Various U.S. Supreme Court Rulings [Cur. Same Sex Marriage]

[Night Strike]

When the case was first brought by Perry against Schwarzenegger (State of California) did the state government defend the law at this point? Or have they refused to defend it since day 1?

Refused from Day 1. From the opinion of the court in Andy's post:

After the California Supreme Court held that limiting marriage to opposite-sex couples violated the California Constitution, state voters passed a ballot initiative known as Proposition 8, amending the State Constitution to define marriage as a union between a man and a woman. Respondents, same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and naming as defendants California’s Governor and other state and local officials responsible for enforcing California’s marriage laws. The officials refused to defend the law, so the District Court allowed petitioners—the initiative’s official proponents—to intervene to defend it.

[AndyDufresne]

I'm quite willing to leave the gay marriage debate aside NS, I'm curious about the federal vs state thing. I have a provisional opinion which I've expressed already, but it's far from set in stone. I do have another question that I can't find the answer to on google due to the volume of stories about the most recent decision.

When the case was first brought by Perry against Schwarzenegger (State of California) did the state government defend the law at this point? Or have they refused to defend it since day 1?

According to wikipedia, it seems they were not inclined to defend it:

Attorney General Jerry Brown chose not to defend the lawsuit, saying that Proposition 8 violates the Fourteenth Amendment to the United States Constitution and should be struck down. Governor Arnold Schwarzenegger also declined to participate in the defense but said it was appropriate for the courts to hear the case and "resolve the merits of this action expeditiously" because it "presents important constitutional questions that require and warrant judicial determination." On November 2, 2010, Brown was elected governor and Kamala Harris was elected attorney general. Both ran on platforms promising not to defend the proposition, so despite the change of administration, the state continued to decline defending Proposition 8 in court.

Two groups, the official proponents of Proposition 8, ProtectMarriage.com, led by Dennis Hollingsworth, and a rival group, the Campaign for California Families, sought to intervene as defendants. The court allowed the official proponents to intervene, filling the void left by the state officials' acquiescence. The judge denied the request from the Campaign for California Families.

On December 15, Imperial County filed a motion to intervene as a defendant despite the fact that the intervenor deadline had passed. They argued that the civil agencies named in the suit, the counties of Alameda and Los Angeles and the state government, were not actively defending the Proposition. They continued to argue that the case needed a proper governmental defendant. On August 4, along with the ruling, Judge Vaughn Walker denied Imperial County intervenor status.

--Andy

[crispybits]

So hang on, after the initial Prop 8 vote there was a further election and the people who won that election (got the popular vote) clearly stated that they would not defend Prop 8. Doesn't this invalidate the popular vote argument anyway?

[thegreekdog]

The DOMA law is most certainly (in my unlearned opinion) unconstitutional. It does not provide equal protection and it violates federalism principles. All that assumes that you view the U.S. Constitution as being the preeminent law of the United States and that it is an unmalleable document.

What was unconstitutional? All it was doing was providing a federal definition to marriage, which is the exact same thing the 50 states can or have done. The feds define parameters for a myriad of policies, including every area of the tax code, yet their definitions aren't forced on them by the state. However, this ruling makes it illegal for the federal government to set up a definition that is different from any state definition. If a person supports this ruling, then they should also support ending the different treatment for ALL people between state and federal taxes. If you're in the top tax bracket in your state, then by this ruling you should be in the top bracket in federal taxes. If your state has no income tax at all, then you should not have to pay any federal income taxes because it's the states that are the sole determiner of definitions and the feds have no say in defining parameters.

That's a very broad (and ultimately incorrect) interpretation of the equal protection clause. Tax brackets have already been ruled to be constitutional with respect to equal protection (for example). Further, your logic in comparing tax brackets to gay marriage is also flawed (and applying the same treatment to everyone) seems to contradict your ultimate point.

In sum, your post confuses me, although I've heard this argument from conservative commentators on occasion.

If my logic is flawed in comparing tax brackets to gay marriage, then so was the Supreme Court's logic in their DOMA ruling. Remember, the entire suit was brought because a woman was denied federal estate tax exemption when her spouse died. So the very basis of the suit was based on tax law. The suit was saying that since her state recognized her marriage for tax purposes, the federal government must as well.

I think you misunderstand the equal protection clause maybe.

[BigBallinStalin]

you seem to like conflating what is "legal" and what is "right". i realize this is the basis of what you do, but it's wrong.

what snowden did was almost certainly illegal. that doesn't make it wrong.

it IS wrong, though, to let a small number of people dictate the law.

But that's exactly what Snowden did. One person decided he could unilaterally change government policy (by publicizing the NSA program, he removed much of the reason why it was effective to begin with).

revealing information that causes a lot of people to change their opinions and possibly (unlikely) vote in people who hold different views on public policies which they may or may not implement

is not the same thing as directly causing a policy change.

As I said above, just by revealing the existence of the NSA program he basically nullified it. The whole point, the reason why it worked, was that it was secret. Just by publicizing it, he changed the policy. He had to have known that.

The NSA program was nullified? Which one and how do you know?

[Night Strike]

So hang on, after the initial Prop 8 vote there was a further election and the people who won that election (got the popular vote) clearly stated that they would not defend Prop 8. Doesn't this invalidate the popular vote argument anyway?

No, they originally had a state law defining marriage as between one man and one woman. The state courts decided that the law violated the state constitution, so the people then amendment their constitution via Prop 8. Since state courts could no longer say it violated the state constitution, opponents filed suit in federal courts where the state government chose not to defend their own constitution.

[crispybits]

But before the federal court sat, another election took place and the winners of that vote had a clear platform that they would not defend Prop 8, therefore the people by voting the new officials in that they chose effectively overturned their previous vote.

If the UK held a referendum on joining the EU tomorrow and for some bizarre reason decided to do it, but before we could do it we had another general election and an anti-EU party won that election promising to not go through with joining the EU, then when we didn't join the EU the pro-EU people couldn't really claim popular support for joining the EU any more as the second vote takes precedence as the most recent one. The popular support is lost at that point. The Prop 8 guys and gals need to go back to the polls at this point to attempt to reclaim that moral high ground imo.

[Night Strike]

But before the federal court sat, another election took place and the winners of that vote had a clear platform that they would not defend Prop 8, therefore the people by voting the new officials in that they chose effectively overturned their previous vote.

There was no change in administrative policies. It was the old government in place when the Prop 8 suits started, which is why Arnold was named as a party of the lawsuit. Brown was the attorney general when the suit started and is now governor. When the previous administration refused to take up the lawsuit, the lower courts, along with the state supreme court, agreed that public groups who supported the law could defend it. While it was going through the appeals process, the administration changed but their policy didn't, so the public groups chose to keep defending it. The Supreme Court decided those people couldn't keep defending it, which was their decision in the Prop 8 case.

[Metsfanmax]

you seem to like conflating what is "legal" and what is "right". i realize this is the basis of what you do, but it's wrong.

what snowden did was almost certainly illegal. that doesn't make it wrong.

it IS wrong, though, to let a small number of people dictate the law.

But that's exactly what Snowden did. One person decided he could unilaterally change government policy (by publicizing the NSA program, he removed much of the reason why it was effective to begin with).

revealing information that causes a lot of people to change their opinions and possibly (unlikely) vote in people who hold different views on public policies which they may or may not implement

is not the same thing as directly causing a policy change.

As I said above, just by revealing the existence of the NSA program he basically nullified it. The whole point, the reason why it worked, was that it was secret. Just by publicizing it, he changed the policy. He had to have known that.

The NSA program was nullified? Which one and how do you know?

What I meant by "nullified" is that the policy is much less effective now that people know about it. If the NSA changes its surveillance as a result of this program, Snowden took the law into his own hands and was unilaterally responsible for forcing the NSA to change the way it gathers information. Perhaps the NSA won't change the way it gathers information as a result of this. Either way, it was surely his intent by releasing this information, to have the policy get changed. That involves the smallest possible minority dictating the laws.

[Night Strike]

What I meant by "nullified" is that the policy is much less effective now that people know about it. If the NSA changes its surveillance as a result of this program, Snowden took the law into his own hands and was unilaterally responsible for forcing the NSA to change the way it gathers information. Perhaps the NSA won't change the way it gathers information as a result of this. Either way, it was surely his intent by releasing this information, to have the policy get changed. That involves the smallest possible minority dictating the laws.

How many joints did you dislocate to twist and turn into that viewpoint? You're equating the informing of the public of governmental actions with the government failing to uphold the law?

[Metsfanmax]

What I meant by "nullified" is that the policy is much less effective now that people know about it. If the NSA changes its surveillance as a result of this program, Snowden took the law into his own hands and was unilaterally responsible for forcing the NSA to change the way it gathers information. Perhaps the NSA won't change the way it gathers information as a result of this. Either way, it was surely his intent by releasing this information, to have the policy get changed. That involves the smallest possible minority dictating the laws.

How many joints did you dislocate to twist and turn into that viewpoint? You're equating the informing of the public of governmental actions with the government failing to uphold the law?

No. But are you now equating failing to uphold the law with failing to defend it in court? My original point was that you, and others, seem to think Snowden is a hero for doing what he could to undo an unconstitutional law. Why is the California AG any less noble for doing the same? Because you just happen to disagree with her on whether Prop 8 is constitutional?

[Night Strike]

What I meant by "nullified" is that the policy is much less effective now that people know about it. If the NSA changes its surveillance as a result of this program, Snowden took the law into his own hands and was unilaterally responsible for forcing the NSA to change the way it gathers information. Perhaps the NSA won't change the way it gathers information as a result of this. Either way, it was surely his intent by releasing this information, to have the policy get changed. That involves the smallest possible minority dictating the laws.

How many joints did you dislocate to twist and turn into that viewpoint? You're equating the informing of the public of governmental actions with the government failing to uphold the law?

No. But are you now equating failing to uphold the law with failing to defend it in court? My original point was that you, and others, seem to think Snowden is a hero for doing what he could to undo an unconstitutional law. Why is the California AG any less noble for doing the same? Because you just happen to disagree with her on whether Prop 8 is constitutional?

Actually, I have yet to consider Snowden a hero. The public has a right to know how the government is gaining and keeping data on every single person in the country, regardless of whether they're a suspect of a crime, but that doesn't mean that the actions he took were right. And either way, they're completely unrelated to the Supreme Court rulings.

[Metsfanmax]

What I meant by "nullified" is that the policy is much less effective now that people know about it. If the NSA changes its surveillance as a result of this program, Snowden took the law into his own hands and was unilaterally responsible for forcing the NSA to change the way it gathers information. Perhaps the NSA won't change the way it gathers information as a result of this. Either way, it was surely his intent by releasing this information, to have the policy get changed. That involves the smallest possible minority dictating the laws.

How many joints did you dislocate to twist and turn into that viewpoint? You're equating the informing of the public of governmental actions with the government failing to uphold the law?

No. But are you now equating failing to uphold the law with failing to defend it in court? My original point was that you, and others, seem to think Snowden is a hero for doing what he could to undo an unconstitutional law. Why is the California AG any less noble for doing the same? Because you just happen to disagree with her on whether Prop 8 is constitutional?

The public has a right to know how the government is gaining and keeping data on every single person in the country, regardless of whether they're a suspect of a crime,

Where is that right enumerated?

[Night Strike]

Where is that right enumerated?

No searches or seizures without a warrant is a good place to start.

[Metsfanmax]

Where is that right enumerated?

No searches or seizures without a warrant is a good place to start.

The Fourth Amendment doesn't say we have to know about the searches, it just says that they have to be not unreasonable.

[Frigidus]

Where is that right enumerated?

No searches or seizures without a warrant is a good place to start.

The Fourth Amendment doesn't say we have to know about the searches, it just says that they have to be not unreasonable.

I'd say that literally monitoring every phone call and google search made by every citizen is pretty unreasonable.

[Metsfanmax]

Where is that right enumerated?

No searches or seizures without a warrant is a good place to start.

The Fourth Amendment doesn't say we have to know about the searches, it just says that they have to be not unreasonable.

I'd say that literally monitoring every phone call and google search made by every citizen is pretty unreasonable.

Then tell Congress to roll back the 2008 amendments to FISA that made the PRISM program possible.

[john9blue]

As I said above, just by revealing the existence of the NSA program he basically nullified it. The whole point, the reason why it worked, was that it was secret. Just by publicizing it, he changed the policy. He had to have known that.

i don't think so. they are still monitoring what we do. they are just going to wait until this all blows over and people forget about it and carry on as usual.

[Woodruff]

What I meant by "nullified" is that the policy is much less effective now that people know about it. If the NSA changes its surveillance as a result of this program, Snowden took the law into his own hands and was unilaterally responsible for forcing the NSA to change the way it gathers information. Perhaps the NSA won't change the way it gathers information as a result of this. Either way, it was surely his intent by releasing this information, to have the policy get changed. That involves the smallest possible minority dictating the laws.

How many joints did you dislocate to twist and turn into that viewpoint? You're equating the informing of the public of governmental actions with the government failing to uphold the law?

No. But are you now equating failing to uphold the law with failing to defend it in court? My original point was that you, and others, seem to think Snowden is a hero for doing what he could to undo an unconstitutional law. Why is the California AG any less noble for doing the same? Because you just happen to disagree with her on whether Prop 8 is constitutional?

I don't necessarily consider him a "hero". But I do consider him as something of a martyr for a good cause, pending further information (based on how he distributes some of that information, which absolutely could change my view of him).

[Woodruff]

What I meant by "nullified" is that the policy is much less effective now that people know about it. If the NSA changes its surveillance as a result of this program, Snowden took the law into his own hands and was unilaterally responsible for forcing the NSA to change the way it gathers information. Perhaps the NSA won't change the way it gathers information as a result of this. Either way, it was surely his intent by releasing this information, to have the policy get changed. That involves the smallest possible minority dictating the laws.

How many joints did you dislocate to twist and turn into that viewpoint? You're equating the informing of the public of governmental actions with the government failing to uphold the law?

No. But are you now equating failing to uphold the law with failing to defend it in court? My original point was that you, and others, seem to think Snowden is a hero for doing what he could to undo an unconstitutional law. Why is the California AG any less noble for doing the same? Because you just happen to disagree with her on whether Prop 8 is constitutional?

The public has a right to know how the government is gaining and keeping data on every single person in the country, regardless of whether they're a suspect of a crime,

Where is that right enumerated?

The Fourth Amendment to the US Constitution.

[Woodruff]

Where is that right enumerated?

No searches or seizures without a warrant is a good place to start.

The Fourth Amendment doesn't say we have to know about the searches, it just says that they have to be not unreasonable.

It seems reasonable to me that gathering all communication information on every citizen without a warrant or just cause should be considered unreasonable.

[Woodruff]

Where is that right enumerated?

No searches or seizures without a warrant is a good place to start.

The Fourth Amendment doesn't say we have to know about the searches, it just says that they have to be not unreasonable.

I'd say that literally monitoring every phone call and google search made by every citizen is pretty unreasonable.

Then tell Congress to roll back the 2008 amendments to FISA that made the PRISM program possible.

I'm pretty sure all of us here are aware of this. The Electronic Freedom Foundation has been fighting this battle since well before the FISA amendments of 2008 were instituted (they started in 2005, I believe). Just because there is a law on the books doesn't make it reasonable or Constitutional. As well, what motivation does Congress have for rolling it back? None, as far as as I can tell.

[Woodruff]

As I said above, just by revealing the existence of the NSA program he basically nullified it. The whole point, the reason why it worked, was that it was secret. Just by publicizing it, he changed the policy. He had to have known that.

i don't think so. they are still monitoring what we do. they are just going to wait until this all blows over and people forget about it and carry on as usual.

Yep. They may even eventually say they won't do it any more. And then still do it, figuring we won't know. Which we probably won't. I'm not of the opinion that this revelation harms the program at all, to be honest.

[Metsfanmax]

Where is that right enumerated?

No searches or seizures without a warrant is a good place to start.

The Fourth Amendment doesn't say we have to know about the searches, it just says that they have to be not unreasonable.

I'd say that literally monitoring every phone call and google search made by every citizen is pretty unreasonable.

Then tell Congress to roll back the 2008 amendments to FISA that made the PRISM program possible.

I'm pretty sure all of us here are aware of this. The Electronic Freedom Foundation has been fighting this battle since well before the FISA amendments of 2008 were instituted (they started in 2005, I believe). Just because there is a law on the books doesn't make it reasonable or Constitutional. As well, what motivation does Congress have for rolling it back? None, as far as as I can tell.

There's a lot of people in this forum feigning shock and horror at the administration, given that "all of us" are aware of this. If you're the administration, it's just irresponsible to not use the tools available to you to protect the citizenry. This is why we have a legislative branch: to set the bounds for what those tools are (in addition to what is enumerated in the Constitution). If they set bounds that overreach the Constitution, we bring it to court and we fix it. This is how the process is supposed to work, and it's why we have a judicial system. I don't think Congress was fully wrong to try this. We are entering an age of human history that is vastly different than any time before it. We have to decide as a society the extent to which we are comfortable with using digital technologies to keep tabs on people. It was never going to be an easy transition, and we needed to have this fight sooner or later.

It seems reasonable to me that gathering all communication information on every citizen without a warrant or just cause should be considered unreasonable.

So the Fourth Amendment litmus test is: does Woodruff think this method is reasonable?

i don't think so. they are still monitoring what we do. they are just going to wait until this all blows over and people forget about it and carry on as usual.

So all you folks are doing in these threads is paying lip service to the idea that the government should preserve liberty more? Great success.

[crispybits]

But before the federal court sat, another election took place and the winners of that vote had a clear platform that they would not defend Prop 8, therefore the people by voting the new officials in that they chose effectively overturned their previous vote.

There was no change in administrative policies. It was the old government in place when the Prop 8 suits started, which is why Arnold was named as a party of the lawsuit. Brown was the attorney general when the suit started and is now governor. When the previous administration refused to take up the lawsuit, the lower courts, along with the state supreme court, agreed that public groups who supported the law could defend it. While it was going through the appeals process, the administration changed but their policy didn't, so the public groups chose to keep defending it. The Supreme Court decided those people couldn't keep defending it, which was their decision in the Prop 8 case.

But the point is that there was a change in public opinion, the people voted a new governor in who promised not todefend Prop 8. That changed the playing field because those public groups could no longer claim to have majority electoral support. This means that they became special interest minority groups and lost a lot of political strength.

Unless you want to argue that special interest minority groups with no material interest should be allowed to defend suits against the state when the state itself believes it is neither economical nor in the public interest to fight a losing battle... is that a can of worms you want opened? What if the state wants to settle quietly out of court with the plaintiffs, do they have to check with every special interest minority group with an opinion in case they might be interested in defending it in court?