Prop 8 Showdown

[goldcatt]

My Q still remains. Why was not the 2004 SF case appealed?

The appeal could have been based on exactly what prop 8 is, an EP/DP violation!

Why didn't the loosing side appeal such a case of national interest if the CA SC
was wrong concerning Baker? It does not make sense no appeal was filed??

Why, if Baker is NOT binding has NO federal court overtured DOMA since it's inception, also, Baker was handed down in 1971.

You would think in almost 40 years, if Baker was not binding, some court would have ruled otherwise??

Go back and look at the citation history. For the first 30+ years, nobody cited Baker a Federal precedent.

In 1971, Bowers didn't even exist yet. There simply was no precedent for applying DP/EP to an issue of same sex marriage, so the SCOTUS rather than sorting it out simply said "NO", they didn't want to hear it and whatever happened they didn't want to see it back. The summary decision in Baker is nothing more than a duck.

Then when the CA SC ruled in 2004, EP didn't apply because of Bowers. Whether the CA SC bought a bad argument in adopting Baker as Federal v. State precedent is immaterial at that point, it simply wasn't unconstitutional at the time. Lawrence is what changed the whole picture, and that wasn't decided until a year later.

The Prop 8 case is probably the best test case I've seen for wiping out the reason behind Baker as well as DOMA, and that is still at the trial court level. These things take time to work their way through the dockets. Next will be the Circuit level, then the Circuit level en banc, and then it will be sent up for cert at SCOTUS level. I can pretty much guarantee they'll get their 4, but what the bench will look like at that point is anybody's guess.

 

[bodecea]

NONE of those are FAR left Rw.......they are "LEFT"....but not far left.....if they were far-left they would all be out of control.....like the "entitlement" programs in Ca....far left....and out of control....

They were ALL considered very far left when they were first introduced. Every one of them.

only by the ones who were considerd FAR Right.....most moderates to liberal Republicans i dont believe would of had any problems with any one of those....

No..at the time they were introduced they were considered Far Left by the Mainstream...read some stuff from those time periods some day. It will really open your eyes wide.

In particular the whole concept of an 8 hour day was WAAAAAAY out there in Anarchyland when it was originally put forward in the late 1800s.

 

[rightwinger]

NONE of those are FAR left Rw.......they are "LEFT"....but not far left.....if they were far-left they would all be out of control.....like the "entitlement" programs in Ca....far left....and out of control....

Gay rights are as far left as it gets, so are environmental regulations (damn tree huggers)

At the time, womens rights was also a far left concept. Can you imagine a woman getting the same rights as a man?

well then its how you look at it Rw....where i grew up the only thing the people i knew would of had a little bit of conflict with would have been the gay rights thing....every thing else....i dont think so....and remember this....everything from the left is labeled FAR-LEFT from the FAR RIGHT....and i would imagine it works the same vice-versa...and since these jerks yell the loudest....they seem to get the coverage....and their labels seem to stick around the most....

Did you grow up in the 1850s and see how people thought about Abolition?
Did you grow up in the 1920s and see how people thought about womans suffrage?
Did you grow up in the 50s and see how they felt about civil rights?

All these issues were extremely liberal for their time and liberals were demonized

 

[lawbuff]

GC, it still does not explain why the 2004 ruling was not appealed then?


Additionally, Baker was POST Loving. Let's assume arguendo, you are right, you are basically saying Baker is Considered dictum as far as same sex marriage prohibitions are concerned? Is that a fair assumption??

Dicta has never been binding!

Why were all the state decisions that allow SS marriage based on thier own constitutions??

They could have easily ruled against Baker for 14th AM purposes.

 

[lawbuff]

Here is part of the BODY of the 2004, CA SC decision:

Indeed, there is a decision of the United States Supreme Court, binding on
all other courts and public officials, that a state law restricting marriage to
opposite-sex couples does not violate the federal Constitution’s guarantees of
equal protection and due process of law. After the Minnesota Supreme Court held
that Minnesota laws preventing marriages between persons of the same sex did not
violate the equal protection or due process clauses of the United States
Constitution (Baker v. Nelson (Minn. 1971) 191 N.W.2d 185), the decision was
appealed to the United States Supreme Court, as federal law then permitted (see 28
U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high
court later dismissed that appeal “for want of substantial federal question.” (Baker
v. Nelson (1972) 409 U.S. 810.)

As the United States Supreme Court has explained, a dismissal on the
ground that an appeal presents no substantial federal question is a decision on the
merits of the case, establishing that the lower court’s decision on the issues of
federal law was correct. (Mandel v. Bradley (1977) 432 U.S. 173, 176; Hicks v.
Miranda (1975) 422 U.S. 332, 344.) Summary decisions of this kind “prevent
lower courts from coming to opposite conclusions on the precise issues presented
and necessarily decided by those actions.” (Mandel v. Bradley, supra, at p. 176.)
4
Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810,
prevents lower courts and public officials from coming to the conclusion that a
state law barring marriage between persons of the same sex violates the equal
protection or due process guarantees of the United States Constitution.
The binding force of a summary decision on the merits continues until the
high court instructs otherwise. (Hicks v. Miranda, supra, 422 U.S. at p. 344.)
That court may release lower courts from the binding effect of one of its decisions
on the merits either by expressly overruling that decision or through “ ‘doctrinal
developments’ ” that are necessarily incompatible with that decision. (Id. at
p. 344.) The United States Supreme Court has not expressly overruled Baker v.
Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal
developments that are necessarily incompatible with that decision.


Others may disagree with me also, but the CA SC uses the word "binding".

 

[goldcatt]

GC, it still does not explain why the 2004 ruling was not appealed then?

Because in 2004, it would not have been overturned. Sure, the CA SC was wrong in its characterization of Baker as Federal vs. State precedent, but that's where strategy comes in. Do you have any idea the millions of dollars and countless hours that go into a SCOTUS appeal? There would have been no point in appealing just to have the courts all the way up the line say yes, the CA SC should have said they're adopting a MN rule but it's not unconsitutional and nothing changes. That's a serious waste of resources better spent on an appropriate and very much winnable test case, such as Prop 8. I'm also not aware of how standing would have been affected pre-Prop 8, would there have been credible named plaintiffs who meet Article 3 criteria?

Additionally, Baker was POST Loving. Let's assume arguendo, you are right, you are basically saying Baker is Considered dictum as far as same sex marriage prohibitions are concerned? Is that a fair assumption??

Yes, but loving is a DP/EP case predicated on race -a group to which not only does DP/EP apply but strict scrutiny is attached. Until 2005, DP/EP did not apply to homosexuality as it pertains to sexual activity. That activity could even be criminalized and was in several States. Then came Lawrence, and then you needed an arguable test case with standing. Prop 8 is it.

Edit: No, on rereading this Baker would not be considered the same as dicta. Dicta comes from a binding opinion. It's basically really, really good BS that tells you what the Court was thinking and gives you an idea how it would rule if you tried to do whatever it is the dicta relates to. A summary decision to refuse to hear a case doesn't rise to the level of dicta in any real sense. Sorry, my confusion!

Dicta has never been binding!

I'm not sure where this is coming from? Of course dicta isn't binding.

Why were all the state decisions that allow SS marriage based on thier own constitutions??

Go back and read the text of Bowers again. It may have been overturned, but until and unless Lawrence is taken that one step further the issue of SSM is still up to the States. It's a question that wasn't asked in Lawrence, and the courts can only decide the cases that appear before them.

They could have easily ruled against Baker for 14th AM purposes.

When has it been brought before them to rule on at all, let alone post-Lawrence?

 

[lawbuff]

I'm also not aware of how standing would have been affected pre-Prop 8, would there have been credible named plaintiffs who meet Article 3 criteria?

State courts are not divested of federal Q complaints, so no A3 standing is required. This case was originally filed in CA Superior court.

Wasn't it Justice Douglas who said "Does a tree have standing". -

Edit: No, on rereading this Baker would not be considered the same as dicta. Dicta comes from a binding opinion.

Dicta can originate from any opinion, positive or negative.

 

[goldcatt]

I'm also not aware of how standing would have been affected pre-Prop 8, would there have been credible named plaintiffs who meet Article 3 criteria?

State courts are not divested of federal Q complaints, so no A3 standing is required. This case was originally filed in CA Superior court.

Wasn't it Justice Douglas who said "Does a tree have standing". -

But an appeal from a State supreme court goes to the SCOTUS, where standing is definitely an issue. It doesn't matter where it was originally filed, it matters where it's decided. So would an appeal of the 2004 CA SC case if filed post-Lawrence have had standing? I'm not sure on that one.

Gotta love Douglas. Too many Courts use standing as an excuse to flap and quack instead of an honest interpretation of A3 jurisdiction. Douglas tells it like it is. Still have to play the game though. There's too much invested in a SCOTUS appeal not to.

Edit: No, on rereading this Baker would not be considered the same as dicta. Dicta comes from a binding opinion.

Dicta can originate from any opinion, positive or negative.

True. The key word there being "opinion". A summary decision is a refusal to hear the full case and render an opinion, it is not in itself an opinion. The highest opinion issued by any court in Baker is the opinion of the MN State Supreme Court.

 

[Harry Dresden]

They were ALL considered very far left when they were first introduced. Every one of them.

only by the ones who were considerd FAR Right.....most moderates to liberal Republicans i dont believe would of had any problems with any one of those....

No..at the time they were introduced they were considered Far Left by the Mainstream...read some stuff from those time periods some day. It will really open your eyes wide.

In particular the whole concept of an 8 hour day was WAAAAAAY out there in Anarchyland when it was originally put forward in the late 1800s.

oh ok....your talking about then....im talking the modern world....back in those days Religion was a pretty strong motivator for suppressing things like these points....i will agree if we are talking 19 th century....i thought we was talking the last 50 years....

 

[Sheldon]

I don't see how Baker would prevent SCOTUS from hearing Perry, but maybe I'm missing something.

Even though the two cases basically test the same constitutional question, there are two things to consider:

a) SCOTUS didn't hear Baker because, in their opinion at the time, my state's SC addressed the facts of that case in a constitutionally adequate way. But the facts in Baker may not be the same as Perry. The defendants already tried to play this card, but the judge over-ruled that motion and made this trial about finding those new facts.

b) Even if the two cases are found to be essentially the same, the legal environment has changed because of Lawrence. SCOTUS has a new case to take into account when addressing the question.

I might be counting my eggsalads before they hatch, but I think it's a matter of when SCOTUS will hear this case, not if.

 

[goldcatt]

Here is part of the BODY of the 2004, CA SC decision:

Indeed, there is a decision of the United States Supreme Court, binding on
all other courts and public officials, that a state law restricting marriage to
opposite-sex couples does not violate the federal Constitution’s guarantees of
equal protection and due process of law. After the Minnesota Supreme Court held
that Minnesota laws preventing marriages between persons of the same sex did not
violate the equal protection or due process clauses of the United States
Constitution (Baker v. Nelson (Minn. 1971) 191 N.W.2d 185), the decision was
appealed to the United States Supreme Court, as federal law then permitted (see 28
U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high
court later dismissed that appeal “for want of substantial federal question.” (Baker
v. Nelson (1972) 409 U.S. 810.)

As the United States Supreme Court has explained, a dismissal on the
ground that an appeal presents no substantial federal question is a decision on the
merits of the case, establishing that the lower court’s decision on the issues of
federal law was correct. (Mandel v. Bradley (1977) 432 U.S. 173, 176; Hicks v.
Miranda (1975) 422 U.S. 332, 344.) Summary decisions of this kind “prevent
lower courts from coming to opposite conclusions on the precise issues presented
and necessarily decided by those actions.” (Mandel v. Bradley, supra, at p. 176.)
4
Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810,
prevents lower courts and public officials from coming to the conclusion that a
state law barring marriage between persons of the same sex violates the equal
protection or due process guarantees of the United States Constitution.
The binding force of a summary decision on the merits continues until the
high court instructs otherwise. (Hicks v. Miranda, supra, 422 U.S. at p. 344.)
That court may release lower courts from the binding effect of one of its decisions
on the merits either by expressly overruling that decision or through “ ‘doctrinal
developments’ ” that are necessarily incompatible with that decision. (Id. at
p. 344.) The United States Supreme Court has not expressly overruled Baker v.
Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal
developments that are necessarily incompatible with that decision.


Others may disagree with me also, but the CA SC uses the word "binding".

The CA SC based this decision (the piece of it posted here anyway) primarily on Mandel (1977), which in turn relies on Hicks (1975).

The legal status of a summary decision by SCOTUS is a lot more complicated than "you have to follow it", which is the entire holding from Mandel - it can actually be error to follow it if the situation is not extremely similar. It's more of a guideline of how SCOTUS would expect case law to be applied IF the facts and situation are similar enough to warrant it.

See for yourself. The primary case, Mandel:

MANDEL V. BRADLEY, 432 U. S. 173 :: Volume 432 :: 1977 :: Full Text :: US Supreme Court Cases from Justia & Oyez

The secondary case, Hicks:

HICKS V. MIRANDA, 422 U. S. 332 :: Volume 422 :: 1975 :: Full Text :: US Supreme Court Cases from Justia & Oyez

In the end, the CA SC seems to have made the same mistake the DC District did in Mandel. They relied too heavily on a two-sentence decision in Baker and not on the changes in the legal climate or differences in the facts. That's why these decisions aren't the same as a full opinion. They don't have to be overruled to be irrelevant, there only has to be a change in one or more of the preexisting cases they're based on or the slightest difference in facts.

But it's not that important to the analysis anyway, just an ongoing debate with a friend of mine I'm not going to give up that easily - 'cuz I'm right.

 

[Harry Dresden]

Gay rights are as far left as it gets, so are environmental regulations (damn tree huggers)

At the time, womens rights was also a far left concept. Can you imagine a woman getting the same rights as a man?

well then its how you look at it Rw....where i grew up the only thing the people i knew would of had a little bit of conflict with would have been the gay rights thing....every thing else....i dont think so....and remember this....everything from the left is labeled FAR-LEFT from the FAR RIGHT....and i would imagine it works the same vice-versa...and since these jerks yell the loudest....they seem to get the coverage....and their labels seem to stick around the most....

Did you grow up in the 1850s and see how people thought about Abolition?
Did you grow up in the 1920s and see how people thought about womans suffrage?
Did you grow up in the 50s and see how they felt about civil rights?

All these issues were extremely liberal for their time and liberals were demonized

Rw......i dont think they had the same kinda political divisions like we have now....back in the slavery days you were for it or against it....they did not say well you northern FAR-Left Liberals....and the south was not called the christian religious right wing radicals....or the far left or the far right....if you were raised thinking slavery was ok....it was fine....but the same guy might have been thinking about why cant my wife vote.....while a guy in the north may have felt slavery was wrong....but Woman cant vote...they are not smart enough.....and how about a guy who wants to free the slaves....but still NOT want them to have any civil rights....are these people FAR Left?.....or are they people just simply born and raised in a society where all these things were the norm....and through education and a society growing up....they (the majority) started seeing how wrong it was and it was time to change.....Liberalism and Conservatism have always existed side by side and balanced each other out.....a little bit of Liberalism here,a little bit of Conservatism there.....somewhere during the last 40-50 years the system has gone totally out of Sync....now it has gotten to be to much Liberalism here,not enough Conservatism there....to much Conservatism here and not enough Liberalism there....way out of sync....

 

[captaingeech]

The "reasons" cons give are many. There's Adam and Steve. God wants it to be one man and one woman, even though God wanted men to have multiple wives at one point. The list goes on and on and on.

The religious reason is a good reason not to allow gay marriage within a particular church. The political debate is about whether or not to allow gay marriage in the civil law books. This is a conflation of two separate issues. I'm interested in knowing why people don't want to allow same sex marriage to be legal according to the state.

Because religion and politics is sorta like siamese twins that haven't been legally seperated yet, if ever at all.
The political debate has its' roots historically in Judeo-Christian principles, that actually, the 'rule of law' in our country, both criminal law and civil law, was initially founded upon.
So, it's not really two seperate issues, cause there's an overlap between them in most states, in alot of people's minds, and as a result of that, a connection still exists. Which is why they conflagurate (which I think is the word you meant to use in your above post.)
Two heads from the same body that argue with themselves.

The seperation of church and state is a main part of the constitution. Why do you think there is no legal seperation?

 

[captaingeech]

I don't think you think at all, EVER. How can you say they are right? Just because YOU agree with them? It is NEVER right for a judge to over rule a legal election.

Now it IS the job of the courts to determine if a law violates the CON, but in this case I don't think it does because the CON doesn't mention marriage at all. Judges are not supposed to add things to the CON, even though they do all the time.

LMAO! yes WE ALL know yours is the only RIGHT opinion.

Right YOU don't think it violates the CON. Your is NOT the ONLY opinion. No where in the CON does it stipulate that a marriage is between a man and a woman.

Try again

You ARE a ******* IDIOT. I exactly said that nowhere in the CON is marriage defined, therefor a law limiting what can be called a marriage can NOT be unconstitutional. Nowhere in the CON are speed limits mentioned so if one were to sue claiming that a speed limit was unconstitutional, they would NOT have a case.

You need some remedial reading classes.

It does talk about equal protection under the law, so discrimination is unconstitutional. It's the same thing as if people were trying to make it illegal for blacks and whites to marry each other. No one would defend that, but for some reason it's still okay to discriminate against homosexuals.

 

[captaingeech]

what do blacks have to do with this conversation =/= what do blacks have to do with the Constitution.

I see I was wrong, I will now add you to the list of idiotic and dishonest left wing mouth breathers.

are you retarded? this whole thread concerns the rights of minorities. once it was blacks, now it is homosexuals. you think i misread your bullshit? i probably should, and then i should DEMAND AN ANSWER?

Don't give me your bullshit about black = homosexual. The majority of Americans in fact believe gays CHOOSE to be gay I know of no one who chose to be black.

and that is pure deflection anyway. This thread id NOT about whether gays should be allowed to marry. it is about is a proposition preventing them from doing so in a state unconstitutional, and no it is not. You obviously know it is not or you would stop trying to deflect and give a reason why you think it is.

Actually the American Psychological Association asserts that people do not choose their sexuality. The science supports this. Common sense supports this. Think about it: when did you CHOOSE to be straight? You don't choose who you are attracted to. Saying straight couples can marry, but gay couples cannot is not equal protection under the law. This is discrimination pure and simple. I still have not heard one single reason why we shouldn't allow gay couples to marry.

 

[ConHog]

are you retarded? this whole thread concerns the rights of minorities. once it was blacks, now it is homosexuals. you think i misread your bullshit? i probably should, and then i should DEMAND AN ANSWER?

Don't give me your bullshit about black = homosexual. The majority of Americans in fact believe gays CHOOSE to be gay I know of no one who chose to be black.

and that is pure deflection anyway. This thread id NOT about whether gays should be allowed to marry. it is about is a proposition preventing them from doing so in a state unconstitutional, and no it is not. You obviously know it is not or you would stop trying to deflect and give a reason why you think it is.

Actually the American Psychological Association asserts that people do not choose their sexuality. The science supports this. Common sense supports this. Think about it: when did you CHOOSE to be straight? You don't choose who you are attracted to. Saying straight couples can marry, but gay couples cannot is not equal protection under the law. This is discrimination pure and simple. I still have not heard one single reason why we should allow gay couples to marry.

I find it laughable when someone tries to ask me when I chose to be straight. I didn't CHOOSE to have two arms either, but I was born that way. Except for a few rare medical cases no one is born with anything different.

 

[bodecea]

Don't give me your bullshit about black = homosexual. The majority of Americans in fact believe gays CHOOSE to be gay I know of no one who chose to be black.

and that is pure deflection anyway. This thread id NOT about whether gays should be allowed to marry. it is about is a proposition preventing them from doing so in a state unconstitutional, and no it is not. You obviously know it is not or you would stop trying to deflect and give a reason why you think it is.

Actually the American Psychological Association asserts that people do not choose their sexuality. The science supports this. Common sense supports this. Think about it: when did you CHOOSE to be straight? You don't choose who you are attracted to. Saying straight couples can marry, but gay couples cannot is not equal protection under the law. This is discrimination pure and simple. I still have not heard one single reason why we should allow gay couples to marry.

I find it laughable when someone tries to ask me when I chose to be straight. I didn't CHOOSE to have two arms either, but I was born that way. Except for a few rare medical cases no one is born with anything different.

Wrong...about 2-10 percent of us are born gay...abou 2-10 percent of us are born left handed. They used to punish lefthanders too.

 

[captaingeech]

I find it laughable when someone tries to ask me when I chose to be straight. I didn't CHOOSE to have two arms either, but I was born that way. Except for a few rare medical cases no one is born with anything different.[/QUOTE]

That's exactly my point. You DIDN'T choose to be straight, just like no one chooses to be gay. That's what I'm saying. And I still haven't heard any reason whatsoever why we shouldn't let homosexuals marry. Everyone keeps debating the legal precedents and jargon, but why shouldn't we just change the law so gays can marry? What is the rational reason why not?

 

[goldcatt]

I find it laughable when someone tries to ask me when I chose to be straight. I didn't CHOOSE to have two arms either, but I was born that way. Except for a few rare medical cases no one is born with anything different.

That's exactly my point. You DIDN'T choose to be straight, just like no one chooses to be gay. That's what I'm saying. And I still haven't heard any reason whatsoever why we shouldn't let homosexuals marry. Everyone keeps debating the legal precedents and jargon, but why shouldn't we just change the law so gays can marry? What is the rational reason why not?

There isn't one. *shrug*

 

[Quantum Windbag]

Good try, but the right to marry is not mentioned in the Constitution, while the right to vote is. As far as I know SCOTUS has never overruled an actual vote of the people, and I know they have even thrown out challenges to marriage laws based on religious duty. This case should not be in court.

The US SC struck down a CO state constitutional AM, see; Romer v. Evans.

Prop 8 was filed in state court, but do to governmental plaintiff's, it was Petitioned to federal court and removal was granted.

In the 1st such case from CA in SF, 2004, the CA SC cited Baker v. Nelson, SCOTUS, as binding precedent, meaning they could NOT rule same sex marriage prohibitions violate the 14th AM.

This is why every state that permits them, does so under thier own Constitution.

I know GC does not agree with me on this point, but the CA SC itself ruled on the binding merits of Baker, not me.

You can bet your bottom $$ the ruling will cite Baker v. Nelson.

1. The court will rule the AM does NOT violate the 14th, per Baker.

2. The court will overrule Baker due to "doctrinal developments", such as Romer and Lawrence v. Texas. Baker was a summary decision, and the court explains that until the court releases inferior courts, only DD can do it, as I understood the CA SC 2004 ruling.

The FFC clause itself states Congress has the power to decide what records/acts must be given such FFC, hence DOMA.

Thanks for the info about Romer, I had not realized that was part of Colorado's Constitution.

FYI, Prop 8 was heard by the California Supreme Court, and they ruled they could not overturn the State Constitution. It was then taken back to court on the grounds that it was wrong to amend the Constitution through popular vote. A separate suit was filed in Federal court based on the argument that the proponents of Prop 8 intended to discriminate against homosexuals. I think they petitioned that the state case be dropped to protect the right to amend the State Constitution by popular vote, both sides of the aisle actually like that option when it works for them. That is my cynical side though, I might actually be worng and the plaintiffs simply decided to consolidate the case for conveninece.