Thread: The Prop 8 decision vs the New Jersey Supreme Court decision

I'm putting this in a far away corner of the board to try and attract only those with an interest in the law.

The question I would like to pose is this. What are the effects of these two legal judgments on the national debate, particularly from a LEGAL standpoint. And how does this become a national matter?

My own position is that equal rights for Gay Couples is right and inevitable and should be accomplished as soon as possible. But the majority wants "same rights, different labels" not "Gay Marriage."

So here are the two cases:

First the new jersey case (note that the supreme court of New Jersey was divided and concluded (4 to 3) that civil unions could serve equal rights, but that the legislature needed to get involved in choosing the remedy (which I agree with).

Lewis v. Harris - Wikipedia, the free encyclopedia

The court unanimously agreed that current state law is unconstitutional with respect to the equal protection of same sex couples. The court was divided as to what remedy was required. Four justices (of seven) ruled that the legislature can either amend marriage laws or create civil unions. Three justices (the minority) argued that the only constitutional remedy is the amendment of state marriage law to include same-sex couples. The majority ruling gives the New Jersey legislature six months to either amend current marriage laws or create civil unions.

In the end, the New Jersey legislature opted not to legalize gay marriage, but instead passed a bill legalizing civil unions. A year later, a commission was setup by the Legislature to examine the new Civil Union law to see how it was working, and to look at the possibility of same-sex marriage. The report came back unanimously recommending that the Legislature legalize gay marriage. New Jersey's Governor Jon Corzine has said he would sign a same-sex marriage bill, but wanted to wait until 2009 after the presidential election. The Freedom of Religion and Equality in Civil Marriage Act was passed by the NJ Senate Judiciary committee in a close 7-6 vote in favor. The bill was considered by the full Senate on Monday, January 11, 2010, where it failed 20-14. Republican Governor-elect Chris Christie has said that he will not sign a marriage equality bill while he is governor. Therefore, after the Senate's decision, Garden State Equality, in partnership with Lambda Legal, announced that they would challenge the legislature's failure to comply with Lewis v. Harris directly to the state Supreme Court.

California Proposition 8 (2008) - Wikipedia, the free encyclopedia

Prop 8 was struck down by a single judge and not considered by a panel of 7, as was the New Jersey matter, but I have been told by some that his decision was more important because he's higher up in the court system.

Any legal eagles here who can explain this further?

Originally Posted by MajikMyst

This issue isn't an easy one to discuss legally as there are a lot of things in play here..

First.. In the strictest legal sense, the 14th amendment of the U.S. constitution makes gay marriage legal.. No state should be descriminating against any group of people in administering it's laws.. Which include marriage laws.. As the constitution is deemed the law of the land.. There is legally the end of the discussion.. But, as per the 10 amendment it was allowed to let the states grapple with this issue.. But there is a catch.. 5 states have opted to allow gay marriage and if Ca. isn't stopped, it will soon be 6 states.. Since the 10 amendment gives states the right to make their own laws, the U.S. government is constitutionally obligated to honor any law decided upon by a state.. So.. Since 5 states have decided to legalize gay marriage.

Domestic partnership in the United States - Wikipedia, the free encyclopedia

Here's 11 states with domestic partnerships.

Civil union in the United States - Wikipedia, the free encyclopedia

And 4 states that at one time or another recognized civil unions
plus 3 states that have other forms of civil arrangements that do not use the term "Marriage."

So if you are doing it by the numbers, that's a score of 18 to 6. That's a 3 to 1 choice for "same rights, different labels."

So to get past the silly numbers game, how does the 14th amendment kick in? Doesn't the SCOTUS have to weigh in at some point?

And if the SCOTUS hands this matter back to the states, doesn't that remove it entirely from the province of the 14th?

I think MM's analysis is largely correct. Gay marriage is, indeed, the law under the 14th amendment. The trick is in getting the authorities to recognize this fact. There have been several times in our history when a court has made a decision but the other branches of government have not followed through. President Andrew Jackson once famously said of a SCOTUS finding he didn't like, "The court has made its decision, now let it enforce it." A gay couple can go down to a courthouse in NJ and demand a marriage license, but that doesn't mean they'll get one. Another notable time when a state government decided not to enforce a court decision was Brown vs. the Topeka Board of Education. We know how that was resolved.

One difference between the two cases is that the Prop. 8 decision last week was made in federal court. That accounts for the difference between the seven-judge panel and the single judge. The NJ decision has already reached the highest court within NJ and must be appealed to SCOTUS. The CA decision will go to the federal circuit court and then to SCOTUS. Because it was done through the federal courts, a SCOTUS decision about Prop. 8 would probably be more wide-ranging, including the Defense of Marriage Act and the status of marriage at at the federal level.

Getting back to the enforcement of the decision, it seems possible that NJ might continue to refuse to marry and recognize marriages between same-sex couples, even in the face of a SCOTUS decision on Prop. 8. It would then be up to some federal authority (congress or the president) to try to force them to do so. To make an analogy--there are still states where the voting age is 21 according to the state constitution. They all allow 18 year olds to vote because of the federal constitution, but what if they didn't? What would the Fed do to make them obey the 26th amendment?

Originally Posted by Andy

Domestic partnership in the United States - Wikipedia, the free encyclopedia

Here's 11 states with domestic partnerships.

Civil union in the United States - Wikipedia, the free encyclopedia

And 4 states that at one time or another recognized civil unions
plus 3 states that have other forms of civil arrangements that do not use the term "Marriage."

So if you are doing it by the numbers, that's a score of 18 to 6. That's a 3 to 1 choice for "same rights, different labels."

So to get past the silly numbers game, how does the 14th amendment kick in? Doesn't the SCOTUS have to weigh in at some point?

And if the SCOTUS hands this matter back to the states, doesn't that remove it entirely from the province of the 14th?

There's no way the SCOTUS could "kick it back to the states" if they decide 14th amendment applies. I'm not sure how they can refuse to say it applies unless they can:

1. Defend gay men and lesbians as a group not worthy of consideration under the equal protection clause.
2. Finding a state interest in denying gay men and lesbians access to this particular institution.

With recent scientific findings that sexual orientation is innate and not a choice, and with a very strong argument from the judge in the Prop. 8 case that there is no state interest in differentiating between heterosexuals and homosexuals, that seems unlikely.

The choices voters and legislators have made is not really pertinent when it comes to a constitutional decision. Voters and lawmakers can pass any number of laws that aren't constitutional (and have, many times).

Originally Posted by Rassales

There's no way the SCOTUS could "kick it back to the states" if they decide 14th amendment applies.

Here's what I expect to happen and where I need some legal insight from someone who knows. If the SCOTUS has such a capability, they may do what they did in the 2000 elections and tell the state we can't deal with this in such and such a form. A number of judges have stated (As did the New jersey Courts and the first ruling in CT) that Gay Couples have a constitutional claim on the rights of Marriage but not the nomenclature, and that it would be up to legislatures to create a constitutional solution. The Federal Congress could than pass a "same as" resolution which would allow each state to call "it" whatever they wish, but that as an legal institution, it would be guaranteed to be equivalent in all states of the union. So domestic partnerships and civil unions and marriage would all be interchangeable in the eyes of the law.

To me that is the most democratic solution. The problem with prop 8 is that it is too narrow.

Originally Posted by Andy

Here's what I expect to happen and where I need some legal insight from someone who knows. If the SCOTUS has such a capability, they may do what they did in the 2000 elections and tell the state we can't deal with this in such and such a form. A number of judges have stated (As did the New jersey Courts and the first ruling in CT) that Gay Couples have a constitutional claim on the rights of Marriage but not the nomenclature, and that it would be up to legislatures to create a constitutional solution. The Federal Congress could than pass a "same as" resolution which would allow each state to call "it" whatever they wish, but that as an legal institution, it would be guaranteed to be equivalent in all states of the union. So domestic partnerships and civil unions and marriage would all be interchangeable in the eyes of the law.

To me that is the most democratic solution. The problem with prop 8 is that it is too narrow.

I think your solution seems reasonable, but I'm not sure the law works this way. First, there is a federal definition of marriage as well (for tax purposes and to cover cases offederal employees). This is guided by DOMA, which would be struck down. If SCOTUS decides that marriage cannot be denied to same-sex couples, it is unlikely to do so by instructing anyone to do anything--SCOTUS doesn't work that way, as the NJ Supreme Court apparently does. Rather, it would simply say that marriage is an institution that cannot be limited to one man and one woman, period. And it would thus be so.

If everyone wanted to try your solution, they would have to pass such legislation now and then see if SCOTUS goes along. If the only difference between "domestic partner" and "married spouse" were the word itself--that actually might work, since they would be legally equivalent. At the moment, they are not. On the other hand, even the word itself could be within the court's sense of equality, if they decided to go that way.

That's very helpful. So if I have you right, the first to get a case in front of the SCOTUS is the first to get the judgment, up or down. The high court doesn't suggest back other ways of fashioning the law? Which as you point out the New Jersey court basically did? Could the SCOTUS refuse to pass judgement until they see a case they want to judge? Sorry, I know that's 4 questions, but you seem to make sense as to how things work.

Originally Posted by Andy

That's very helpful. So if I have you right, the first to get a case in front of the SCOTUS is the first to get the judgment, up or down. The high court doesn't suggest back other ways of fashioning the law? Which as you point out the New Jersey court basically did? Could the SCOTUS refuse to pass judgement until they see a case they want to judge? Sorry, I know that's 4 questions, but you seem to make sense as to how things work.

The court can do as it pleases. It can take one case and not another. Taking a case is called "granting certiorari" or "granting cert." It can even do this strategically, so as to end up creating a more-sweeping or less-sweeping decision that has a broader or more narrow effect.

However, if SCOTUS does not grant cert, then the decision of the lower court stands. If the 9th circuit agrees with the original judge, its decision would be binding only within its circuit. The thing is, SCOTUS would have a hard time NOT granting cert at that point because there would be significantly different law governing different circuits and they'd probably need to rule in a way that brought all the circuits in line.

Probably what would happen is that someone in another circuit would bring a case based on the 9th circuit decision, and ask another circuit to go along. If they didn't, SCOTUS would pretty much be compelled to go along.

Mind you, I'm not a lawyer--I just have a lot of interest in this sort of thing.

No, this is great stuff. My Dad passed the bar, but never practiced, so I have some interest. So if, for example, when Ct passed its Civil Union Law, which Gov Rell signed as "same as marriage" how could such a law become a matter the Supremes would pass judgment on? The way I view this, the Gay Lobby has a lot more vision for making this happen and there is no moderate voice seeking a means of making a broadly acceptable approach actionable. They immediately attacked the Civil Union law in CT rather than see it as a way of gaining broader and more inclusive acceptance of equal rights for Gay Couples.