March 29, 2013

The Supreme Court has many options in the Prop 8 case.

How many? Marty Lederman says he'd originally thought there were 5: 1. no standing, 2. uphold Prop 8 on the merits, 3. reject Prop 8 in a way that relates only to California, 4. reject Prop 8 in a way that would also require gay marriage in the 8 states that have civil unions for gay couples, and 5. find a constitutional right to same-sex marriage that would apply throughout the country. Now, he sees 2 more options: 6. dismiss the petition (decide it was a mistake to take the case at all), and 7. vacate  and remand for reconsideration in light of whatever it does in the DOMA case.

Lederman thinks you can't tell from the oral argument, in which it seemed that at least some of the Justices were struggling to try to figure out what to do, but he thinks 2, 3, 5, and 7 are unlikely and 6 is also pretty unlikely.

So what about 1 (standing)?
... Justice Kennedy, expressed concern that if the Court were to hold that the Proposition 8 proponents lack Article III standing because they are not agents of the state of California... such a ruling might invite executive officials in California to effectively “thwart the initiative process” (Justice Kennedy’s words), simply by refusing to appeal lower court rulings declaring that such initiatives are invalid....
And 4 (reaching the merits and covering 8 states)?
To be sure, Justice Kennedy stated that it would be “very odd” for California to in effect be “penalized” for being “more open to protecting same-sex couples than almost any State in the Union.”  To like effect, Justice Sotomayor said that there would be an “irony” if “States that do more [for same-sex couples] have less rights.”...

But that objection doesn’t quite capture the fundamental nature of the eight-state argument—namely, that it’s an underinclusiveness argument of the sort the Court often invokes to explain why a state’s defense of a law is inadequate. 
Actually, everything seems unlikely and unsatisfying... and yet there will be a decision. I note that there could be an outcome without any rationale commanding a majority. That should be considered the 8th possibility. The 8th option for Prop 8.

18 comments:

garage mahal said...

But polygamy.

edutcher said...

This is why reading tea leaves is a fool's errand.

These people spend their time trying to figure out how they can get the result that best fits the agenda.

And then dream up some Constitutional goobledegook to try to pass it off.

bagoh20 said...

Ever since that Roberts tax/penalty abomination, I just can't get interested in what goes on there. It's like an elaborate secular religious ceremony where at the end they do a rhetorical version of this:

Deciding a Tough Issue

They should just get a real fancy coin to flip - maybe one of those trillion dollar ones.

Inga said...

Garage, don't forget beastiality and pedophilia.

garage mahal said...

Should we call the Court SCROTUS while they decide this case?

garage mahal said...

Garage, don't forget beastiality and pedophilia.

"Where does it all end? Hold me! I'm scared! I think I'm starting to get attracted to this desk!"

edutcher said...

garage won't think it's as funny when the same "It's All About Me" crowd wants to cut his Medicare and his Social Security because they think all the old people should just go before the death panels.

Chaired by guess who.

Inga said...

Those doggies in your avatar are awfully cute.....

bagoh20 said...

Dog pornographers will be getting married next.

Chuck said...

One thing that we lose sight of, in both Hollingsworth and Windsor, is the way that the pro-SSM actors in government have gamed the process in a way that the mainstream media would never have tolerated, had the sides been reversed.

The governor and the attorney general of the state of California, have both failed and refused to defend a duly-enacted part of their state's constitution.

The President of the United States and his attorney general, have each failed and refused to defend a duly-enacted federal statute.

If the statute in question -- the one that an official had willfully refused to defend, had been something like the Civil Rights Act or the Violence Against Women Act or the Affordable Care Act, the mainstream media would have gone apeshit, long before anybody started to argue at the Supreme Court.

The selective sneering at popular voting and the rule of law on the part of the Left knows almost no limits.

chickelit said...

Garage said "Butt Polygamy"

mtrobertsattorney said...

I still think the Political Question option is the best solution.

It voids for lack of jurisdiction the previous federal court rulings and leaves intact the democratic value of letting the people of the California decide this question.

It keeps the federal courts out of this dispute and, at the same time, preserves the right of people in other states to decide the matter differently.

somefeller said...

It's usually a mistake to make assumptions on how any appeals court, much less the US Supreme Court, will rule on a controversial case based on what one hears (or thinks one hears) in oral argument. It's disappointing to see so many commentators making such assumptions this past week, but I guess that sells papers.

Basil said...

They should find that the District Court never had jurisdiction and dismiss the entire case and leave Prop 8 in place. Lack of a substantial federal question. End of discussion. DOMA is upheld ad a definitional statue for federal purposes only. Congress can define words however it wants to. Cases over, lefties can maybe move on to the next "aggrieved group."

West Town said...

Chuck. Should the Supreme Court address the Governor of California's position?

Horrifying,the more I think about it. Separation of Powers is not involved in the debate. It's an inferior debate. The Ends Justify the Means because there's "so much suffering".

Roberts is unpredictable and I wish he wouldn't pull pranks over the Constitution, but how else will anyone else pay attention to it?

ed said...

How about instead of a coin flip they roll 6 six-sided dice? All sixes? Yahtzee! Or spin the Wheel of SOCTUS Decisions!

Honestly who gives a rat's ass? Nothing they do has anything to do with the Constitution whatsoever. The document in question is clear and plain in language and identifies the Rights given to us by our Creator.

These imbecilic worms in black on the SCOTUS bench have little to do with actual interpretation and frankly they should just give it all up as a job badly done and do something useful with their lives. Such as testing hair care products.

chickelit said...

The selective sneering at popular voting and the rule of law on the part of the Left knows almost no limits.

The sad thing here is that Althouse appears to cheer them on. Like Augustine of old, she hopes Republicans will deliver us from this evil--but not yet.

Joe said...

I was going to post this earlier this week, but found no venue here. My guess is that the court finds DOMA unconstitutional on federalist grounds and then vacates and remands prop 8.