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View Diary: BREAKING: Prop 8 Unconstitutional Says Ninth Circuit Court of Appeals. Updates. (201 comments)

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  •  dissent seems to rely on 1971 case (10+ / 0-)

    in which a gay couple in Minnesota was denied marriage. Because the Supreme Court has not explicitly addressed same sex marriage since 1971 that Minnesota case is binding precedent. Subsequent decisions that undercut the reasoning behind that 1971 decision are not to be considered.

    The dissent also relies heavily on previous court opinion that a law may have a rational basis even if there is no real world evidence to support it. In other words, the irrational is perfectly rational because we say so.

    Fun stuff.

    apologies: seat of the pants analysis here; haven't read the whole thing ...

    •  Thanks, Luv! Saw that too... (2+ / 0-)
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      jpmassar, LuvSet

      And I suppose we'll all be arguing about what it all means as things move forward.

      I don't suppose the 1971 (Baker) case has been overturned, but the SCOTUS could take care of that handily.

      What separates us, divides us, and diminishes the human spirit.

      by equern on Tue Feb 07, 2012 at 01:18:21 PM PST

      [ Parent ]

    •  Different political reality then. (2+ / 0-)
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      jpmassar, Odysseus

      No states had legalized same-sex marriage in 1971, nor had any even realistically conceived of it.

      Now we're up to six--seven, as soon as Washington's passes--half of which did so legislatively, the other half of which found that banning it violated their constitutions.

      It's a different political and legal reality today.

    •  the majority opinion addressed that (1+ / 0-)
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      by basically saying: we're not talking about the constitutionality of gay marriage, we're talking about the constitutionality of singling out a single disfavored minority and removing its rights after you've granted them, so that case doesn't apply.

      the dissent's point is actually a good one: in order to find something irrational, you can't just say all the offered justifications are irrational, you have to say there are no conceivable rational justifications.

      those are different standards because the burden of argument falls on different shoulders.

      •  But that's not going to stand. (1+ / 0-)
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        Generally speaking, the Court will only hear what's been brought before them, so the opponents of Proposition 8 aren't going to have to argue against arguments never presented by the proponents of Proposition 8 in the original case.

        •  um, no. (1+ / 0-)
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          the issue on which the case was decided was heavily briefed and was one of the areas most heavily focused on during oral arguments.

          there was no surprise here.

          •  I think you're confused. (1+ / 0-)
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            The dissent's point is NOT a good one. Courts only look at what's presented in front of them and rarely (though sometimes) latch onto arguments not presented.

            You said the dissent's point that "in order to find something irrational, you can't just say all the offered justifications are irrational, you have to say there are no conceivable rational justifications". In actuality, you don't have to do that under the law, and it's not supported by either Romer or Lawrence. Neither decision required the winning side to whack down every conceivable argument, and the Court generally does not operate that way anyway.

            •  that's not how rational basis review works. (2+ / 0-)
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              jpmassar, madhaus

              in a rational basis case, the burden is on the person challenging the law to show that there is no conceivable set of facts which would be rational.

              The Supreme Court itself has described the standard:

              "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if any reasonably conceivable state of facts could provide a rational basis for the classification" FCC v. BEACH COMMUNICATIONS, INC., 508 U.S. 307 (1993)

              Now, the come back is that this proceeds along suspect lines (it can't be that it infringes fundamental constitutional rights, because the court hasn't said that - it explicitly declined to answer that question). But I take Smith's point as being that this is only true if you've already found it's irrational -- and that until you've found that it's suspect, you have to defer if there's any reasonably conceivable state of facts.

              This is going to be the crux of the debate at the Supreme Court level.

              •  Yeah, we'll see. (1+ / 0-)
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                Reserving "I told you so" rights right now.

                Sit down and read Romer. You'll see that the opponents of Amendment 2 didn't have to think of every conceivable reason the law might be rational. In fact, the onus was on the state to show that it was rational, and Kennedy made that very, very clear.

                •  I've read Romer several times. (1+ / 0-)
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                  Romer is something of an outlier in a number of ways, and it frankly puzzled constitutional law scholars. It's frequently been described as implicitly requiring "rational basis plus" because of the way it is inconsistent with traditional rational basis review.

                  Note also that i'm not saying that this will be overturned: I think it will be upheld, 5-4, as I've said elsewhere.

                  But I think Smith has a good point, and that this deepens the lack of clarity over what standard of review is actually being applied in these cases.

                  •  The Romer analysis (0+ / 0-)

                    dates back at least to Moreno.

                    Banksters are harmful for the same reason neutrinos are harmless: neither are inclined to share what they've got (wealth and energy, respectively)

                    by ebohlman on Tue Feb 07, 2012 at 10:56:44 PM PST

                    [ Parent ]

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