I suspect if you did a poll of NYT (or whatever) readers less than half would know. I do a lot of writing about a legal test that also involves the term “basis” and I try to avoid pluralizing it when I can so I don’t get confused emails from clients.
The ruling squarely deals with many of the issues raised in this thread, prior to which I had not been aware of the question of heightened level of scrutiny versus a rational basis analysis, and that was one thing which caught my eye.
From the ruling:
It will be really interesting to see how the Utah appeal goes.
I think that 9th Circuit decision has the potential to play a huge role in this issue. But I have to quibble somewhat with that article. Her statement doesn’t really suggest that she did an “about-face.” When you tailor a brief towards one legal standard, and then the legal standard changes, a good number of your argument may not be tenable any longer.
Agreed with the quibble and also the assessment that this could be big.
Nevada’s AG hasn’t actually made a decision, only that she is reevaluating the situation. From the AG website,
“Next week” is coming to an end.
Nevada had gotten an extension for 30 days after Dec. 20 for filing it’s brief, and it appears that they had filed it just at the end.
It will be interesting to see how this goes.
One problem that the AG faces is (skimming the district court opinion) the lower court applied rational basis. Both because the Supreme Court purports to apply rational basis and because the 9th Circuit previously explicitly held that homosexuals do not get heightened scrutiny, more than once (interesting problem of panel accord here). Assuming that this recent panel has, in fact, overturned the previous case law and heighten scrutiny not applies, I would think that the case needs to go back to the district court to be reconsidered in light of the new law.
She may also be holding out to see if they file for rehearing en banc.
But then wouldn’t you just rewrite it, and file an amended brief?
If she has decided not to continue the appeal, it seems likely that she has concluded that she is likely to lose, based on this recent decision.
I’m not a law-talkin’ person, but wouldn’t it require just a BIT more work than simply rewriting it? If the legal basis for your defense has just been eroded away like sand on a beach, I imagine that puts all of your research on similar case law and precedents in the wastebin and means restarting your research from scratch.
Well, maybe (although you would need the court’s permission). But the more basic problem is that this is on appeal. The lower court record, its decision, the filings in the lower court, all of that was based on a legal standard that may have changed. Unless someone invokes the “panels don’t overrule panels” rule, I think she probably has to lose on appeal, not because their marriages laws are unconstitutional, but becuase the district court analyzed the case “incorrectly.”
I assume the 9th Circuit has some sort of equivalent of the “GVR” process in the Supreme Court and it seems like this might call for it.
So for now, this ruling affects only cases in the Ninth District, but that courts in other districts can refer to this.
IIRC, the briefs for the Utah and Oklahoma appeals to the Tenth District Court of Appeals are due by the end of February or there abouts.
How does this affect them? Can the Plaintiff - Appellee (?) (the couples) refer to this in their briefs? Do the States have to counter this in case the Tenth District COA decides to make the same leap?
There are also several dozen cases in the lower courts in various stages throughout the country. Are they able to file amended briefs?
I can see why the adage about lawyers shouldn’t represent themselves in court. I have too much vested interest in the particular case, a gay sister living in Utah, to be coolly detached. I want SSM to succeed.
I got into a fight with my very Mormon mother about this. Normally we stay away from these discussions because we have agreed to disagree but she did something particularly egregious. My sister has legally changed her name to be the same as her partner. This was done because they couldn’t get married. In my mother’s will, my mother referred to my sister by her birth name and then parenthetically aka new name: Jane Doe (aka Jane Smith).
I told my mother that she was completely wrong, and told her that I would donate my share of the inheritance to the American Nazi Party if that wasn’t changed. Nasty and extreme, but I would not allow her to posthumously slap my sister’s face.
So at least 11% of Pennsylvanians oppose same-sex marriage but also want (all other) discrimination against gay people prohibited by law? 
First, they’re Circuits not Districts, this isn’t the Hunger Games 
Anyone can cite to the decision. However, outside of the 9th Circuit, the opinion is merely “persuasive” and not “binding” which means a court can take it for what it’s worth to them.
One issue is that, apparently, the 9th Circuit has previously held that homosexuality was subject to rational basis review. I would imagine (but have not looked) that other circuits have done the same thing. As a rule, one panel of the court cannot overrule another panel of the court. Reinhardt got around that here by concluding that Windsor applied heightened scrutiny and that it also instructed that heightened scrutiny be applied to all claims of discrimination on the basis of sexual orientation. And a panel can certainly overrule another based on intervening Supreme Court directive. It seems to me that, given that you now have two inconsistent binding rules, it needs to be reheard en banc to address it.
However persuasive you find Reinhardt’s reading of Windsor (I don’t find it persuasive at all), you have a basic problem. That is, you’d need to convince the other courts not only that homosexuals get heightened scrutiny (which is a plausible argument), but that you can overrule the existing law based on a particular reading of Windsor (that requires it to hold something that it does not say). Frankly, I would welcome that result because, while I tend not to believe in a constitutional right to government recognition of your personal relationships, a bigger problem is the damage that these cases are doing to the very principle of rational basis review.
Probably. It’s not that uncommon a view - some people have a thing about the word “marriage”.
“Of *course *the Negroes deserve equal rights, but we’re just not ready yet.”
Warning: Anecdote
About 8 years ago I was on the search committee for a new rector for my (Episcopal) church.
We interviewed a very strong candidate, a woman in a long-term relationship with another woman, who believed for reasons that I did not entirely understand that what she and her partner had was not and should not be “marriage,” but something else.
She was extremely liberal in other ways, and outspoken as well; and she was quite open about her relationship with her partner, which had been blessed (literally and figuratively) by her bishop, and made it clear that she would not be interested in our church if we had any reservations about her quote-unquote lifestyle. But she said, several times, she didn’t think of their relationship as marriage.
I don’t know whether she has changed her mind in the meantime. Regardless, she was an example of someone who would not have been in favor of SSM but would have been in favor of any other non-discrimination law.
(Disclaimer: neither she, nor we, were in Pennsylvania)
From here:
Without Nevada defending the SSM ban, what will happen? Unlike the case in Utah and Oklahoma, Nevada had won at the district court level.
Without the state defending itself, a layperson would presume that the appeal would almost certainly succeed, but what to the experts say?
I would cordially like to welcome Texas to the club.
Texas!
It’s not strictly necessary for the state to defend the law on appeal. The appellate court could rule on the basis of the argument reflected in the trial record if it likes - and could very easily rule in the state’s favor, since the appellants have the burden of showing that the trial court made a mistake.
Ha-Ha!
I’m listening for the sounds of exploding heads all over the state.
This gets appealed to the 5th Circuit, right? IIRC, that’s one of the most conservative appeals courts. What are the chances they will uphold the decision?
Can’t tell until we see who’s on the panel, but then we’ll have a pretty good idea.
It sort of doesn’t matter anyway, since the Supremes will have to take it up again. All the district courts are taking an expansive view of what Windsor means, so they will (or more accurately, Kennedy will) have to either confirm that view or say that it shouldn’t be taken so broadly and the states can do what the federal government can’t.