Another Day, Two More Commentaries

The Los Angeles Times had a couple more opinion pieces on the - surprise - marriage neutering advocacy side of the Perrywalker fallout (Proposition 8 trial).

Michael Klarman, professor at Harvard Law School, has this one, asking if public opinion on marriage neutering is "ahead" of SCOTUS.

Today, 45 states do not [license] same-sex marriage. It would be unusual for the Supreme Court to turn a norm embraced by only five states into a constitutional command for the nation — unusual but not unprecedented: Roe vs. Wade in 1973 invalidated the restrictive abortion laws of 46 states.

And created a culture war that lasts to this day.

He then cites fauxmentum, which is interesting after citing Roe, because most Americans now support far more restrictions on abortion than currently allowed.

Next, he tries to get Justice Kennedy to believe he'd be on the right side of history if he voted in favor of a federal activist judicial imposition of marriage neutering on all states... on the basis that men and women aren't different from each other, no less.

What better way is there to win the plaudits of future generations of Americans than to author the Supreme Court opinion eradicating one of the last formal barriers to equal citizenship for gays and lesbians?

This is a lie that is repeated over and over again. As much as some people hate to hear it, homosexual people have legal equality with heterosexual people whether there is a bride+groom requirement in state marriage licensing or not. Not wanting to use that equal access does not mean it isn't there.

[Much more after the jump.]

"gmanvv" at 11:28 AM August 14, 2010:

BOTOM LINE, it is illegal to deny any citizen of the United States ANY, civil right or FREEDOM that is freely enjoyed by any other faction IN this country.

The "right" to get a state marriage license with someone of the same sex is a newly "discovered" right that never existed in the USA or anywhere else in the world until very recently. That is in contrast to rights that have been recognized to exist since the founding of our union or thousands of years before. The right to vote, for example, was always a right - but it was denied to some people. That has been corrected. The right to be free instead of a slave, for another example, is something that has been talked about for thousands of years. The right to get a marriage license with someone of the same sex is a NEW "right" - one that nobody had until recently, regardless of sexual orientation. Somehow, this "right" escaped all of the great moral thinkers in history until very recently.

In the second piece, Erwin Chemerinsky, dean of the UC Irvine School of Law, tries to make it easier for the Ninth Circuit to decline hearing an appeal, or at least decline to issue a stay.

Article III of the U.S. Constitution restricts federal courts to deciding "cases" and "controversies." The Supreme Court long has held that in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing.

And, what, pray tell, was an actual injury suffered by same-sex couples in the Perry case? That their Aunt Edna doesn't know what a domestic partnership is doesn't count.

That means the appeal will be brought by "intervenors" — supporters of Proposition 8 who entered the lawsuit in the federal District Court to defend it.

But because they are not in any way enjoined or covered by the injunction, they are not the proper party to seek a stay of it. Nor do they have standing to appeal Walker's ruling.

I fail to see how they could have been invited in to the federal case and allowed to stay through and after the ruling, and not allowed to continue it through to appeal. If that is permissible, then our justice system needs a new name. But it seems doubtful to me that a federal court (Walker) had jurisdiction in the first place.

The result of all this is likely to be that gays and lesbians will be able to marry beginning Wednesday, when Walker's temporary stay expires. There then will be consideration of the case, over the next couple of years, by the 9th Circuit and ultimately by the Supreme Court.

So... the parties that don't have standing right now will suddenly have standing later? What am I missing? Perhaps I'm not bright enough to follow the gymnastics here.

It is very interesting that people who want marriage licensing to be neutered nationwide are suddenly arguing for the higher courts not to take this case, even though taking the case could lead to nationwide marriage neutering. To me, that signals they suspect SCOTUS will overturn Walker. [UPDATE: See this comment by R.K.]

"jstanford" at 5:15 AM August 15, 2010:

I have grave doubts as to the authority of 7 million Californians to tell another group that they should not have the same rights. They have no right to tell a minority (or anyone for that matter) that two consenting adults can't marry, an act which harms nobody at all.

All laws tell people they can't do some thing.

"Brianb2970" at 8:34 AM August 15, 2010:

Second, by refusing to defend the case, both Brown and Schwartzenegger are in violation of their oaths to "defend" the state's constitution. Until and unless Prop 8 is ruled invalid by a proper authority, it still stands as a constitutional amendment, and thus part of the state constitution. They don't get to "choose" to defend only those parts of the state constution that they like.

Agreed. Shame on Schwarzenegger and Brown.