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View Diary: SF Gate reporting that marriage bigots appealing to SCOTUS (40 comments)

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  •  If I may cut and paste (1+ / 0-)
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    It's unclear whether the lawsuits will continue. Someone with standing would need to challenge Walker's ruling.

    Amar believes that only a county clerk could do so: "The only scenario I envision is if a county clerk who feels that he should not be bound by Judge Walker's order, and that he is not controllable by the governor, from some conservative county wants to refuse to issue marriage licenses and goes to court and says he shouldn't be governed by any of this because he never had his day in court, he wasn't in San Francisco defending Prop 8. That's the only kind of individual or party left I could see to stand in the way."

    Jane Schacter, professor of law at Stanford Law School, agrees that a county clerk refusal could restart the process: "What I think will happen at that point, it would not surprise me if in some more culturally conservative part of the state, a local county clerk says, 'Well, I don’t think the governor had the power to order me to do this, I don’t think I’m bound by Judge Walker’s order, and therefore I’m not going to give you a license.' At that point, a same-sex couple may go to court to try to get that license and we may be off to the races with further litigation. Now, this really is a law professor’s dream. Will that be in state court? Will that be in federal court? Will it be about the scope of Walker’s decision? Will it be about the scope of the governor’s authority to decide what to do in these circumstances? Any number of questions, but I think there is no question that a lot of same-sex couples in short order are going to start marrying again in California."

    Schacter also says that, while unlikely, Walker's opinion could be open to interpretation: "The question is does Judge Walker's opinion, which was issued not in a class action but a lawsuit involving two couples, does it bind and apply statewide to other couples who are not part of the litigation? I think the governor will aggressively take the position that the state was a party in the case, the state is not contesting the decision of Judge Walker, therefore Prop. 8 is no longer enforceable. But it wouldn't surprise me if there's further litigation in this. It might be that the proponents of Prop. 8 will try to get some clarification of what the scope is of Judge Walker's opinion, and that won't come from Judge Walker because he's retired, but it will come from a different district judge. More likely I think Gov. Brown has ordered that marriage licenses be issued immediately. Once that starts happening, and I don't see a constraint to it because there was a stay in place pending resolution of the Supreme Court's appeal, and I think in short order that will be dissolved."

    •  Thanks. I guess the theory is that if a county (0+ / 0-)

      clerk wins the right not to perform ceremonies for same-sex couples, then other county clerks could be pressured not to perform them as well, even if they were otherwise willing.

      Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well-warmed, and well-fed. --Herman Melville

      by ZedMont on Sun Jun 30, 2013 at 10:34:23 AM PDT

      [ Parent ]

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