Boy, oh boy, what an amazing few days in the Supreme Court. Yesterday, I was completely and utterly devastated by Supreme Court's decision to gut the Voting Rights Act, and yet today, I am overjoyed by the Court's decisions to overturn the Defense of Marriage Act and punt on Prop. 8. So, from my legal perspective, I have a few things to say about the Prop. 8 case and the Voting Rights Act case.
1) How bad was the decision overturning the VRA?
Really, really bad. Whether you like the policy of the decision or not, the VRA decision is awful, legally speaking. Congress passed the Voting Rights Act in 1965, and re-upped the VRA twice, the last time in 2008. In 2008, only 33 legislators (out of a total of 535) voted against the Voting Rights Act. Moreover, the Supreme Court previously held the VRA was constitutional. Further, the VRA was passed by Congress based upon the powers granted to it by the 15th Amendment which specifically authorizes Congress to pass legislation to protect the right to vote.
The Supreme Court, in its decision, determined that the formula Congress used to require States to get pre-approval of voting rights changes from the Justice Department violated the Constitution (specifically the 10th Amendment) because it used disparate treatment of various states. Further, the Court determined that since the VRA prevented racial discrimination in voting, it doesn't need to exist anymore.
There are some very, very big problems with this. First, when reading statutes, courts are supposed to read the newer statute as overruling the older one when they conflict. The 10th Amendment was passed in the 1780's, the 15th Amendment was passed in the 1860's. By rights, the 15th Amendment should always trump the 10th. Also, the 15th Amendment was put in place specifically to protect African Americans living in Southern States. The same states that the VRA required to get preapproval, and which are now attempting to curtail voting rights of minorities.
Worst of all, the Supreme Court's decision is based upon its view that racial discrimination is a thing of the past less than one year from the 2012 elections, which had some of the most blatant attempts to prevent minority voting. The majority decided that its policy decision trumped the policy decision of both Congress and the President (who was George W. Bush, by the way). That's not what the Supreme Court is supposed to do. Oh, and the disparate treatment analysis under the 10th Amendment, which the majority relied upon, has never been argued before. Until this decision, such an analysis did not exist.
2) Is the DOMA Opinion As Bad, Legally Speaking, As the VRA Opinion?
No, but its a good question that I came up with. Lacking all sense of irony, Justice Scalia wrote a scathing dissent on to the opinion overturning DOMA (Defense of Marriage Act). The majority held that under the 5th Amendment, Congress can't pass a law that denies equal treatment under the law. Now, the 5th Amendment doesn't exactly require equal treatment by the Feds (unlike the 14th Amendment which requires the States to guarantee equal treatment), but there have been a fair number of decisions arguing the 5th does grant those rights. As doctrines go, while its not enshrined in the Constitution, exactly, its fairly innocuous because we all pretty much want the Feds to treat people equally.
Additionally, and unlike the VRA case, there isn't a constitutional amendment that specifically allows Congress to define marriage. Heck, before DOMA was passed by Congress in 1996, Federal law didn't define what does and does not constitute a marriage. It left the whole thing to the states. So defining marriage almost certainly violated the 10th Amendment (a lot more than the VRA), in addition to discriminating against same-sex couples without any rational basis. Pretty much the only thing holding up DOMA was animus towards same-sex relationships.
3) What Happened, Exactly, With Prop. 8?
The Supreme Court kicked the case because it held that the supporters of Prop. 8 did not have standing. Now, standing is a hard concept for a lot of people, attorneys included to understand fully. Once you understand standing, you are treated like some kind of guru. Anyway, standing is a concept that typically applies only in Federal Court (with some exceptions, such as California's Unfair Competition Law), and it relates to Article III of the Constitution. Basically, it means that unless you are losing money, property, or freedom, from the bad stuff you are alleging, you can't sue.
Here, the procedural history will help shed a light on what standing means. California passed Prop. 8, and the Plaintiffs sued California in Federal Court because their right to marry was taken away. The State of California "defended" the lawsuit by essentially handing over the case to Prop. 8's supporters. The Plaintiffs had standing because they were losing the right to marry, and the Defendant (California), had standing because the Federal government could force California to recognize same-sex marriages. The Supporters of Prop. 8 then got their asses handed to them at trial. Seriously, google Judge Walker's memorandum of decision, it represents an epic ass-kicking.
Anyway, California decided it had done its duty, and decided not to appeal the District Court's verdict (again EPIC. ASS. KICKING.). So the Supporters of Prop. 8 decided to appeal the decision to the 9th Circuit Court of Appeals. So the question kicked in, do the supporters of Prop. 8 have standing to bring the appeal? Under California law, they totally do, and the 9th Circuit decided to let the appeal go forward, and promptly ruled against the supporters of Prop. 8.
The Supreme Court, meanwhile, looked at California's standing requirements and looked at the standing requirements under Article III, and by a 5-4 decision, determined that Supporters don't have a right to appeal the decision because they are not affected one way or another by same-sex marriage. Yes, they may not like the decision, but no one is being forced into gay marriage.
4) So. . .Is That a Good Thing?
Mostly. For one, the District Court's opinion (which was much stronger than the 9th Circuit's), stands, and Prop. 8 deemed unconstitutional. There is a concern that this ruling could cause problems down the road because the California government may not defend initiatives it doesn't like in Federal Court. Of course, that's why in California, there are specific standing provisions that allow proposition supporters to stand in the place of the State of California in Court.
5) But How Far Does the Prop. 8 Decision Reach?
It only applies to California, and technically, it only applies to the Plaintiffs who actually brought the lawsuit. This lawsuit wasn't brought as a class action, or a representative action, so really, the judgment only applies to the people who brought the lawsuit.
6) So Same-Sex Couples Can't Get Married in California?
Well, that brings up an interesting point. You see, Judge Walker determined that California has no rational basis in limiting marriage to opposite sex couples. While that ruling is technically only related to actual Plaintiffs, the fact that California lost the case has a huge effect. There are legal doctrines called "res judicata" and "collateral estoppel" that apply here. What these doctrines say is that you don't get to relitigate a loss in a lawsuit. You can appeal a decision, and even petition for a Supreme Court to review the decision, but once those appeals are done, you are done.
Since California unquestionably lost the Prop. 8 case for these Plaintiffs, it will now lose every Prop. 8 case brought almost automatically (the Plaintiff would have to write a motion), because it is prevented from arguing that it Prop. 8 is constitutional. So, technically, if the State of California wanted to be jerk about it, it could try to prevent same-sex couples from getting married, only to get sued and lose time and time again. Since that no one likes to get their ass kicked, and attorneys are expensive, Gov. Brown and the rest of the State government has said, "fuck it" and will allow same-sex couples to get married.
So, while technically the Prop. 8 decision applies only to a couple of people, for all practical purposes it covers everyone in the State.
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