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

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  •  There are reasons they could broaden it. (3+ / 0-)
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    cooper888, jpmassar, Odysseus

    They have in the past, and they have to know, at some point, the fact that people who are legally married in one state are going to move to another state where same-sex marriage is not legal and either try to divorce or have one partner pass away.

    They may rule broadly to avoid the inevitable legal hash the current situation causes, and if that's so, they really only have one legal decision they can make. They can't overturn the state legislatures that have legalized marriage equality, so the only other legal remedy is to overturn DOMA.

    Now, they may wait for a case specifically against DOMA to do that, or they may simply preempt it.

    •  That would be a long shot (2+ / 0-)
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      cooper888, jpmassar

      for the reasons you say. They'l wait for DOMA to wend its way through, since that would implicate a whole other set of issues about states recognizing contracts etc from other states. If they did take up the wider Equal Protection issues of whether sexual orientation is the basis for suspect classification, they could easily uphold existing law and say that it isn't. HOwever, since that isn't the basis for the opinion coming up from below, ruling on that would be dicta that doesn't help resolve the legal questions presented to them. Admittedly this court seems wildly prone to running amok beyond the bounds of the facts, so god ony knows what they *could * do (they might rule in this case that ONLY corporations can contribute to campaigns for all I know), but if they have any respect for legal practice I doubt they'd go so far. I could be surprised though.

    •  sad to say (2+ / 0-)
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      cooper888, jpmassar

      I think it would be terrible for the court to rule on such a broad and important issue that isn't presented to them.

      •  Well, there are other legal cases... (3+ / 0-)
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        cooper888, jpmassar, Odysseus

        ...regarding marriage itself they could hang their hats on, not just whether sexual orientation is a "suspect class". Loving v. Virginia is probably a guiding opinion here.

        I agree, they usually take the most narrow route possible, but that may not serve the judiciary's interest in this case, because having same-sex marriage legal in some states but not others creates a federal issue they are without any doubt going to have to resolve down the road.

        •  That's for sure (2+ / 0-)
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          cooper888, jpmassar

          I think down the road is when they'll get to this, if at all.

          I am troubled by the dissent's analysis, because I could see the Supreme Court holding that the plaintiffs failed to carry their burden to disprove every conceivable justification. I think that's the language we're going to see either en banc or at the SC.

          All of a sudden I'm quite worried

          •  Don't be. One word: Kennedy. (7+ / 0-)

            This opinion cleaved closely to Justice Kennedy's language in both Romer and Lawrence, and it did so for a reason. It's clearly pitching to him, and neither Romer nor Lawrence said every single conceivable justification in those cases had to be shot down.

            The fact is that the proponents of Prop 8 entered in a bunch of terrible reasons themselves. They really gave the lower court anything that wasn't presented in by Colorado to the Court to justify Amendment 2 in Romer. The opponents of Prop 8 don't have to shoot down other, "conceivable" arguments that were never actually made in the case.

            •  The audience of one (3+ / 0-)
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              cooper888, jpmassar, wishingwell

              that's an excellent point about the language of Romer and Lawrence. I do tend to assume the very worst intentions of the Supreme Court, I'm afraid, but as you put it I have a harder time believing that Kennedy will go off on a wild-eyed tangent.

              Thanks for that . I appreciate it!

              •  I totally believe... (5+ / 0-)

                ...Scalia, Thomas, and Alito "will go off on a wild-eyed tangent". Totally believe that. Scalia almost lost his shit in both Romer and Lawrence, so I fully expect he'll almost explode if they hear this.

                In a lot of ways, this is a good thing the 9th did. It preserves the overturning of Prop 8 for California in a decision so close to Romer v. Evans that it might as well be the same thing, while at the same time offering the SCOTUS the opportunity to decide more broadly.

                In other words, the SCOTUS would have to overturn Romer to overturn this decision, and they're not about to do that.

                It may also be pitching to Roberts who, if you recall, did pro bono work on Romer opposing Colorado's Amendment 2. I've been saying this for years, but I think it will be 5-4 with a possibility of being 6-3 in favor of marriage equality.

                •  Interesting (3+ / 0-)

                  Didn't know that about Roberts. Seems kind of too decent of him to be believed.

                  It'd be good to see a 6-3, even on a narrow holding. Hard to see them venturing into broader territory though.

                  •  At some point, it's going to have to be dealt with (1+ / 0-)
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                    Someone's going to move from Massachusetts (or any of the other six-soon-to-be-seven) to Alabama (or anywhere else) for a job, and sometime later, want to get a divorce. That's just inevitable. Can that couple make use of the divorce courts of the state they now live in, even though that state doesn't recognize their marriage in the first place?

                    If not, that creates a massive legal problem. Is the couple still legally married? Were they legally severed upon moving? Upon leaving the state in which they were married? Are same-sex couples from New York separated if they drive to Pennsylvania, then married again when they drive back to New York? This is why we have the "full faith and credit" clause in the Constitution.

                    Eventually, DOMA's hand gets forced. Maybe not here, but somewhere.

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