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View Diary: Prop 8 is dead, but not for the reason you'd want. (140 comments)

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  •  It happens (10+ / 0-)

    A lot of people think the same about Roe v. Wade.

    Black Holes Suck.

    by Pi Li on Wed Jun 26, 2013 at 10:08:02 AM PDT

    [ Parent ]

    •  The problem with Roe (1+ / 0-)
      Recommended by:
      a gilas girl

      is that, while I understand the thinking that having it based in the 4th amendment is bad, because it's a bit of a stretch, I don't really see what else in the Constitution could realistically be used to justify the decision.

      •  This is a not entirey unusual attempt by Federal (5+ / 0-)

        courts to get rid of cases they may not want to decide for other reasons, on grounds of "standing.", what you have to have at stake to be a litigant in Federal court.

        Standing is a procedural issue which in a court of limited jurisdiction, as all Federal courts are, requires a 'real party in interest'.  You will notice that that Windsor case today also went off on a matter of standing, whereby DOJ figured out a way to keep standing going by not actually paying Edith Windsor her tax refund, which protected her standing and let the case go forward on appeal, because, among other things, the Congressional defensive committee  or the amicus was adequately setting forth the position the DOJ passed on defending. While the SC said the Executive had best not make a common practice of the device it used to protect the plaintiff's standing, having the feeling that it had been 'had' somehow,  it worked here because the case itself was simple in the matter of establishing original standing as it stood before them. She was owed the money and the Feds had not paid it. No mootness at all because the dispute over the money ceased to exist at an earlier stage.

        The heart of 'standing' is that the litigant must possess it, an actual and direct interest in the outcome personally, at each point in the litigation, which the court can in fact fix by its decision. The real difference between Windsor and Prop 8 is that between the literally not paying the tax refund demanded in the original case, and producing both an amicus and the Congressional defenders, her case got around the structural issues of Standing, while the Prop 8 people had no personal interest in the matter that they could demonstrate. Courts can be very literal this way, when acting in their own defense.

        Standing is often used to protect the smaller size of the Federal docket. In Windsor, the SC pointed out that one of the reasons it was taking this case, was that if it did not, it would have a separate case on every last of the thousand or so anti same sex marriage changes in Federal statutes and regulations, one at a time, both as to court districts, and statutes, and it WAS NOT DOING THAT.

        Another avoidance mechanism at play here is the one that goes 'bad cases make bad decisions.'  Windsor's case was properly briefed and defended on all sides, once an amicus was appointed for whatever the Congressional committee missed,  but the Prop 8 defense, for those of you who read the diaries at the time, was an unholy mess from the very beginning, where the original decision waded through said mess and pointed that fact out, including IIRC the problem presented for the fortress of standing as a protective device for Federal courts, if that particularly ragged bad were added to the list of those who had standing, and what other even more ragged bands would find the window to follow them.

        Part of what is interesting about Windsor, though was sticking the right to the relationship of her choice not on the privacy claims lurking somewhere in the tenth amendment, but on the liberty claims of the Fifth Amendment.

        What I am still thinking about is the degree to which this interesting change in Constitutional location of the rights being defended will also become available to defenders of Roe v. Wade, for example, as adhering to the women involved and their liberty rather than to an abstract construction of a right which the individual shares in some division not clear with states who are trying to use their "states' rights" destroy the liberty of the individual trying to make an individual choice.

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