What kind of interest do they have to have? This case affects only the Feds. No state is being forced to do anything and no private citizen is negatively affected.
In fact, that’s how Schwarzenegger v Perry was tried. Ahnold, Brown, et al, weren’t particularly interested in contesting against the plaintiffs, so Yes On 8 intervened. They were referred to throughout as the Defendant-Intervenors.
Other states may have an interest in this (in fact probably do), and private citizens may very well be negatively affected by it.
i’m not a heavy practitioner in federal courts, so i don’t know what exactly they want from someone when they say that you have to have a significantly protectable interest relating to the subject of the action (which is how it’s put in some caselaw)
(in actuality, this is not the kind of ruling that the federal government probably wants to have sitting around - it’s a nasty curtailing of the federal gov’ts rights and a bad application of the 10th amendment to federal spending powers (imho)) they’d probably be cutting their nose to spite their face if they didn’t vigorously challenge it.
I went fishing in Perry for the Intervenor’s petition in that case to find source material on point - unfortunately there their intervention was premised on caselaw that says a proponent of a proposition is per se an interested party, and the original defendants i think consented to it (i.e. the Cal. gov’t didn’t want to take the political risk of trying to fight against the intervention) so unfortunately Perry wasn’t terribly helpful in that regard.
How does this affect states that don’t recognize same-sex marriage? How would a private citizen be negatively affected by this case? :dubious: Actually how could any private citizens, other than married same-sex couples, be affected at all?
dunno for sure, but possibly now they’re losing out on federal money because they can’t constitutionally bury gay soldiers and get federal money for it.
they would be affected in the same way, probably. though there isn’t generalized taxpayer standing. like i said, this is extremely technical stuff in law, and I don’t practice in this area, so i don’t have a clue exactly, but i’d bet my druthers the court would allow intervenors if the feds didn’t want to challenge it.
i mean, do you think it’s particularly fair play if the defendant/appellant government remained passive to a lawsuit that spoke on constitutional issues? what if its another issue and you’ve got the gov’t purposely rolling over on abortion laws? do you think that our rules of civil procedure would abide these kinds of set-up jobs?
But the Spending Clause is only set aside over the matter of constitutionality. How much is the government being curtailed by being prohibited from using its spending powers to advance unconstitutional ends?
(talking about Mass v. HHS here) only one part of his decision dealt with the unconstitutional nature of the spending clause. the last 7 pages deal with it as a 10th amendment claim without the spending clause stuff (although it weirdly kind of circles back on itself it seems - but i skimmed it so i didn’t pay too much attention so maybe it makes more sense). in that part, he had some really wacky things to say
as for the other case, I don’t think the government ever wants to let a loss on a rational basis review go by unchallenged 
And if this decision is permitted to stand without appeal, it has no precedential value.
Thwoc!~ Good point!
But let’s be clear here: It has no binding precedent (except in Massachusetts, correct?). It certainly can and will be cited in support of their own arguments by attorneys with gay-supportive briefs anywhere in the U.S.
Question. This a case in Federal District Court, right? So suppose Joe and Fred, a couple who married whle in college in Massachusetts and are now living quietly in The Dalles. They’re not too interested in being the poster boys for GLAAD, but… It’s April 15, 2011, and they’re making out their taxes. State the truth – they entered into a legal marriage in a state recognizing it, and so are a married couple filing jointly – in reliance on a decision in Federal court founded o9n the supreme law of the land? Or falsify their marital status on a federal form stating there are penalties for giving false information on it, to comply with a Federal statute not yet challenged in their particular domicile.
Correct. Until the First Circuit upholds it (at which time THEIR opinion will be the one cited) or overturns it, at which point it becomes useless for even persuasive value.
Even if this decision is upheld by the First Circuit, it has no binding power over Oregon, which is in the Ninth Circuit. Joe and Fred cannot rely on it, even if it is a “decision in Federal court founded on the supreme law of the land.” If it were otherwise, then the concept of circuit divisions would become meaningless.
I’m slightly confuzzled at this decision (I don’t live in a federal country so this is new to me)
My understanding is that :
The federal government gives money to states to give to certain people.
The federal government defines marriage a certain way.
Certain states define marriage a different way.
Judge says that the federal government must use the States’ definition.
Does this not mean that those states with gay marriage will receive more money from the federal government than those without it?
Does this mean that a State could introduce it’s own retirement criteria or some other criteria, and the federal government would have to honour it?
Does this not effectively force states without gay marriage to subsidise those that have it?
Hmm - I think it is more along the lines of What Scalia thinks the law should be and says it is, is the law (at least when he is in the majority.)
This same analysis, when applied to the health care lawsuits, should result in a win for Cuccinelli and the states.
Tsk tsk … you know that when activist judges are conservative it’s okay because they use the right magic words!
Yes. The “magic words” written in ink, on the actual physical paper, as the actual text of the document.
It is of course no surprise that liberals regard the process of using those black-ink words as “magic,” and the process of using words written in imaginary ink, on the “penumbras” and the “emanations” of the document as more solid, since the entirety of liberal philosophy is grounded on the conceit that when political theory contradicts reality, inferior reality must yield to superior theory.
And of course, you have been party to any number of discussions on these boards where it has been pointed out that Scalia pretty consistently slavishly relies on those black-ink words (or the absence thereof) when it suits his personal preferences and agenda, but has no problem going “off-map” when he finds the written instructions inconvenient.
But you are well aware of that, of course. Just something you choose to conveniently overlook when it gets in the way of a snappy comeback.
Ooooh! You textualists are just so darn cute! Yes yes, the emperor is wearing clothes; I’m sure you can see them just fine!
Nonsense.
Liberal trick #17: assert as proven, as “everyone knows,” facts that can’t actually, technically, be “proven,” or are even, technically, “true,” but are necessary to sustain the liberal mythology.
Although you didn’t use the exact usual formula. You left out the phrase “most of us.” Did you leave your style book at home?