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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsSCOTUS questions standing of Prop. 8 case
What the SCOTUS members were laying down today, in oral argument, was an interesting legal question having nothing to do with marriage equality.
A state passes a law and a court says, "That law is unconstitutional." The state executive at the time of the decision (Jerry Brown, in this instance) then says, "Okay, I guess that's what it is" and declines to appeal the decision.
So a group of citizens in favor of the law mounts a legal defense of the law in a higher court. But what is their standing? If a State will not defend its own law or own Constitution, does that mean any self-appointed party can take over the State's prerogative?
(This is not quite as simple as it sounds. Standing is a big part of a lot of higher court business. If the people of Wisconsin voted for a Union rights provision that a lower court struck down, and then Scott Walker declined to mount an appeal of that decision it would raise questions. When the Obama admin. declined to pursue a case I think some congresspersons took it over, which makes some senseit seems like institutionally Congress should be able to defend a law it passed even if the President doesn't care to. But with a ballot measure the thing is passed by the people. Who are the people? How does one gain standing as the people if the government will not do so?)
So the potentially decisive topic today was, do the concerned citizens defending Prop. 8 have standing before the court at all?
A lot of the justices seemed to think not.
I suppose there might be people out there with a personal interest in whether gays and lesbians should have the right to marry, said Roberts.
On a question of such fundamental importance why should it not be left to the people? asked Alito, who also questioned whether the judiciary ought to be able to decide whether or not to legalize same-sex marriage, which is newer than cellphones or the internet.
The whole process would be defeated, he said, if individuals without a proprietary interest in a case who were not appointed by the state were to defend a states law.
Justice Stephen Breyer said the group defending Prop 8 was no more than a group of five people who feel really strongly that they should vindicate the public interest.
http://tpmdc.talkingpointsmemo.com/2013/03/supreme-court-prop-8-arguments.php?ref=fpa
Gregorian
(23,867 posts)It seems kind of too bad that it isn't just about the subject of the case. Weird. I never knew.
zipplewrath
(16,646 posts)If it wasn't for the fact that DOMA got caught up in this some how, I wonder if this would be before the court at all. I suspect we may see a very strange decision in which they reject standing in the Prop 8 case, and they assert that the feds can't discriminate against married couples that were married by a state. This will leave the question of whether states can deny people the right to marry open for a future case.