

Supreme Court Strikes Down Defense of Marriage Act - flexterra
http://projects.nytimes.com/live-dashboard/2013-06-26-supreme-court-gay-marriage#sha=f2fa9994b

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btilly
This discusses two rulings. DOMA and Proposition 8. I like the DOMA decision.
I like the specific result of the Proposition 8 ruling, but do not like the
way they got there.

The issue with proposition 8 is that California lost, and then chose not to
appeal. Lawyers for the group that passed proposition 8 then stepped in and
took the case. Their argument basically was that if they were not allowed to
do this, then any proposition passed by Californians that the government did
not like the government could unpass by posting a lackluster defense and then
not appealing it.

The 9th circuit did not know whether they should grant standing. They remanded
it to the California Supreme Court to decide that. The California Supreme
Court said that under California law they did have standing. The 9th heard it.
The Supreme Court has now disagreed.

But I agree with that argument from the supporters of proposition 8.
California gives voters the power to pass proposition that the state does not
like. The state has now been handed a legal tool which undermines that in
federal court. (I do not understand precedent well enough to know whether
state courts will look to the Supreme Court or the California Supreme Court on
this.)

~~~
dragonwriter
> The 9th circuit did not know whether they should grant standing. They
> remanded it to the California Supreme Court to decide that.

That's neither procedurally nor factually correct; they certified a question
to the California Supreme Court about the authority of petitioners under State
law to defend the proposition in court; this was not a remand, and although
the Ninth Circuit based its finding of standing on the result, the question to
the California Supreme Court was not directly on standing (which is a
_federal_ question, not a state law question, and thus wouldn't have been an
appropriate question for certification to the state court.)

> The Supreme Court has now disagreed.

The Supreme Court, to be clear, disagreed with the Ninth Circuit's conclusion
on standing, not the California Supreme Court's answer on the question of
state law authority. In fact, they based their disagreement in part _on_ the
California Supreme Court answer, and on how that answer clearly indicated that
the state law authority did not have the requisite elements of an agency
relationship, which would be necessary for the petitioners to have the
standing on the basis that they were representatives of the State interest
rather than on the basis of particularized harms they themselves faced as the
result of an adverse decision.

> California gives voters the power to pass proposition that the state does
> not like.

It gives the voters -- through the reserved legislative powers state held by
the electorate -- the power to pass laws (including Constitutional amendments)
that the _elected representatives_ of the state don't like.

It also gives the voters the power to voters to elect representatives -- and
to remove them if they don't like their actions.

> I do not understand precedent well enough to know whether state courts will
> look to the Supreme Court or the California Supreme Court on this.)

State courts -- and federal courts -- will look to the state Supreme Court on
the state law question, and would look to the US Supreme Court on the federal
law question (except that the question of Article III standing is, unlike many
other federal law questions, almost never _relevant_ to a state court except
perhaps as persuasive authority on the application of similar state standing
rules when there is no controlling state precedent available.)

~~~
btilly
Thank you for the corrections and clarifications.

I'm a non-lawyer going off of my memory of what was said in the media, and
clearly got some important details wrong.

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danso
It is constantly surprising to me how nearly-deterministic these votes are:
each respective quartet of the court votes along what's seen as party lines,
with Kennedy being the swing vote. Is it because the court really is that
partisan, or because the technicalities and details in each case fall sharply
along judicial philosophical lines? With life terms, it's not as if the
justices need to vote a certain way to keep office.

~~~
dragonwriter
> It is constantly surprising to me how nearly-deterministic these votes are,
> each respective quartet of the court votes along what's seen as party lines,
> with Kennedy being the swing vote

I think there is probably a bit of confirmation bias and media distortion
here; plenty of Supreme Court decisions, even on high profile topics, aren't
5-4 or are 5-4 but don't break "conservative 4" \+ "liberal 4" \+ Kennedy
(e.g., the decision uphold the Affordable Care Act [1] was 5-4, with _Roberts_
plus the four liberals in the majority, and the four remaining conservatives,
including Kennedy, in the minority.) But for the months the case was before
the Supreme Court, the media was harping on how it was bound to be 5-4 with
Kennedy as the swing vote, so what do you think sticks more in people's minds
-- the actual result that was highlighted on the day of the decision and then
dropped, or the "everyone knows" that was a focus of attention for months?

And, on the decision letting stand the District Court decision [2] striking
down Prop. 8 in California based on the Prop. 8 supporters lack of standing to
appeal the decision, also announced today, the 5-4 decision had Roberts,
Scalia, Ginsberg, Breyer, and Kagan in the majority with Kennedy, Thomas,
Alito, and Sotomayor in the minority.

[1] NFIB v. Sebelius,
[http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf](http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf)
[2] Hollingworth v. Perry,
[http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf](http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf)

~~~
aaronbrethorst
There's a lot of speculation that Roberts' vote swung the way it did because
he was concerned about public perception of SCOTUS in general, and the Roberts
Court legacy in particular.

It's apparently a 'well-known fact' at this point that Roberts switched his
vote at the last minute on the ACA ruling.

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bhousel
Here is the text of the ruling. Supreme Court rulings always start out with a
very readable syllabus which provides an overview of the ruling, recommended
read:

[http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf](http://www.supremecourt.gov/opinions/12pdf/12-307_g2bh.pdf)

~~~
mjn
The opinions themselves also tend to be quite readable. I try to at least skim
most decisions as they come out, to have an idea of what the Supreme Court is
doing and why (at least in its own words) it's doing so.

One plus of reading both sides is that, with admitted exceptions, the
reasoning of the side I disagree with is rarely as stupid as news reports make
it sound. A lot of cases that get to the Supreme Court really do have
plausible arguments on each side (the really obvious cases get decided lower
down).

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rdl
Curious how this affects startups (along with overturning Prop 8), given the
large population of gay people in tech. Presumably since you still need to get
married in a SSM-supporting state, those states continue to win out. But
federal benefits for immigration and incidental travel to non-SSM states would
apply?

The biggest tech centers are now all in SSM-supporting states; TX, VA, CO, IL,
and NC seem like the most important holdouts.

However, they only struck down the federal part, not the requirement that
states recognize each other, so there's still a strong incentive to stay in an
SSM-ok state even after marriage in an SSM state.

~~~
tptacek
We'll have same-sex marriage in Illinois by next year (we have civil unions
now).

Texas has a state constitutional amendment forbidding same-sex marriage.
Virginia has a constitutional amendment banning both same-sex marriage _and
civil unions_.

The Illinois constitution, sanely, is silent on the issue; every year we get
closer to passing a same-sex marriage law; it's a foregone conclusion.

~~~
peterwwillis
Virginia will probably be the last state to change. They deny any kind of
protection for any kind of sexuality, identity, lifestyle or relationship
other than a straight biologically-male man and a straight biologically-female
woman getting married. If you want equal rights you end up moving to DC or
Maryland. They're getting closer to transpeople getting protected status after
a spate of individuals beaten nearly to death in public.

~~~
btilly
Well at least their history is consistent. They were also the state that most
strongly resisted making interracial marriage legal. (To those who would say
that several states had such laws on the books at the time, Virginia was more
actively enforcing it than most. That is why it was Virginia that got sued for
putting an interracial couple in jail. By, and I can't make this up, a loving
couple actually named Loving.)

~~~
tomjen3
This seems really weird, given that Virginia was extremely important back
during the revolution.

~~~
peterwwillis
...what does the revolution have to do with interracial marriage legislation?

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anxrn
Prop 8 goes down as well.
[http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf](http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf)

~~~
mjn
Indirectly: the court held that ProtectMarriage.com, as a private group
intervening in the case, didn't have standing to appeal a ruling striking down
a state law, even if it's one that had been adopted through an initiative they
had proposed.

The sequence of events was: a federal court struck down a California law
(passed via Proposition 8), and California, rather than appealing the
decision, said "ok" and accepted the ruling. That leaves no remaining live
controversy between the State and the federal court system, so nothing for an
appeals court to hear (says today's decision).

The decision was 5-4 but not strictly on ideological lines: 2 conservatives
and 3 liberals in the majority, 3 conservatives and 1 liberal dissenting.

~~~
dragonwriter
> The decision was 5-4 but not strictly on ideological lines: 2 conservatives
> and 3 liberals in the majority, 3 conservatives and 1 liberal dissenting.

The assumption that the ideology of members of the court is unidimensional is
not justified. "Not strictly according to the popularly perceived ideological
factions of the court" is probably more supportable than "not strictly on
ideological lines".

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hawkharris
Unfortunately, the Supreme Court did not strike down DOMA. Section 2 of the
Act, which lets states refuse to recognize same-sex marriages established by
other states, remains intact.

~~~
smackfu
Were they even able to do that, since it wasn't part of the case in front of
them?

~~~
hawkharris
No, that's a good point. SCOTUS evaluated only Section 3 of DOMA. They did not
"strike down" the entire Act, as most reporters are suggesting.

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crb
Does this mean Glenn Greenwald can move back to the US now?

~~~
kmfrk
He's explicitly said he can't live with his partner due to DOMA, so I would
expect as much - assuming they live in a state recognizing SSM rights.

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kcorbitt
Independent of whether this is a good decision, I thought that the Supreme
Court's mandate was to decide whether a law violates the Constitution and
little more. Doesn't this sort of judicial activism weaken the separation of
powers, or is there a legitimate argument to be made that this law violated a
constitutional right of gay couples? If there is, it doesn't seem that the
court quotes it.

“The federal statute is invalid, for no legitimate purpose overcomes the
purpose and effect to disparage and injure those whom the State, by its
marriage laws, sought to protect in personhood and dignity. By seeking to
displace this protection and treating those persons as living in marriages
less respected than others.”

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ubernostrum
_I thought that the Supreme Court 's mandate was to decide whether a law
violates the Constitution and little more._

This is... I don't even know where to begin on how fundamentally wrong this
is.

The Supreme Court is established by Article III of the Constitution. It's the
end of the line for any legal question that falls under the jurisdiction
outlined by Article III, which consists of far, far, _far_ more than "whether
a law violates the Constitution and little more".

As for this opinion, the Court explains very clearly the Constitutional issue:
DOMA violates the Fifth Amendment. DOMA _also_ has federalism issues, and so
in theory a Tenth Amendment problem, but that's not actually necessary in
order to strike it down.

~~~
tomjen3
How does the fifth apply? Nobody involved were changed with a crime, nor did
they strictly speaking lose any rights, as they could at any time marry a
person of the opposite gender (and hetero-sexual people can't marry anybody of
the same sex either).

I would have assumed that the 14th amendment would have applied.

~~~
ubernostrum
The Fifth Amendment includes a guarantee that "No person shall... be deprived
of life, liberty, or property, without due process of law".

"Due process of law" is the key here; the government cannot simply say "well,
we don't like this person, so we're just going to decree arbitrarily that he
doesn't get the same rights as other people".

What it actually means will vary depending on what the government is trying to
do; in a criminal case, for example, due process includes all the procedures
and safeguards to make sure you get a fair trial before you can be thrown in
prison.

Of course, DOMA is more or less literally the federal government saying "we
don't like these people, so we're just going to decree arbitrarily that they
don't get the same rights as other people".

The Fifth Amendment is the relevant one here because the first batch of
amendments -- the Bill of Rights -- are traditionally interpreted as only
restraining what the federal government can do; they do not, it is generally
believed, constrain the states. The Fourteenth Amendment added equal-
protection and due-process requirements for the states, so when a state does
something that treats people unequally the Fourteenth Amendment is what the
resulting lawsuit usually turns on.

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jackmaney
I'm elated. There might be some hope for this country, after all.

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77887
This is a really good thing. Not because I want everybody to marry their same
gender [1] (each has the right to choose whom adult to love)], but rather
because if they can get protection it means that we as a nation are moving in
the right direction. It means we are becoming less judgmental and prejudiced
for the sake of it. At least I hope so.

[1] Personally though I think two woman having sex is kinky and quite erotic.
Two guys, not so much but to each their own. I'm male by the way.

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zrail
I agree with your premise but why the footnote? It adds absolutely nothing to
the conversation.

~~~
rmc
The footnote also is disparaging of gay men, since it implies they are not
nice.

