Sunday, August 29, 2010

Legal Comments of Prop8

Dear Justin--

     The Prop 8 litigation is taking an interesting turn.  The 9th Circuit has specifically requested that the litigants brief it on the issue of the Defendants' standing to appeal.  Standing to bring an action is very important in the law, because the courts cannot as a matter of policy grant persons the right to bring suit against someone unless they legitimately and logically have something at stake in the litigation.  None of the named defendants, starting with Schwarzenegger and Brown, wanted to defend it, even though it is the governor's job to enforce the laws and the attorney general's job to defend them.  Instead, they palmed the defense over to the christian rightist group that lead the fight for Prop 8.  Unfortunately, that group's status as merely a proponent of legislation is, in my judgment, not likely to confer standing to sue, which in this situation is peculiarly left in the hands of the elected officials charged with enforcing the law.  Apparently the trial judge requested that the standing issue be briefed, but the plaintiffs and the defendants refused to submit arguments on the issue, probably because the plaintiffs wanted a decision from a forum more prestigous than a U.S. District Court, and the defendants because they knew they were on shaky ground.  I predict the 9th Circuit will deny the appeal because of the standing issue.  That is not the victory on the merits which the plaintiff's seek from the appellate courts, but it will have the effect of making gay marriage legal in California.
~~  J  ~~


JustinO'Shea said...

Thanks, J , for these clarifying comments.

QUESTION: If the plaintiffs and CA courts keep passing this case long, up to the Supreme Court, would that fact that the Supremes voted in favor to ban Prop 8, etc, would this action of the Supremes open the way for same sex marriages in the whole USA? I read somewhere this would be the case.
Wouldn't it apply only to California?
Thanks, J.

J said...


If the Supremes agreed to hear the matter on the merits and ruled to uphold the district court and overturn Prop 8, it would have the effect of legalizing gay marriage for the nation, but I now don't think there's a snowball's chance in hell of this happening. The court is very quick to toss out cases on standing grounds even if they were inclined to find a statue unconstitutional.
It would be interesting to read the appellate briefs of the parties on this standing issue. If you spot such a posting online you might alert your readers.

Coop said...

Thanks for the information, J. Thanks Justin for posting it.

I wonder, though, what about all this rhetoric from conservatives, etc. about the government making sham defenses against laws like DOMA, etc? If Schwarzenegger does not want to defend this law, won't it make them mad?
Luckily, that alone won't strip California of marriage eqaulity if the 9th circuit denies the appeal.

J said...

Justin--There is one additional wrinkle in the Prop 8 legal fabric:
Imperial County, CA attempted with the support of christian right lawyers to intervene in this case because the great majority of its voters supported Prop 8. Judge Walker denied its request to intervene. Had he granted it the standing argument would have been a tougher issue decide, because Imperial County is a governmental entity that has a true stake in the outcome because it issues marriage licenses. Imperial has now appealed the denial of its right to intervene, and the 9th Circuit has decided to address this issue along with the others. It's beginning to look as if what started out as a gay civil rights case may well result in a significant decision in the law of standing, as applied to California's popular referendum system of government. If the 9th Circuit decides Imperial County has insufficient standing to intervene, the decision will virtually proclaim the power of the governor and attorney general to nullify the effect of a popular referendum if they decide they don't like it and they are held by the courts to be the only proper parties in an enforcement lawsuit. If the 9th Circuit holds that none of the appellants has standing to appeal, Imperial's next step might well be to declare itself not bound by a decision of the U.S. District Court for the Northern District of California and refuse to issue marriage licenses to gays. (Imperial is in a different district court territory.) That would certainly create a mess the courts will ultimately have to wipe up.
The denial of Imperial's petition to intervene may well be something the U.S. Supreme Court might want to review, because the popular referendum power of California voters shouldn't be circumvened through the collusion of the governor and the attorney general, for whatever their motives.
Some of the christian right lawyers have suggested that since Judge Walker issued his order denying Imperial's right to intervene on the same day he handed down the decision declaring Prop 8 void, he really was trying to insure that the appellants would lose on the standing issue and his decision would not be overturned. That's an interesting theory, and certainly not the first time judges have been accused of resorting to devious tactics to protect their decisions.
I think Walker should have let Imperial intervene, because without a proper appellant in the case this whole thing could turn into a three-ring circus without a ringmaster.

Gary Kelly said...

Clarifying? Maybe it'll make more sense to me when I read it again in the morning.

Jack Greenman said...

You're not alone Gary, I too have trouble working my way through that sort of stuff, and for me its early afternoon. But I have my general excuses too.

I find all of this stuff utterly bizarre. Why in hell does it make a difference to ANYONE if a guy marries a guy? Christian churches don't have a monopoly on marriage, dozens of other religions marry, and I can think of a few who have no issue with man+man=married.

Where is the threat? Their logic just doesn't have logic to it.. in the end all their arguments boil down to NO! God says its BAD!

But alas the Bible was written by men, its a collection of stories - which the Church then went through and decided WHICH books would be included in the Bible, and which wouldn't. Even still its all a bit thin on the whole thing, because its out dated.

If Jesus Christ walks up to me and says "Gays should not be allowed to marry in the church, my father says so" then I will put up my hands and say "fair enough" (and mind you the next time Jesus shows up we're all in for some trouble if one actually follows the book)

Until such a time as that I will continue to shake my head with disappointment at the people who are so threatened by progress in social, civil, and just plain Human Growth.


PS: Gary I lost the link to your news page, where is it these days?

J said...

Interesting enough, Jack, the Prop 8 proponents were unable to prove that gay marriage harmed anyone, or any group. All it does is hurt their theological feelings. And hurt feelings are not cognizable damage, nor do they convey standing to sue in law. That's why the appellants are in trouble. Aren't you just sick of the influence religion has on politics and foreign relations in the world?

JustinO'Shea said...

I am too! Unfortunately it has moere to do with control than with God or gods and goddesses!

I do not have difficulty with the theology of church and worship. . .but I do not have much truck with the bureaucracy and the bureaucrats messing things up!

Hmmm. . .might it be possible I have "authority issues". . .wouldja think? LOL

A lot of today's RCC problems in more recent times stem from that Polish pope John Paul II. . .he was a tight-fisted mean old man. He came in young and stayed too long! And his successor followed suit, inheriting the policy problema of Papa Woytyla.