California update: No Prop 8 repeal vote likely in 2010 + One litigation challenge bites the dust

by on July 18, 2009  •  In DoMA, Elections, Marriage

Organizations are starting to fall into place calling for a delay in taking Prop 8 back to the ballot until the likelihood of success is stronger. A coalition of groups, including the ACLU, issued a "Prepare to Prevail" statement, now joined by NGLTF. No surprise: according to polls, the numbers aren't there to win, and I think it is everybody's sense that the dollars aren't there either. Equality California is hosting a community summit on July 25. Although no final decision has been made, it looks to me like the outcome is now clear.

Meanwhile, the federal district court hearing the Smelt case dismissed the part of it that was a challenge to Prop 8. In a short order, the court ruled that because plaintiffs' marriage was preserved under the portion of the California Supreme Court decision that upheld the validity of same-sex marriages performed before the election, plaintiffs lacked standing. The claim challenging the constitutionality of DoMA survives, which means that the Justice Department's infamous motion to dismiss is now the only remaining matter on which the court has to rule before the case either goes forward or goes on appeal.


One Response to California update: No Prop 8 repeal vote likely in 2010 + One litigation challenge bites the dust

  1. Prup (aka Jim Benton) July 24, 2009 at 12:00 PM

    Nan: You refer to the ‘infamous’ DOMA brief, but isn’t it only infamous because of the charges being spread by John Aravosis — who is becoming the ‘gay Rush Limbaugh’ — and his ‘dittoheads’ — charges which you have described, rightly, as ‘crazy.’ Other than that, the only criticism against it was that it was ‘too strong a defense.’ I’ve been making a suggestion on several blogs, and would like your opinion on it.

    A suit against DOMA could have four effects — not two. The first, which we would all hope for, would be that it was ruled unconstitutional, as it should be. But this would require at least two votes joining Breyer, Stevens and Ginsberg. First would be Sotomayor, but she has shown in her testimony and in her career a strong deference to legislative enactments, and I wonder if she would take this big a step in what would be one of her earliest cases. Then we’d have to get Kennedy, who has shown in his conclusion to the Lawrence decision at least strong reservations against approving ssm. Again, certainly possible, but by no means a sure thing. (Despite the supposed hints that Roberts might be favorable because of his pro bono work, his history on the court has shown no evidence he would rule this way. In fact, unlike Scalia who — as wrong as he is on almost everything — does come from a consistent philosophical position, Roberts seems to be a truly ‘political’ judge whose rulings follow ‘Republican principles’ no matter how contradictory they are.)

    The second would be a simple declaration that DOMA was Constitutional. This would be a disappointment, but would leave us where we were, having to overrule it legislatively. To my way of thinking this is the most likely outcome, and may even be the least bad — SCOTUS decisions tend to keep issues alive more than legislative enactments — see school prayer and even abortion. I celebrate Roe v Wade and believe it was rightly decided, but I wonder if the states had done it on their own if access to abortion would in fact be easier because it would have been harder for the opponents to push back against 40 state legislatures and we wouldn’t have the fact that even with Roe we have states where abortion services are unobtainable.

    But what no one is suggestiong, but which seems to me to be possible, is that a Scalia-led Court could go beyond the question of Constitutionality and declare that DOMA is constitutional because ‘marriage is between a man and a woman.’ This would mean going beyond the briefs and would be against facts, law, and common sense — but when has that ever stopped Scalia. And, in fact, SCOTUS has gone ‘beyond the briefs’ to discover a ‘general principle’ many times — arguably starting with Marbury v. Madison — and not always wrongly.

    Even worse would be such a decision going beyond DOMA and declaring all ssm laws and legal decisions unconstitutional. That would be disastrous because the only way of reversing it would be through Amendment or changing the personnel of the court, neither likely in the near future. (More of a danger would be the case being decided by an eight-judge panel because of illness or age creating a vacancy on ‘our side.’)

    It strikes me that, had Obama argued against DOMA, this might have been a red flag for Roberts and Alito to try and make such a ruling, olne which both Scalia and Thomas would be glad to join. Even writing a weak brief might have given the justices an opening for such a decision.

    On the other hand, a strong brief would give the court more of an impetus towards the second choice — and would not have deterred anyone who would have been likely to rule ‘our way.’ If SCOTUS had a roadmap towards confirming DOMA without needing to go beyond it.

    So the only argument I see — and I’m hoping you will comment whether I am seeing correctly — against such a brief is if someone could argue that it would have convinced either Kennedy or Sotomayor to rule against us and that they would have ruled differently had Obama’s DoJ written a weaker brief.

    Maybe I am being too cynical here, but I think that all the Justices — except perhaps for the unpredictable Kennedy — have made up their mind about the question of DOMA already — Sotomayor having done so as well, but in what direction is unknowable — and that no brief in the case is likely to change the basic decision. But if Sotomayor and/or Kennedy is going to uphold DOMA as ‘Constitutional, even if unwise’ a strong brief might keep the Four Horsemen of Domm from ruling more strongly.

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