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BREAKING: Prop 8 proponents ask Supreme Court to review case

Prop 8 trial

By Scottie Thomaston

The proponents of Proposition 8 in California have petitioned the Supreme Court for certiorari to review the case, in a long-awaited and expected move.

According to Chris Geidner:

Specifically, they ask the court in a filing today to decide “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”

This is a developing story and we will have more information including the petition for certiorari soon.

Here is the petition:Perry Cert Petition

h/t Kathleen

The question presented in the case is: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” The proponents tell the Court that they should answer the “profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples.” They write that leaving the Ninth Circuit’s decision intact would have “widespread and immediate negative consequences” and would leave the impression that any “experiment” with marriage would be “irrevocable”.

The proponents list five reasons for granting review of the Ninth Circuit’s decision: (1) the question presented is exceedingly important (2) the decision below conflicts with Crawford v Board of Education (3) the decision below “misapplies” Romer v. Evans and conflicts with other courts (4) the decision below conflicts with Baker v. Nelson (5) the Ninth Circuit’s holding that Prop 8 serves no legitimate purpose conflicts with other courts.

For point one, the petitioners argue that the Ninth Circuit’s decision calls into question the laws of Hawaii, Nevada, and Oregon, based on its reasoning. Those states grant all the incidents of marriage but disallow same-sex couples the word ‘marriage’. The second point is regarding a Ninth Circuit holding that suggests if a state does more than what is required by the Fourteenth Amendment, it is incorrect to say it may “never” recede. Petitioners suggest that states are free to take away previously-afforded rights.

They write, “In short, the fundamental lesson of Crawford is that a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place. This Court should grant review to resolve the conflict between the decision below and Crawford.”

The third point involves the Ninth Circuit’s application of Romer v. Evans, a 1996 case that struck down Colorado’s anti-gay Amendment 2 as a violation of the Equal Protection Clause. The petition rejects the Ninth Circuit’s contention that Romer was based on the granting of rights and then taking those rights away, suggesting, “At the root of the Ninth Circuit’s error is its assertion that Romer turned on the timing of Colorado’s Amendment 2 rather than its substance. See App.64a. But nothing in Romer suggests that Amendment 2 would have been valid had it only been enacted before Aspen, Boulder, and Denver passed ordinances banning discrimination on the basis of sexual orientation. Nor did Romer suggest that a constitutional amendment identical to Amendment 2 would be valid in a State that had no preexisting local laws protecting gays and lesbians from discrimination. Indeed, this Court struck down Amendment 2 on its face, not merely as applied in the handful of local jurisdictions that had previously enacted antidiscrimination ordinances protecting gays and lesbians.”

The fourth point is the rejected contention that Baker v. Nelson forecloses a decision to strike down Prop 8. Baker was a 1972 case in which a gay couple applied for a marriage license in Minnesota but was rejected. The Supreme Court summarily dismissed the case “for want of a substantial federal question.”

And lastly, petitioners argue that Proposition 8 furthers society’s interest in child-rearing and procreation and proceeding cautiously when redefining marriage. The petitioners claim that the purpose of Proposition 8 is not to “dishonor” gays and lesbians. They suggest, “This charge makes sense only if marriage is itself nothing more than, as the panel majority would have it, see App. 91a, an honorific bestowed by society on relationships it approves and withheld from relationships it disapproves. But support for the traditional definition of marriage is rooted precisely in resisting this reductive view of marriage in favor of one that maintains the inherent link between the institution and its traditional procreative purposes. And this traditional view of marriage has nothing to do with disapproval of gays and lesbians.” They suggest that since there are reasons to support traditional marriage beyond animus, Proposition 8 is not based on hatred of gays and lesbians.

The Supreme Court will decide whether to hear the case in early October.

UPDATE: We have the Pedersen decision Section 3 of DOMA was struck down again today. Jacob and I will have coverage and analysis up soon.

UPDATE 2: From a press release, the Olson/Boies team will oppose Supreme Court review:

“This case is about the equal rights guaranteed to all Americans by our Constitution,” said Plaintiffs’ counsel Theodore J. Boutrous, Jr. “Because two federal courts have already concluded that Proposition 8 is unconstitutional, gay and lesbian Californians should not have to wait any longer to marry the person they love. We therefore will oppose the petition for a writ of certiorari. However, we recognize that this case presents constitutional issues of national significance, and are ready to defend our victories before the Supreme Court.”

86 Comments

  • 1. Mykelbarber  |  July 31, 2012 at 10:15 am

    Wrong question. The question should be "Whether the 14th Amendment gives equal protection of marriage law to all citizens?'

  • 2. Mark  |  July 31, 2012 at 10:17 am

    I am surprised. I thought that they would drag it out until the last minute.

  • 3. Warner  |  July 31, 2012 at 10:17 am

    Kennedy, do what is right for america, and protect the concept of equal and due process. My hypothetical marriage (College is my boyfriend right now) does not harm society in any way; it strengthens it.

  • 4. Larry  |  July 31, 2012 at 10:23 am

    At least they're not appealing the decision that Judge Walker didn't need to recuse himself because he's gay.

  • 5. rick jacobs  |  July 31, 2012 at 10:46 am

    These guys will ride this mule right off the cliff of historical irrelevance. Amazing.

  • 6. BradK  |  July 31, 2012 at 11:02 am

    So long as there are billable hours, yes indeedy!

  • 7. Bob  |  July 31, 2012 at 11:06 am

    http://www.thestar.com/news/world/article/1234534

    the whole world sees what a dumb ass he is,,,,, can America do the right thing,, in the next election

  • 8. davep  |  July 31, 2012 at 11:06 am

    Excellent. They are simply repeating all of the obviously illogical 'arguments' they tried on all previous attempts. 'Channeling responsible procreative activities' (which offers no justification for denying civil marriage to people who do NOT procreate irresponsibly), 'the voters are not disrespecting gays' (The Yes On 8 Campaign certainly did with it's 'save the children from the gayz' rhetoric), and completely avoiding the important point that Prop 8 serves no valid States Interest by answering that question with answers to completely unrelated questions. I'm no lawyer and it took me about six minutes to spot these.

  • 9. Bob  |  July 31, 2012 at 11:13 am

    "the presidential race hinges on which candidate voters think will best spur growth in the struggling U.S. economy."

    it's all about the money??????? sad,,,, when there are so many important values at stake,,

    Is America really for sale????? the world wonders!!!!!!!

  • 10. Becca  |  July 31, 2012 at 11:14 am

    I was about to make the same comment. They know they have no logical, legal argument so they just keep pulling out the same hackneyed arguments. Arguments that where echoed when interracial unions were made legal and even used to deny women our right to vote.

  • 11. BradK  |  July 31, 2012 at 11:25 am

    Unfortunately there are at least three justices who will gleefully embrace those logical fallacies.

  • 12. Carpool Cookie  |  July 31, 2012 at 11:32 am

    Their descendants (of proponents and lawyers alike) will be so ashamed to bear their name….the whole thing's unfathomable.

    It's all so utterly repellant.

  • 13. Seth from Maryland  |  July 31, 2012 at 11:32 am

    lets hope the two most rational of the coservatives (Roberts and Kennedy) say no to hearing this crap

  • 14. Carpool Cookie  |  July 31, 2012 at 11:35 am

    "leaving the Ninth Circuit’s decision intact would have “widespread and immediate negative consequences” and would leave the impression that any “experiment” with marriage would be “irrevocable”."

    Because obviously the world is just falling apart at the seams everywhere Marriage Equality now exists.

    Jebus.

    CALM DOWN, MARY!

  • 15. Steven  |  July 31, 2012 at 11:43 am

    Justice Roberts denied the request to stop the DC marriage equality law. It'd have been so easy for Roberts to grant the request. He didn't asked the whole court. At the end, the court denied to hear the case.

  • 16. Carpool Cookie  |  July 31, 2012 at 11:44 am

    I wonder what the morale is like in those law offices as they fight this. I'd hate going in to work everyday to process and advocate for this cr@p.

    Maybe we have some level-headed, enlightened friends on their staffs — like we have lurking at NOM — that have helped steer this application….skipping petitioning the 9th for a larger en blanc hearing (which would have been rejected, but dragged things out more).

  • 17. Steve  |  July 31, 2012 at 11:46 am

    Enough with the procreation BS already. ARRRGHHH!!

  • 18. Seth from Maryland  |  July 31, 2012 at 11:48 am

    thats i what think going to happen , something im my mind just tells me roberts is on our side when it comes to this issue

  • 19. Becca  |  July 31, 2012 at 11:53 am

    They filed on the day yet another court rules against DOMA. Yay for our side. Yay for Justice.

    “Section 3 of DOMA obligates the federal government to single out a certain category of marriages as excluded from federal recognition,” Judge Bryant wrote, “thereby resulting in an inconsistent distribution of federal marriage benefits as all marriages authorized by certain states will receive recognition and marital benefits, whereas only a portion of marriages authorized by other states will receive federal recognition and benefits.”
    http://www.glad.org/current/press-release/glad-la

  • 20. Posta  |  July 31, 2012 at 12:07 pm

    I'm surprised they only mentioned Judge Walker was gay in a footnote and didn't raise the issue in this filling. Do you think they will bring that up later or did they give up on that?

  • 21. Steve  |  July 31, 2012 at 12:10 pm

    Even Anthony "Fat Tony" Scalia (who recently opined that handheld rocket launchers may be covered under the 2nd amendment) already noticed that procreation has nothing to do with marriage. They really should get a clue already.

  • 22. Jamie  |  July 31, 2012 at 12:11 pm

    The drinking game would be "take one shot every time they say 'redefine marriage'!"

  • 23. davep  |  July 31, 2012 at 12:13 pm

    Wonderful! I think I have now lost count again of the number of DOMA rulings in our favor. Fine with me!

  • 24. Jamie  |  July 31, 2012 at 12:14 pm

    No, this brief strikes a more reasonable tone on purpose. They want to cover up their anti-gay hatred now that they are before the Supreme Court and hope that the Justices won't read any of the "backstory". Honestly justices, we love gays, we just think they should be publicly shamed by having to get a domestic partnership license at the same window where dog tags are handed out, instead of being able to go to City Hall and get a marriage license"

  • 25. Steve  |  July 31, 2012 at 12:16 pm

    And two shots for "responsible procreation"

  • 26. Jamie  |  July 31, 2012 at 12:17 pm

    This still ignores the basic fact. The people can revoke rights if there is a rational reason. FEAR about the world falling apart isn't a rational reason. If the California had fallen into shambles during the time that gays and lesbians were allowed to marry, they might have a case. If they could point to ANY harm that was done by the fact that gays and lesbians were allowed to marry, they might have a case, but they can't.

  • 27. Izzoiz.com | BREAKING: Pr&hellip  |  July 31, 2012 at 12:21 pm

    […] via Prop 8 Trial Tracker » BREAKING: Prop 8 proponents ask Supreme Court to review case. […]

  • 28. Fred  |  July 31, 2012 at 12:29 pm

    What happens is the DOMA cases make it to the SC court first. Can they remand this back to the 9th circuit or the CASC following that decision? It seems that if DOMA is stricken, then we will have a screwed up situation where there are gay couples that are married that are given federal benefits, and gay couples that are 'domestic partnered' that are denied federal benefits. It seems the CASC had alluded to this in their decision allowing Proposition 8 to stand saying something to the effect that if rights were denied, that they would take action. Is Proposition 8 automatically unconstitutional (under the state constitution) immediately upon DOMA being ended by reason of the existing opinion by the CASC?

  • 29. Steven  |  July 31, 2012 at 12:38 pm

    they wanted to be extra careful about the wording for instance. when you include the word citizen does that mean if a american citizen marries a non citizen in a homosexual relationship should the united states recognize it? who is defined as a citizen? and is the issue strictly at hand about gay marriage or something else? such a poly marriage? (which im tottally ok with fyi) one court battle at a time. they want to remove as much ambiguity as possible not to mention remove any word that is connected to the big R word. religion not republican though sometimes very close to each other in the eyes of the media. lol

  • 30. Scott  |  July 31, 2012 at 12:53 pm

    So, to clarify, this is only an appeal of the merits holding, and not an appeal of the Walker recusal issue? If not, any idea if that might come?

    Also, anyone find it odd that they're bringing up what can best be described as a half-hearted attempt to get Judge Reinhardt to recuse himself? It doesn't seem like they're saying it's a reversible error, so it seems like they're just trying to throw mud on the whole appeal.

  • 31. Sagesse  |  July 31, 2012 at 12:55 pm

    @

  • 32. arjay1951  |  July 31, 2012 at 1:00 pm

    Unfortunately, it wouldn't be that clean and easy. Although DOMA being overruled would bring equal marriage laws to the forefront (the IRS and other agencies would probably look to the various states and how they define "marriage" to determine who is eligible for tax relief, equal benefits, etc., as they did before DOMA was enacted), such a ruling wouldn't affect how CA defines "marriage". The matter of how CA defines marriage (as do other states) as "one man, one woman" would still be unresolved. Legally, it is a different issue not raised by the DOMA cases. But it is still on track to be reviewed by SCOTUS from the Ninth Circuit case discussed here.

  • 33. Bill S.  |  July 31, 2012 at 1:08 pm

    If the Supreme Court finds DOMA unconstitutional there would be no reason to remand the Prop 8 case. The only reason for doing so is if in the DOMA Cases the Supreme Court says that gays are entitled to heightened scrutiny. Then if in the Prop 8 case they say that the 9th Circuit was wrong, that Prop 8 does have a rational basis, then they could remand to the 9th Circuit to rule on Prop 8 under a heightened form of scrutiny. Although this would be kind of a waste of time: if the 9th Circuit panel found it unconstitutional under rational basis then they would certainly find it unconstitutional under heightened scrutiny. So I really don't see any outcome of the DOMA Cases triggering the Prop 8 case being remanded.

    If DOMA is struck down and Prop 8 is upheld, leaving domestic partners without federal benefits in California, then another suit would have to follow in the California state judiciary. The California Supreme Court did say that Prop 8 might not be a valid amendment if it actually prevented gay couples from accessing material benefits.

  • 34. fiona64  |  July 31, 2012 at 1:15 pm

    I think responsible procreation may be one of those "whole beverage" moments.

  • 35. AnonyGrl  |  July 31, 2012 at 1:18 pm

    Part 1

    “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” ??

    I see this as wrong in at least four directions.

    First, the CORRECT way of asking this question is whether the Fourteenth Amendment guarantees equal treatment for all citizens.

  • 36. AnonyGrl  |  July 31, 2012 at 1:19 pm

    Part 2

    Second, the question they ask is phrased incorrectly. The question at THIS point is "Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from REDEFINING marriage as the union of a man and a woman.” since the courts already DEFINED it as between two people and at that point, many same sex couples married, and Prop 8 sought to CHANGE the definition to one man/one woman. (This is my favorite, really!)

    Third, the State of California (which is the way one refers to the GOVERNMENT of a state) was NOT seeking any such thing. Some of the CITIZENS of California did, but did so in a way that violated the Fourteenth Amendment. As such, the answer is "Yes, the Fourteenth does prohibit the Citizens of the State of California from putting the rights of a minority up to a vote by the majority, and taking away those rights."

    Fourth, the ANSWER to their question, as they phrase it, is "Yes.the Equal Protection Clause protects ALL citizens, and Prop 8 takes AWAY rights that at one point ALL citizens in California had. Thus, it DOES prohibit the State of California from doing any such thing."

  • 37. AnonyGrl  |  July 31, 2012 at 1:35 pm

    I am thinking that they got slapped down pretty hard on that one, and in a way that showed them that judges do not take kindly to having their collegues questioned on their integrity frivolously. Perhaps they learned their lesson?

  • 38. AnonyGrl  |  July 31, 2012 at 1:36 pm

    I am getting drunk just THINKING about that game… :)

    And that might lead to irresponsible procreation. HEY… maybe that is what they had in mind… hmmmmmm…. :)

  • 39. Jamie  |  July 31, 2012 at 1:36 pm

    I don't think another suit would have to be filed. The CASC already said that Prop 8 would be unconstitutional if it deprived gay couples of benefits. If DOMA is struck, then Prop 8 denies gay couples benefits. You don't need to ask the CASC to look at it again, they already said it.

  • 40. AnonyGrl  |  July 31, 2012 at 1:40 pm

    So they DO hit "childrearing and procreation" again. And once again seem to miss the fact that same sex couples do both.

    Shame on them.

  • 41. Seth from Maryland  |  July 31, 2012 at 1:48 pm

    Matt Baume with the marriage news watch responce: Prop 8 Closer Than Ever to Supreme Court http://youtu.be/XbRGnYagwRE

  • 42. chad  |  July 31, 2012 at 2:13 pm

    they only get one shot befere the Supreme Court – if they didn't raise the Walker recusal issue now, it's gone!

  • 43. SoCal_Dave  |  July 31, 2012 at 2:19 pm

    And that opposite-sex couples often do neither.

  • 44. Brett  |  July 31, 2012 at 2:39 pm

    Here's a question: If I am a resident of a state where SSM is not legal, but I get married in a state where it is legal, I understand my home state won't recognize it. But since it's valid in the state where I got married, would the Federal Government then also recognize it if DOMA were struck down?

    As nice as that might be, it seems like it would make taxes and other things a complete nightmare, since I'd be able to file jointly federally but not in the state.

  • 45. Mike in Baltimore  |  July 31, 2012 at 2:46 pm

    "They know they have no logical, legal argument" ?

    Do some of the attorneys for Prop H8 even understand the concept of 'logic'?

  • 46. Mike in Baltimore  |  July 31, 2012 at 2:56 pm

    Well, some opposite-sex couples often do one well, but don't even try to do the other.

  • 47. Jeb  |  July 31, 2012 at 2:57 pm

    Also, if section 3 of DOMA were struck down, would someone then be able to sponsor their foreign same sex partner for a green card if they got married in a state where SSM was legal but lived in a state where it was not? Or would they have to move to and live in a state where SSM was recognized to obtain those immigration rights?

  • 48. Mike in Baltimore  |  July 31, 2012 at 3:22 pm

    It partially depends on which state you live in whether the state recognizes an out of state same sex marriage. New York, prior to recognizing marriage equality did, and well as DC. Also, Maryland's Attorney General told the state that the state would do so also. Some in the state legislature didn't want to do that, and were discussing a law suit, but the Maryland Court of Special Appeals (the state's equivalent of a state Supreme Court) settled the question without a suit by determining that a divorce case (couple married in another state) could be decided in a Maryland court when the couple met all the other requirements for divorce in Maryland. And then the state legislature passed marriage equality (now subject to an up or down vote by the general public), which further settled the question.

    As to filing jointly on taxes (or not), a number of years ago I had severe damage done to my car, seriously decreasing it's value. The guilty party's insurance paid for the repairs, but not the decrease in value. I found filing taxes in one manner with the state, and a different manner with the feds gave me a nice increase in the refund from each. It's not something I'd willingly want to do every year, but it turned out to be the equivalent of a bad dream vs. a nightmare I had imagined it would be.

    And who's to say if SCOTUS strikes down Section 3 of DOMA, it might also strike down Section 2, thus striking down the entire law. After all, SCOTUS is not restricted to deciding only what has been appealed to it. Granted, it usually does, but that is not a universal.

  • 49. Steve  |  July 31, 2012 at 3:41 pm

    Nope. See the public policy exemption to the Full Faith and Credit Clause. Even with Section 2 of DOMA gone (which won't be struck done in any of these cases), states are still free to ignore any marriage they don't like. It's just that in the case of cousin marriages no state has yet bothered to deny them if they aren't performed, but they could if they wanted to.

  • 50. Steve  |  July 31, 2012 at 3:44 pm

    There will be a weird patch work of laws about that. Some things like joint tax filings, Social Security and Veteran's benefits have laws explicitly stating that what counts is the state of residence. Other benefits however can be determined by the state in which the marriage was registered. So it varies.

    I find the whole idea absurd that the federal government has to defer to the states when it comes to benefits it gives to people. As if people aren't citizens of the country, but the states instead.

  • 51. Bill S.  |  July 31, 2012 at 6:47 pm

    Would that be considered in dicta however? The order of the California Supreme Court in Strauss v. Horton was that Prop 8 was validly enacted and must be enforced. I could be wrong, but I would think that the California Supreme Court would need to formally overturn that order before the state could begin giving out marriage licenses to same-sex couples again (assuming the federal judiciary doesn't strike it down).

  • 52. MightyAcorn  |  August 1, 2012 at 9:10 am

    Some of these guys are true believers (you should have heard Pugno on the radio yesterday, ugh) so I'm sure morale will be high until they hear that SCOTUS has ruled against them (or denied cert, snyway.)

  • 53. MightyAcorn  |  August 1, 2012 at 9:17 am

    Well, look at the horrors wrought upon our nation when California lifted the prohibitions against white men marrying Japanese women after WWII, and how those people have infiltrated and degraded our society! One word for you bleeding heart liberal skeptics who don't believe me: TOFU

  • 54. Lymis  |  August 1, 2012 at 10:43 am

    I don't think your second point is accurate. I am not a lawyer, but my understanding is that the California Constitution gives citizens, through the initiative process, the explicit right of speaking for the state – in other words, in California, The State can act through the legislature and administration or The State can act through the initiative process.

    Remember, legislators and the governor are "some of the citizens" as well, and are validly empowered to act as The State.

    I think your other points are accurate, though the legal distinction between defining and redefining is probably pretty minor.

    The biggest point is that this is a mischaracterization. Their point wasn't that you couldn't ever take away rights that you have given. Their point was that any giving or restricting of rights has to have a legitimate government purpose. If you declare that everyone has a right to a puppy, you can't just take that away from black people, or Buddhists or left-handed folks, whether or not you should have given anyone the right in the first place.

    Having given marriage rights to all citizens, there is no justification for singling same-sex couples out as the only people to have them taken away.

  • 55. Lymis  |  August 1, 2012 at 10:48 am

    I don't know that you are correct. I'll agree that the STATE doesn't have to recognize it, but I'm not sure that it follows that the Feds can ignore it.

    My marriage is valid under California law, and if DOMA falls, the Feds have to recognize that fact. If specific federal benefits are tied to your marriage being recognized by your state of residence, those particular benefits may well be impacted, but I don't think there's any legal precedent for saying that the state can completely void a valid marriage just because you moved.

  • 56. arjay1951  |  August 1, 2012 at 11:12 am

    The question is not really whether a state can declare your marriage in CA is not a valid marriage, but rather whether the other state has to recognize that marriage. It is a distinction with a difference. There are innumerable decisions (most, if not all, in the state court system) and a whole area called Conflict of Laws. North Dakota, for instance, is not required to recognize a marriage in LA between first cousins if North Dakota has governmental or judicial policy against such marriages (my example is one out of the blue). Such a marriage would have no effect in ND–inheritance laws would not be triggered if one of the spouses died, for instance. Their children may or may not be seen as illegitament; some states say they are, but others say they are not.

    It is because of these conflicting laws in the various states that the feds define benefits on the basis of how state law sees the marriage. Some states recognize common law marriage; others do not. To keep track of the various statuses in every eventuality would be clearly difficult, if not impossible to administer. That is why DOMA has been ruled as an aberation–in very few if any other instances have the feds attempted to define marriage.

  • 57. Steve  |  August 1, 2012 at 11:17 am

    The problem is that some federal programs explicitly defer to the states when it comes to recognizing a marriage. Others will recognize a marriage as long it's valid somewhere. So it varies from benefit to benefit.

  • 58. arjay1951  |  August 1, 2012 at 11:20 am

    To make the distinction between whether a state fails to recognize a marriage and the legal consequencies that flow from that one the one hand, and whether the marriage is void on the other, consider the following. Your marriage, valid in CA, might be seen as of no consequence if you move to, say MS. If you then move to NY, which not only recognizes equal marriage rights for its citizens, but also marriages performed elsewhere that are vLid under the state law where the purported marriage takes place, you would still be married under NY law despite the intervening residence in MS. conversely, if you were married in MS, where such marriages are not recognized, and then moved to NY, your marriage probably would not be recongnized.

    It is amlawyer's dream and a citizen's nightmare.

  • 59. Steve  |  August 1, 2012 at 11:22 am

    What I mean is that some laws explicitly mention the state of *residence* to determine whether a marriage is valid. So there will indeed be the absurd situation that someone moves and suddenly they lose social security benefits or something else.

    Obviously that shouldn't be the case. The federal government should recognize a marriage as long it can be entered to somewhere in the country. Whether the state of residence has to recognize that marriage is another matter. That's also exactly what the proposed "Respect for Marriage Act" states:
    "(a) For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State."

  • 60. arjay1951  |  August 1, 2012 at 11:45 am

    Actually, if SCOTUS grants the petition for certiorari, it is in effect an order for the Ninth Circuit to certify the official record to SCOTUS. SCOTUS has the power to grant cert. as to certain limited questions, but seldom does so. If they don't, the fact that the Pro-prop 8 forces mentioned the recusal motion in a footnote, gives them an open door to argue that point in their brief on the merits. The Brief on the Merits will be a fuller brief than the petition for cert. (which is, after all, a set of arguments as to why the case deserves hearing by SCOTUS) and may in fact raise just about any issue raised by the NInth Circuit's decision, including the recusal motion. They would be silly to do so, since that argument is the easiest to skewer, and would also play right into the hands of our side that the Proposition had a wrongful animus, but it still could be made.

  • 61. Kathleen  |  August 1, 2012 at 2:57 pm

    The Proponents' petition for cert is docketed at the Supreme Court as case number 12-144
    http://www.supremecourt.gov/Search.aspx?FileName=

  • 62. Mike in Baltimore  |  August 1, 2012 at 5:32 pm

    Pennsylvania does not recognize 1st cousin marriage, but Maryland does. Many Pennsylvania 1st cousin couples go to a Maryland 'wedding chapel', get married, then move back to Pennsylvania which then recognizes them as a married couple (and they were and still are 1st cousins). (Fact, not fiction.)

    The only case I know of is Wisconsin not recognizing 'underage' (even with judicial permission) Texas marriages. I seriously doubt that that situation would hold up to SCOTUS review, though, especially if argued on Article IV grounds.

  • 63. Mike in Baltimore  |  August 1, 2012 at 6:04 pm

    "Your marriage, valid in CA, might be seen as of no consequence if you move to, say MS."

    You might find the information at http://www.ucc.org/assets/pdfs/emr23.pdf to be very interesting.

    According to Evan Wolfson, a valid marriage (or divorce) in one state is a valid marriage (or divorce) in another state in accordance with Federal law and several state and Federal court decisions.

    Granted, the argument was was created in the 1990s, but I don't think the information has changed that much.

    And, it is just a bit more evidence that DOMA is not constitutional, nor in accord with past practice in the US and individual states.

  • 64. arjay1951  |  August 1, 2012 at 8:17 pm

    Thank you for the reference to Evan's article from several years ago. He certainly makes the argument that marriages and divorces from one state SHOULD be legal in any other state, but that isn't uniformly the law. As a former attorney at Lambda (where Evan was working at the time of the article you cite), I agree it SHOULD be the law. As Evan foresaw in that 1996 article, the issues have become hopelessly complicated. My comment was an aside anyway, and I didn't mean ti highjack the discussion to this narrow point, but rather was trying to articulate that the issues are not simple.

  • 65. Jim H.  |  August 2, 2012 at 8:25 am

    Sort of OT, but can someone update the "Want to know where things stand with the Prop 8 trial" page? It still reads that proponents' appeal to SCOTUS is pending…

  • 66. Mike in Baltimore  |  August 3, 2012 at 12:20 am

    Which state (outside of same sex marriage) doesn't recognize a marriage from another state?

    And what state doesn't recognize a divorce conducted in another state?

    If you are going to throw out "that isn't uniformly the law" as if that is FACT, then you should be able to give example after example.

    Please start listing them.

  • 67. Mike in Baltimore  |  August 3, 2012 at 11:09 pm

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