How will the Supreme Court rule on Prop 8?

[True Federalist (진정한 연방 주의자)]

So the Federal government would have to recognize same sex marriages in Vermont but not Maryland? I don't think that's something the Court would want to put in place.

That's why one of the best ways to get the Court to hear a case is to have different circuits issue opposing rulings.  A case from Maryland in the Fourth is probably the best way to get a case where Section 3 is upheld.

Also, someone could use the reasoning from the circuit cases to sue from one of the other places in that circuit that currently does not recognize same-sex marriage to get their state to recognize gay marriage.  I imagine at least Idaho and Arizona in the Ninth would defend their laws against same-sex marriage if challenged, so the Court wouldn't have the dodge of lack if standing to hide behind to avoid the issue while public attitudes are still in flux.

[Benj]

So the Federal government would have to recognize same sex marriages in Vermont but not Maryland? I don't think that's something the Court would want to put in place.

That's why one of the best ways to get the Court to hear a case is to have different circuits issue opposing rulings.  A case from Maryland in the Fourth is probably the best way to get a case where Section 3 is upheld.

Except, after a ruling from the Supreme Court that BLAG lacks standing, I don't see who would have standing to defend Section 3 (other than the DoJ, which as long as Obama is in office will refuse to defend it). So the Fourth Circuit wouldn't have the option to uphold Section 3. Instead, Section 3 would be effectively nullified in every circuit where gay marriage is already legal in some state.

I don't think the Court really wants to make such a sweeping decision on standing that would apply even outside of the gay marriage context.

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That's a Section 2 issue, not a Section 3 issue.

[True Federalist (진정한 연방 주의자)]

So the Federal government would have to recognize same sex marriages in Vermont but not Maryland? I don't think that's something the Court would want to put in place.

That's why one of the best ways to get the Court to hear a case is to have different circuits issue opposing rulings.  A case from Maryland in the Fourth is probably the best way to get a case where Section 3 is upheld.

Except, after a ruling from the Supreme Court that BLAG lacks standing, I don't see who would have standing to defend Section 3 (other than the DoJ, which as long as Obama is in office will refuse to defend it). So the Fourth Circuit wouldn't have the option to uphold Section 3. Instead, Section 3 would be effectively nullified in every circuit where gay marriage is already legal in some state.

I don't think the Court really wants to make such a sweeping decision on standing that would apply even outside of the gay marriage context.

As long as the Court has not ruled on the merits of the case, but rather the standing of individuals to file an appeal, then the other circuits are not bound by the decision of the Second Circuit.  Also, it would not be impossible for a future president to decide it was going to apply and defend DOMA and thereby file an appeal of the Second Circuit ruling then.  Which would be odd after it had been effect for four years, but not impossible, especially if the current momentum in favor legalizing same-sex marriage were to stall or even reverse itself.  (As you might can tell, I am not one who believes in the idea of an inevitable sweep of history, which is why I am extremely hostile to the idea that the courts should be used as a shortcut to get where we'll eventually be.  Courts should not be in the business of soothsaying.)

[politicallefty]

So the Federal government would have to recognize same sex marriages in Vermont but not Maryland? I don't think that's something the Court would want to put in place.

That's why one of the best ways to get the Court to hear a case is to have different circuits issue opposing rulings.  A case from Maryland in the Fourth is probably the best way to get a case where Section 3 is upheld.

I don't agree that it'll be the Fourth Circuit. That circuit court is dominated by Clinton and Obama appointees, so I think you'd see a similar ruling striking down Section 3 there. The most likely way to get a circuit split will either be the DC or Eighth Circuit, the latter probably being most likely due to its current composition and the fact that the DC Circuit may soon lose its conservative majority. Of course, this is all assuming the Supreme Court doesn't rule on the merits.

[Benj]

So the Federal government would have to recognize same sex marriages in Vermont but not Maryland? I don't think that's something the Court would want to put in place.

That's why one of the best ways to get the Court to hear a case is to have different circuits issue opposing rulings.  A case from Maryland in the Fourth is probably the best way to get a case where Section 3 is upheld.

Except, after a ruling from the Supreme Court that BLAG lacks standing, I don't see who would have standing to defend Section 3 (other than the DoJ, which as long as Obama is in office will refuse to defend it). So the Fourth Circuit wouldn't have the option to uphold Section 3. Instead, Section 3 would be effectively nullified in every circuit where gay marriage is already legal in some state.

I don't think the Court really wants to make such a sweeping decision on standing that would apply even outside of the gay marriage context.

As long as the Court has not ruled on the merits of the case, but rather the standing of individuals to file an appeal, then the other circuits are not bound by the decision of the Second Circuit.  Also, it would not be impossible for a future president to decide it was going to apply and defend DOMA and thereby file an appeal of the Second Circuit ruling then.  Which would be odd after it had been effect for four years, but not impossible, especially if the current momentum in favor legalizing same-sex marriage were to stall or even reverse itself.  (As you might can tell, I am not one who believes in the idea of an inevitable sweep of history, which is why I am extremely hostile to the idea that the courts should be used as a shortcut to get where we'll eventually be.  Courts should not be in the business of soothsaying.)

Yes, they're not bound by the Second Circuit... but that's not my point. If BLAG does not have standing to defend DOMA, then no one but the DOJ has standing to defend DOMA, and there can only be default judgments that it is unconstitutional.

Imagine SCOTUS rules next June that BLAG lacks standing. The Second Circuit decision is therefore upheld. Immediately, someone brings suit in the District of Maryland, or the District of DC, or one of the Districts of Iowa, challenging Section 3. The DOJ refuses the defend the suit. (Obama will, after all, still be in office.) There would be no one with standing to defend Section 3--no one at all. There would be a default judgment in favor of the plaintiffs, and the law would be unconstitutional in Maryland, DC or Iowa. And there would be no one with standing to request an appeal, so the Fourth Circuit or the Eighth Circuit or the DC Circuit wouldn't even have a chance to hear the case.

True, after the 2016 election a Republican President could in theory order the DOJ to defend the suits again. But can you really imagine that happening, almost four years on? It would be like trying to reinstate DADT.

In short, ruling that BLAG lacks standing has, practically speaking, identical results to ruling that Section 3 is unconstitutional, though of course the legal web would be much more tangled. (And that's why I really can't see SCOTUS trying to dodge the question with the standing issue, at least in Windsor--they could well do so in Perry, however, which would be one way for Kennedy to split the baby.)

[True Federalist (진정한 연방 주의자)]

A default judgement in favor of the plaintiffs is not a foregone event in such an event.  A circuit could rule that the plaintiff's case does not have sufficient merit as to warrant a default judgement in their favor.

[Benj]

A default judgement in favor of the plaintiffs is not a foregone event in such an event.  A circuit could rule that the plaintiff's case does not have sufficient merit as to warrant a default judgement in their favor.

Yes it is. Failure to issue a default judgment against a non-appearing defendant almost never happens. It certainly can't happen when there is potential merit to the plaintiff's claim. It only happens when the claim is clearly spurious and without any potentially valid legal basis to the point that the lawyer bringing the claim would be subject to Rule 11 sanctions, something that is obviously not the case when there is persuasive (but not controlling) precedent the other way.

Who is going to argue for Section 3? The court itself? That would be most improper.

[True Federalist (진정한 연방 주의자)]

Not that it matters much in the long run.  If the court punts on the Section 3 case because of lack of standing, there will soon enough be cases from states where same-sex marriage is not legal to bring the Equal Protection argument squarely before the court.

[MyRescueKittehRocks]

Upholds it open and shut. Also rules the states and the people get to make the decision. Think popular sovereignty doing the right thing. 9/10th Amendment upheld as law in marriage issue.

[Kaine for Senate '18]

Upholds it open and shut. Also rules the states and the people get to make the decision. Think popular sovereignty doing the right thing. 9/10th Amendment upheld as law in marriage issue.

Lol no.  The Court will not make that decision.

[Blue3]

Upholds it open and shut. Also rules the states and the people get to make the decision. Think popular sovereignty doing the right thing. 9/10th Amendment upheld as law in marriage issue.

The whole issue is... what happens if an unconstitutional law is passed by referendum in a state, and, is Proposition 8 in unconstitutional law due to the equal protection clause?

[True Federalist (진정한 연방 주의자)]

Upholds it open and shut. Also rules the states and the people get to make the decision. Think popular sovereignty doing the right thing. 9/10th Amendment upheld as law in marriage issue.

Lol no.  The Court will not make that decision.

While it is not open and shut, the court could very well rule that the lower courts have been generally making law rather than interpreting it on this issue and that there is no federal right to marriage.  It's certainly not an enumerated right, tho the 9th clearly states that rights are not required to be enumerated to be protected under the constitution.  What I hope is that the court strikes down is the reasoning the Ninth used to strike down Proposition 8.  The idea that the law can only change in one direction is ludicrous, but that's what the Ninth essentially ruled.  That if Prop 8 had been maintaining the status quo it would have been acceptable, but because it was trying to revert to that prior status quo it was not acceptable strikes me as a very bad theory of jurisprudence.