We got so caught up in the good news that we all missed Ted Cruz’s head exploding.
Yes, it is entertaining to hear people scream “judicial activism!” when a court does nothing.
Tweeted Mike Huckabee:
The top 15 retorts.My favorite:
At 200 years, the traditional gift is plutonium.
Ruling? What ruling?
Check the dates. The Huckabee link was a thing back last year when the court issued the DOMA ruling.
Well, by their denial of certiorari they did seemingly endorse a set of lower court decisions which interpret Windsor, and not only expand that holding but read heavily from Scalia’s dissent in order to clarify what Windsor means. It’s not a holding but it’s definitely a big flashing neon message.
I guess I see the argument for going about it this way, but if they’re going to rule in favor of marriage equality it seems unfair to all the parties who are still having to wait for their rights, as well as the time and effort of the lower courts. If they’re eventually going to rule against equality then . . . well, I don’t even know how that would work now, honestly.
Whoops, my bad.
A decision to do nothing is still a decision.
There were four votes against the DOMA ruling, but fewer than four even to hear this stuff. Some or all of the four either changed their minds or gave up.
Out of idle curiosity, would you be so worried about the one-year residency requirement if West Virginia had gotten a batch of newly-eligible-to-wed people who weren’t gay? Such as would have happened if West Virginia had lifted its ban on first cousins marrying or had lowered its marriage age.
Do you have any idea what the law actually says? The requirement (if the wedding was out of state) is that one of the parties be a bona fide WV resident for a period of 1 year or more. It doesn’t say anything at all about having to be a married couple resident in the state for a full year. You could be a WV resident, get married in DC, then get divorced in WV 3 months later if you want, as long as you’re a bona fide WV resident.
If a couple is legitimately gay married, and one party is a bona fide WV resident of longer than a year, they can file their gay divorce tomorrow and meet the residency requirement.
If they are WV residents and get gay married in WV tomorrow, they can file for gay divorce on Friday if they want, no time requirement for WV based marriages.
Shenanigans? Sure. As long as there are rabid religious right persons in positions of authority, one must expect shenanigans. The better question would be would residency period shenanigans survive.
I submit that the period of residency is a simple matter of fact. With regard to West Virginia:
Note that on a plain reading, there is nothing in the test that is contingent upon how long a marriage has been recognized. Either the marriage is recognized on the date of the making of the petition for divorce or it is not. How long it had not been recognized prior to it being recognized is not relevant to the divorce test.
Let’s look at it from a different perspective. Imagine a man and a woman who have lived all their lives in WV fly to Toronto for a weekend to attend their friends’ wedding, and while they are there, they go for the two-weddings-for-the-price-of-one-plus-a-free-buffet deal and get married themselves. After tying the knot and enjoying a very large buffet, they find that they have irreconcilable differences in the sack (they should not have eaten so much chili at the buffet, resulting in their irreconcilably differentiating on each other during climax), so they fly back to WV the next day, where they then petition for divorce. They had been married for a bit less that a day, so at best their marriage could only be recognized for that period. Could they move forward with the divorce on grounds of irreconcilable differences? Yes, for in WV using those specific grounds, it is period of residency, not period of recognition, that is the test.
Now change that scenario to a similar one, only with a same sex couple. Let’s say some bigot in the WV government intervenes using the tried and failed “Because . . . homo” argument. Summary judgement should take care of it without much ado, unless it is a bad judge, in which case the decision gets tossed on appeal with costs against the intervenor and a complaint is made to the Judicial Investigation Commission. If there is no intervenor and the judge refuses to grant the divorce “just 'cause . . . homo”, then the decision gets tossed on appeal and a complaint is made to the Judicial Investigation Commission. Aside from taking a bit more time and a bit more expense, the primary result would be a public shaming of the intervenor and the judge, along with hour upon hour of rabid religious right spew on Fox and Friends.
On a more practical note, if the goal of the rabid religious right is to prevent marriages of people of the same sex, it wouldn’t make much sense for the RRR to try to force people of the same sex to remain married, so I doubt very much if there would be shenanigans based on residency period.
BTW, for a few years in Canada we had a Canada-USA residency period problem affecting same sex divorces. Same-sex American couples would travel up here to get married when they were prohibited from getting married at home. When they later wanted to get divorced in their home state, they were met with “But y’all ain’t married,” for in most of the states that refused to marry same-sex couples, they also made laws either not recognizing or invalidating same-sex marriages. Same-sex couples facing this state discrimination would then try to get a divorce in Canada, only to run smack into our own version of a one year residency period. The solution was for the Canadian government to amend our legislation to waive the residency requirement for such folks.
Where it will be getting interesting for you in the next few years will be in the monkeywrenching that the RRR can do when the courts are dealing with same sex divorce involving conflict of laws. For example, in the UK, instead of having marriage for all, they have separate but substantially similar regimes for opposite-sex couples (marriage) and same-sex couples (civil partnership). Essentially civil partners in the UK have the same rights and responsibilities as married partners. Now in many western jurisdictions, marriage or divorce may often trigger very important rights and responsibilities that are significantly different from those applicable to non-married couples, so what do you do when a couple in a UK civil partnership resettle in WV? Should they be treated as if they are a married couple, or a non-married couple? If, after a few years, they decide to separate, should they be treated as a married couple or as non-married couple? (In Canada, when it comes to LGBT rights, separate-but-equal is unconstitutional, so the Ontario Court of Appeal has decided to treat UK civil partners as if they were married. I expect that the rest of the country will follow, but time will tell.)
I expect that the RRR will raise it’s ugly head each and every time there are questions of law involving LGBT people. Conflict of laws will offer them quite a bit to chew over in the coming years, as many jurisdictions throughout the world gradually bring LGBT people into various and often conflicting family law regimes.
This is the part I am really curious about. Have the conservatives thrown their hands up and walked away? Reading the reactions of the GOP officials in some states it appears they are willing to acknowledge what they see as inevitable even though they may have religious objections. Wisconsin and Utah are both examples of this. Even the LDS church put out a statement that is fairly “live and let live” in attitude.
Oklahoma on the other hand, not so much. That’s where folks heads are exploding.
Gay marriage is pretty much done as a wedge issue. The immediate future is immigration and voter ID.
Ninth Circuit just ruled. Add Nevada and Idaho to the club, and presumably Alaska, Arizona and Montana soon as well.
That’s what I came in to say. Unless the SC stays the decision or the 9th Circuit Court itself does, then there are now 27 SSM states, eight more than yesterday morning! There could even be more by the end of the week.
As I recall, the Supreme Court ruling that outlawed all state laws against black-white marriages (Loving vs. Virginia) happened when there were 27 states that had already changed their laws to allow this.
No, 33 I think. However, SSM states could soon get to 35. The big question is what will the 6th Circuit Court do? Either they strike down the bans, and there are suddenly 39 SSM states, or there is a circuit split, and the SC really, really is forced to make a ruling in their next term.
Wasn’t that just part of the good news?
had a black guy say “judicial activism” once. Asked him about Brown v. Board of Education, he said that was different.:smack: