies love to hijack social issues, apply their perverted twist, then repack and resale back to society as a whole.
Nada goin to work much longer.... sorry fundies.

The Christian Right believes that the oath of office is taken by placing one hand on the Constitution and swearing to uphold the Bible. It is not all that unreasonable if you consider that they base that approach on the notion that this is 'One Nation under GOD'... Founded by devote Christians with the intent being that any reasonable person would find guidance from the bible in the decision process.... Sorta like Iran...