:: Ninomania ::

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:: Monday, December 31, 2012 ::

Seidman

Prof. Bainbridge takes care of the matter here. I could say more - perhaps I will later, esp. about how choosing one at-the-time viable reading of the Constitution over a later, victorious one, as John Adams did re the Sedition Act, does not amount to "ignoring" the Constitution - but, spurred by a tweet from @walterolson, I realized that I have somewhat aggressively not cared what Prof. Seidman thinks about the Constitution for a long time, and New Year's Eve (also, still, the thick of the grading season) is hardly the time to change ways.

I have not yet eulogized Judge Bork, other than on Facebook, for (perceived) lack of time to do justice to the subject, so to speak. After grades are in, I hope.

:: David Wagner 8:51 PM [+] ::
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:: Monday, December 10, 2012 ::

You know, if the Court ends up holding that proponents of Prop. 8 lack standing to defend it in federal court, then that nullifies both the 9th Circuit's and Judge Walker's rulings, as those rulings were rendered in "cases" without valid plaintiffs.

Federal standing law doesn't necessarily affect state courts, however, so the California Supreme Court's holding that Prop. 8 had effectively overruled its own earlier decision that the California Constitution enacted same sex marriage would then be the last judicial decision standing.

That means that Prop. 8 would be in a state of dormancy, ready to go back into effect whenever (if ever) a California administration decides to enforce it. That may be very unlikely to happen, but at least it means that the issue of same sex marriage, even in California, is once again in the political process, where some say it belongs.

Just saying.

:: David Wagner 3:34 PM [+] ::
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:: Friday, December 07, 2012 ::

The Supreme Court has granted cert in the two closely-watch "gay rights" cases: the Prop. 8 same-sex marriage case, now called Hollingsworth v. Perry, and the only DOMA case to have yielded Court of Appeals decision thus far, U.S. v. Windsor. Note that in both cases, the Court directed the parties to brief the issue of standing. That's a different issue in the two cases:

In Hollingsworth, the standing question is: do activists who have all along promoted and defended Prop. 8 (a much more specific and narrowly-injured set of parties than simply "backers" or "supporters") have standing to defend a state constitutional amendment when the state refuses to? If not, then any state could nullify the outcome of a referendum through simple non-enforcement.

In Windsor, the standing question is: does a group consisting of a large number of Congressmen, but which is obviously not itself Congress, have standing to challenge a decision holding a federal statute unconstitutional when the executive branch is of that opinion also?

The Court seems to be maximizing its options for disposing of these cases on standing. The result could be standing rules that restrict activist standing beyond anything Justice Scalia ever dreamed of, and an executive coordinate constitutional review power beyond anything Andy Jackson ever dreamed of. And that's if the gay interest wins on its standing issues. One presumes it would just as soon lose on those issues and take its chances on the merits. Or would one?

:: David Wagner 6:25 PM [+] ::
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