In what way?
Well the first thing I noticed was turning to page 66 to read the “irreparable harm” section, and a big fat typo jumped out at me, which isn’t a good thing in a federal brief.
Not sure if there are any others, but that’s just freaking sloppy.
Mess probably isn’t a good word. It’s weak, it seems, IANAL, so I could be wrong. But they seem to basically rehash the case, which was unbelievably weak, fail to truly describe the harm that will come without a stay, but I would appreiate a more lawyerly look at it and will defer to the experts.
Wow. I never thought of the possibility that this wouldn’t be appealed. But I can see where the issue of standing could prevent that. Not sure if that’s good or bad. I mean, I think we need the SCOTUS to rule on this, but maybe not right now.
I’m just now reading the Prop 8 folks’ emergency appeal, and I’m only at the beginning, but I find it interesting that they choose to call out Obama as being at the top of the list of Americans who believes “traditional” marriage serves a purpose.
I wonder if it’s possible for Obama to actually be goaded into taking a real stance, here.
Standing jurisprudence is a freaking sham. Much as I would love to see Scalia hoist by his own petard and have to consistently refuse to find standing (as he did with the environmental activists in the case I’ve yet again forgotten the name of), there is sufficient wiggle room that if a Justice (whose consistency if not legal philosophy I used to admire until he sold that down the river for political expediency) wants to find standing, he can.
This appeal is going to be heard.
I just finished scanning the stay request. It sounds like they are relying heavily on the procreation issue (at least up to about page 60, I got bored at that point). What are the odds of that argument carrying this for them?
It’s both. It’s good because same-sex couples in California will keep their right to marry. It’s bad because it will only apply to California and does not create legal precedent since it’s only a District Court ruling. I’d say it’s more good than bad.
IANAL, but given that straight couples who can’t have children can marry I don’t see how it holds water.
They seemed to be leaning on that statement primarily to discredit Judge Walker’s argument that there is essentially no different between a opposite-sex and same-sex couple. They are saying that he completely ignored the obvious biological difference, and therefore, his statement is invalid.
Of course, Judge Walker didn’t ignore it, he simply said that the gender differences had no current relevence when it came to the benefits of marriage as a state matter.
Right. He said that it was based on antiquated attitudes.
The Prop 8 folks respond by saying that the old ways are still valid, and they cite to dictionaries from as far back as the 1700s to show just how strongly rooted the definition of marriage as being between a man and a woman is. Only very recently, they say, has ANYONE been crazy enough to define it any differently, so clearly, that has no validity.
Of course, there is no discussion of the idea that maybe people are starting to actually wake up in this country…
But wouldn’t that just beg for appeals to come up from every other state on similar grounds? Or is part of what made the Prop-8 case good fodder for SCOTUS the fact that it’s being so pathetically defended?
The response that comes immediately to my mind is that there’s at least as deeply rooted and old tradition that wives are essentially the property of their husbands. “It’s traditional” isn’t regarded as a valid argument for enforcing that, so it shouldn’t be for SSM either.
A shame that no thread on this board has undertaken to explain how rational basis analysis works.
Under rational basis analysis, it’s not important if the scrutinized law doesn’t completely meet its objective.
Under strict scrutiny, in contrast, the law must be narrowly tailored to meet its objective, so this kind of objection is relevant.
“This kind” of objection is always “relevant”, even if a particular court tries to pretend it isn’t in order to justify its own bigotry. And yes, pretending that such a narrowly targeted law is part of some grand scheme to forbid couples from marrying who can’t procreate - a legal “rule” not seen anywhere else - is nothing but bigotry.
If your “rational basis analysis” can’t handle something that nakedly bigoted, then it is worthless at best and should be abandoned as worthless or at least named something more honest. Like “catering to bigots analysis”; because that’s what you are describing, bending over backwards to see things the bigots’ way.
Oh; and before you give me the “you just don’t understand the law” speech, I understand just fine. I just don’t believe. If someone lets such naked bigotry pass, I don’t believe whatever legal rationale they are trying to use is their actual motivation; I think they are bigots. Just as I don’t believe that “ceremonial deism” is anything other than an attempt to let religion cross the line of separation between church and state while pretending otherwise; just as I don’t believe that the Supreme Court had any reason besides political partisanship to hand Bush the White House.
In the country of Examplestan, the courts have a method of evaluating laws. The reviewing court counts the number of letters in the official version of the law, and reduces that number to a two-digit number by repeated modular division by seventeen.
That two-digit number is then compared to the closing price on the Dow Jones average on the day following the law’s adoption. If the law’s number is higher than the last two digits of the DJA, the law passes scrutiny; if not, the law is overturned.
Now, it’s one thing to say that the method of review described above is foolish, stupid, or useless. Few would disagree with you.
It’s quite another to pretend that the method simply doesn’t exist, or to describe it differently than it actually is.
Now back to the real world: rational basis review exists. It has steps to be followed. You may say that the method is foolish, stupid, or useless. You may not pretend it doesn’t exist, or that it’s different than it actually is.
OK, this is, at least, a well-founded attack. Rational basis analysis does exist, and it does in fact cater to bigots.
In some areas, it is not permitted to, since racial bigots are frustrated by the fact that racial classifications are not analyzed with rational basis, but with strict scrutiny. Sexist bigots are also frustrated, because gender-based discrimination is not analyzed by rational basis.
But homophobic bigots have thus far not been frustrated, because thus far sexual orientation classifications HAVE been analyzed by rational basis. So when you say things like, “…given that straight couples who can’t have children can marry I don’t see how it holds water,” you’re articulating a test that isn’t part of rational basis analysis.
You may argue that rational basis is misnamed, or shouldn’t be used for sexual orientation classification, or should be erased from existence… but please stop forgetting its very existence before that erasure has happened.
It’s not useless. It’s just that you’re using it for something that it’s not supposed to be used for. You use rational basis when you’ve already decided it’s ok to discriminate against a group, basically. The whole point of rational basis review is so that the legislature can pass laws without constant legal challenge.
Basically, if you think it’s ok to discriminate against gays, use rational basis. If you don’t, don’t.
I understand that completely. My question was more asking for opinions on whether or not the procreation question may or may not be seen as a valid argument by the 9th circuit.
The standard of review is obviously still up in the air, since it appears that SCOTUS has normally used rational basis, the CA supreme court said sexual orientation is a suspect class and subject to strict, Walker believes it should be subject to strict, etc. (I recall that you believe it should be intermediate, I disagree but do understand your rationale.)