Prop 8 Federal Courts

rikkiandjulie

When this goes to the Federal Courts in Jan. Will it be affecting those who have liscenses from their current state. For some reason I got a rush of panic.

Two*True

Yes, it could.  That is why there is a fairly large contingent of community supporters who say it is too soon to take this fight to the federal level.  However, until it works it way through the SCOTUS (assuming they take the case) it is unlikely any state will change their laws. Or I should say, any state laws other than California's Prop 8 as the focus of the suit is the Constitutionality of  Prop 8.

rikkiandjulie

I want to cry. Is this going to the federal court in Jan?

bluedaisyus

from what i understand (and i am not a lawyer so i could be wrong, someone else feel free to correct me), it is unlikely it would affect you either way since you live in a state that recognizes gay marriage. it is strictly a challenge to the contitutional amendment that bans gay marriage in CA. the federal court will either say yes, the state constitution violates the protections of the federal consitution, overturning prop 8 and making marriage legal again (pending any appeals, of course) which could have very far-reaching results in other states that also have constitutional bans but not in ones where it is already legal; or the court would say that yes, CA can have this amendment in the state constitution because it doesn't violate the federal constitution, letting it stand and retaining the prohibition. that result is unlikely to affect the laws in other states that already recognize marriage because they aren't governed by the california state constitution in terms of their marriage laws.

i'll see if i can find some more info on it for you.

bluedaisyus

rikkiandjulie:

I want to cry. Is this going to the federal court in Jan?

and yes, in january. i believe it starts on the 11th, but i'd have to double check that.

Two*True

rikkiandjulie:

I want to cry. Is this going to the federal court in Jan?

Yes.  The challenge to Prop 8 is being heard on January 11 by the US District Court of Appeal.  They will decide whether or not Prop 8 denies the basic leberties and equal protection under the law that are guaranteed by the 14th Amendment of the US Constitution.

Regardless of the outcome the case will be appealed (by one side or the other) through the system until it reaches the SCOTUS. It's at that point that their ruling will affect all states one way or the other.  But that could be a few years down the road.

So don't cry now.  I seriously doubt our marriages are going anywhere soon :-)

bluedaisyus

or Two can check for me!

Mrs._F

Two*True:

Regardless of the outcome the case will be appealed (by one side or the other) through the system until it reaches the SCOTUS. It's at that point that their ruling will affect all states one way or the other.  But that could be a few years down the road.

Since the case is on the constitutionality of a ban passed by popular vote, even with appeals in SCOTUS, the voiding of existing marriages in states where they are legal seems highly unlikely.  The ramifications for other states would be if SCOTUS rules that it is totally constitutional for a popular vote to ban same-sex marriages - that would hold up the bans in all states that have passed them already, and encourage more states to put them on the ballot.

But I don't see how this case in particular would make any marriages null and void (I guess there's a slim chance that if it didn't go our way, it could nullify the CA marriages that happened between the original legalization and Prop 8 - but even that seems unlikely since they were already upheld).

Feel free to correct me if I've got this one wrong (I feel like all gays should be gifted a crash legal course free of charge upon coming out!).

Two*True

Mrs._F:

Two*True:

Regardless of the outcome the case will be appealed (by one side or the other) through the system until it reaches the SCOTUS. It's at that point that their ruling will affect all states one way or the other.  But that could be a few years down the road.

Since the case is on the constitutionality of a ban passed by popular vote, even with appeals in SCOTUS, the voiding of existing marriages in states where they are legal seems highly unlikely.  The ramifications for other states would be if SCOTUS rules that it is totally constitutional for a popular vote to ban same-sex marriages - that would hold up the bans in all states that have passed them already, and encourage more states to put them on the ballot.

But I don't see how this case in particular would make any marriages null and void (I guess there's a slim chance that if it didn't go our way, it could nullify the CA marriages that happened between the original legalization and Prop 8 - but even that seems unlikely since they were already upheld).

Feel free to correct me if I've got this one wrong (I feel like all gays should be gifted a crash legal course free of charge upon coming out!).

Right, I agree, lol! I wasn't saying that a ruling by the SCOTUS for Prop 8 would eliminate marriages in states that have them. But the ruling could affect our marriages by solidifying DOMA even more. 

I love us non- lawyers trying to understand all this.  I think this case could potentially affect all same-sex marriages depending on how the SCOTUS writes their ruling.

"In the end, the Olsen/Boies case could be both risky and legally sound. One key question is whether the U.S. Supreme Court would be willing to issue a ruling consistent with the Amendment 2 case if that meant effectively legalizing same-sex marriage in all 50 states. Or, if the court opted for a narrower ruling, whether it even would be willing to set the precedent of re-legalizing same-sex marriage only in California." (From the Gay Life)

So I'm guessing the final outcome (a few years from now) will come down to how wide of an argument is made by either side and how narrow of a decision the court makes. The court is ruling based on the US Constitution so if they out and out say that the 14th Amendment includes the rights of all individuals to marry regardless of sexual orientation than it will affect all states. If they say that the 14th Amendment does not protect it then of course each state can still have their mini-DOMAs and DOMA stands (and will theorectially be harder to eliminate).

Did I get that right? You'd think I would be able to articulate this stuff better considering my wife is writing her PhD on it  

Mrs._F

Two*True:

So I'm guessing the final outcome (a few years from now) will come down to how wide of an argument is made by either side and how narrow of a decision the court makes. The court is ruling based on the US Constitution so if they out and out say that the 14th Amendment includes the rights of all individuals to marry regardless of sexual orientation than it will affect all states. If they say that the 14th Amendment does not protect it then of course each state can still have their mini-DOMAs and DOMA stands (and will theorectially be harder to eliminate).

Yes! I think we've got it now. LOL  So the negative effect would be validating DoMA and any state bans - not nullifying any existing marriages, which is what I was assuming Rikki was worrying about.

Two*True

Here's an article that explains the risk of going to the SCOTUS

http://www.queerty.com/is-filing-a-lawsuit-against-prop-8-actually-the-worst-idea-ever-20090527/

I think both sides put up interesting arguments for and against going to the court, but I don't know which I agree with (yet).