POSTED ON Jun 26th 2013 BY LESLIE LOFTIS UNDER Uncategorized
I’m trying a new format today. I will just update this post as news breaks, newest on top.
From Kevin Russell at SCOTUSblog, live feed at 10:48:
There will be much further discussion and analysis about how the decision in Perry affects other couples in California. For the time being, we will say this: the Supreme Court has dismissed the appeal challenging a final order from the trial court. It would appear, then, that the order will go into effect. And it appears that this final order purports to prohibit the Attorney General and the Governor from enforcing Prop. 8.
There could well be new challenges to the scope of that order. But for the time being, the order appears to be in effect and to prevent enforcement of Proposition 8 statewide.
Oh boy, this is going to get messy. I’ll see if I can find the final order… Can’t find the whole order. Excerpts here. But as Judge Vaughan Walker ruled that Prop 8 is a violation of Equal Protection and apparently only the State of California has standing to defend the law and refuses to do so, Prop 8 falls. Without standing, the voters of California have no recourse. Their referenda mean nothing. Now I finally get Domenech’s point. From this morning’s Transom:
WILL POPULAR REFERENDA SURVIVE THE DAY?:
Over the course of the past few weeks, I’ve largely written about the religious liberty implications of today’s pending marriage decisions, ignoring most of the other legal aspects of it. But one of the thorny legal aspects of a narrow ruling, which most conventional wisdom dictates in the Proposition 8 case, is that there is a potential here to take a wrecking ball to the approach to rule by referenda approach California has deployed over decades, and that other states have turned to as well in recent years….
Take this the next step, though, in terms of logic outside the marriage issue or in it: A judge rules that the people or a group of people have a right to something previously viewed as unconstitutional. The citizens of the state disagree, and amend their constitution to reverse the judicial ruling. (Here is where the standing issue could come into play, as the court could rely on the fact that the elected leaders of the state have decided they won’t defend the right of their citizens to amend the constitution.) But because the right was granted and then taken away, it is an issue of unconstitutional animus.
Legally, it’s obvious where this creates problems. As a practical matter, it represents a significant elevation of judges and elected leaders into positions of power they were never intended to have.
California has citizen referenda as a check on government power. Basically they can overrule their government and pass laws directly. If supporters of a successful referenda have no standing to defend that referenda, then all the California lege has to do is ignore referenda they don’t like. So much for that government check. UPDATE: More thoughts with more coffee: the referenda system might still have some teeth for California constitutional issues, depending on how the referenda provision is stated. I’ll post links on this if I find them, but the voters of California, or any other state with a referenda system, now do not have standing to make claims under federal law. They might be able to take their claims to their state courts for violation of state law. This isn’t necessarily a bad thing, but it is loaded with potential unintended and unexpected consequences. I’m trying to war-game property tax limiting referenda. Would supporters of lower taxes have standing under California law to defend a property tax cap if the California lege chose to ignore it? I’ll look for some California law commentary.
And Perry goes down for standing. That is, the decision of the Ninth Circuit holding Prop 8 unconstitutional is “vacated”, nullified basically, and sent back to the Ninth with instructions to dismiss for lack of jurisdiction.
Summary before I get more coffee: the federal marriage ban fell and the state marriage ban held. This is a federalist outcome, but only in practice. For theory, Kennedy in Windsor went out of his way to avoid a holding on state vs federal power.
I’ll post more explainers later. UPDATE: Here’s one.
Well DOMA came first. It is unconstitutional, but the majority opinion is a mess. (This is only after a skim, obviously.) It talks about federalism, but doesn’t hold that way. Scalia’s dissent is clearer: (footnotes omitted and emphasis mine)
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to de- cide whether this federal intrusion on state power is a vio- lation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” be- cause “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Ante, at 18. But no one ques- tions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accept- ing state definitions of marriage” continue. See, e.g., ante, at 20. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal stat- utes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Fed- eral Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
That is, it should be a federalism decision on the merits but they chickened out. They wanted to strike down DOMA but didn’t want to give a solid federalism win. Instead Kennedy wrote a very twisty Equal Protection opinion. Again, Scalia’s opinion is far clearer, though it still needs an In Plain English explainer:
Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Ibid. Near the end of the opinion, we are told that although the “equal protec- tion guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 25. The only possible interpreta- tion of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bol- ling v. Sharpe, 347 U. S. 497 (1954), Department of Agri- culture v. Moreno, 413 U. S. 528 (1973), and Romer v. Evans, 517 U.S. 620 (1996)—all of which are equal- protection cases. And those three cases are the only authorities that the Court cites in Part IV about the Con- stitution’s meaning, except for its citation of Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex cou- ples, ante, at 23.
The first good laymen explainer from Ilya Somin at Volokh. Important bit starts, “As with some of Kennedy’s other important opinions, the exact meaning of this one is hard to figure out. But what he seems to be saying…”
As it is 8:30 central time and the Justices give out opinions in reverse seniority order and Kennedy or the Chief are likely for the DOMA and Prop 8 decisions, some while we are waiting links:
Background on the complicated issue of “standing” in the Prop 8 Perry decision due today.
Thoughts on the early ruling in Shelby County at Volokh (which is a good source for this mornings news):
the question misunderstands the premises underlying the majority opinion and, as a consequence, illustrates a fairly fundamental divide between the way many on the Left and Right view questions of federal power. The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people. These characterizations are broad generalizations, to be sure, but I think they capture a real divide in conceptions of federal power.
From the Right’s perspective, the question is not whether some specific provision in the Constitution invalidates Section 4 of the VRA, but whether it is expressly authorized — whether it fits on one of these islands of federal power. The argument for the Shelby County majority is that the extraordinary nature of the federal authority exercised through the VRA (as authorized by the 15th Amendment) can only be justified by extraordinary conditions.
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