Federal Appeals court won't hear Prop 8

[bluedaisyus]

Supreme Court or bust!

usnews.msnbc.msn.com/_news/2012/06/05/12068323-federal-appeals-court-wont-revisit-californias-prop-8-gay-marriage-ban-likely-headed-to-us-supreme-court

[kershnic]

YAY! But so nerve-wracking at the same time.... does anybody know anything about the liklihood that the court will take this case and/or the MA DOMA case, and if both which one is more likely to come first?

[Duchess1]

Eek! I am scared but hopeful.

[clickerish]

I'm scared, but I like definitive answers. I would like to know if we should plan on leaving this country or not...and at least this way it will be decided once and for all!

[llama]

I am so thrilled! (Yeah, I finally stopped being a serial lurker over here and actually posted... hi again!)

Because I am an AW and because I already typed a bunch of stuff, I'll link the thread where I wrote paragraphs and paragraphs about the ruling and next steps, in case anyone is interested. I do this for my day job, so I figured I could share here too.
pandce.proboards.com/index.cgi?board=general&action=display&thread=14997

The run-down is that there are a lot of scenarios that would be good news for us and very few in which we lose. I'm happy with the odds.

Kershnic - as I said in the linked thread, the Supreme Court is probably not going to take this Prop 8 case (you can read more about why over there.) If they do take it, it will be in the coming session this fall. The 1st Circuit DOMA case is also being appealed to the Supreme Court right now, and if both were accepted they would be heard around the same time, during that session this fall. Theoretically, they could be heard on the same day but they wouldn't be consolidated because they're addressing two separate issues. The DOMA thing is about section 3 of DOMA which is only the part about the federal government recognizing same-sex marriages in states where they are legal, and that is separate from whether states can ban marriage equality through ballot initiatives like what happened in CA.

HOWEVER, I don't think the Supreme Court will take that case either. And the reason is that there is another parallel case working it's way through the federal system here in CA that is also challenging section 3 of DOMA. It's separate from the Prop 8 case (it's called Golinski v. OPM if anyone is interested) and basically uses the same legal reasoning as the cases in the 1st Circuit in MA. We just won at the federal district court level in N. CA a couple of weeks ago and is in the process of being appealed to the 9th Circuit right now. They're supposed to hear arguments in that case in the fall and then that ruling will be appealed to the Supreme Court. It's more likely the Supreme Court would wait to see a few Circuit Court cases in different districts unfold than that they'd latch on to the first case they see, which would be the MA DOMA case. Perhaps they'll choose the Golinski case as their test case instead of Gill, but I think it's about a year away from a cert petition to SCOTUS right now.

Sorry, I wrote a novel. :/

[kershnic]

Interesting read, thanks. I've be following this so I'm pretty familiar with the issues being argued, but hadn't really thought about the liklihood of SCOTUS accepting. Prop 8 being overturned is an exciting prospect, but won't affect me. The DOMA issue on the other hand seems like it could have a pretty major impact on a lot of people (including the most important - me ). It makes a lot of sense that SCOTUS will wait for the CA case, so I guess we'll see. I know the LGBT rights movement is overall moving quite quickly, but I'm still impatient.

[bluedaisyus]

I'm optimistic, and I think they'll hear them both as they are very different. If they decline to hear them then the lower court rulings stand and DOMA section 3 and Prop 8 are overturned. Either way a win for us as far as I'm concerned.


Sent from my iPhone

[kershnic]

Yeah, so my wife and I have been talking about this.... so if SCOTUS refuses to hear the Gill v. OPM case, and therefore the appeals court ruling stands, does that mean that the federal government will recognize my marriage? Like, they'd have to let us file joint taxes and not tax us for being on a family health insurance plan? And this could happen as early as next year?

[llama]

I agree the Prop 8 and DOMA cases are very different, but that's not really what influences the decision about which cases to accept. The DOMA case has all the marks of a Supreme Court acceptance and the Prop 8 case doesn't. Who knows, maybe they'll accept it, though. Even if they did it wouldn't really change anything for our side, since the most they can do is strike down Prop 8 in California, which would happen even if they didn't accept the case. Or they could rule against us, which obviously would be very bad (but is unlikely.)

I really hope they do hear one of the DOMA cases, though. That could have a very big impact indeed! Right now there are challenges to section 3 of DOMA in MA, CA, and NY. The MA challenge (Gill) is the first that will be appealed to the Supreme Court, but with two other cases following closely behind, it will be interesting to see if they take it. Golinski (the CA case) will go to the 9th Circuit this fall, and the Windsor case was just decided in a NY federal district court today (http://www.prop8trialtracker.com/2012/06/06/breaking-doma-ruled-unconstitutional-by-yet-another-federal-court/) and will be appealed soon to the 2nd Circuit Court of Appeals and then to the Supreme Court. Some people think that they'll take Gill because it's the first case, others, like me, tend to think they'll wait to see how a few Circuit Courts rule and what their arguments are before weighing in to settle the matter.

What is really important about the DOMA cases and the Supreme Court, though, is that we really want the Supreme Court to take the case soonish. Otherwise, we'd have section 3 of DOMA struck down in the 1st Circuit and possibly even the 9th and 2nd Circuits, but in other parts of the country it would still stand. That would sort of suck.

[kershnic]

Jun 6, 2012 20:14:40 GMT -5 llama said:

Otherwise, we'd have section 3 of DOMA struck down in the 1st Circuit and possibly even the 9th and 2nd Circuits, but in other parts of the country it would still stand. That would sort of suck.

This is the part I don't get. What does that mean? If I live in the 1st Circuit (or 9th or 2nd depending on how the appeals courts there decide) the federal government recognizes my marriage, but if I move to another area they'll stop recognizing it?

[llama]

Jun 6, 2012 20:53:16 GMT -5 kershnic said:

Jun 6, 2012 20:14:40 GMT -5 llama said:

Otherwise, we'd have section 3 of DOMA struck down in the 1st Circuit and possibly even the 9th and 2nd Circuits, but in other parts of the country it would still stand. That would sort of suck.

This is the part I don't get. What does that mean? If I live in the 1st Circuit (or 9th or 2nd depending on how the appeals courts there decide) the federal government recognizes my marriage, but if I move to another area they'll stop recognizing it?

Yes. Weird, huh? So, if the DOMA case in MA is appealed to SCOTUS and they don't take it, the 1st Circuit Court's ruling still stands, and section 3 of DOMA could not be enforced in any of the states covered by the 1st Circuit. Same for any other circuit court within their own regions. The precedent from decisions made by circuit courts is binding on all of the lower courts in those regions as long as it isn't overturned by the Supreme Court or explicitly forbidden by prior Supreme Court precedent (which isn't supposed to happen, since Supreme Court precedent is technically binding on all lower courts in the US, but sometimes does sort of happen in civil rights cases that are challenging precedent they see as unfair or outdated.)

I guess it's no more random and/or nonsensical than the current situation, which is pretty much already that. I'm married in CA, but if I move to Idaho it isn't recognized anymore. This is that same thing, except with regard to the enforcement of federal legislation.