elsewhere/grim amusements: prop. 8 struck down

[iainpj]

In which I confess to being seriously out of step with just about everyone I know. Again. So what else is new?

grim amusements / prop 8 struck down / August 4, 2010

...In all seriousness, that's all the enthusiasm I can muster for this. It's ... nice. But at the moment, it's only slightly more than symbolic. The judge has already stayed his order; if he decides to allow the stay to remain in place until the Ninth Circuit Court of Appeals rules on his decision, then nobody gets married. If he doesn't allow the stay to remain in place -- and the case that people are harmed by not being allowed to marry is at least nominally stronger than the case that they aren't, given the grounds of the decision -- then the stay, or lack thereof, itself will get express appealed through the Ninth and possibly/probably up to the Supreme Court, which is, one suspects, rather more likely to prefer a stay then otherwise, since it will give the process time to work itself out with no change in the status quo....

[...] The thing about Perry is that if this decision stands, logically, it takes all sorts of laws outside California down with it. (To be sure, people will need to launch court cases to get things started, but that will happen.) For example, one logical consequence ought to be to enforce the Full Faith and Credit clause specifically regarding marriage....

Comments

[profrobert.livejournal.com]

FWIW, the way it usually works is the district court stays its order for a short period of time to allow the circuit to determine whether it will enter its own stay. I suspect it's likely the Ninth Circuit will extend the stay pending appeal; if it doesn't that's a huge signal where it is going.

As I said in response to Columbina's comment, when did you first ever imagine you'd see a federal judge say there was a 14th Amendment right to same-sex marriage? This is huge.

[iainpj.livejournal.com]

Well, I had a very long comment which LJ apparently ate -- seriously, I posted, it said it was confirmed, and then it just disappeared into the ether -- which I'm not going to repeat. Basically, it boiled down to:

1) Yes, it's huge. Sort of.

2) Given that it's been stayed until the Ninth decides, it doesn't matter ... yet. (And the Ninth would be insane to remove the stay, because if the decision does get reversed, either by their panel/full court or by the Supreme Court, all the marriages conducted during the interim really do just go poof, which would be terribly unfair. The harm of marriages being suddenly ruled invalid would be considerably greater than the harm of marriages not conducted, I would think.)

3) The Court is reactionary (as in "meant to react", not conservative -- although they're that, too, these days) by design. They didn't act on education until most of the states outside the South had gotten rid of their segregation laws (and many hadn't had them in the first place); they didn't act on interracial marriage until most of the states, including a few in the South, had gotten rid of those laws (and again, many hadn't had those laws in the first place); they didn't act on sodomy laws until most of the states had gotten rid of those laws on their own and were mostly not enforcing the laws that were on the books anyway. Conversely, the majority of states currently have laws on the books saying, "Same sex marriage is icky! We don't like you people! We're better than you, and you can't have this! Nyeah!" The Court only very rarely chooses to get out ahead of public opinion, and I'm not at all sure that this is an issue where they'll chose to do so.