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View Diary: Bowers v. Hardwick was decided 25 years ago today (74 comments)

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  •  We'll see. (8+ / 0-)

    Such prognostications are above my pay grade.

    I think Olsen and Boies took the case because they saw the potential for a sweeping landmark decision. So it strikes me within the realm of possibility.

    But the standing issue at appeal may thwart that. Not something they could have foreseen easily.

    Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

    by Scott Wooledge on Thu Jun 30, 2011 at 02:30:37 PM PDT

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    •  I'm not so sure they didn't consider it (2+ / 0-)
      Recommended by:
      indiemcemopants, kyril

      They're pretty thorough. I can't imagine them not viewing the issue of standing at the point of an appeal. In fact, even having it be questioned would seem to boost their chance of at least getting a win on Prop 8 at the state level.

      I'd be more inclined to believe they took the case under the supposition that the law didn't stand a chance if it were actually put on trial and that, even if the ruling applied only to the State of California because lack of standing by the defender-appellants kept it from advancing further, it would provide an enormous precedent. After all, if the court had ruled against the plaintiffs, there'd be no question as to their right to continue appealing, while a finding for the plaintiffs might well come to an end at the circuit court level which would still provide the minimum relief the plaintiffs are seeking.

      •  Well, I am sure they considered it. (1+ / 0-)
        Recommended by:
        kyril

        But also considered that had Harris lost (which she almost did) the standing issue would not be inhibiting the path to the SCOTUS.

        Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

        by Scott Wooledge on Thu Jun 30, 2011 at 04:11:37 PM PDT

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        •  We don't know that. (2+ / 0-)
          Recommended by:
          Clarknt67, sfbob

          By the time the other guy (forgetting his name) would have been sworn in, the case had already been heard at the 9th Circuit.

          Would he have been allowed to come in at that point?  Maybe not.  In fact, probably not.

          One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

          by AUBoy2007 on Thu Jun 30, 2011 at 05:02:59 PM PDT

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          •  I am sure he would have tried. (0+ / 0-)

            He said so in the campaign. Would the Justices bent over backward to look fair? Who knows?

            Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

            by Scott Wooledge on Thu Jun 30, 2011 at 07:10:22 PM PDT

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            •  Sorry but no. (1+ / 0-)
              Recommended by:
              Clarknt67

              Not this time.  The failure to file a timely notice of appeal is jurisdictional.  The state failed to file an appeal from the judgment.  At that point, the judgment became final with respect to the state, and the Ninth Circuit could not have entertained an appeal filed beyond the appeal period.

              Nor do I think the state would have been permitted to intervene on appeal.  That would basically be allowing an untimely notice of appeal through the back door.

              The most a Republican AG could have hoped for was to file an amicus brief.  But he'd have been in the supremely awkward position of contradicting the filing the state had made below.  

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Thu Jun 30, 2011 at 09:56:21 PM PDT

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          •  Definitely not (1+ / 0-)
            Recommended by:
            AUBoy2007

            Remember your appellate procedure, young lawyer.  The filing of a timely notice of appeal is jurisdictional.  Without a timely notice of appeal, the Court of Appeals literally has no power to hear a party's case.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Thu Jun 30, 2011 at 09:57:55 PM PDT

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