Why do the Federal Courts NOT allow “Public Cases”? (Excerpt from Transcript of Today’s Arguments before SCOTUS)


Too many disturbing issues raised by today’s arguments in Hollingsworth v. Perry (the California Proposition 8 case) to cover them all, but (1) the RIGHT TO PRIVACY arguments which have heretofore dominated constitutional debate concerning criminalizing or legalizing abortion, contraception generally, and sodomy in particular, requiring parental consent to minor girls’ abortions, etc., have suddenly given way to THE STATE HAS A COMPELLING INTEREST IN REGULATING PROCREATION as a reason for California Proposition 8; Could anything be scarier than a decision which allows the State to have a compelling interest in procreation? (2) the Court seems determined that the States WILL Continue to have the power to define and regulate marriage—and so I will disapprove of any result.  My position remains now as it has been for over a decade now that ALL STATE FAMILY & DOMESTIC RELATIONS CODES ARE UNCONSTITUTIONAL.  Accordingly, my position on Gay Marriage is equally simple: Gay Couples should have EXACTLY THE SAME right to a marriage license as Heterosexual couples and that would be NONE.  Marriage and domestic (home) life generally should be completely outside of the realm of governmental regulation, except to prevent common law crimes by family members against each other the same as against anybody else.  (In other words: assault, battery, false imprisonment, kidnapping, mayhem and murder were crimes before there were any family courts and they still should be; no new laws on “domestic violence” are or ever were necessary).

However, the question of standing grabbed my attention in particular, and because Justice Breyer talks about “Public Cases” as if they were common knowledge, I can’t help wonder why there aren’t more of them going on and why we don’t insist on having them in Federal Court as well:

03-26-2013 12-144 Hollingsworth v Perry Oral Argument

Official – Subject to Final Review

  1. 1  And if public officials could effectively
  2. 2  veto an initiative by refusing to appeal it, then the
  3. 3  initiative process would be invalidated.
  4. 4  JUSTICE BREYER: That’s — historically, I
  5. 5  think, 40 States, many States have what was called a
  6. 6  public action. A public action is an action by any
  7. 7  citizen primarily to vindicate the interest in seeing
  8. 8  that the law is enforced. Now, that’s the kind of
  9. 9  action I think that this Court has interpreted the
  10. 10  Constitution of the United States, case in controversy,
  11. 11  to say that it does not lie in the Federal system.
  12. 12  And of course, if that kind of action is the
  13. 13  very kind that does not lie, well, then to say, but they
  14. 14  really feel it’s important that the law be enforced,
  15. 15  they really want to vindicate the process, and these are
  16. 16  people of special interests, we found the five citizens
  17. 17  who most strongly want to vindicate the interest in the
  18. 18  law being enforced and the process for making the law be
  19. 19  enforced, well, that won’t distinguish it from a public
  20. 20  action.
  21. 21  But then you say, but also they are
  22. 22  representing the State. At this point, the Dellinger
  23. 23  brief which takes the other side of it is making a
  24. 24  strong argument, well, they are really no more than a
  25. 25  group of five people who feel really strongly that we10

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Alderson Reporting Company

Official – Subject to Final Review

  1. 1  should vindicate this public interest, and have good
  2. 2  reason for thinking it.
  3. 3  So you have read all these arguments that
  4. 4  it’s not really the agent and so forth. What do you
  5. 5  want to say about it?
  6. 6  MR. COOPER: What I want to say, Your Honor,
  7. 7  is according to the California Supreme Court, the
  8. 8  California Constitution says in terms that among the
  9. 9  responsibilities of official proponents, in addition to
  10. 10  the many other responsibilities that they step forward
  11. 11  and they assume in the initiative process, among those
  12. 12  responsibilities and authorities is to defend that
  13. 13  initiative if the public officials which the initiative
  14. 14  process is designed to control have refused to do it.
  15. 15  It might as well say it in those terms, Your Honor. 03-26-2013 Oral Argument at SCOTUS Marriage as Genderless Institution 12-144a Tuesday March 26 2013

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