Another gay marriage state?

[Andrew R]

http://www.lansingstatejournal.com/article/20140321/NEWS01/303210057/Judge- strikes-down-Michigan-ban-gay-marriage-state-asks-stay?nclick_check=1
Michigan overturned the ban on gay marriage yesterday. The attorney general is trying to get a stay to fight it but monday might mark the first day of filing for licences. Judge made some good comments on it.

[Wyntr]

Linked.

The story has some good details on the case, the judge's comments, etc.

[Scythia]

Glad to see it.

I'm waiting for it to come to my state (not because I personally need it, but because I believe it's right). We've already had a judge rule that the state can no longer refuse to acknowledge weddings that were conducted legally in another state, but getting the marriage done here is still illegal. Having the state next door fixing that error makes me hopeful.

[Orfamay Quest]

Boy, there are a lot of activist judges rushing in where angels fear to tread. I'm afraid the Windsor ruling will not support any of these,... and a lot of couples will be really disappointed when the Supreme Court rules on a 5-4 basis that "whups, Windsor was wrongly decided and is now overturned and, in fact, gays have no rights whatsover."

[thejeff]

It's possible of course. It gets less likely as time goes on and more states legalize it, through legislation or state judicial action. And if any of these rulings aren't stayed the presence of newly married couples makes it even less likely.

But really, though they may choose not to construe Windsor as broadly as some of the lower court judges, the chances of the SC overturning their own ruling a couple years later is almost nil.

And the longer it takes the more public opinion swings and the less the Court will want to be on the wrong side of history.

[LazarX]

Orfamay Quest wrote:

Boy, there are a lot of activist judges rushing in where angels fear to tread.

Definition of "activist judge". A court that makes a decision the poster does not like.

[Billzabub]

LazarX wrote:

Orfamay Quest wrote:

Boy, there are a lot of activist judges rushing in where angels fear to tread.

Definition of "activist judge". A court that makes a decision the poster does not like.

I was thinking the same thing. How does deciding a case in accordance with the Constitution and in light of existing case law make a judge an activist?

[Orfamay Quest]

LazarX wrote:

Orfamay Quest wrote:

Boy, there are a lot of activist judges rushing in where angels fear to tread.

Definition of "activist judge". A court that makes a decision the poster does not like.

Wrong on several counts. I'm a firm supporter of gay marriage, myself.

But the Supreme Court was specifically asked in Windsor whether the equal protection clause made prohibitions on same-sex marriage illegal. They specifically declined to address that point.

Now Federal judges all over the country are stating that the equal protection clause makes prohibitions on gay marriage illegal, and pointing to Windsor as the controlling case law.

Wikipedia's definition of judicial activism (see also Black's Law Dictionary) is "judicial rulings suspected of being based on personal or political considerations rather than on existing law." Since the relevant "existing law" (Windsor) explicitly doesn't address the question the judges are ruling on, despite a direct invitation from both parties to do so, I don't see how any of these rulings can be described as "based ... on existing law." No one has suggested that this is a case of first impression which needs to be analyzed from first principles; they've all going to Windsor as a controlling case, which is manifestly isn't.

Which unfortunately makes them rampant examples of judicial activism. Judicial activism that gives the right answer, but judicial activism nevertheless.

And just as the SCOTUS will be unlikely to overturn Windsor directly, they're equally unlikely to be happy about this blatant misinterpretation of Windsor.

I foresee a smackdown coming, a 5-4 ruling that says "Re-read Windsor. Now re-read the 10th Amendment. Nothing in Windsor addresses this question, and the 10th Amendment controls. States are free to discriminate against gays in any way they see fit."

[Orfamay Quest]

Billzabub wrote:

LazarX wrote:

Orfamay Quest wrote:

Boy, there are a lot of activist judges rushing in where angels fear to tread.

Definition of "activist judge". A court that makes a decision the poster does not like.

I was thinking the same thing. How does deciding a case in accordance with the Constitution and in light of existing case law make a judge an activist?

Absolutely nothing. Of course, there is no relevant case law, so your hypothetical question does not apply. The actual case law is deliberately silent on this issue.

[Orfamay Quest]

thejeff wrote:

But really, though they may choose not to construe Windsor as broadly as some of the lower court judges, the chances of the SC overturning their own ruling a couple years later is almost nil.

I wish I could agree. Remember, though, that the Windsor decision was 5-4, which means that, out-of-the-box, half of the SCOTUS believes that Windsor was wrongly decided and would welcome a chance to revisit it.

All it takes for one justice to change opinions based on how federal courts across the country are interpreting what was supposed to be a relatively narrow ruling, and,... down it does.

[thejeff]

Orfamay Quest wrote:

thejeff wrote:

But really, though they may choose not to construe Windsor as broadly as some of the lower court judges, the chances of the SC overturning their own ruling a couple years later is almost nil.

I wish I could agree. Remember, though, that the Windsor decision was 5-4, which means that, out-of-the-box, half of the SCOTUS believes that Windsor was wrongly decided and would welcome a chance to revisit it.

All it takes for one justice to change opinions based on how federal courts across the country are interpreting what was supposed to be a relatively narrow ruling, and,... down it does.

What you clarified above might happen. Ruling that Windsor holds but that the lower court interpretations of it do not.

Actually overturning Windsor isn't going to. Not anypoint in the near future. Even if they don't like what lower courts have made of it.

Honestly though, I don't see any of it happening. Unless public opinion suffers major backlash on this, there's no way the court is going to make a major ruling that they know will be overturned within a generation.And will be reviled as one of the Court's major mistakes.
They're not stupid. They're concerned for their reputation.