Althouse: The jurisdiction questions in the same-sex marriage cases.

April 10, 2013

The jurisdiction questions in the same-sex marriage cases.

Explained in a layperson-friendly way by lawprofs:

14 comments:

MadisonMan said...: The bobbleheads are distracting.; 4/10/13, 11:57 AM
bagoh20 said...: It felt like an inadequate explanation, and seemed somehow lacking without any mention of either "bigots" or "butthole surfing". Were they really talking about same sex marriage? I have a lot of trouble deciding what to think without someone using the all important battle flags. I don't want to be responsible for any friendly fire accidents here.; 4/10/13, 12:11 PM
Roger J. said...: second Madman's comment--the first thing I saw were the bobble heads. Who was the bobble head to the left of Obama?; 4/10/13, 12:16 PM
MadisonMan said...: Aren't they the Chief Justice and Clarence Thomas?; 4/10/13, 12:27 PM
Widmerpool said...: I believe the bobbleheads are Rehnquist and Thomas.; 4/10/13, 12:27 PM
Roger J. said...: Madman and Widmerpool--thanks--on closer inspection concur; 4/10/13, 12:34 PM
chickelit said...: The bobbleheads are distracting.

Agree.

It's amazing what bad optics can do for the appearance of impartiality.; 4/10/13, 12:52 PM
mccullough said...: These are great cases to make two easy points of law.

It is exclusively up to the executive branch of the United States to defend the constitutionality of federal law in court.

It is exclusively up to the executive branch of a state to defend the constitutionality of state law in court.

Cases dismissed because neither the federal executive branch or the state executive branch is defending the constitutionality of its laws.; 4/10/13, 1:08 PM
Trashhauler said...: If the elites have a particular opinion contrary to that upheld by an election, then the elites have two going for them: 1) Those elites charged by their elected positions with upholding a particular law may ignore that responsibility and 2) rely upon the courts to uphold their singular authority to defend what they refuse to defend.

Have I got that right?; 4/10/13, 1:13 PM
Trashhauler said...: If the elites have a particular opinion contrary to that upheld by an election, then the elites have two going for them: 1) Those elites charged by their elected positions with upholding a particular law may ignore that responsibility and 2) rely upon the courts to uphold their singular authority to defend what they refuse to defend.

Have I got that right?; 4/10/13, 1:14 PM
edutcher said...: Real simple - 9th Amendment.; 4/10/13, 1:19 PM
Bender said...: Jurisdiction of the federal courts under Article III extends only to "cases and controversies."

If both parties, plaintiffs and defendants are on the same side, then there is no real controversy.

If there is no real controversy, if it is a friendly suit between likeminded litigants, then there is no jurisdiction for the courts to be involved.

In these cases, because the California state government in one case, and the U.S. federal government in the other, refused to defend the law because they agreed with the challengers, such action made the case no longer a live real controversy.

At that point, the federal courts lacked jurisdiction, and the cases should have been dismissed ab initio. Again, the entire cases, not just the appeals, should be dismissed if we want to raise the jurisdictional issue.; 4/10/13, 2:15 PM
Amartel said...: Non-justiciable cases: Although a case may originally present an existing controversy, if before decision it has, through act of the parties or otherwise, lost that essential character, it becomes a moot case or question which will not be considered. (Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1186-87 (the public interest is not implicated when there is only an abstract possibility of harm); Hous. Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1111-12 (petition for ratification under Code of Civ. Proc. §664.6 of pre-litigation settlement presented no genuine or existing controversy).)

“[A]n action not founded upon an actual controversy between the parties to it, and brought for the sole purpose of securing a determination of a point of law, is collusive, and will not be entertained; and the same is true of a suit the sole object of which is to settle rights of third persons who are not parties.” (Golden Gate Bridge & Highway Dist. v. Felt (1931) 214 Cal. 308, 316; Neill v. Five C Refining Co. (1947) 79 Cal.App.2d 191, 193 (action to determine oil interests moot due to agreement between plaintiff and defendants to divide recovery if successful).); 4/10/13, 6:17 PM
Trashhauler said...: "The California state government in one case, and the U.S. federal government in the other, refused to defend the law because they agreed with the challengers, such action made the case no longer a live real controversy."

Aside from that tricky little thing about the disagreement expressed by the people - but then, when their legitimately expressed opinions are not represented by either level of government, we have a rather different controversy altogether.; 4/11/13, 12:25 AM