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View Diary: Scotus Blog: Supreme Court won’t uphold or strike down Prop 8 (199 comments)

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  •  I think that's right, (1+ / 0-)
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    Tod

    but I think you got tripped up about the district court decision.  The court enjoined all of the defendants from enforcing prop 8, and I think that means the decision is applicable statewide.  NOM can do what it wants, but the only way there would be litigation is over some county clerk refusing to issue licenses.  There, the counterarugments would be whatever's decided in Windsor about equal protection rights and the Cali-specific question about how binding are interpretations by the Secretary of State or Attorney General, who can't rely on Prop 8 in issuing guidance, meaning the state-level SSM case goes back in force as the leading pronouncement of California law on marriage rights.

    Difficult, difficult, lemon difficult.

    by Loge on Tue Mar 26, 2013 at 12:15:34 PM PDT

    [ Parent ]

    •  I know the DCT judge said that (0+ / 0-)

      But when this is returned to the Ninth Circuit, they will be able to hear the question of the scope of the injunction (which was raised at the Ninth Circuit before, IIRC, but which became moot after the Ninth Circuit's ruling made that ruling binding precedent in the entire Ninth Circuit).

      And even assuming the Ninth Circuit punts entirely on remand (which it probably should, since presumably the state will agree that the injunction is binding and no one with standing can oppose that), NOM will have zero problem finding some Inland Valley conservative county clerk to deny someone a marriage license citing Proposition 8 as the reason.

      If THAT happens, the new district court judge will be able to decide (1) whether the Perry injunction is binding on the non-party clerk, and (2) whether Proposition 8 is unconstitutional--a decision which it could address de novo.  There will be no stare decisis effect to the district court decision, and the Ninth Circuit decision will have been vacated.

      If they draw a conservative judge, there's a good chance that he or she would rule (1) no and (2) no.

      Then, the Ninth Circuit will get the case on appeal from the people denied the license, where again the issue will be decided anew, without deference to the since-vacated CA9 decision.

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