Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

Today's guest panelists Miah Akston, Andrew D. Kirch and Jeff Cox---live from Claude & Annie's, 9251 East 141st Street, Fishers.

   The United States Supreme Court certainly was busy this week. Guest panelists Miah Akston, Andrew D. Kirch, and Jeff Cox will discuss with me (Paul continues on his vacation) the DOMA, Prop 8, and Civil Rights Act cases handed down by the Roberts Court.

   Each of the cases has interesting nuances. The Prop 8 case had a bizarre combination of justices join in a single dissenting opinion. Usually when justices of such diverse views as Justices Kennedy, Thomas, Alito and Sotomayor dissent from a case, either each will dissent separately or two will join in one dissent or there will be four dissents with various justices joining in one or another of the dissents. Justice Kennedy wrote the dissent in which the other three joined.

   I agree with the notion that there should not be discrimination against same-sex couples who wish to marry. The opinion of Chief Justice Roberts, however, skirted the substantive issue. Referenda were created so that the voters of a State could circumvent politicians who want to block popular will. United States Senator Robert "Fighting Bob" LaFollette of Wisconsin was a champion of such populist reforms to government. The voters of California---deluged by ads, many of which were purchased by the Mormon church, groups backed by the Koch brothers, and other corporate interests (total: $39 million); and from groups that opposed the measure ($44.1 million), about the same percentage of each side's money originating from outside the State of California---approved Proposition 8 in November, 2008. Suit was brought by two couples who wanted to marry but were now denied that opportunity by the newly-revised Constitution of California.

   Neither Governor Arnold Schwarznegger nor Attorney General, past- and now-Governor of California, wanted to defend Proposition 8 in the United States District Court in which suit had been brought. Individuals who originally had been proponents of the ballot initiative sought the status to defend the lawsuit. The United States District Court certified a question to the California Supreme Court---a little-used but valid means by which a Federal Court can determine an individual State's law---as to whether these individuals had standing to defend Prop 8. The California Supreme Court said "yes." "Standing" is a party's legal right to make a legal claim or seek judicial enforcement of a duty or right; to have standing in federal court, a plaintiff must show: 1) that the challenged conduct has caused him or her injury in fact, and 2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. Black's Law Dictionary, Pocket ed., 1996, p. 590.

   Once the California Supreme Court had ruled on standing, the matter was not at issue until the case arrived at the United States Supreme Court. Even the United States Court of Appeals for the Ninth Judicial Circuit, while split on the substantive issues of the case (they ruled, btw, that the District Court was right and Prop 8 was unconstitutional) had been unanimous in finding the proponents had standing.

   However, by a 5-4 majority, the United States Supreme Court found the proponents lacked standing to bring the appeal. Therefore, the District Court's decision stands.

   The Show today will be interesting and fun. Bill Smythe, Clause & Annie's owner, has graciously allowed us to shoot in his establishment. Also, discussion of the cases should also be fun.     

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