Perry v Brown Is No Legal Slouch
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After trying to find reactions to the 9th Circuit ruling in Perry v Brown I ran across a law blog that pointed out something I never realized...I mean being caught up in a historic moment when a FEDERAL COURT strikes down a state ban on gay marriage kind of clouds some things you'll realize when you take a step back after the dust has settled. What I realized: Judge Reinhardt's ruling is a gold statue in a room hardly anyone really appreciated because of its silver base. In other words, it was a lot more narrow than Judge Vaughn Walker's ruling and people didn't appreciate what that ruling could've meant for places that allowed marriage then voted it away from gay and lesbian couples (NH ring a bell?). Appellate courts are important because it's an intermediate court and is usually a step away from the High Court like the 9th Circuit is from the Supreme Court, it has to rule on 1. Facts of the case before them 2. Follow Precedent (if there are conflicting rulings WITHIN the Circuit those are resolved en banc or before the whole court yet doesn't stop a lower court from coming to a contradictory opinion but show HOW they came to it of course) and 3. Broadest abandoned, narrowest adopted. Perry v Brown decision though vacated gives us some legal gold nuggets
Off the top of my head I have these reasons
1.Establishes that this case isn't the first time a constitutional amendment was struck down
(Romer v Evans (CO Amendment 2), Loving v. Virginia [NC's 1875 ban on interracial marriage was struck down with that decision])
2. You can't give rights then take them away from a disfavored class (and that you can't take away a new right because it is new. NH and IA had brushes with this very sentiment) IA almost lost marriage if a Republican would've won District 18 and forced through House Joint Resolution 6 which would've prohibited ANY recognition of familial relationships in Iowa.
THAT IS why though vacated (as if Perry v Brown never took place) it still have great pieces of wisdom we can glean if UT and NM decisions are reversed by a popular vote (UT sought to preempt this)
All while staying within established precedent (In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding later cases with similar issues or facts.)by adopting it to the specific yet similar situation in the Romer Case. Romer v Evans is a 1996 case that started out after Denver, Aspen and Boulder CO passed non discrimination laws protecting based on sexual orientation. An initiative campaign to not only repeal but stop any further action by any governmental body was put on the ballot and Amendment 2 was passed. Court action followed. The situations are similar here and Amendment 2 goes EVEN FURTHER by saying that any further nondiscrimination acts must be adopted by the people of the state of CO thus acting as their own Legislature (Jeffrey v Trevathan 1949 AR)
Amendment 2 and Prop 8 made gays and lesbians "strangers to the law" (Romer) in the legal world placement of words could uphold or undo a legal argument, uphold or reverse a ruling depending on the legal reasoning used by the Presiding Judge. So when taking a look at how he struck it down, notice how he says "designation" of the word marriage, while they're still able to have all other rights in the state regarding children and other spheres under California Law. Still covered under Romer, it singled out people here due to marital status and said that they can't be a part of it any longer, though they were just covered under marriage law and even though it's on a narrow reed, it adheres to the Romer case given the facts.
As this was written before the Supreme Court decided to hear the case then DIG'd the case (dismiss as improvidently granted--or say, we shouldn't have decided to hear this case in the first place...they could've just denied review and upheld the 9th Circuit ruling yet the standing issue in Federal Court was another part in the case) it was a pretty easy case to take and dismiss the appeal without reaching merits and THAT is probably why they took it. Yet the UT case and the myriad of cases in TX, VA, W. VA, MI, NV, AR and others bringing the total to 21 cases could reach the Supreme Court and in many cases the standing issue won't be a part of it and they will be forced to rule on the merits of the case. Perry v Hollingsworth as it was known when it got to the Supreme Court vacated the 9th Circuit ruling and kept Judge Walker's sweeping and definitive ruling.
Reinhardt did his part, but for all the bluster of proponents of Prop 8, they failed to ultimately get the narrow ruling they wanted yet they succeeded to a point. Yet, with the trial courts ruling--sweeping at it is, the 9th Circuit 's ruling is no chump. It's not the "egregious, analytically wobbly, or disingenuous" ruling that gay rights proponents criticize it as being.
Before I wrote this blogpost I saw an Americans for Equal Rights (AFER) video that talked about NM and UT and that there is a chance that those cases could be overturned. In the event that it does, this ruling can be pointed to and reason that even if it's not technically precedent it is a constitutionally sound opinion whose argument should be adopted. The critics snoozed on the ruling because it didn't go as far as they wanted it to go, but legally it goes just far enough.
Gay couples marriage rights shouldn't hinge on whether a Democratic Majority or Republican Majority controls State Government or cringe if they have an initiative process or recalls. Targeting a minority of people is wrong and when things change and marriage equality is threatened or lost, Reinhardt's decision endures
Until Next Time Dear Readers!
After trying to find reactions to the 9th Circuit ruling in Perry v Brown I ran across a law blog that pointed out something I never realized...I mean being caught up in a historic moment when a FEDERAL COURT strikes down a state ban on gay marriage kind of clouds some things you'll realize when you take a step back after the dust has settled. What I realized: Judge Reinhardt's ruling is a gold statue in a room hardly anyone really appreciated because of its silver base. In other words, it was a lot more narrow than Judge Vaughn Walker's ruling and people didn't appreciate what that ruling could've meant for places that allowed marriage then voted it away from gay and lesbian couples (NH ring a bell?). Appellate courts are important because it's an intermediate court and is usually a step away from the High Court like the 9th Circuit is from the Supreme Court, it has to rule on 1. Facts of the case before them 2. Follow Precedent (if there are conflicting rulings WITHIN the Circuit those are resolved en banc or before the whole court yet doesn't stop a lower court from coming to a contradictory opinion but show HOW they came to it of course) and 3. Broadest abandoned, narrowest adopted. Perry v Brown decision though vacated gives us some legal gold nuggets
Off the top of my head I have these reasons
1.Establishes that this case isn't the first time a constitutional amendment was struck down
(Romer v Evans (CO Amendment 2), Loving v. Virginia [NC's 1875 ban on interracial marriage was struck down with that decision])
2. You can't give rights then take them away from a disfavored class (and that you can't take away a new right because it is new. NH and IA had brushes with this very sentiment) IA almost lost marriage if a Republican would've won District 18 and forced through House Joint Resolution 6 which would've prohibited ANY recognition of familial relationships in Iowa.
THAT IS why though vacated (as if Perry v Brown never took place) it still have great pieces of wisdom we can glean if UT and NM decisions are reversed by a popular vote (UT sought to preempt this)
All while staying within established precedent (In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding later cases with similar issues or facts.)by adopting it to the specific yet similar situation in the Romer Case. Romer v Evans is a 1996 case that started out after Denver, Aspen and Boulder CO passed non discrimination laws protecting based on sexual orientation. An initiative campaign to not only repeal but stop any further action by any governmental body was put on the ballot and Amendment 2 was passed. Court action followed. The situations are similar here and Amendment 2 goes EVEN FURTHER by saying that any further nondiscrimination acts must be adopted by the people of the state of CO thus acting as their own Legislature (Jeffrey v Trevathan 1949 AR)
Amendment 2 and Prop 8 made gays and lesbians "strangers to the law" (Romer) in the legal world placement of words could uphold or undo a legal argument, uphold or reverse a ruling depending on the legal reasoning used by the Presiding Judge. So when taking a look at how he struck it down, notice how he says "designation" of the word marriage, while they're still able to have all other rights in the state regarding children and other spheres under California Law. Still covered under Romer, it singled out people here due to marital status and said that they can't be a part of it any longer, though they were just covered under marriage law and even though it's on a narrow reed, it adheres to the Romer case given the facts.
As this was written before the Supreme Court decided to hear the case then DIG'd the case (dismiss as improvidently granted--or say, we shouldn't have decided to hear this case in the first place...they could've just denied review and upheld the 9th Circuit ruling yet the standing issue in Federal Court was another part in the case) it was a pretty easy case to take and dismiss the appeal without reaching merits and THAT is probably why they took it. Yet the UT case and the myriad of cases in TX, VA, W. VA, MI, NV, AR and others bringing the total to 21 cases could reach the Supreme Court and in many cases the standing issue won't be a part of it and they will be forced to rule on the merits of the case. Perry v Hollingsworth as it was known when it got to the Supreme Court vacated the 9th Circuit ruling and kept Judge Walker's sweeping and definitive ruling.
Reinhardt did his part, but for all the bluster of proponents of Prop 8, they failed to ultimately get the narrow ruling they wanted yet they succeeded to a point. Yet, with the trial courts ruling--sweeping at it is, the 9th Circuit 's ruling is no chump. It's not the "egregious, analytically wobbly, or disingenuous" ruling that gay rights proponents criticize it as being.
Before I wrote this blogpost I saw an Americans for Equal Rights (AFER) video that talked about NM and UT and that there is a chance that those cases could be overturned. In the event that it does, this ruling can be pointed to and reason that even if it's not technically precedent it is a constitutionally sound opinion whose argument should be adopted. The critics snoozed on the ruling because it didn't go as far as they wanted it to go, but legally it goes just far enough.
Gay couples marriage rights shouldn't hinge on whether a Democratic Majority or Republican Majority controls State Government or cringe if they have an initiative process or recalls. Targeting a minority of people is wrong and when things change and marriage equality is threatened or lost, Reinhardt's decision endures
Until Next Time Dear Readers!
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