9th Circuit Declares Prop 8 Unconstitutional

[CrimsonFox]

Originally Posted by BrianD

Nice.

Answering my own question - with more fact checking needed:
Unconstitutional and Preempted Laws 1789-2002
According to the GPO (Government Printing Office Database):

1789-2002 Acts of Congress Held as Unconstitutional..............................158

1789-2002 State Statutes held unconstitutional......................................935

1789-2002 City Ordinances held unconstitutional....................................222

1789-2002 State and City laws preempted by Federal laws.......................224

Total State, Local and Federal Laws Declared Unconstitutional................1,315

Total State and Local Law Preempted by Federal Laws..............................224

Total Laws Overturned, all governments..............................................1,539

yeah, C wut I did thar?

[SirFozzie]

I didn't see 2/3rds anywhere in there, therefore, the numbers are invalid

[sterlingice]

Originally Posted by SirFozzie

I didn't see 2/3rds anywhere in there, therefore, the numbers are invalid

Who are you? Quiksand?

SI

[SirFozzie]

FOFC Traditions must be maintained, that is all.

[BrianD]

Originally Posted by sterlingice

The US Constitution is a few pages long. About 50 if you include all the amendments, if you make the pages small and sell it so that people can keep it on a breast pocket, next to their Bible or snifter of Scotch.

An average day in the life of one person in the modern world requires more than 50 pages to adequately explain and govern. From traffic laws (locally defined in the 10th Amendment but some things can be defined federally) to food inspection at the grocery store (interstate commerce) to what you do online at night (porn crosses even national boundaries!). And we're not even scratching the surface.

There are so many things that have to be decided at a national or international level which are not expressly stated in the Constitution. I don't think if Tom Jefferson were alive today, he'd be working towards: "You know, I need to build in an amendment for how to regulate sulfur emissions into the atmosphere because there's no wall that keeps out air between Tennessee and Kentucky".

Finally, while the "Founding Fathers" were, in a lot of ways, brilliant men. Putting them on some sort of odd pedestal as infallible is unhealthy hero worship at best to downright dangerously luddite.

SI

I agree with all of this. I didn't mean to imply that all laws should be amended into the constitution, just that you can't change what the constitution says because "that isn't what they meant". If people don't like what the constitution says, they do have an avenue to change it - namely the amendments.

I just get very nervous about people who claim to be strict constitutionalists and who want to incorporate what was "meant". Seems like you could find a way to justify just about anything that way. I also don't like the idea of deciding what the founding fathers would think about specific issues today. It really doesn't matter what they think. It matters what we think and how we craft legislation based on the rules created in the constitution. We can't pass laws that are unconstitutional, we can only amend the constitution to prevent those laws from being unconstitutional. Thankfully it is not trivialy easy to pass an amendment. Civil rights would get trashed if it was easy.

[mckerney]

Area Man Passionate Defender Of What He Imagines Constitution To Be | The Onion - America's Finest News Source

[sterlingice]

Originally Posted by BrianD

I agree with all of this. I didn't mean to imply that all laws should be amended into the constitution, just that you can't change what the constitution says because "that isn't what they meant". If people don't like what the constitution says, they do have an avenue to change it - namely the amendments.

I just get very nervous about people who claim to be strict constitutionalists and who want to incorporate what was "meant". Seems like you could find a way to justify just about anything that way. I also don't like the idea of deciding what the founding fathers would think about specific issues today. It really doesn't matter what they think. It matters what we think and how we craft legislation based on the rules created in the constitution. We can't pass laws that are unconstitutional, we can only amend the constitution to prevent those laws from being unconstitutional. Thankfully it is not trivialy easy to pass an amendment. Civil rights would get trashed if it was easy.

Wasn't really disagreeing with what you were saying- just expanding on it and speaking more towards "whither strict constitutionalism?"

SI

[molson]

There is a ton of ground being strict constitutionalism and "the constitution says whatever I want it say, because it's 'living'". Fortunately, 99%, if not 100% of our appellate judges are in that ground

[BrianD]

Originally Posted by molson

There is a ton of ground being strict constitutionalism and "the constitution says whatever I want it say, because it's 'living'". Fortunately, 99%, if not 100% of our appellate judges are in that ground

It seems like we aren't connecting. I don't think anybody says that "the constitution says whatever I want it to say, because it is 'living'". But the constitution can be made to say whatever I want it to say if I get enough people to agree with me and pass an amendment. It is living because it can change. There is a process for it. Being a strict constitutionalist isn't necessarily bad unless a) you don't allow for the possibility of amendments, or b) you try to interpret what the founding fathers "meant" and say that is part of the constitution.

I think banning gay marriage is an assault on civil rights. I think passing a law to ban it is unconstitutional since the courts have tied marriage to our rights. From a moral standpoint, I think the ban is just plain wrong. Having said all of that, I still recognize the mechanism that is in place to allow a sufficient number of people to pass a constitutional amendment that would allow its ban. From a practical standpoint, I don't see that ever happening...which is good.

[sterlingice]

I think, tho, in addition, we need to be careful with "you can always amend the Constitution" which seems to be the chorus for anyone looking to do something that disagrees with a very strict reading of the Constitution. Yes, you can, but unless it a law violates the Constitution and, very importantly, by extension, the laws that have come since and those that are judicially reviewed and upheld- there is no need for an amendment. It seems like a convenient crutch for anyone who wants an impossible super-majority of 75% for anyone who disagrees with them.

SI

[JPhillips]

The Constitution also isn't clear on very much. The wording is ambiguous enough that it takes the Supremes to interpret it. That interpretation can naturally change with different justices without any of them simply trying to impose their political preferences.

Take the 2nd amendment. You simply can't argue that it's absolutely clear that militias or individuals should have the right to bear arms.

[BrianD]

Originally Posted by sterlingice

I think, tho, in addition, we need to be careful with "you can always amend the Constitution" which seems to be the chorus for anyone looking to do something that disagrees with a very strict reading of the Constitution. Yes, you can, but unless it a law violates the Constitution and, very importantly, by extension, the laws that have come since and those that are judicially reviewed and upheld- there is no need for an amendment. It seems like a convenient crutch for anyone who wants an impossible super-majority of 75% for anyone who disagrees with them.

SI

But isn't it true that you can always amend the constitution? If sufficient people wanted to ban gay marriage, or bring back slavery with a constitutional amendment, they could. That is why people keep turning to the constitutional amendment when their preferred brand of bigotry gets shot down. It would be an avenue if enough people wanted it. Fortunately, that level of bigotry doesn't exist.

[JediKooter]

Originally Posted by BrianD

But isn't it true that you can always amend the constitution? If sufficient people wanted to ban gay marriage, or bring back slavery with a constitutional amendment, they could. That is why people keep turning to the constitutional amendment when their preferred brand of bigotry gets shot down. It would be an avenue if enough people wanted it. Fortunately, that level of bigotry doesn't exist.

If I remember correctly, it's a state's legislature that votes on constitutional amendments, not the constituents.

EDIT: From - http://www.archives.gov/federal-register/constitution/

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention....

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures.

So, for what it's worth, no where did I read that a constitutional amendment is voted on by the voters. So I guess it's safe to say that a group of voters would not be able to reinstate slavery.

[BrianD]

Originally Posted by JediKooter

So, for what it's worth, no where did I read that a constitutional amendment is voted on by the voters. So I guess it's safe to say that a group of voters would not be able to reinstate slavery.

This is the Internet where nobody admits being wrong, so I'll change my argument to say that voters can indirectly reinstate slavery...through their representatives.

[larrymcg421]

I would imagine that a legislature could delegate approval to the voters if they wished.

[JediKooter]

Originally Posted by BrianD

This is the Internet where nobody admits being wrong, so I'll change my argument to say that voters can indirectly reinstate slavery...through their representatives.

I'm sure there's got to be law somewhere that says they must have pitchforks, boiling tar and torches to do so though.

[cartman]

Originally Posted by larrymcg421

I would imagine that a legislature could delegate approval to the voters if they wished.

They did that with the selection of US Senators. But that took, wait for it..., wait for it..., a Constitutional amendment.

[larrymcg421]

Originally Posted by cartman

They did that with the selection of US Senators. But that took, wait for it..., wait for it..., a Constitutional amendment.

The amendment forced all states to go that route. That doesn't mean the legislature couldn't have done that willingly before then. Since the power was in the hands of the state legislature, I doubt it would've been unconstitutional for a state to pass a law saying in effect, "we the legislature will appoint whoever the voters choose."

[SackAttack]

Originally Posted by JediKooter

If I remember correctly, it's a state's legislature that votes on constitutional amendments, not the constituents.

EDIT: From - Constitutional Amendment Process

The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention....

The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures.

So, for what it's worth, no where did I read that a constitutional amendment is voted on by the voters. So I guess it's safe to say that a group of voters would not be able to reinstate slavery.

They could, but the state legislature would have to defer to them on the matter, and realistically, if there's a significant enough proportion of people in the state in favor of reinstating slavery, their representatives probably reflect that desire in the makeup of the state Legislature, and so would feel comfortable casting that vote.

If the Legislature reflects the opposite desire from the state, they're probably not going to defer to the voters knowing what the outcome is going to be.

Unless it's symbolic - sufficient states have already approved an Amendment that what Mississippi wants doesn't matter - you're probably not going to see a Legislature defer to the people.

[RainMaker]

It is funny to see the hypocrisy on both sides though when arguing constitutionality. For instance, strict constitutionalists typically oppose any kind of restrictions on gun ownership. But the constitution doesn't say I have a right to own hollow point bullets. But when it comes to pornography, they argue that it's not covered under free speech because nothing in the constitution gives the right to it specifically.

I just think it's funny that the left view 1A the same way that the right view 2A. It's not strict vs loose, it's people choosing Judges based on whether they'll do what they want. Bush v Gore was a liberal decision if you remember that the right celebrated.

[molson]

Originally Posted by BrianD

But isn't it true that you can always amend the constitution? If sufficient people wanted to ban gay marriage, or bring back slavery with a constitutional amendment, they could. That is why people keep turning to the constitutional amendment when their preferred brand of bigotry gets shot down. It would be an avenue if enough people wanted it. Fortunately, that level of bigotry doesn't exist.

With an extremely liberal constitutional philosophy (as opposed to policy-liberal), you wouldn't need an amendment to bring back slavery. Justices could just find a right to own slaves in the first amendment somewhere, and find that that right outweighs others that had been previously recognized. They'd need the case to be able to make that holding of course, but it would be a proper exercise of judicial power on the more extreme living constitution theories.

The liberal-policy people have been much better historically at utilizing appellate courts to constitute change, but it can work the other way to, like with citizens' united. If conservatives could ever figure out how to better utilize judicial activism and liberal constitutional interpretation to further their own policy goals, a "living constitution" wouldn't look so good after all. That's why I always think the constitutional analysis part is almost always smoke and mirrors. It comes down to policy, and everything works around that. And I know there's nothing really WRONG with that, it's how people have figured out how to get things done through the system, but from a neutral perspective, viewing what appellate courts do, and really trying to study constitutional analysis in a content-neutral way (like appellate judges are supposed to do, in theory), it always looks silly to me, and I wonder how much less important the law, and especially the constitution, can get. We have this "evolving standards of decency" 8th amendment test, and every time they whip it out, they change the law in more than half the states. So the "evolving standards of decency" must only be based on their own personal opinions on sentencing, and their belief, I suppose, that they're more qualified to determine appropriate sentences that legislatures and state courts.

[Caine]

Originally Posted by RainMaker

SCOTUS did, half a century ago. Read up on Loving vs Virginia. If they want to claim marriage is not a right, then they would overturn that ruling too. It would be legal to ban interracial marriages since marriage isn't a "right".

Thank you for the info. I retract my stance. The Supreme Court ruling was clear, that marriage is a "basic right of man", so clearly a ban on any minority for marrying because they are a part of that minority is counter to the 14th Amendment.

[lcjjdnh]

Originally Posted by lcjjdnh

Possible en banc in Ninth Circuit first?

Asking for en banc rehearing:
Prop. 8: Rehearing to be asked : SCOTUSblog

[SirFozzie]

Another judge strikes down part of the Defense of Marriage Act as unconstitutional.

Another court finds Defense of Marriage Act unconstitutional - POLITICO.com

[SackAttack]

"appointed by George W. Bush..."

OMG LIBERAL JUDICIAL ACTIVISM

[Crapshoot]

Maryland's senate just passed gay marriage - should be law within a week. It will look interesting in 2016 when Christie is running against O'Malley; I think gay marriage support will be a positive, not a negative by then.

[molson]

Here's a transcript of the Holllingsworth v. Perry Supreme Court oral argument if anyone's interested. I'm not sure when these became available the day of the argument, but I think that's relatively new phenomenon.

http://sblog.s3.amazonaws.com/wp-con...transcript.pdf

[JPhillips]

Scalia is turning into a b grade AM radio host:

“If you redefine marriage to include same-sex couples,” he said, “you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not. Some states do not permit adoption by same-sex couples for that reason.”

“I don’t think we know the answer to that,” he said. “Do you know the answer to that, whether it harms or helps the child? … That’s a possible deleterious effect, isn’t it?”

Justice Ruth Bader Ginsburg retorted that Scalia’s question was irrelevant because California permits same sex couples to adopt regardless of whether they’re married.

“It’s true, but irrelevant,” Scalia rejoined. “They’re arguing for a nationwide rule which applies to states other than California, that every state must allow marriage by same-sex couples. And so even though states that believe it is harmful — and I take no position on whether it’s harmful or not, but it is certainly true that there’s no scientific answer to that question at this point in time.”

[dawgfan]

And so even though states that believe it is harmful — and I take no position on whether it’s harmful or not, but it is certainly true that there’s no scientific answer to that question at this point in time.

Translation:

There are scientific answers to this question, but they contradict my own personal views on the matter so I will choose to ignore that they exist.

[mckerney]

Originally Posted by JPhillips

Scalia is turning into a b grade AM radio host:

Turning into? You mean he wasn't already when parroting Republican talking points during the health care reform hearings?

[BrianD]

I really didn't understand the "when did it become unconstitutional?" question. He can't rule on the case if he doesn't know when it became unconstitutional? Isn't the whole point of the court to decide - right now - what is and isn't constitutional?

[DaddyTorgo]

Originally Posted by BrianD

I really didn't understand the "when did it become unconstitutional?" question. He can't rule on the case if he doesn't know when it became unconstitutional? Isn't the whole point of the court to decide - right now - what is and isn't constitutional?

That's just Scalia being Scalia.

[larrymcg421]

They spent much time on the standing issue and may just avoid the merits entirely and say petitioners don't have standing. If they do reach the merits, it will probably be a narrow ruling that applies only to CA and other states with similar laws. I hope I'm wrong and the ruling is broader. No matter what, I'm pretty sure Prop 8 is dead.

[larrymcg421]

Originally Posted by BrianD

I really didn't understand the "when did it become unconstitutional?" question. He can't rule on the case if he doesn't know when it became unconstitutional? Isn't the whole point of the court to decide - right now - what is and isn't constitutional?

It was just a rhetorical exercise for him to point out that the meaning of the Constitution hasn't changed over time. I really thought Olson owned him on that exchange when he pointed out how the court reversed itself from Plessy to Brown.

[BrianD]

It was an interesting question as to why states that offer something are being unconstitutional while those offering nothing were not. I'm not sure the arguments for this case (separate but equal being unconstitutional) can be expanded to the rest of the states, but I would have loved for the federal advocate to agree that the other states would need to be addressed.

[BrianD]

Originally Posted by larrymcg421

It was just a rhetorical exercise for him to point out that the meaning of the Constitution hasn't changed over time. I really thought Olson owned him on that exchange when he pointed out how the court reversed itself from Plessy to Brown.

I'm not so sure as he had an answer for when the Brown issue became unconstitutional. I don't know that his answer was right, and that probably isn't really the point. He asked a question that he know Olson hadn't thought about in order to justify what he is already planning to rule. I think Olson handled him decently well, but not great.

[RainMaker]

Supreme Court On Gay Marriage: 'Sure, Who Cares' | The Onion - America's Finest News Source

[larrymcg421]

Originally Posted by BrianD

I'm not so sure as he had an answer for when the Brown issue became unconstitutional. I don't know that his answer was right, and that probably isn't really the point. He asked a question that he know Olson hadn't thought about in order to justify what he is already planning to rule. I think Olson handled him decently well, but not great.

Scalia said the 14th Amendment, but Olson correctly pointed out that the court ruled segregation was legal in Plessy vs. Ferguson well after the 14th was adopted. Then the court reversed itself in Brown several decades later.

[larrymcg421]

Originally Posted by BrianD

It was an interesting question as to why states that offer something are being unconstitutional while those offering nothing were not. I'm not sure the arguments for this case (separate but equal being unconstitutional) can be expanded to the rest of the states, but I would have loved for the federal advocate to agree that the other states would need to be addressed.

They were only making that argument because it's the basis of the lower court ruling that was being appealed. They were making a narrow argument in order to persuade Kennedy. The broader arguments have been made in amicus briefs and the court could rely on them if they so chose (similar to the Obamacare case).

[kcchief19]

I've really been trying to figure out what the court's motivation is for taking these cases. Had they refused, Proposition 8 and parts of DOMA would be unconstitutional, so one could deduce they are hearing the cases to reverse those decisions and affirm constitutionality of both.

The general consensus appears to be that this is a social justice question that will eventually lead to the legalization of gay marriage, whether it's now or 50 or 100 years from now. Roberts doesn't seem like the kind of guy that wants his decision to be reversed by a future court.

The most logical conclusion is that Roberts will find some middle ground decision. I'm not a legal expert, but if the justices rule the Prop 8 proponents do not have standing, wouldn't that throw out all legal proceedings since the case began? Therefore, Prop 8 would be in effect but in order to strike it down, an opponent would have to refile and California would have to defend?

The DOMA arguments will be interesting as well. I'm not sure where the middle ground is there. I'm fully expecting 5-4 decisions, and it wouldn't surprise me if Roberts landed with the liberal justices on some less than victory for both sides.

[larrymcg421]

No, if they rule that petitioners don't have standing then Prop 8 is dead. The court would be saying that the petitioners didn't have a right to appeal Judge Walker's District Court ruling that threw out Prop 8.

[Crapshoot]

Yup. My guess is Prop 8 gets thrown out for standing (so that gay marriage is now legal in California), and DOMA gets invalidated (at least the section denying federal benefits). It splits the baby, without a sweeping ruling. Lawyers here have a better read, but the trend in gay marriage is so overwhelming that it is simply a matter of time.

[JonInMiddleGA]

Originally Posted by larrymcg421

No, if they rule that petitioners don't have standing then Prop 8 is dead. The court would be saying that the petitioners didn't have a right to appeal Judge Walker's District Court ruling that threw out Prop 8.

Making it clear that the other thing that needs to be thrown out is Judge Walker.

[JonInMiddleGA]

Originally Posted by Crapshoot

Yup. My guess is Prop 8 gets thrown out for standing (so that gay marriage is now legal in California), and DOMA gets invalidated (at least the section denying federal benefits). It splits the baby, without a sweeping ruling. Lawyers here have a better read, but the trend in gay marriage is so overwhelming that it is simply a matter of time.

You mean that trend that consistently shows voters in the vast majority of states clearly barring it from happening?

Those are not exactly ancient history votes.

[digamma]

Well, last November seemed to reverse the ballot box trend. The poll numbers certainly trend towards more and more support for gay marriage. Nate Silver has more on the trend.

For me personally, I'm very proud to be associated with my former law firm today, but that's neither here nor there.

[dawgfan]

Originally Posted by digamma

Well, last November seemed to reverse the ballot box trend. The poll numbers certainly trend towards more and more support for gay marriage. Nate Silver has more on the trend.

Shhhh, don't bother JIMGA with facts - he's got a morality crusade to engage in!