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Supreme timing, part 2: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial

Community/Meta DOMA trials Prop 8 trial

This post is Part 2 of a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court.  You can read Part 1, Part 3Part 4 and Part 5 at

By Jacob Combs

Yesterday, in Part 1 of this series, I presented the argument that it is better for the marriage equality movement if the Supreme Court hears the Defense of Marriage Act cases before it hears the Prop 8 case not only because the DOMA cases have a stronger chance of winning at the Court, but also because they establish a legal framework that would make future marriage equality litigation (including the Prop 8 case) more successful.

Over the next three days, I will look in-depth at one issue surrounding the two cases’ possible futures at the Supreme Court.  The first issue, which today’s post will focus on, concerns the different resonances that the DOMA case may have with the Supreme Court as opposed to the Prop 8 case, given the ideological makeup of the current nine justices.

The distinct legal issues at play in the DOMA cases as opposed to the Prop 8 case

It is a fact that the current Supreme Court is incredibly conservative, and it is almost certain that a straight-up question on whether or not gays and lesbians have a constitutional right to marriage equality, a question that could certainly be at stake in an appeal of the Prop 8 case, would be a court-splitter.  The four conservatives (Roberts, Alito, Scalia and Thomas) would likely vote against such a right, the four liberals (Ginsburg, Breyer, Sotomayor and Kagan) would vote in favor, and Justice Anthony Kennedy, as he often does, would cast the swing vote.

The importance of Justice Kennedy’s vote can be seen in the Ninth Circuit decision upholding district court Judge Vaughn Walker’s determination that Proposition 8 was unconstitutional.  In his original decision, Judge Walker’s made a sweeping and powerful argument that Prop 8 had been passed to express a moral disapproval of gays and lesbians, and held that all couples, regardless of sexual orientation, are entitled to equal marriage rights.

When the Ninth Circuit reviewed Judge Walker’s decision, however, Judge Stephen Reinhardt, one of the most liberal judges in the country, chose to scale back Walker’s original conclusions and look at Prop 8 through the unique lens of marriage equality’s history in the state of California.  In essence, Reinhardt held that the Ninth Circuit did not need to address any fundamental right to marriage equality because Prop 8 could be ruled unconstitutional by virtue of the fact that it took away rights that had already been given to gay and lesbian couples without any rational government interest in reneging those rights.

Reinhardt’s decision seems to acknowledge, at least implicitly, that the Supreme Court is not yet ready yet to engage the question of whether or not there is an inherent 14th Amendment right to marriage equality for all Americans.  Of course, the Supreme Court is in no way bound to follow Judge Reinhardt’s reasoning, and could return to Judge Walker’s broader opinion to either affirm or deny it, but Reinhardt’s decision to focus his analysis on the foundation of Romer v. Evans, the landmark LGBT rights case decided by Justice Kennedy’s swing vote (and authored by him) looks to give Kennedy an out that would allow Prop 8 to be struck down without making a wider, precedent-setting argument.

Judge Reinhardt’s opinion is persuasive, but it undeniably takes Colorado’s Amendment 2 (which Romer struck down) and applies it to a case with similar but not identical circumstances.  Amendment 2 and Proposition 8 are cut from the same cloth, but they are by no means equal in their intent or their effect: Amendment 2 denied gays and lesbians in Colorado any legal protections and would have rolled back pre-existing rights that some of the states’ couples enjoyed, while Proposition 8 only affected marriage and left intact gay couples’ legal rights under California law while denying their relationships the title of ‘marriage.’

Amendment 2, the Supreme Court ruled, was at once too broad and too narrow: it issued a blanket prohibition on any legal protections, but did so only for one unique group, and without any legitimate governmental reasoning.  Proposition 8, in this sense, could be viewed as too narrow twice over: it modified only the right to use a specific word for describing gay couples’ relationships, and did so only for gays and lesbians.  (Of course, as Judge Walker’s opinion eloquently demonstrates, the right to use the word ‘marriage’ is a hugely significant one, and denying it does fundamental harm to gay couples.)

The Supreme Court could easily reject Reinhardt’s analysis by making the argument that Prop 8 is distinct from Amendment 2 and ruling, in essence, that Reinhardt was wrong to rely so heavily on Romer, opening up the Supremes to a brand new constitutional consideration of Prop 8.  On the other hand, Justice Kennedy could look favorably upon Reinhardt’s decision and uphold it as an extension of the legal principles that he developed in his opinion for the Romer case.

A brief history of DOMA, and the importance of Romer v. Evans at the Supreme Court

The Massachusetts DOMA cases, on the other hand, make an argument that seems as rock solid as any can truly be in our subjective and precedential legal system.  In reality, the DOMA cases aren’t about whether or not gay couples have an inherent right to marry, they are about whether those same-sex couples that are duly married under the laws of their state can be treated differently by the federal government than the heterosexual couples who are also duly married under those very same laws.

In other words, while a Supreme Court reviewing the Prop 8 decision would have to choose whether to address the issue of a fundamental right to marry or choose specifically to avoid that question, a Supreme Court reviewing the DOMA cases would have to make no such determination.  The couples in all of the DOMA cases are considered married under the laws of their states, and the validity of those marriages is not at issue.  The DOMA cases, at their heart, involve questions of federalism and the interplay between the state and federal governments, topics upon which the Supreme Court’s conservative justices look with a much more favorable light than equal protection.

In his original district court decision, Massachusetts Judge Joseph Tauro struck DOMA down in part on Tenth Amendment grounds, accepting the argument made by the Commonwealth of Massachusetts, represented by Attorney General Martha Coakley, that DOMA was an unconstitutional encroachment by the federal government upon a matter of law that was traditionally the unique province of the states.  Since the founding of the United States, marital law has traditionally been an area almost exclusively reserved to state governments, and not the federal government.  States make the rules for who can and cannot enter into a marriage, and if a state says that a couple is married, the federal government considers that couple married even if another state might not.

The Defense of Marriage Act turned this tradition on its head: for the first time in the history of the country, Congress enacted a federal definition of marriage, restricting it to heterosexual couples.  Congressional sponsors of the bill made clear, on the record, that they intended the bill to demonstrate the federal government’s position that heterosexual marriage was preferable to same-sex marriage (even though no states provided marriage rights to gay couples at the time).  Perhaps more tellingly, DOMA was passed without any significant legislative fact-finding as to what effect the statute could have.  That it passed so easily, with support from both parties, demonstrates just how much public opinion and awareness of LGBT issues has shifted in the past 15 years.

In its unanimous opinion upholding district judge Joseph Tauro’s striking down of DOMA on equal protection grounds, the First Circuit (represented by the Republican appointed Judge Michael Boudin) chose not to make the same Tenth Amendment conclusion that Tauro did that DOMA constituted an unconstitutional intrusion of federal power upon the rights of the states.  Instead, the First Circuit addressed the issue of equal protection, but nevertheless explicitly cited the concerns of federalism in making its analysis.

When courts consider an equal protection challenge, they first ask whether or not the challenger is part of what is called a suspect group–that is, one which has been subject to discrimination in the past and therefore should receive a closer look by the judiciary when they are affected by government action.  This is called ‘strict scrutiny,’ and laws must demonstrate a clear governmental intent to be upheld when considered through this lens.  The lower, more deferential form of review, used for non-suspect classes, is called ‘rational basis scrutiny,’ and courts need only come up with some rational justification for laws considered under this review to find them constitutional.  Because of this, laws very frequently pass rational basis review.

In the past, the Supreme Court has declined to designate gays and lesbians as a suspect class, and thereby consider laws against them using strict scrutiny review.  (As I have argued before, I believe that the courts should make this determination.  Nevertheless, since the Supreme Court has not, many lower courts are understandably wary of doing so themselves.)  Because of this, the First Circuit (as did Judge Tauro before them) chose to consider DOMA under rational basis, but argued that “Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded” (20).  The First Circuit then held that DOMA is unconstitutional under this ‘rational basis plus’ standard of review, specifically citing the use of a similar standard of review in Justice Kennedy’s Romer decision.

If the DOMA cases were to reach the Supreme Court first, the Court (and Justice Kennedy in particular) could rely on Romer v. Evans not as a parallel to the case at hand, but as a case that established the proper basis of review for the law at issue.  In considering the Prop 8 case, on the other hand, the Court would be reviewing an appellate decision that essentially mapped the Romer analysis onto a new case that is comparable but not identical.

In this sense, the First Circuit’s decision is a more conservative one than the Ninth Circuit’s, since it considers DOMA through the lens of the history of marital law and federalism and looks at how DOMA changed what came before it, whereas the Prop 8 case uses the problems inherent in a previous constitutional amendment (Amendment 2) and applies those to another constitutional amendment that came after it.  The federalism claims that the DOMA cases make are relatively comfortable waters in which the Supreme Court’s conservative justices can swim.  Judge Reinhardt’s Romer analysis, on the other hand, however cautious it may be, is essentially a brand-new constitutional argument about the rights of the people to take away civil rights they have already bestowed.

Tomorrow, in Part 3 of this series, I will look at the distinct constitutional implications of the Supreme Court striking down DOMA, a federal statute, as opposed to Prop 8, a constitutional amendment enacted by a popular vote, and why the Court might look very differently at the institutional precedents set by striking down each of the two statutes.


  • 1. Sagesse  |  June 12, 2012 at 12:42 pm


  • 2. Leo  |  June 12, 2012 at 1:30 pm

    by no means

  • 3. Gregory in SLC  |  June 12, 2012 at 1:42 pm

    DOMA just die already!

  • 4. Jamie  |  June 12, 2012 at 1:51 pm

    Roberts is written off in this article, but I think there is a good chance that he would vote against DOMA and a fair chance he would vote against Prop 8. He had the opportunity to end or delay marriage equality in Washington DC and chose to vote against hearing the petition without even bringing it up to the full court. I wish there was a more thoughtful analysis of the justices instead of just dividing them into conservative and liberal.

  • 5. Drpatrick1  |  June 12, 2012 at 5:58 pm

    Roberts is a good jurist, but too ideological. Some might say he is a counterbalance to Ginsburg. He is smart, and reasoned, but willing to bend rational thought to fit his opinion (as an example, he argued SCOTUS is not subject to the same judicial standards as the rest of the federal bench. He said, rightly, that the SCOTUS is mentioned in the constitution, but the rest of the federal courts are not. As such they were created by an act of congress and thus congress can determine the rules. SCOTUS is a coequal branch, specifically mentioned in constitution, so congress can't make rules for it. Technically this is true, but judicial review established precedent that SCOTUS could declare acts of congress unconstitutional, as a check on the other branches. If so, and it is unquestionably so, then congress to should be able to have a check on the court, and these judicial standards in question are simply common sense, and should not be controversial!).

    I do think roberts would vote with us, especially on doma, but would not like 9th circuit opinion, and we could be looking at a devastating loss there, if they take up that case.

  • 6. Stefan  |  June 12, 2012 at 10:31 pm

    Even if Roberts did vote against us in Perry v Brown Kennedy most certainly will vote for our side, which will result in a 5/4 decision overturning Prop 8.

    Another aspect too is the Martinez v Christian Legal Society. The Supreme Court ruled 5/4 to uphold the ruling from the 9th Circuit (and Roberts voted to overturn it), the Supreme Court refused to hear a similar case 18 months later. It requires 4 of the 9 justices approval to hear a case. There is a good chance that Roberts refused to hear the latter case even though he voted to overturn the previous one.

  • 7. David Henderson  |  June 13, 2012 at 12:22 pm

    If a case is too similar to one that was already decided, and doesn't include any new or distinguishing characteristics, most Justices would not vote to hear the new case.

  • 8. Stefan  |  June 13, 2012 at 2:03 pm

    Such as Perry v Brown (basically a re-affirmation of Romer v Evans).

  • 9. Straight Dave  |  June 13, 2012 at 11:48 am

    Not only that, but Roberts also denied a stay in the DC marriage case, so that marriages could begin even though there was an outstanding appeal in play. I was actually shocked at that, though he was following SCOTUS guidelines for considering "likelihood of success on appeal". It wouldn't have shocked me nearly as much if a liberal justice had done it. I'm not sayng Roberts is liberal, but maybe he just likes following rules (and hopefully the constitution).

  • 10. Drpatrick1  |  June 13, 2012 at 3:21 pm

    Don't read too much into the DC thing. Even Scalia, who is terrible for the lgbt community, would have done the same.

  • 11. JIE  |  June 15, 2012 at 7:50 am

    I doubt that very much.

  • 12. Celebrity  |  June 12, 2012 at 1:53 pm

    Am. 2 prohibited local gov'ts from enacting protections for LGBT individuals that exceeded what the state had already established. The statement that it rescinded any legal protection for these individuals is incorrect and misleading. Am. 2 and Prop. 8 both eliminated a particular bundle of rights from a class of citizens defined by an immutable trait that has no relationship to any legitimate legislative objective.

  • 13. Bob  |  June 12, 2012 at 2:04 pm

    How is the timing of the cases decided,,, I mean,,, which cases are already on Supreme Court schedule,,,,

    Then does the Court have to follow a certain procedure,,, or can they choose, say to hold off on Prop8 till they hear the Doma Cases,,,,,,

  • 14. Matt  |  June 12, 2012 at 2:16 pm

    Bob–neither case is on their schedule yet. They will likely decide in October which case(s) to take. Then, I think it's up to them the order in which they hear the cases. Most think that their decision will be released in June 2013 if they decide to take up either or both cases.

  • 15. Mike  |  June 12, 2012 at 3:51 pm

    Actually, the decision on which cases to accept and reject, and the scheduling of oral arguments, are made at conference. According to the Supreme Court calendar for the October 2012 term (, the first conference is on September 24, 2012. Additional conferences are to be held October 5, 12 and 26; November 2, 9 and 30; December 7; January 4, 11 and 18; February 15 and 22; March 1, 15, 22 and 29; April 12, 19 and 26; May 9, 16, 23 and 30; and June 6, 13 and 20.

    Conferences are also used to discuss cases that have had oral arguments. The last date currently scheduled for oral arguments is April 24, thus all conferences after that date would primarily be used to discuss and possibly come to a decision on cases that have had oral arguments, with some time spent to accept or reject cases for the next SC term.

    And remember, if no one appeals a case to SCOTUS, they don't have to discuss accepting or rejecting the case, schedule oral arguments, discuss a decision, etc. In other words, there are a total of 8 dates, just in 2012, to accept or reject cases, and only 3 of those 8 days are in October.

    Also remember, a case must be appealed within 90 days after the ruling is handed down. Even if appellants in both cases take all 90 days to appeal, their appeal will be due at SCOTUS well before that first conference in September. SCOTUS might turn down one case (Prop 8) as it has been decided in one court of appeals and the effect of a SCOTUS ruling most likely would affect only one state (SCOTUS generally doesn't like to go beyond the absolute minimum – there are occasional exceptions, but they are just that – exceptions), but decisions in the DOMA case have now been handed down in at least three circuits, and is a much more direct question of Federal law.

    Predicting them, I'd say there is probably at least a 60% probability (maybe much more) of a DOMA appeal being accepted; Prop 8 would be much less likely, maybe as low as in the 5-10% range, and any decision would be almost certainly limited to California. Such decision on Prop 8 would almost certainly be good for Californians, but not of any practical use to people in the other states. At least if SCOTUS does not accept the Prop 8 case, then all states and territories in the 9th would benefit from the circuit court ruling.

  • 16. Matt  |  June 12, 2012 at 4:59 pm

    You definitely know more than I do about the scheduling 🙂

    Is there precedent for a circuit striking down an act of Congress, and SCOTUS not accepting the case?

  • 17. Mike  |  June 14, 2012 at 10:00 pm


    Thanks for the complement on scheduling, but I since I'm not a formally-trained attorney, I basically know the scheduling information from what I've studied, read, and heard from multiple sources. And the information about when conferences are scheduled was taken from the actual SCOTUS calendar. BTW – it takes four votes in conference for a case to be placed on the docket.

    As to your second question, I have no idea.

    My 'gut instinct', especially when a similar or identical decision has been handed down in multiple Circuits, would be 'no', but as I said, I don't know. One thing I do know is that SCOTUS 'likes' to accept appeals where multiple Circuits have come to differing, even contradictory conclusions, much more so than when multiple Circuits have come to basically the same conclusion. That's why I said "60%". If a Circuit decides differently than others, then my guess of acceptance would start to approach 100%.

  • 18. MFargo  |  June 12, 2012 at 5:01 pm

    Mike, Do you think because the findings of fact in Judge Walker's decision are so important as well as implications for all the States in the 9th District that the SCOTUS would be more interested in review?

  • 19. Bill S.  |  June 13, 2012 at 5:02 am

    I'd say the chances of them accepting the DOMA case is 100%. There is no question: they'll take that appeal.

  • 20. Bob  |  June 13, 2012 at 1:31 pm

    Thanks Mike,, I'm liking that notion of Supreme Court having conferences about the cases pending,, and having options in terms of timing,, the courts can be of great assistance in helping minorities achieve equality, under the constitution,,,

  • 21. Larry  |  June 13, 2012 at 5:25 am

    The Supreme Court tends to relase major opinions at the end of the term in June, but not always. For instance Citizens United was released in January 2010.

    Also, how much does the 8th Circuit's Bruning case play into whether the Supreme Court will take Perry? One could argue that there is a circuit split, with the 8th Circuit ruling that Nebraska's amendment banning same sex marriage is legal, although that argument is weakened with how narrow the Perry decision was.

  • 22. Straight Dave  |  June 13, 2012 at 11:16 am

    I think it would be trivial for SCOTUS to decide that the 9th's narrow Perry ruling did not conflict with Bruning. They can legally co-exist without the universe cracking up. That just means it's not illegal to ban SSM in general, but you just can't go about it in the focussed, retraction, contrary-to-the-CASC manner that CA did. A narrow disnction that's mostly a temporary political fig leaf in my view, but they've found slimmer excuses before.

    BTW, did Bruning get appealed to SCOTUS, or did they just give up at that point? I'm interested in whether SCOTUS had an opportunity to even think about it.

  • 23. Stefan  |  June 13, 2012 at 2:05 pm

    They didn't appeal to the Supreme Court no.

  • 24. Bill S.  |  June 13, 2012 at 2:35 pm

    Wise decision. It's also important to note that Bruning used only rational basis in holding Nebraska's anti-gay marriage/civil unions amendment constitutional. If we want to win marriage equality, we will need strict scrutiny. The rational basis test requires no scientific evidence to back up the law being challenged.

  • 25. Rich  |  June 12, 2012 at 3:52 pm

    Thank you so much Jacob for this and future posts. It is nothing short of fresh air to read sound, reasoned analyses of the legal inroads to marriage equality. If only those citizens in this country who choose religious/biblical metaphors to believe could ever truly study constitutional parameters, then, perhaps, they would understand that civil marriage is, indeed, separate of religious marriage and thesis Asti should be. A win-win for everyone.

  • 26. Jacob Combs  |  June 12, 2012 at 5:48 pm

    Thanks, Rich, for your kind words.

    Jamie, I certainly had no designs to 'write off' Justice Roberts–in fact, I mentioned that I believe he might join Justice Kennedy in striking down DOMA. However, I do not believe that Justice Roberts would vote for an inherent 14th amendment right to marriage equality, and I wrote to that effect.

    Celebrity, I don't quite understand why you found that statement "incorrect and misleading." Amendment 2 did take away rights gays and lesbians already had in the state. And it would have prevented them from having any protected status under the Colorado constitution as LGBT individuals. I'd be interested to know why you disagreed with the statement.

    Thanks for the comments and please keep them coming!

  • 27. RichB  |  June 12, 2012 at 6:47 pm

    The skeptical me thinks the Prop 8 folks will delay requesting SCOTUS review until the last day, just to delay as long as possible.

  • 28. DaveP  |  June 13, 2012 at 7:24 am

    Yes, that's their pattern, but the good news is that in this instance it won't matter. They have 90 days to submit the request, and even if they wait until the last day of that, it will still have to be submitted before SCOTUS reviews the new requests for the new schedule, which will be September.

  • 29. Tyler O.  |  June 12, 2012 at 6:50 pm

    As for DOMA, the biggest question for me is Alito. I have the liberal bloc plus Kennedy w/ Roberts leaning a yes and Scalia/Thomas a no.

  • 30. Eric  |  June 12, 2012 at 8:00 pm

    Jacob, isn't the real question how much animus Roberts and Kennedy have toward gay people?

    The current Supreme Court has shown that they are willing to twist substance and procedure to get their desired result (see Jeffrey Toobin's recent New Yorker article on Citizens United).

    We can glean from Lawrence v. TX that Kennedy does not hate gay people. But whether he would go that extra step to legalize marriage equality is anyone's guess. It is interesting that he is a native Californian.

    Kennedy is the last Republican with even occasional moderate leanings on the Court. Isn't it better to try for marriage equality while he's still around, as opposed to his likely more conservative replacement (unless Obama gets to replace him).

    Roberts is a completely open question but without a Lawrence v. TX in his resume, could probably be written off to the far right.

  • 31. Straight Dave  |  June 13, 2012 at 7:16 am

    Don't forget Roberts has pro bono work on Romer v Evans on his resume. For that reason, I count him strongly leaning yes on DOMA and don't sense any underlying animus, The exact shape and timing of the marriage case he sees will influence his opinion. I don't think Perry will tip the scales for him, but I also don't think it will get to that point

  • 32. Seth from Maryland  |  June 12, 2012 at 8:22 pm

    POLL: In UK, 71 Percent Support Marriage Equality | A new YouGov poll finds that 71 percent of people in the UK approve of the British government’s plan to embrace marriage equality. Similarly, 71 percent also support allowing faith groups to perform same-sex wedding ceremonies if they choose. Numerous faith groups have attacked the plan, and just today, the Church of England said it is “not legally sound” and would change the “intrinsic nature of marriage as the union of a man and a woman.”

  • 33. Siobhan (UK)  |  June 13, 2012 at 4:42 am

    Not surprised. We have had Civil Partnerships for several years now and the world hasn't imploded. 😉

    It's cowardly of the Govt not to include in their proposals the ability for Faith groups who SUPPORT gay marriage to conduct marriages just Civil Partnerships. (which was law anyway) Why should faith groups against be able to call the shots? (lol, I'm an secularist atheist arguing for freedom of religion)

  • 34. Straight Dave  |  June 13, 2012 at 8:07 am

    Almost all secularists/atheists I know (including me) fully support freedom of religion. What we don't support is religious dominance – which is actually anti-freedom. The people screaming loudest for religious freedom often don't really want that at all, at least not for everyone.

  • 35. _BK_  |  June 12, 2012 at 11:44 pm

    Some things are best not to post.

  • 36. Klaus  |  June 13, 2012 at 3:09 am

    As a Californian, what I never understood and what I've never heard sufficiently explained is why the California Supreme Court allowed Prop. 8 to be on the ballot AFTER they had declared us a Suspect Class? And if we ignore that, why did they allow Prop. 8 to stand after it passed? They said we were a Suspect Class so why wasn't it their job to step in at some point and say NO? I feel they really let us down. They made this sweeping, amazing ruling for us in May 2008 regarding Marriage equality. They they threw us under the bus. I will never understand how it was legally ok for them to do that.

  • 37. Bill S.  |  June 13, 2012 at 5:04 am

    Because the California Constitution does not prohibit amendments to the Constitution targeting suspect classes. You could theoretically pass a constitutional amendment making all gay people slaves and it would be a legitimate part of the California constitution, although thankfully the federal constitution would overrule it (as it does with Prop 8).

  • 38. Ed Cortes  |  June 13, 2012 at 6:41 am

    I think that the appeal after P8 passed was based on whether the initiative process was properly used in the case, and that's what they ruled on, not the constitutionality of P8 itself, since that isn't what was challenged. I also think that (in CA) all amendments to the state constitution should require a 2/3 vote.

  • 39. sfbob  |  June 13, 2012 at 11:59 am

    I could not agree more. One of the worst things about the California Constitution is how easily it can be amended. I really don't understand the thinking that went into setting such a low bar–unless it (like much of the reforms in the early 20th Century) was aimed at undercutting the power of the Southern Pacific Railroad which had previously dominated the entire legislative process. Perhaps they felt that setting a low standard for constitutional amendments would make it more difficult for SPRR to game the process. As it stands now, most of the benefit achieved by instituting such a robust ballot initiative process has been undercut by the way things have changed in the past hundred years.

  • 40. DaveP  |  June 13, 2012 at 7:56 am

    As pointed out above, there is a serious flaw in the Initiative system here in California. There is absolutely NO system of checks and balances to determine if a ballot measure will result in an unconstitutional law or unconstitutional amendment to the State Constitution. The only process in place is what we have seen with Prop 8 – let anything and everything get onto the ballot, no matter how crazy or blatantly unconstitutional, as long as the proponents get enough signatures to place it there, and THEN, only AFTER the election, waste huge amounts of time and money and cause tremendous amounts of harm to tax paying citizens while it all gets dragged through the courts to undo an unconstitutional ballot measure.

  • 41. Straight Dave  |  June 13, 2012 at 8:30 am

    I think the CA constitution gives way too much power to the people, who aren't responsible enough to use it wisely. It's what they demanded 100 years ago when the gov't got too corrupt and embedded with big business. They got what they asked for and now they're paying the price. Constitutions are supposed to be a bit more solid than that, and not subject to the whim of the day.

    There's a great analysis of the interplay between SSM and initiatives in various states.

    "The only initiative state that allows gay marriages is Massachusetts. However, Massachusetts is an anomaly, because even though it is an initiative state, the state constitution forbids citizens to vote on initiative that would overturn a Massachusetts Supreme Court decision". That's the way to do it, otherwise why have a constitution and supreme court in the first place if you can just blithely ignore them!

  • 42. Straight Dave  |  June 13, 2012 at 8:31 am

    The like referred to above…

    PS: My entry was considered too long to fit. I have seen many comments much longer than mine. What's the deal with that? Is there a way to override the limits, whatever it is?

  • 43. AnonyGrl  |  June 13, 2012 at 8:39 am

    If I run into that wall, I just nest my comments in pieces (and I label them part one, part two…) by cutting them up and posting each subsequent piece as a "reply to the piece above.

    It is a little clumsy, but gets the job done. Also the mods here may be able to sort you out, and it may have to do with how you are logged in.

  • 44. mtnbill  |  June 13, 2012 at 8:38 am

    One part of the reason is the Courts do not want to rule unless they have an issue. Prop 8 was only an issue if it passed and presented issues. Second, was the timing between the SC decision and Prop 8 qualifying for the ballot. Prop 8 had begun circulating before the SC ruled i the the marriage case. Third is the accord that courts give to the right of the public through the initiative process. If you read the SC decision on Prop 8 the Court wrestled with the right of the people to amend the constitution with the rights. I think the court reasoned that "a rose by another name still smells as sweet." For most readers of this blog, a renamed rose stinks. Prop 8 only removed the name "marriage," and this renamed rose's smell does not perfume most of this blog's posters's noses. They want the name, which has become a symbol as from a practical view, no new rights would be conferred. (Note: the name may become an issue if DOMA is repealed and the Feds then have to determine whether a civil union with the legal rights equivalent to marriage qualifies as a marriage. But that issue is a future bridge to cross.)

  • 45. Straight Dave  |  June 13, 2012 at 10:24 am

    Actually the "name" issue has already come up at the federal level. I apologize for not having a cited ref this time – don't have time now, doing it from memory, hope to get to it later.
    There is a case (still active, I believe) where some federal agency (DOJ, Immigraton, State??) formally asked NJ to rule whether their civil unions were "identical" to marriage so that a determination could be made regarding a spouse visa sponsorship. Don't know the current status, but this could have some interesting side effects.

  • 46. Straight Dave  |  June 13, 2012 at 10:49 am

    Here's what I was referring to above regarding a NJ civil union.
    This came in the context of some unofficial discretion being applied to deportation of SS spouses, pending DOMA resolution.

    "Holder asked … whether Dorman can be considered a spouse under New Jersey law and whether he would be a spouse under immigration law were it not for the Defense of Marriage Act, according to a copy of Holder's decision.

  • 47. politicsbyeccehomo  |  June 13, 2012 at 9:33 am

    I completely agree that the DOMA case should go first. It is more likely to get Justice Kennedy's vote, and maybe even some of the four other conservative justices. The question in the DOMA case is primarily one of federal power – specifically the power to decide which state-approved marriages will and won't be accorded federal rights and obligations. As much as the conservative justices might disapprove of gay marriage, they will not want to give the federal government the power to undermine state authority where state authority has traditionally been paramount.

    The Prop 8 case is about the rights of same-sex couples. Ironically, the increase in popular acceptance of gay marriages may actually deter hurt Justice Kennedy's vote. If in fact gay people are able to use the ordinary political processes to overcome historical discrimination – enjoying the express support of even the President – then the argument for constitutional protection is less compelling.

  • 48. James Sweet  |  June 15, 2012 at 6:48 am

    The lower, more deferential form of review, used for non-suspect classes, is called ‘rational basis scrutiny,’ and courts need only come up with some rational justification for laws considered under this review to find them constitutional. Because of this, laws very frequently pass rational basis review.

    I think it's important to point out as well that what SCOTUS means by "rational basis" in this case is not necessarily what other people might mean by "rational basis". In a nutshell, it means that there is an argument which, assuming all of its premises are true, would rationally justify the law in question. But the premises do not necessarily have to be true!

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