I’m not a legal scholar, so I won’t criticize, but bummer:
A federal appeals court has extended a stay on same-sex marriages in California until it decides whether a ban on such unions is constitutional.
by DougJ| 33 Comments
This post is in: Gay Rights are Human Rights
I’m not a legal scholar, so I won’t criticize, but bummer:
A federal appeals court has extended a stay on same-sex marriages in California until it decides whether a ban on such unions is constitutional.
Comments are closed.
JGabriel
Not a huge surprise. I worried that Walker might be forcing the 9th’s hand by leaving such a short time frame for review, even though the reasoning seemed pretty solid.
I read elsewhere today (forget where, so no link, sorry) that the Prop 8 defense team is planning to focus on the state’s interest in “procreative stability”.
Leave aside that there’s no evidence of gay marriages preventing other people from having kids, I can’t think of a single state that rests the right to marriage on a foundation of procreation. Seems like a losing strategy.
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Larry Signor
I just don’t understand. Leave people, everyone, alone. We should celebrate our diversity, not spend our time trying to draw a line in a sandstorm. This is America, goddammit.
Glidwrith
Yes, but the court has specified that the anti-gehs must show standing or face dismissal of the Prop. Translation: they’re screwed (in a heterosexual way, of course).
Steve
As a legal matter, this is fairly routine, and doesn’t tell us anything about the ultimate outcome of the appeal. The three (fairly liberal) judges who granted the stay aren’t even the same judges who will decide the appeal.
In my opinion, Judge Walker applied the law correctly and meticulously when he denied the stay, but appellate courts often take an ad hoc do-whatever-preserves-the-status-quo approach, particularly in high-profile cases. So it sucks, but I doubt anyone was shocked.
JGabriel
Larry Signor:
There’s a long, long, tradition of expanding liberties in the U.S., which tells us two things (among others):
1) we do it really fucking slowly and reluctantly;
2) there’s a concomitant long. long tradition of discrimination.
That’s America at our best (expanding liberties) and worst (fighting it tooth and nail every step of the way) simultaneously. It’s never easy.
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MikeJ
By Sept 17 they have to show standing. If the court wants to say there’s no standing it could be any time before Dec 6th.
mai naem
Off topic Carl Levin got smacked by a cream pie at a constituent meeting held by the Meekest County Democratic Party. I just find that very funny. The Meekest County had some constituent who wasn’t all that meek after all.
gizmo
My rule of thumb is to never take any court rulings at face value. Often things are done for strange procedural reasons that only lawyers comprehend.
Brachiator
This is to be expected. It is a cautious ruling. But it does not in any way give any hint about what the appeals court may ultimately decide.
@Glidwrith:
Yep. In other words, the anti-gay marriage crowd would have to show that they would be impacted somehow if gays are allowed to marry. This is really not a rational position.
That society is somehow affected is not the same thing as a compelling state interest in preventing gay people from being able to get married.
About all that’s left is a defense of tradition and some negative ideas about the will of the people to assert majority sentiment over gay people. But this does allow a lot of wiggle room.
Steve
@MikeJ:
That’s not quite right. They have to put their standing arguments in the opening brief, true, but the court isn’t going to jump the gun and decide that issue before the appeal is fully briefed and argued.
Steve
@mai naem: Unfortunately it’s Mecosta County, which isn’t quite as funny.
MikeJ
@Steve: So between Nov 1 and Dec 6? And most likely not on Nov 1as they’ll need time to review the reply.
Steve
@MikeJ: Sometime later than that. Oral argument will take place during the week of December 6-10, and as far as I know the decision could follow any time afterwards.
Jim Yeager
Wow. Given the choice between soothing the homophobes and treating gay people like human beings, the court chose the former?
Hoocodanode…
Jeff Spender
@mai naem:
Carl Levin is a damn fine Senator, in my opinion. I’ve met him twice and my friend’s brother used to be on his staff. Good guy.
The guy who pied him was probably a douchebag anyway.
Omnes Omnibus
@Jim Yeager: No, the court left the status quo in place until it decides the case. Big difference.
Larry Signor
@JGabriel: You are absolutely right. I, like most reasonable Americans, am tiring of the parochial bullshit that doesn’t matter. I think you probably have similar sentiments, considering the tenor of your comment. We all have the same dog in the fight, equality. I’d whip my grandchildrens asses for acting like Harry Reid or John Boehner. But their Daddies would do it first. These assholes insist on passing on the sins of their fathers to their children. The effectiveness of a “Stop” sign is dependent on the conscience of the people.
Anoniminous
IANAL so this could easily be off-base …
I’m starting to wonder if the Prop 8 supporters, nation-wide, have taken a double barrel 12 gauge shotgun, pointed it at the old procreative stability equipment¹, and pulled both triggers. As I read it Walker brought down a fairly drastic “Mind Your Own Goddamn Business, you ignorant, bigoted, jerkwads. And – oh! – by the way: Piss Off! You morons ain’t got no dog in this hunt” decision, wrapped it up in legalese, and shoved it up their ass. Making the first thing to be ruled on by the 9th Appellate is whether or not they HAVE standing.
OK.
Once it goes to SCOTUS, sure as hell the Prop 8’ers will appeal a decision against them so Scalia will have a vote. And he has spent his whole life narrowing the basis of Standing. If he allows the Prop 8’ers Standing he sure as hell will be voting to overrule himself, somewhere. If he disallows Standing he throws a major monkey wrench in the “Hate the Gays” machine.
This thing could have an effect way beyond gay marriage in California.
(correction requested!)
¹ h/t to JGabriel
someguy
Didn’t Walker extend strict scrutiny protection under the 14th Amend. to gays as well? Seems to me that’s a much bigger thing that merely finding a right to marriage, particularly if the ruling gets confirmed on appeal.
Anoniminous
@someguy:
Apparently
Quoted from link (blockquote doesn’t want to work):
Now, Judge Walker’s decision was interesting because he argued that gays should be granted strict scrutiny — that is, they should be given the highest level of protection against legislation. Here’s what he said:
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.
Walker argues that gays and lesbians are the “type of minority strict scrutiny was designed to protect,” that is, among other things, they have experienced a “history of purposeful unequal treatment.”
End Quote
Stillwater
@Larry Signor: I just don’t understand. Leave people, everyone, alone. We should celebrate our diversity, not spend our time trying to draw a line in a sandstorm. This is America, goddammit.
Yes, I agree (except about the line in the sandstorm). But you’re forgetting a crucial point which explains why American conservatives are intent on drawing lines in storms of their creation or on stable ground: they are just plain mean.
Urza
The great orange satan has a nice writeup on what it means legally.
Mike G
Gays want to get married and join the military. It’s all part of their radical agenda.
burnspbesq
@JGabriel:
Two observations:
1. Procreative stability as a basis for discriminating against gays who want to marry is laughable. Every religion I know of (including my own) allows people who either are no longer can produce offspring or cannot ever produce offspring to marry.
2 I think the stay makes sense. Imagine what it would be like if there were no stay, thousands of gay couples got married, and the District Court ultimately got reversed. I wouldn’t wish that kind of life in legal limbo on anyone – not even Pancake.
YellowJournalism
If this is true, this is wonderful news for the anti-Prop 8 team. They’re really going to base a defense on California not having enough people in the future.
Emma
Wow, so will women and men have to be tested to be sure they’re fertile before being allowed to marry in CA?
scarshapedstar
I will criticize. There are only two people who should care whether their marriage is under a “cloud of uncertainty” and those are the two people whose names are on the marriage certificate.
JGabriel
@burnspbesq:
Why wouldn’t the marriages continue to be recognized as legal, as the previous CA same-sex marriages are?
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Michael D.
I wonder if Republicans realize that their party is now publicly perceived as:
1. Anti-gay
2. Anti-Muslim
3. Anti-Hispanic
4. Anti-African American
SAT (my own) SQ: They don’t care and don’t mind being perceived this way. They are proud of it.
And don’t tell me #4 is unfair. They were CLEARLY disappointed that Sherrod turned out to not be a racist. They were rooting for Brietbart – even after the full video came out.
If you’re brown and gay, you’re screwed!
EIGRP
@JGabriel: They are amazing. And I love reductio ad absurdum: If someone had a vasectomy, they would need a reverse vasectomy as a condition for marraige. I’m pretty sure forcing surgery to get a marriage license is unconstitutional.
Eric
LarsThorwald
People, people, people.
The very last place you should look for a branch of government to bend to the whims and outrages of the blogosphere is in an Article III court, thank Christ.
I am an attorney, for the federal government.
This is not the Court of Appeals issuing anything other than a temporary stay for the purpose of maintaining the status quo until such time as the legal issues involved in the case — ranging from whether the petitioners have standing on down — in the orderly course of an appeal as dictated by the Federal Rules of Appellate Procedure.
The Ninth Circuit can set a stay of its own volition, and frequently does where allowing the lower court order to go forward may result in inconsistent results if the lower court order is reversed on appeal.
The Ninth Circuit is simply avoiding the problem of allowing marriages to gbo forward which would then have to be annulled if the lower court decision were reversed on appeal. This stay freezes everything in amber until the legal issues can be worked out.
It’s not homophobia or anti-gay action by the Niners, and it is nothing anybody here should be getting their panties in a twist over. Everyone calm the fuck down and go back to beating up on Gibbs or something.
Michael D.
@LarsThorwald: I don’t think anyone here really shit on the Ninth or called them anti-gay.
People are disappointed they issued a stay, but I’d guess most kind understand why and also are pretty happy the Ninth is fast-tracking it.
And if there were a couple people saying what you’re saying they did, they were a decided minority.
ChrisZ
@Anoniminous:
Not to mention Scalia’s dissent in Lawrence v. Texas, which Judge Walker cited in his opinion, where he basically said that the Lawrence decision left no reasonable basis for denying same-sex marriage rights. I bet he “finds” one anyway, that or he just says “fuck you Lawrence I can’t hear you La la la la la la la la!”