Comments on: Analysis: 2 rulings on gay marriage: no federal issues

By: Joe

Joe — Sun, 09 Jul 2006 15:28:33 +0000

I have been informed, my bad, that there are two “Smiths” on the Court of Appeals, and that they split — one wrote the plurality, one joined the concurrence.

By: Joe

Joe — Sat, 08 Jul 2006 02:05:45 +0000

To address perhaps a separate issue.

NY doctrine follows federal as to equal protection as a matter of state law. Thus, what the Supreme Court determined is required for equal protection of law is what is required for state law. Contra, MA has more liberal equal protection rules pursuant to its own state constitution. NY has somewhat broader due process protections, though the concurrence tried to narrow avenue.

Thus, the concurrence’s discussion of federal equality doctrine is relevant for the state question. Having read it, I don’t think it is just in place to “trash” the dissent, though that might be one reason. The dissent is on all questions, the concurrence started off noting it was particularly concerned with part of them.

The author of the main opinion joined the concurrence, perhaps seeing it as a sort of annex on the points she covered.

By: Kent Scheidegger

Kent Scheidegger — Fri, 07 Jul 2006 22:25:05 +0000

Lyle notes in a revision to the main post that the plaintiffs did not raise a federal question. There clearly is no jurisdiction. They would be wasting their money to even file a certiorari petition.

By: Commentator

Commentator — Fri, 07 Jul 2006 02:11:00 +0000

And I think the argument would be that NY Constitution is equal to on Federal law; the interpretation of Federal law is wrong, as it interprets the Federal constitution more narrowly than it should, not more broadly; therefore, there is no adequate and independent state ground barring SCOTUS review of the erroneous interpretation of federal law.

By: Commentator

Commentator — Fri, 07 Jul 2006 02:08:36 +0000

Judith Kaye’s dissent, though, tries to raise the specter of an erroneous interpretation of federal law. The concurrence exists for the sole reason of trashing her dissent. It succeeds. None of her citations, nor the arguments they purport to support, survive the withering analysis of the concurrence. I suspect the concurrence exists to thwart any chance of SCOTUS review.

By: Kent Scheidegger

Kent Scheidegger — Thu, 06 Jul 2006 22:44:04 +0000

Did any party in either case raise a federal question? SCOTUS has jurisdiction to review a federal question properly raised by a party but ignored by a state court. The federal question must be "pressed or passed upon below." Illinois v. Gates, 462 U. S. 213, 219 (1983) (emphasis added). If the parties didn't raise the federal question and the state court didn't decide it, then the prerequisite for SCOTUS jurisdiction under 28 U.S.C. § 1257(a) is not there.