You and the **Captain **leave only a narrow, technical, counterprincipled case for maintaining an SSM ban. To repeat the question, if an SSM ban violates federal EP and DP protections, as is now the case, how can you say a state can do it anyway? Both amendments are incorporated, remember.
Depending on the composition of the court to predict a ruling against its own self is also, um, quite a puzzling assertion.
This is the heart of the problem. You think the AG is just a lawyer for the state. He is more than that. He takes an oath to uphold the Constitution as part of his duties. He is REQUIRED, therefore, to not enforce laws that violate it.
If the state needed a lawyer to represent it without independent constitutional duties, they could just hire one when they need one.
A better, but not perfect, analogy would be a prosecutor being bound to disclose all evidence to the defense, even if it could exonerate the accused.
Who defended the state in the first place?
Perhaps nobody. So what? If there is no aggrieved party being harmed, perhaps that should be the end of it.
A constitutional officer’s decisions can usually be appealed too, through the courts.
You can’t hang your hat on “appeal,” because that’s purely a process issue. Court cases can be appealed, but only for a while. Ultimately, a court rules, and the ruling is final. The idea that self-governance exists simply because there’s an appeal process is illogical. A law overturned is a law overturned.
That said, you might find a hypothetical where an AG and governor have final say, but this isn’t that. This is a court case. It can be appealed. Both sides have lawyers representing them.
And, of course, electing an AG and governor are part of self-government too, as was ratifying the U.S. Constitution an agreeing to be bound by it. The people may not violate the U.S. Constitution by passing state constitutional amendments. That is part of self-governance. It is not always a court that has the last word on what that means.
Ultimately, the General Assembly can and maybe should pass a law giving it, or some other party, standing in cases like this.
Also, to add. If the Supremes had wanted to, they could have said that prop 8 was unconstitutional on federal equal protection rather than punting on standing grounds. The fact they didn’t suggests that the gay marriage ban is unconstitutional side isn’t confident they’ll prevail
There is a work-around that is perhaps dissatisfying to all.
SCOTUS rules much as Captain Amazing theorizes above. Each state gets to decide whether to issue marriage licenses for SSM. The federal government must recognize all marriages legally made in any state.
And in a later challenge the court rules that a state which prohibits SSM must nevertheless recognizes a SSM legally performed in another state. That would be a Full Faith and Credit clause argument.
I don’t see how that follows.
My understanding is that the Supremes often define the scope of a case in the narrowest terms possible, the exceptions being if they’re in one of their “activist mode” phases (or if they’re in their more common “corporate whore” mode). They may have felt that the case in front of them wasn’t strong enough for a “punt” - that may come when the Utah case gets to them (assuming it does).
No question that the amendments are incorporated, but you need to go further than that. It’s too facile to say that “anti-SSM laws” are violations; it just skips the analysis. The rationale of DOMA goes something like: marriage is a traditional (and important) state matter. The federal government usually defers to state law on questions of marriage. NY has allowed same-sex marriage. DOMA carves out a subset of these state-sanctioned marriages and treats them as inferior for illegitimate reasons (i.e., those who voted for DOMA were entirely motivated by animus).
The Court falls all over itself to stress that the issue here is a mistreatment of a class of persons legally married under state law. The federal law injures those who the state seeks to benefit in an area of state concern.
Maybe that leads to: “and, by the way, the state is required to sanction these relationships.” But, at least, that is one step further and it would be entirely consistent with Windsor not to take it.
It’s fairly clear (to me) from their Windsor dissents that Alito, Thomas, Scalia, and Roberts are not inclined require that states recognize same-sex marriage. You want the Court to take what (for you) is the next logical step from Windsor, all I’m saying is that there’s always the chance that the one vote you need isn’t going to cross that line.
I think so. Scalia is prone to the parade of horribles in his dissents (O’Connor did it too, sometimes). I don’t think they’re terribly helpful, but the purpose of them is to take what the majority says it did do, list a whole bunch of things that the majority says it didn’t do, and then say that the logic for the one compels the other. They’re not effective at all if the things in the list are things that the majority intends. Which is why citing the list as evidence of the holding (while it has a certain political appeal) is uncompelling.
Use a less politically charged example. (I’m doing this from memory, but I think I have this right). Some time ago, the Court held that it was constitutionally permissible for juries to have less than 12 jurors in federal civil cases. Thurgood Marshall dissented saying that by that logic you could have a jury of one. Maybe true, maybe not. But no one would claim that that dissent “proves” that the Court held that a jury of one is okay.
Well, becuase I disagree that the intent was clear, I suppos
I can’t speak for CA, but I have no interest in maintaining an SSM ban. If it were up to me, it would be legal everywhere tomorrow. But it’s not up to me, and the point here is that SCOTUS did not say withholding marriage from same-sex couples was an equal protection or due process violation. It said it was a violation for the federal government to withhold marriage benefits when a state had sanctioned a marriage.
Incidentally, it’s not correct to say that the Fourteenth Amendment is “incorporated” against the states. The 14th is the mechanism by which selective incorporation occurs; that is, it is the 14th which incorporates certain portions of the Bill of Rights against the states. It doesn’t have to be “incorporated” itself because it applies to the states by its own terms.
Then I imagine Herring’s recall will be swift and nigh unanimous.
Of course, Virginia doesn’t have recall elections. So there’s that.
Well, there’s this procedure I alluded to earlier. The recall petition would require 10% of the votes cast for AG, which doesn’t seem too difficult.
You’re better than that, I assume.
If the state of Virginia thinks he’s not doing his job, the process for removing him is simple enough.
The problem is that it then requires convincing a judge that his neglect of duty affected “the conduct of the office.” Which is fine, this is a good case for it, but it’s almost unheard of. Certainly, the argument that if the citizenry really wanted the laws defended they would have elected someone who would, so we can assume that they don’t really want it, would have no purchase there.
Edit: But I would think that “past practice” would be sufficient to prevent a judge from taking that step. Whatever the merits.
Heck, they couldn’t even use the removal procedure to get rid of a county supervisor for raping a bunch of women.
Maybe I’m not better. What’s the procedure?
I’ve long believed that the Court should use intermediate scrutiny for sexual orientation, and that a gay marriage ban violates that. I think the court is coming around to that pov, but isn’t there yet.
Maybe the removal procedure needs fixing, then. I think the underlying point is merely that this blatant thwarting of the the Will of the People (per Bricker) should at least be sufficient to get the electorate to sign the recall petition. And if it isn’t, maybe the people don’t actually give a shit.
Only if the reasoning were “You have to be married by a state first before you can be subjected to disparate treatment, but if you aren’t married first, then it’s just too bad your state doesn’t allow it, ain’t it?” That would be pretty silly, and, to repeat, against the principle they’ve already ruled in favor of.
They lost, remember?
If you’re concluding that Virginia should continue spending resources on a case on the outside chance that a justice might change his/her mind, then please say so. Also please say which member of the majority you would expect that to be. There’s no point in mentioning that the dissenters would probably still dissent; it’s a truism that Scalia & Co. oppose pretty much everything that’s happened since the Buchanan Administration.
So do you want to recall judges for overturning laws as unconstitutional too?
What’s the difference?
Huh? I don’t want to recall anyone. I’m saying that the (probable) failure of any recall petition should be indicative of the will of the people to have the AG do his job as he sees fit.
Virginia has no real recall provisions for state officers. So by what mechanism do you imagine that recall happening, exactly?
ETA: someone above offered up § 24.2-233, but that section vests the action in a circuit court – of which there are as many as there are counties in Virginia. There is no precedent in caselaw, but it’s virtually certain that a circuit court, with jurisdiction over only one county, could not adjudicate a recall petition involving the governor.
… other than the petition procedure under discussion.
Unfortunately, that would be true. But many people don’t understand that the AG is doing his job.