# How would SCOTUS rule on California's Prop 8? With what consequences? **URL:** \ **Category:** Great Debates\ **Created:** [August 13, 2010, 6:28pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182 "2010-08-13T18:28:15Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 16, 2010, 3:47pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/81 "2010-08-16T15:47:37Z")
> [@Captain\_Amazing](#): > > > [@Bricker](#): > > > > Can we explore the standing issue here? I thought about creating a new thread, but maybe this will work. > > > > Did the Prop 8 supporters at trial have standing at the trial? > > > > If they did, what was the basis for that standing, and why does that basis vanish on appeal? > > > > If they did not, then wasn’t the trial itself improper, and shouldn’t the result be vacated? > > Here’s a 2003 Brigham Young law review article by Doyle Byers that looks at the requirement for intervenors to have standing and the implications for appeals. > > [http://www.allbusiness.com/legal/1070770-1.html](http://www.allbusiness.com/legal/1070770-1.html) > > Here’s an excerpt looking at the 9th Circuit’s position. Please note, the reference to “Perry” in the excerpt obviously doesn’t refer to Perry v Schwarzenegger, but instead the 6th Circuit case Associated Builders and Contractors v Perry (although Yniguez v. Arizona does have a fact pattern similar to this Perry also): That discussion contemplates a new party appealing after the original parties decline to pursue an appeal. In this case, the original parties to the litigation wish to appeal. Let’s imagine an absurd case: suppose Judge Walker had said, during the trial, “This is a bunch of crap!” during the middle of the expert witness testimony for the Prop 8 proponents, and sprayed the Prop 8 lawyers with silly string and then chided them for poor concentration. Suppose, in other words, he had blatantly and obviously sided with one side to the detriment of the other. Who could appeal the ruling then? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 16, 2010, 4:02pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/82 "2010-08-16T16:02:57Z")
> [@Roderick\_Femm](#): > > Let’s assume the “notoriously liberal” 9th Circuit upholds the original judge’s decision, and that SCOTUS decides to hear the appeal. It should be noted that the “notoriously liberal” 9th Circuit can be anything but. The 9th is three times the size of any of the other federal appeals courts, and has something like 28 judges in total. They don’t sit _en banc_, ever. If a case calls for an _en banc_ panel, nine of the judges are selected via a sort of lottery. This means that unlike the other federal circuits, or SCOTUS, nobody can predict with much certainty what the 9th will do - because nobody knows which 9th will hear the case. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 16, 2010, 4:11pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/83 "2010-08-16T16:11:48Z")
> [@jtgain](#): > > It dismays me to see so many people gleefully rooting for SCOTUS to provide that the 14th amendment mandates that all states must provide for SSM. This expansive view of rights and the constitution can just as easily be turned on its head. > > If you no longer look at the text of the constitution and the original meaning behind the words, you open a blank slate for any future court to restrict your rights to nil based on some fuzzy “evolving standards” doctrine. Ok, so far they seem to be granting more rights. Great, but the power to do good is also the power to do evil. What is expansive or fuzzy about “…nor deny to any person within its jurisdiction the equal protection of the laws”? People who want SSM are not asking for a new right or anything special. They want the state to treat them the same was the state treats heterosexual couples. They want “equal protection”, as stated in the constitution, and nothing more. If the people who wrote it wanted to say, “equal protection except for those people” then they should have said that. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 16, 2010, 4:17pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/84 "2010-08-16T16:17:16Z")
> [@Bricker](#): > > That discussion contemplates a new party appealing after the original parties decline to pursue an appeal. In this case, the original parties to the litigation wish to appeal. > > Let’s imagine an absurd case: suppose Judge Walker had said, during the trial, “This is a bunch of crap!” during the middle of the expert witness testimony for the Prop 8 proponents, and sprayed the Prop 8 lawyers with silly string and then chided them for poor concentration. > > Suppose, in other words, he had blatantly and obviously sided with one side to the detriment of the other. > > Who could appeal the ruling then? Theoretically the state. If the state chooses not to, I don’t think the intervenors have a seperate judicial remedy under 9th Circuit rules, because they don’t have standing. The discussion in the article looks at the fact that some Circuits don’t require that intervenors have standing. That’s why it looks at the 9th Circuit’s decision in _Sagebrush Rebellion_, which lays out the requirements to become an intervenor (which, as you’ll note, are below the requirements for Article III standing). You’re right that Yniguez is about a new party appearing, but if you look at _Arizonans for Official English v Arizona_, which was the Supreme Court case that was the ultimate result of Yniguez, even though the court doesn’t directly resolve the standing issue, it suggests that if it did, it wouldn’t be in AOE’s favor: > **[Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).](https://www.law.cornell.edu/supct/html/95-974.ZS.html)** > [@](#): > > a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62. Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. \_\_\_, \_\_\_, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez’s departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363, 364, n. Pp. 18-21. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 16, 2010, 4:23pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/85 "2010-08-16T16:23:20Z")
> [@Bricker](#): > > Can we explore the standing issue here? I thought about creating a new thread, but maybe this will work. > > Did the Prop 8 supporters at trial have standing at the trial? > > If they did, what was the basis for that standing, and why does that basis vanish on appeal? > > If they did not, then wasn’t the trial itself improper, and shouldn’t the result be vacated? Wish I could. “Standing”, in the legal sense, can be mystifying to me in many circumstances. I think it is bizarre that an original party to a case can be blocked from appealing the case. I presume there is some rationale for that but at this point I am not holding my breath hoping to find logic in the legal system. Would be interesting if the SCOTUS punted by finding the original trial was in error because standing was not achieved. It’d re-instate Prop-8 and put everyone back at square one in one fell swoop while dodging a thorny issue. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 16, 2010, 4:53pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/86 "2010-08-16T16:53:11Z")
> [@Captain\_Amazing](#): > > You’re right that Yniguez is about a new party appearing, but if you look at _Arizonans for Official English v Arizona_, which was the Supreme Court case that was the ultimate result of Yniguez, even though the court doesn’t directly resolve the standing issue, it suggests that if it did, it wouldn’t be in AOE’s favor: > > [Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).](http://www.law.cornell.edu/supct/html/95-974.ZS.html) > > > [@](#): > > > > a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal **in the place of an original defendant** demands that the litigant possess “a direct stake in the outcome.” (emphasis added) Same issue there: “…in the place of an original defendant…” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 16, 2010, 4:55pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/87 "2010-08-16T16:55:34Z")
> [@Captain\_Amazing](#): > > > [@Bricker](#): > > > > That discussion contemplates a new party appealing after the original parties decline to pursue an appeal. In this case, the original parties to the litigation wish to appeal. > > > > Let’s imagine an absurd case: suppose Judge Walker had said, during the trial, “This is a bunch of crap!” during the middle of the expert witness testimony for the Prop 8 proponents, and sprayed the Prop 8 lawyers with silly string and then chided them for poor concentration. > > > > Suppose, in other words, he had blatantly and obviously sided with one side to the detriment of the other. > > > > Who could appeal the ruling then? > > Theoretically the state. If the state chooses not to, I don’t think the intervenors have a seperate judicial remedy under 9th Circuit rules, because they don’t have standing. From the Prop 8 proponents’ brief: > [@](#): > > The California Supreme Court has granted the application of initiative proponents to defend initiatives they have sponsored but the State Attorney General and other public officials refuse to defend—indeed it has done so with respect to these Proponents and Proposition 8. See Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009); Order of Nov. 19, 2008, Strauss, Nos. S168047, S168066, S168078 (Cal.) (Doc. No. 8–10). California law thus allows proponents to defend initiatives they have sponsored when government officials “might not do so with vigor” in order “to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” Building Indus. Ass’n v. City of Camarillo, 718 P.2d 68, 75 (Cal. 1986). Thus, Proponents may directly assert the State’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing. See, e.g., Maine v. Taylor, 477 U.S. 131, 136–37 (1986); Diamond v. Charles, 476 U.S. 54, 62 (1986) ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 16, 2010, 5:05pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/88 "2010-08-16T17:05:00Z")
> [@Bricker](#): > > (emphasis added) > > Same issue there: “…in the place of an original defendant…” But it is in place of the original defendants if the original defendants (Schwarzenegger, et al) choose not to appeal. And I’m having trouble finding the actual text of City of Camarillo. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 16, 2010, 5:21pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/89 "2010-08-16T17:21:30Z")
eta: The Prop 8 Proponents brief says, "The California Supreme Court has granted the application of initiative proponents to defend initiatives **they have sponsored** by the State Attorney General and other public officials refuse to defend " How is “sponsored” defined? California Families said in their amicus statement in Strauss v Horton: > [@](#): > > Beginning in 2005, the Campaign and its constituents began drafting and submitting proposed initiatives to add the definition of marriage of one man and one woman to the Constitution. While none of the Campaign’s proposed initiatives qualified for the ballot, the Campaign earnestly worked in support of Proposition 8 when the Interveners’ proposed initiative qualified for the 2008 ballot. So, does an organization that doesn’t introduce the initiative but supports it after it was introduced count as “sponsoring” the initiative? Also, the 9th Circuit isn’t bound by the state of California’s courts in making their standing rules, right? Even if California law gives standing to appeal to California Families in state court, that doesn’t mean they have it in federal court. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 16, 2010, 5:24pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/90 "2010-08-16T17:24:08Z")
> [@Captain\_Amazing](#): > > > [@Bricker](#): > > > > (emphasis added) > > > > Same issue there: “…in the place of an original defendant…” > > But it is in place of the original defendants if the original defendants (Schwarzenegger, et al) choose not to appeal. > > And I’m having trouble finding the actual text of City of Camarillo. If you don’t have the Pacific Reporter, it’s 41 Cal.3d 810 (1986). ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 16, 2010, 5:27pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/91 "2010-08-16T17:27:41Z")
eta again (sorry about this) Which is to say, is there any federal decision that says that an intitiative sponsor can directly assert the state interest? Because Diamond actually seems to suggest otherwise: > [@](#): > > (c) Appellant’s interests in enforcement of the statute do not permit him to defend it. Only the State has a judicially cognizable interest in defending its criminal statutes. Pp. 476 U. S. 64-65. > > (d) Appellant’s claims that his professional interests confer standing have no merit. As a pediatrician. he has an interest, but no direct stake, in the abortion process. This abstract concern does not substitute for the concrete injury required by Art. III. Similarly, appellant’s claim of conscientious objection to abortion does not provide a judicially cognizable interest. Nor can he maintain the appeal in his capacity as a parent, absent any showing that his daughter is currently a minor or otherwise incapable of asserting her own rights. And he cannot assert any constitutional right of the unborn fetus, since only the State may invoke regulatory measures to protect that interest or the power of the courts when those measures are subject to challenge. Pp. 476 U. S. 65-67. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 16, 2010, 5:36pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/92 "2010-08-16T17:36:27Z")
> [@Captain\_Amazing](#): > > Even if California law gives standing to appeal to California Families in state court, that doesn’t mean they have it in federal court. But it does: > [@](#): > > We previously have recognized that intervenors in lower federal courts may seek review in this Court on their own, so long as they have “a sufficient stake in the outcome of the controversy” to satisfy the constitutional requirement of genuine adversity. Bryant v. Yellen, 447 U.S. 352, 368 (1980); see also, e. g., Diamond v. Charles, 476 U.S. 54, 68 (1986). _Maine v. Taylor_, 477 U.S. 131 (1986). ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [August 16, 2010, 5:45pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/93 "2010-08-16T17:45:26Z")
> [@Bricker](#): > > Let’s imagine an absurd case: suppose Judge Walker had said, during the trial, “This is a bunch of crap!” during the middle of the expert witness testimony for the Prop 8 proponents, and sprayed the Prop 8 lawyers with silly string and then chided them for poor concentration. I see a Pay-per-View opportunity here! ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 16, 2010, 5:53pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/94 "2010-08-16T17:53:58Z")
> [@Bricker](#): > > > [@Captain\_Amazing](#): > > > > Even if California law gives standing to appeal to California Families in state court, that doesn’t mean they have it in federal court. > > But it does: > > > [@](#): > > > > We previously have recognized that intervenors in lower federal courts may seek review in this Court on their own, so long as they have “a sufficient stake in the outcome of the controversy” to satisfy the constitutional requirement of genuine adversity. Bryant v. Yellen, 447 U.S. 352, 368 (1980); see also, e. g., Diamond v. Charles, 476 U.S. 54, 68 (1986). > > _Maine v. Taylor_, 477 U.S. 131 (1986). Only if there’s “a showing by the intervenor that he fulfills the requirements of Art. III.” Diamond v. Charles 476 U.S. 54, 68 (1986) An initiative’s sponsor might “directly assert the State’s interest in defending the constitutionality of its laws” under California law, but is there any federal caselaw granting the sponsor the State’s interest, because neither Taylor, Yellen, nor Diamond deal with a initiative sponsor/intervenor? And also, even under California law, can a non-sponsor advocate of an initiative assert the State’s interest? ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [August 16, 2010, 5:57pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/95 "2010-08-16T17:57:20Z")
This case seems like it could effect jurisprudence in this country in more ways than just the topic of SSM. I have a somewhat separate question? What is the responsibility of the AG to defend a proposition? I have heard some argue that Jerry Brown is abrogating his responsibility by not vigorously defending the Proposition. I am glad he hasn’t but what of this? Second question, if the Ninth does not issue the emergency stay, can we read much into that about how the Ninth would ultimately rule on the appeal (assuming the standing argument is settled in the Pro-Prop 8 side). ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [August 16, 2010, 6:00pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/96 "2010-08-16T18:00:37Z")
BTW, here is the [plaintiff’s response to the stay request](http://www.equalrightsfoundation.org/legal-filings/plaintiffs-opposition-to-motion-to-stay/). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 16, 2010, 6:09pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/97 "2010-08-16T18:09:39Z")
> [@Captain\_Amazing](#): > > > [@Bricker](#): > > > > But it does: > > > > _Maine v. Taylor_, 477 U.S. 131 (1986). > > Only if there’s “a showing by the intervenor that he fulfills the requirements of Art. III.” Diamond v. Charles 476 U.S. 54, 68 (1986) An initiative’s sponsor might “directly assert the State’s interest in defending the constitutionality of its laws” under California law, but is there any federal caselaw granting the sponsor the State’s interest, because neither Taylor, Yellen, nor Diamond deal with a initiative sponsor/intervenor? And also, even under California law, can a non-sponsor advocate of an initiative assert the State’s interest? Not a sponsor, but why is that a critical distinction? Yellen deals with a group of farmers that wanted to buy land if a law was interpreted a certain way, and were granted standing when the government declined to appeal an adverse ruling. Surely that’s a WEAKER case for standing than we have here? ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [August 16, 2010, 6:18pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/98 "2010-08-16T18:18:55Z")
[QUOTE=Whack-a-Mole] No, we have a balance of power by design in the US. Yes the legislature writes laws. It is also the appropriate place for the courts to read those laws and interpret them or deem them improper. This is the role of the courts. The legislature is not infallible (none of the branches are) but each is a curb on the other. This is as it should be. Seems it is only legislating from the bench when you do not like the results. If it is finding a right to self defense in the 2nd amendment that’s peachy and proper. If it is finding it inappropriate to treat homosexuals the same as heterosexuals then it is legislating from the bench. [/QUOTE] I need more coffee. What is the curb on the judiciary in your paragraph? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [August 16, 2010, 7:56pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/99 "2010-08-16T19:56:52Z")
> [@mlees](#): > > [QUOTE=Whack-a-Mole] > No, we have a balance of power by design in the US. > > Yes the legislature writes laws. > > It is also the appropriate place for the courts to read those laws and interpret them or deem them improper. This is the role of the courts. The legislature is not infallible (none of the branches are) but each is a curb on the other. This is as it should be. Seems it is only legislating from the bench when you do not like the results. If it is finding a right to self defense in the 2nd amendment that’s peachy and proper. If it is finding it inappropriate to treat homosexuals the same as heterosexuals then it is legislating from the bench. I need more coffee. What is the curb on the judiciary in your paragraph? [/QUOTE] - They are appointed by the Executive branch, approved by the legislative branch (not talking about state courts). - The legislature can, in most cases, write a law to cover a bad decision (IIRC after Kelo v. City of New London many states and the feds ran to tighten laws to not permit the use of eminent domain the SCOTUS opened up). - They can be impeached by the Senate. - The judiciary also has no enforcement power (famously illustrated in a misquote from Andrew Jackson “John Marshall has made his decision; now let him enforce it!” [actually he said, “The decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”]). They rely on the other branches for that and if they ignore it not much the judiciary can do. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [August 16, 2010, 8:02pm UTC](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182/100 "2010-08-16T20:02:20Z")
> [@jtgain](#): > > That being said, Brown and Bolling were two of the most contrived decisions that the Court has ever reached. They used the 14th amendment as justification for banning segregated schools when the very Congress that passed the 14th amendment provided for segregated schools in Washington, D.C. To use the 5th amendment due process clause is even more contrived. > > … > > It dismays me to see so many people gleefully rooting for SCOTUS to provide that the 14th amendment mandates that all states must provide for SSM. This expansive view of rights and the constitution can just as easily be turned on its head. > > If you no longer look at the text of the constitution and the original meaning behind the words, you open a blank slate for any future court to restrict your rights to nil based on some fuzzy “evolving standards” doctrine. Ok, so far they seem to be granting more rights. Great, but the power to do good is also the power to do evil. If I were black and living in the US around 1950, I would certainly take issue with what you term to be a “fuzzy” standard. Like it or not, “The People” have always been easily manipulated by fear and the unknown. Get enough stupid people together and you can make them believe anything. How long was I supposed to wait for my rights in 1950? It was over 150 years after Jefferson wrote “…all men are created equal” and about a hundred years after we fought a war to ensure I couldn’t be bought and sold like an object. The courts have always seem to be a little bit ahead of people in these types of cases. That’s because these “elites” as you call them eventually get around their cognitive dissonance and realize that a lot of the laws restricting rights are just bullshit. And they have, by the power of their position, the ability to do something about it in one fell swoop rather than gather petition and trying to convince millions of voters to do it during an election year, and the subsequently trying to convince millions of other voters later on not to reverse the first vote It’s a slow ass process and if I grew up not being able to enjoy the same schools as my white neighbors, or sitting where I want to on the bus, or being able to eat lunch at a restaurant, I would say fuck the “correct” way to do something. There’s the “legal” way and then there’s the “moral” way, and if the moral way is faster, then I don’t care how many laws it manages to break or muddle in the process, I want my rights NOW! Given the courts’ and society’s history in granting rights, I will settle for the evolving standards argument. I don’t care if the same Congress that freed the slaves also said it was still ok to segregate them. You’ll note that only a few lone nuts are the only ones who give a damn. There is absolutely 0% chance that we’re all going to have a judicial epiphany and reverse a long-standing and moral ruling from over a hundred years ago simply because there was something iffy about the reasoning. That’s why I’m happy if the SCOTUS uses Loving or any case to make the argument that yes, marriage is a fundamental right and gays can’t be denied it. Fuck waiting, gays deserve rights now. In 20 years, no one will care at all how it was done and there will be too much momentum to change things [Previous page](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182.md?page=4) [Next page](https://boards.straightdope.com/t/how-would-scotus-rule-on-californias-prop-8-with-what-consequences/550182.md?page=6)