No, this is isn’t about standing as plaintiffs. This is about standing to defend an existing law. No modification to standing precedents is needed.
In the Perry case, the Ninth Circuit sent a certified question to the California Supreme Court asking whether the official ballot initiave proponent had standing to appeal when the government did not defend the initiave. In Perry v. Brown, 52 Cal.4th 1116 (2011) the Calfornia Supreme Court found that “in the past official proponents of initiative measures in California have uniformly been permitted to participate as parties—either as interveners or as real parties in interest—in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored,” and thus the proponents of Proposition 8 had standing.
Because the California Supreme Court specifically found that the Proposition 8 proponents had standing to defend the law in state courts as a matter of state law, I think it is unlikely that the U.S. Supreme Court will find that as a matter of federal law, the proponents do not have standing to defend the law in federal courts. I’m not a scholar of arcane points of standing law, but I can see why the U.S. Supreme Court would want to avoid going there.
If the court is fractured with some justices thinking that the Ninth Circuit should be affirmed, others thinking it should be reversed on the merits and others (even Justice Kennedy alone) thinking that there is no standing, with no side able to get a majority, I think that there is good chance that the court will simply dismiss in that Certiorari was “improvidently granted,” leaving matters where they stand after the Ninth Circuit decision. That would be a clear punt by the court, which would get the issue again in a few years (which it will in almost any event, unless it declares SSM constitutionally required). Whether there would be written dissents from the dismissal, I don’t know, but I think Roberts will try to do what he can to avoid them, leaving it just a judicial black hole until the next case.
Plus its irrelevant. Adoption by gay couples is legal in CA, and will remain so whatever the Court decides regarding Prop 8. Even if one accepts Scalia’s premise that gay adoption is harmful, its not an example of concrete harm that would be caused by getting rid of Prop 8.
And even outside of CA, its hardly true that making “marriage to include same-sex couples, you must – you must permit adoption by same-sex couples”.
That’s totally understandable.
But it also hearkens back to your first paragraph: what can you say to a future court that rules a fetus has an “Equal Protection right to life” in the future? If you accept the power of the court to craft its own idea of wise social policy, how can you then complain if they use that power again in a way you don’t like? Indeed, Scalia is being excoriated right now for his comment that hints he wants to impose HIS view of what’s wise and just.
Right, but the law as it currently exists is only thus because society’s idea of homosexuality was “ewww”. It may not make sense for SCOTUS to rule on the basis of opinion polls, but it makes perfect sense for it to acknowledge an earlier fuckup that is most easily evidenced by public opinion.
I particularly enjoyed Scalia’s demand for exact dates, “Well, what was that year? Huh? Well? Huh? Was it 1787 or 1826? Huh? Well? Was it a Tuesday? WAS IT 3:15 PM??? WELL? :mad:???” (…but I may be paraphrasing…)
Interpreting the California Constitution in a way that is consistent with the intentions of those writing it is absolutely a matter for the US Supreme Court.
I don’t see why that’s relevant. There is one in the CA Constitution, and the Supreme Court ought to consider that in light of challenges against initiatives.
They also have a method of going around their recalcitrant officials without recalling them. If the people of California wanted to be restricted to the recall process for getting their government to do what they want, then they wouldn’t have put the initiative process into their constitution in the first place.
I fail to see how a scientific finding acts as an amendment to the Constitution. If the 14th amendment didn’t contemplate gay marriage in 1866 or 1960 or 1990, it doesn’t now. If science finds a new thing, then there is an amendment process in Article V of the Constitution to enact the new finding. I have a problem with 5 people changing fundamental law on the basis that “everyone just knows.” If everyone knew, they would be electing representatives who would support this obvious fact.
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How do you limit that principle? What stops a five member majority from saying that the we now understand society’s idea about unborn children was wrong, and they are entitled to due process protections which include not being subject to state-sanctioned abortion?
Brown. Science told us that separate but equal, although it sounded kosher in theory, did not work in practice.
But they DID timely and properly assert their claims, and the California Supreme Court permitted them to substitute in.
But it was based on the practice that the Court overturned Plessy. They said, in effect, separate but equal was complaint with the Constitution – but it’s not being actually implemented. Instead, claims of separate but equal were being used to cover decidely UNequal arrangements.
The point is that science changes the facts that the law is applied to, not that it changes the law. Death by lethal injection is currently constitutional. If scientific research found using brainscans or whatever that people executed that way spent their final moments in terrible agony, its likely that it would be found unconstitutionally “cruel and unusual”. The law would be the same, but the facts would be different.
The scientific understanding in 1950 was that homosexuality was harmful, and so there was a rational reason for discouraging it. That isn’t true today, and so there’s a good argument that anti-homosexuality laws don’t have a rational basis.
California voters have proven pretty conclusively that they’re collectively too stupid to wield that ability responsibly. Best that it be subverted whenever possible.
Well, I can certainly still complain that it’s the wrong decision. It’d be a bit hypocritical to complain that it’s too activist a decision.
In this thread, at least, I think Scalia is getting grief less for any sort of activism than for the fact that he thinks gay couples aren’t fit to be parents. Or, rather, he “takes no position” on whether gay parents are harmful to children, while floating the fact that they might be as a justification for preventing same-sex marriage, and ignoring the research that says they’re not.
The Court may well declare Section 5 of the Voting Rights Act unconstitutional.
This is a perfect example of what I’m talking about. To my way of thinking, the Constitution is perfectly clear: Congress shall have the power to enforce voting rights through appropriate legislation. Congress has done so. That should end the inquiry.
Instead, the Court apparently feels free to ask what Congress SHOULD have done, and how Congress SHOULD weigh the facts, and is evidently contemplating stepping in to override Congress’ judgement with their own.
Now, as an end result, I would personally be in favor of this one. I feel Congress should do away with the Voting Rights Act. As a legislator, I’d vote to repeal it; certainly I’d vote against renewing it.
But as a judge, I’d have no choice but to uphold it.
This is the other side of the happy dance that comes when the Court feels free to act as a super-smart UberLegislature.
As a Californian I am wondering, does a referendum require any constitutionality test before it is placed on the ballot? If so, then I would think that the AG should be required to defend the law, if not, however, I am not sure how you can argue that the State is required to defend something that they may in fact determine after the fact that it is, in their legal opinion, unconstitutional.
Care to explain why? (In the Voting Rights Act thread, I guess, so as not to derail this one)
It did. We just didn’t realize it and act accordingly until very recently.