Did SCOTUS Declare All Gay Marriage Bans Unconstitutional? Anti-Prop 8 Attorney David Boies Says Yes

[Tx4obama]

Did SCOTUS Declare All Gay Marriage Bans Unconstitutional? Anti-Prop 8 Attorney David Boies Says Yes

David Boies, one of the attorneys who successfully argued the case against California’s Proposition 8 in the Supreme Court, told CNN’s Candy Crowley on Sunday that the Court’s ruling in the case against that state’s gay marriage ban is not the narrow ruling that some have interpreted it to be. In fact, Boies said that the Court effectively ruled that all gay marriage bans in America violate the 14th Amendment and are unconstitutional.

Crowley asked Boies about his plans, in the wake of the Supreme Court decision on Prop 8, to expand gay marriage rights to all 50 states.

“First, remember that that the United States Supreme Court found that the plaintiffs in this particular case had standing to attack Proposition 8, but the people who were supporting Proposition 8 did not have standing to appeal our victory in the trial court,” Boies asserted. “So that reinstates the trial court decision that says that all bans on gay and lesbian marriage violate the equal protection and due process clauses of the 14th Amendment.”

“But you know, David, a lot of people thought that this was more about states’ rights,” Crowley countered, “allowing the states to decide for themselves.”

“If they were allowing the states to decide for themselves, they would have allowed California to decide for itself,” Boise declared. “California passed Proposition 8. So, what the Court was doing was invalidating California’s choice, and that’s exactly what the courts are supposed to do under the 14th Amendment.”

-snip-

Full article here: http://www.mediaite.com/tv/did-scotus-declare-all-gay-marriage-bans-unconstitutional-anti-prop-8-attorney-david-boies-says-yes/

So, if Boies is correct then this is HUGE, right?

[zappaman]

1. Big REC and KICK!

Absofuckinglutely!

[Benton D Struckcheon]

2. That was my original thought,

so I was confused when the legal interpretations of it came out characterizing it as much more narrow. Here's a glass raised to hoping he's right.

[dsc]

3. I think that is a stretch

especially since they didn't take up cases out of Nevada and Arizona where standing wasn't an issue. They may well rule that way in the fairly near future, frankly it would be quite hard to distinguish state bans from DOMA in terms of the equal protection concerns raised by Kennedy in his decision.

[WovenGems]

19. Flood gates opened

A judge here had put a trial on hold pending the SCOTUS case. When the court said the ban against prop 8 was cool he ruled. The case wasn't marriage it was about the state telling communities they couldn't offer benefits to gay partners. All it will take is a lawsuit and all the discriminatory laws will be reversed. The SCOTUS did indeed shoot down all anti-gay crap laws but let lawyers have field day. The law suits will put state politicians in bind. California politicians played it hands off. Any who attempt to support the laws won't be able to field a really good reason for the laws.
So I think the die has been cast. Let the war begin.

[Orsino]

40. It appears that the Supremes fucked up.

They thought that they were only permitting marriage equality to continue in the states where it had already existed, but if they really confirmed the lower court's ruling, I think Boies mst be correct.

[Gman]

4. I'm not so sure

Individual states can refuse gay marriage. Persons "harmed" can file suit in federal court on equal protection grounds. Then each federal court is different and may or may not rule for the plaintiffs. Each appeal court may rule differently than others. All the suits should be consolidated. Then and (seems to me) only then is the SCOTUS forced to rule on the legality of the overall issue once and for all.

[Myrina]

12. Could they make it a class action suit?

Gays are part of a protected class, could they file suit claiming equal protection violation and take it to SCOTUS that way?

[Gman]

14. Since this court isn't very friendly toward protected classes

That approach could do much more harm than good. Furthermore, to my knowledge, the SCOTUS has never included gays as a protected class as they have certain minorities. I think they way to go is to consolidate suits from all states and force the court to rule on whether states can deny equal protection.

[Myrina]

16. Got it, thanks for the explanation!

[plantwomyn]

45. Loving

Now that it is purely a state issue we go to the Loving and Lawrence cases to see that there were multiple states that had anti-miscegenation and sodomy prior to those rulings. Once these rulings were made every one of the laws in those states were struck down as unconstitutional. So following president, if one state Amendment falls, all of them fall.

[Gman]

46. Exactly

But it's not because of Lawrence or Loving. It's just that all the other laws are similar enough that if one goes, they all go. School desegregation is one example.

[Liberal_Stalwart71]

5. That's what I thought, too!! Doesn't federal law supersede state law? That means that if the SCOTUS

declared marriage ban unconstitutional, it should be treated as Loving v. Virginia, Lawrence v. Texas?!?!?

[Jim Lane]

10. Your formulation of the issue begs the question

The point Boies is addressing is precisely whether the effect of the decision was to declare the various states' marriage bans unconstitutional. The decision itself held only that the federal government's refusal to recognize marriage equality in the other states is unconstitutional.

One could consistently argue, on federalism grounds, that marriage law is within the purview of the states, and that the federal government must therefore recognize all and only the marriages recognized by that state. On that view, DOMA would be unconstitutional but the majority of states, which still don't allow same-sex marriages, could continue to refuse to recognize them.

The reason to think the decision did more than just end that provision of DOMA is that it wasn't based on federalism grounds. It was based on equal protection. A state wanting to defend its marriage ban would presumably have to argue that there are constitutionally permissible reasons for states to discriminate against same-sex couples, even though there are no such reasons for discrimination at the federal level. I don't think that's an entirely impossible argument but it's a pretty heavy lift.

[Liberal_Stalwart71]

13. O.K., that makes sense. Thanks.

[Gman]

15. Read the 10th amendment to the constitution.

[Liberal_Stalwart71]

22. No, thanks. You read it. I know what the 10th Amendment says. The issue has been clarified

I don't need your snarkiness.

[Gman]

26. No snarkiness intended, was just in a hurry

And didn't have time to explain but wanted to respond.

Sorry.

[PoliticAverse]

6. In the DOMA case, the language from the decision:

"DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the
Fifth Amendment."

Seemed pretty strong to me.

[customerserviceguy]

7. I think we're one case away from that conclusion

If precedent from the Kennedy decision is followed, then it's quite likely that anti-marriage equality legislation, including state constitutional amendments will fall. But it could take 2-3 years for such a case to reach the SCOTUS, and if we don't get a decent substitute for say, Ginsberg, than we don't really know what will happen.

[Tx4obama]

8. More quotes from Attorney David Boies

Prop 8 attorney: 'We're not giving up on any state'

Attorney David Boies, who argued the Proposition 8 case Hollingsworth v. Perry in front of the Supreme Court, said Sunday supporters of same-sex marriage are taking the fight to all 50 states.

Asked by CNN's Candy Crowley on "State of the Union" if there were specific states next on the target list, Boies said there "isn't any state we're giving up on." "I think there are lots of states," he said. "I don’t want to get in today with what are the states we’re going to target first or anything like that, because there isn’t any state we’re giving up on."

Boies said the Supreme Court's decision in the Prop 8 case, coupled with the lower court's decision to overturn Prop 8, constitute a legal precedent to do the same thing in other states across the country. He said groups like the Human Rights Campaign and the American Foundation for Equal Rights will focus on a combination of legislative efforts, state ballot initiatives and legal action.

"Our goal is to have marriage equality that’s guaranteed by the U.S. Constitution, enforced in every single state in the union," he said.

http://www.politico.com/blogs/politico-live/2013/06/prop-attorney-were-not-giving-up-on-any-state-167387.html?hp=l1

[quaker bill]

9. I think the DOMA case is bigger

The prop 8 ruling sort of relies on appellants having no standing. If the appellant had been the Gov or state Atty gen, the ruling would have been different. It might have gone to equal protection and tossed prop 8 anyway, but on a different basis. As it is, the ruling holds that the citizen groups suffered no harm through losing prop 8 and therefore had no standing, this finding of "no harm" is very important.

I think the DOMA case goes further. If it is unconstitutional for the FEDS to deny benefits, it is very likely also unconstitutional for the states to do the same to same gender couples legally married in other states. Since the purpose and intent of most of these marriage amendments in the states where they have passed is specifically to deny the benefits of marriage to same gender couples, they probably will not survive the first challenge. Often this denial of benefits is laid out in the very language of the amendment to make its purpose clear, this will also be all over the legislative record made when drafting them.

Post DOMA, none of this stuff stands for long.

Post prop 8 the various activist groups that would have to tried defend these laws as they fall, will have no standing to do so.

It is +/- a perfect storm.

[Pab Sungenis]

24. Good point.

DOMA was unconstitutional on Fifth Amendment terms, not Tenth. Since the Fourteenth applied the Bill of Rights to the states as well as the Feds, this sets the groundwork for the final overturn.

[quaker bill]

34. Exactly, and I think much of the post decision commentary

is missing this. The opinion sets a very high bar for the "compelling state interest" needed constitutionally to maintain any of this stuff anywhere. What prop 8 did was to rule that RW groups being offended is not "harm" and does not create a "compelling state interest".

I just don't see a sustainable legal argument out there anymore.

[Pab Sungenis]

36. It laid the groundwork

for future decisions. Just a few more cases is all we need.

[quaker bill]

42. They are no doubt coming

Somewhere here in the SE some state will push the limit. They already have the laws to do it. Someone somewhere will enforce one of them and litigate it up the line. It is what they do.

[Myrina]

11. I think they're throwing it back to the states ...

.... since the KochCourt and GOP are so pro-states-rights and have so many little toads sitting in Governor's offices now, they're going to dismantle civil rights, workers rights, womens rights and environmental protections at that level.

[ET Awful]

17. As much as I'd like to agree with him, I find it hard to do so.

Since the decision wasn't on the merits of the Prop. 8 case, but rather on the fact that the Pro-Prop 8. party didn't have legal standing, the effect was more to just punt the case back to the lower court.

Essentially, it left the case open for someone with standing to file the same appeal (if, for instance, the State of California should decide to do so, which is highly unlikely).

So while, in effect, they did reinstate the lower court ruling, they didn't affirm it which is a huge difference.

If someone with standing were to appeal the lower court ruling, a very different outcome could result (once again, highly unlikely).

I'd love to think he was right, but I think he's reaching just a bit.

[WovenGems]

21. That's the rub

Who has standing when the law is discriminatory in nature? Only the victims. Watch what issues the supports bring up. That is where the humor comes into play.

[JayhawkSD]

18. I think you have the wrong conclusion

“So that reinstates the trial court decision that says that all bans on gay and lesbian marriage violate the equal protection and due process clauses of the 14th Amendment.”

The Supreme Court's ruling that the plaintiffs in the case had standing while the defendands did not meant only that people who are gay are affected by gay marriage while people who are straight are not affected by gay marriage. Those who are not affected by the issue before the court have no standing and my not plead or argue the case, and so the defendents, who are unaffected by the issue of gay marriage were not actually supposed to be heard.

The ruling did not relate to the issue of gay marriage itself at all, other than that it let stand the lower court's ruling, a narrow one which only affected California. It does set a precedent which could be used by challengers in other states, but it would not be automatis and others who have mentioned the DOMA ruling as being vastly more important are entirely correct.

[Bernardo de La Paz]

25. Nah. Follow your own logic. Since only gays have standing, there is no victim of gay marriage.

Effectively the Court ruled that heterosexuals are not victimized by gay marriage, but GLBT are affected by same-sex marriage prohibitions. Further, the Court agreed sufficiently with the 9th Appeals Court ruling to let it stand, meaning same-sex marriage prohibitions are illegal.

Since the only opposition to same-sex marriage is from (some) heterosexuals, effectively there is NO opposition now, because they don't have standing.

Note: I wanted to write "same sex marriage bans", but then I remembered that "posting wedding banns" is the term for announcing an impending wedding. Two meanings of "ban(n)s"!

[JayhawkSD]

35. The court ruled on the procedure of the suit, not the subject

The suit was filed by a gay couple denied marriage. The state of California declined to defend it, so it should have been awarded as a victory to the gay couple by default. Instead, the court allowed a straight organization to defend it. That should not have been done, and it was that which the court ruled against.

There is no "effectively" in the law. Any lawyer arguing gay marriage who tries to cite this ruling will be slapped down and told his citation is irrelevant, since this ruling was strictly about standing.

Had the law been defended by the State of California, the court might well have upheld the law, and that will be the next test -- to see what the Supreme Court does when a ban on gay marraige is chanllenged and defended by the state. It's ruling on DOMA would suggest that it would not uphold such a law, but until it actually overturns one the issue remains in doubt. The California was not such a ruling.

[Bernardo de La Paz]

37. Since no straight/narrow group can defend gay marriage bans, there is no defence. nt

[JayhawkSD]

43. Let me try one more time.

THE STATE ITSELF CAN DEFEND THE LAW BANNING GAY MARRIAGE.

The governor and the attorney general can defend the law when it is challenged by a person damaged by the law. In that case both the challenger and the defender have standing, in which case the appeals court will rule on the merits of the case.

[catbyte]

20. That's how I read it, but since I'm not a lawyer I thought I was misinterpreting something.

[Proud Liberal Dem]

23. I'm not sure that's how I read it

and, at any rate, even if it were true, try telling that to your local teabagger governor/legislature in any red state that you can name. Whatever happens, ongoing litigation and legislative activism is going to inevitably have to occur before you pry full LGBT equality out of them.

[HockeyMom]

27. Just like with Loving,

couples who have been married in one state, and they go back or move to another state where their marriage is banned, not recognized, will need to bring this to court.

They will have standing and can show harm by not receiving benefits that straight married couples from the same states have.

I think that is the next ruling. If this is ruled unconstitutional for one specific case, and state, it will strike down all the state bans across the country. Again, same as with Loving v. Virginia.

[obama2terms]

28. I wish I could agree with him, but I just don't know...

The wins in these cases may have torn down the "wall" that was preventing other major victories but there is still a long rocky road ahead I'm afraid it seems..

[Jamaal510]

38. +1

The bright side is that at least some progress was made on this issue.

[cynatnite]

29. I thought this was their way of kicking the can down the road...

so they won't have to deal with it for a while.

[NorthCarolina]

30. I wouldn't say "huge" because it will take another case reaching the SCOTUS to test this theory.

Who knows when the SCOTUS would entertain taking up this issue again. Could be many years. "Encouraging" is probably a more realistic term.

[blkmusclmachine]

31. .

.

[davidpdx]

32. I do think Boies is right about one thing

There is going to have to be more active lobbing in states to get bills passed similar to the other states which have allowed gay marriage. Oregon passed Measure 36 in 2004 which defined marriage as between a man and a woman (even worse it passed in 36 of the 38 counties). Now almost 9 years later nothing has been done to repeal it.

I voted against it and was shocked it passed. I can see how most of Eastern and Southern Oregon probably would have voted for it, but the rest of the state is pretty liberal.

[Spitfire of ATJ]

33. I swear,...if some people had their way "mixed marriages" would be illegal....

....and "mixed" to them includes Baptist and Catholic.

[totodeinhere]

39. Far be it for me to argue with Mr. Boies' brilliant legal mind.

But when the federal appeals court upheld the district court's ruling on Prop 8 the court said that their ruling applied to California only. And the Supreme Court did nothing to contradict that. Gay marriage bans in other states are certainly unconstitutional but I think it will take another court ruling.

In Tuesday's ruling, the court took a narrower approach than that taken by then-Chief U.S. District Judge Vaughn Walker, who presided over the nation's first federal court trial on same-sex marriage.

Walker ruled in August 2010 that gays and lesbians have a constitutional right to marry their chosen partner, a ruling that, if upheld on appeal, would apply nationwide.

Tuesday's ruling was tied to the history of Prop. 8 and, if upheld, would nevertheless apply only to California. (Source: The San Francisco Chronicle)

http://www.inlandnewstoday.com/story.php?s=22716

[WovenGems]

41. States Rights

I have seen some post that if voters for anti- this or that then it should stand. Those would be the states rights crowd. But the rights of individuals are not to be messed with per our constitution. The majority may not take rights from a minority. If they want to they must site an overwhelming social need. And in this case that does not exist. Any state that tries to defend their law will have to say the word God and their cause will fall. Maybe California should have made a standard defense. But probably could not find a soul willing to take the case, other than the twits that did.

[silvershadow]

44. Caught him on tv yesterday. Apparently he's in for a penny, in for a pound- he plans on seeing it

through, it appears to me.