August 12, 2010

In the Prop 8 case, Judge Walker has denied the motion to stay the judgment pending appeal.

So, unless a stay can be procured from the 9th Circuit Court of Appeals, you can get same-sex married in California beginning August 18th. Walker's opinion expresses doubt over whether there is standing to appeal, because the "state defendants" — the state's governor and attorney general — didn't oppose the stay. The remaining defendants, referred to in the opinion as "proponents" of Prop 8, may lack standing on their own to appeal. These defendants were permitted to intervene at the trial level, but that doesn't mean they have standing to carry the case forward to appeal. If the proponents can't get the state defendants to appeal, that may be the end of this case and Walker's opinion finding Prop 8 unconstitutional will be the last word in California. For now, the standing problem weighed against granting the stay pending appeal, because it undermined the likelihood of success on appeal.

63 comments:

Paul Zrimsek said...

The Governator and AG were the defendants? You'd never guess it from reading the opinion.

sunsong said...

Proponents’ intervention in the district court does not provide them with standing to appeal….

As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.

sunsong said...

Also:

Proponents also point to harm resulting from “a cloud of uncertainty” surrounding the validity of marriages performed after judgment is entered but before proponents’ appeal is resolved…. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse.

mesquito said...

Well, he's the boss. We voters need no longer trouble our pretty little heads over what "marriage" means.

sunsong said...

There is an interesting piece at Volokh suggesting that by the time this reaches the Supreme Court it may be a moot point - because gay rights supporters will have had a new Prop by Nov 2012 and gay marriage may well already be legal :-)

volokh

John Lynch said...

That whole oath to defend the constitution... guess it's meaningless.

shoutingthomas said...

That oughta teach those dumb, bigoted voters to know their place.

Who do they think they are?

Everybody knows that those lowlifes were put on this earth to serve the judges and lawyers.

NotYourTypicalNewYorker said...

7,000,000 California voters swept aside by 1 gay judge...

former law student said...

The remaining defendants, referred to in the opinion as "proponents" of Prop 8, may lack standing on their own to appeal.

Vox populi, vox nemi.

What if the judge's decision is overturned? If allowing SSM irreparably harms traditional marriages, the damage will have been multiplying.

shoutingthomas said...

I suggest we do away with elections altogether.

Just call a conference of lawyers from time to time.

We bigots need somebody to tell us what we can and cannot do.

AllenS said...

7,000,000 people get a t-shirt that says f*ck you.

Tidy Righty said...

It is unbelievable that one fudgepacking judge can undermine what seven million upstanding Californians did. That is why we need to call our U.S. House of Representative reps. and demand that they block fudgepacker Kagan from reaching the Supreme Court.

AJ Lynch said...

John Q. Public [aka the voters] are now invisible to the court?

This judge is not thinking strategically - his slick lawyerly tactics will inflame many fair-minded people.

AC245 said...

Tidy Righty said...

Everyone point and laugh at phil/Jake/L.E. Lee/"Fiscal Conservative Guy"/"UW Law Babe"/etc.'s mobying efforts.

garage mahal said...

What if the judge's decision is overturned? If allowing SSM irreparably harms traditional marriages, the damage will have been multiplying.

By traditional marriage, you mean the transfer of one or more women, as property, to be exchanged for a dowry, to be used by husband as he wishes? With no power, no rights, no property, and no equality. Or did you mean a little less traditional, but still "traditional"? But then aren't you just picking and choosing what traditional marriage means to you?

jr565 said...

AJ Lynch wrote:
This judge is not thinking strategically - his slick lawyerly tactics will inflame many fair-minded people.

Textbook example of a pyyric victory?
Cedardford talks about the jews that control the world and how we are at the back and call of Jews. Not saying that gays are a cabal, but they are a VERY small percentage of the population. And to enact gay marriage, by fiat is only going to enflame even fair minded people not to elect democrats and liberals who may be for gay marriage or civil unions but who don't want to have some random judge impose his will on the majority who voted on it.
I can't help but think this will only create endless campaign adds for conservatives.

Gene said...

Does Judge Walker's decision mean that is also unconstitutional for the state to prevent a man from marrying two women simultaneously? If not, what is the principle on which polygamy may be proscribed?

Bill said...

Can the governor and AG really take a dive, and fail to defend their state constitution?

WV: calipica (the official state font)

Quayle said...

So how long now until the Walker-type judges start to pound down any nails that still stick up on gay marriage?

Ten years? Two years?

Notice how the people that always claim that they just want to be left alone can never seem to leave others alone.

It's the worm inside that never dies - that unsettledness in the quiet moments that is the real issue here.

And they think that it is coming from outside of them, and that if they can just get rid of that external 'opposition' that gnawing will go away.

And our secular high priests act exactly as Jeremiah said they would, "They dress the wound of my people as though it were not serious. 'Peace, peace,' they say, when there is no peace."

GMay said...

Tidy,

Most people get better with practice, but you just keep right on sucking.

Go back to lefty troll man, you don't have what it takes to be a Moby.

chuck b. said...
This comment has been removed by the author.
chuck b. said...

Well, 6.4M voted no. So it lost by .6M. If 300,001 voted the other way, 8 would have gone down. So technically, Walker "substituted his opinion" for 300,001 voters, not 7M. :P

Skipper50 said...

A farreaching constitutional case with only a plaintiff and no defendant. Interesting. How does this whole judicial thing work again?

edutcher said...

Too bad nobody in the Federal judiciary has the integrity to bring up the fact that Walker is a notorious shill for this sort of thing and should have recused himself.

Ah well, come the revolution...

Paddy O said...

Okay, I'm not a lawyer, so I'm curious about some basic legal lessons in this.

Why exactly were the governor and the AG defendants in the first place? I assume the suit was against the state of California, and as the chief legal executives they are the primary figures of a suit. But, in what way did they have standing to begin with as defendents, except as representatives of the California voters. Both of the "defendants" support gay marriage, so obviously they weren't ever on the side of "their" side. They were hostile defendants, I guess we can say.

But, if they do not choose to act in their representative capacity for the people in this suit (California chose a position through a vote), then cannot any Californian have standing as a continuing representative of defending the voters as a whole?

My ignorance abounds, so I'm curious why Arnold and Jerry could at first be considered the defendants and now the only defendants when the true voice behind the measure was the combined voters of California?

former law student said...

Paddy O:

The voters were acting as legislators. Law enforcement, however unenthusiastic, belongs to the executive branch.

James said...

edutcher said:

"Too bad nobody in the Federal judiciary has the integrity to bring up the fact that Walker is a notorious shill for this sort of thing and should have recused himself."

Any evidence of him being a "notorious shill" for gay marriage, beyond the fact that he is gay, or are you just throwing as much mud as you can, hoping some of it will stick?

And if a gay man (with no evidence of him ever being that "shill" you describe) cannot preside over this case, then neither can a Christian man who believes homosexuality is immoral. Or maybe you just think that sort of judge is more capable of putting aside biases and ruling on the law? As a lawyer, this "gay man" represented the Olympic Committee in preventing the "Gay Olympic Games" and put a lien on the house of one of the leaders of the games, who also happened to be dying of AIDS at the time, saying he was doing so to serve the best interests of his client. This seems to me to be evidence that the man can put aside his own personal feelings about homosexuality when it comes to doing his job.

But to you, nothing will ever convince you that a gay man could ever have actually ruled on the merits of the case, the way a straight man could.

Gabriel Hanna said...

The governor and the state refused to defend Prop. 8, so the defendants were the people who sponsored it; California laws is clear on that.

What's not clear is why the proponents had standing to defend Prop. 8 but not to ask for stay of Walker's judgment.

http://www.nationalreview.com/bench-memos/243191/walker-rejects-stay-request-ed-whelan

garage mahal said...

Any evidence of him being a "notorious shill" for gay marriage, beyond the fact that he is gay,

Where is the evidence he is even gay?

Paddy O said...

fls, thanks for the answer.

So, what rights does the legislature have?

Does the fact they are in the executive branch mean the suit was against enforcement of the law, not the law itself?

The judge pretty clearly dismissed not merely the enforcement but the whole of the law. Can't the "legislature" appeal to the highest court in such a dismissal? Or would that require a separate court case?

Again, pardon my ignorance. The intricacies of the legal maneuvering here are as interesting to me as they are almost entirely foreign to me.

c3 said...

I wholly expected this since the executive branch didn't want the stay. Again there's a lot of "game" left to play.

(though I still assume SCOTUS will uphold the decision)

Methadras said...

NotYourTypicalNewYorker said...

7,000,000 California voters swept aside by 1 gay judge...


Kinky.

dick said...

Since it seems that the people who prepared and supported Prop 8 and got it on the ballot would almost automatically have standing since his decision was against them.

Paddy O said...

Gabriel, that's a very helpful link.

Given Whelan's reply, I'd be curious to hear some support of Walker's opinion.

"These defendants were permitted to intervene at the trial level, but that doesn't mean they have standing to carry the case forward to appeal."

Whelan seems to suggest the exact opposite of this is true, that as defendants they are allowed to carry the case forward.

Here's Gabriel's Bench Memo link again, though it's worth clicking to the whole blog there, as there are some other interesting posts.

On the surface, to me, it seems that Whelan has a lot of common sense on his side, so I'm still curious if that means he also has the law on his side.

I don't support Walker's overall decision, but if this is in fact the law, I'd really like some help understanding and explaining to others how this whole process is working out. Right now it seems like more legal wrangling than straight forward legal integrity.

sonicfrog said...

It is unbelievable that one fudgepacking judge can undermine what seven million upstanding Californians did.

The judge is also a Keebler Elf? Who knew????

This demonstrates the power of the executive in law enforcement. Even if something is law, they are the arbitrators of how it gets enforced.
Not quite a similar situation, but when the Supreme Court ruled against Andrew Jackson's administration over nullifying various Indian treaties, Jackson is quoted as saying something like "...they have made their decision, not let us see them enforce it". There is some question as to whether Jackson actually said it, but it does bring home the point.

James said...

The standing thing does actually make sense, just that in the referendum setting, where the lawmakers are the voters, it does seem a little strange that they couldn't appeal. But if you would allow the referendum supporters to decide whether to appeal a case dealing with a state law being overturned, you would conceivably extend that right to the voters in cases where it was legislature-created law. And since there is always going to be someone who wants to appeal a decision they don't like, that means there will be literally no cases where appeals weren't taken to the highest level possible. A massive drain on the judicial system.

Krumhorn said...

That is why we need to call our U.S. House of Representative reps. and demand that they block f****packer Kagan from reaching the Supreme Court

Surely, this Tidy Righty poster is a leftie troll infiltrator. It's just the sort of post that the smug looselugnut libs would expect to resonate among the knuckle-dragging cons just as soon as they get up off their sisters and have it read to them by Hannity.

Of course, even a beer-sucking gun-hugging con would know that the House of Representatives plays no role in the advice and consent process involving Supreme Court nominees. So the leftie troll just can't get out of his own way.

But then, what else is new?

...

J said...

It sounds like it might be time for a California intiative defining failure or refusal on the part of the Gov and/or AG to defend a legally passed voter initiative as a crime, ideally with some stiff jail time.

"you would conceivably extend that right to the voters in cases where it was legislature-created law"

Yes, it would tie up the legal system, but it would also be a major obstruction to passing new laws. In other words, the benefit would wildly outweigh the cost.

Revenant said...

Surely, this Tidy Righty poster is a leftie troll infiltrator.

Yes, he is. There are a couple like him here, but he's the most obvious.

Borepatch said...

Huh. The voters approve a state referendum (does this change the California constitution? It seems to have more force than a statute from the legislature). The referendum is to override a state government hostile to the measure.

Then a Federal judge overrules the vote, AND says that the people have no standing to appeal - that has to come from the government that was hostile to the popular measure and which required a referendum to override?

Yeah, that has "legitimacy" written all over it.

Can someone explain to me why the people should not take the Andrew Jackson approach? "The Supreme Court has rendered its decision. Now let it enforce it"?

At what point did "the Supreme Court reads the election returns" become null and void? When the Universities started teaching a de facto Brezhnev Doctrine?

t-man/wurly/henry buck said...

It was a precious game for Judge Walker from the start. If the proponents had no standing to appeal, they had no standing to intervene and present evidence at trial. Judge Walker had to allow intervention, though because he wanted a show trial, and he tried to circumvent the normal procedures to allow his kangaroo proceeding to be televised (only to be smacked down to by Supreme Court).

The damage he is doing to the legitimacy of the judicial branch is appalling.

A.W. said...

So basically the judge has given the governor and AG a veto over their own constitution.

Yeah, nothing wrong with that.

A.W. said...

Oh btw, small point on the standing issue. There is direct case law to the contrary. Yniguez v. State of Ariz., 939 F.2d 727 (C.A.9 (Ariz.), 1991)

In that case proponents of an Arizona initiative were given standing for purposes of appeal because the state was no longer willing to defend the case. In short, it was JUST LIKE THE CURRENT CASE.

Now, the SC got ahold of it, they cast serious doubt on the viability of this standing claims but didn’t actually overrule them because the found the case was in fact mooted based on other reasons.

http://www.law.cornell.edu/supct/html/95-974.ZO.html

Shouldn’t that precedent, right on point, at least been discussed–if only to dismiss the issue?

Btw, it took me about 30 minutes total, using a combination of google and fastcase, to find it.
you think the judge had no idea this precedent existed? or do you think he just didn’t want to deal with it, because he already made up his mind.

John Lynch said...

I'm ok with the Federal constitution preempting the California state constitution.

I'm not OK with the process being short circuited by the refusal of the California executive branch to do their duty. They owe the California constitution and the people of California that.

opfor311 said...

Is it possible for the prop 8 proponents to sue the Governor and AG for inadaquate defense?

Eric said...

What if the judge's decision is overturned?

A bunch of invalidated marriages. Again.

peter hoh said...

Picking up on Paul Zrimsek's first comment, Andrew Sullivan posts an email from a lawyer who thinks that the AG's failure to defend the case may result in the case being sent back.

Any lawyers or constitutional law profs wish to comment?

And what of the suggestion in the Chicago Tribune editorial, that the Court could find that there is an equal protection claim, but that California meets that claim with their domestic partnership registry (i.e. civil unions)?

(The Chicago Tribune is trying to goose its page views by putting the last paragraph of a short editorial on a second page.)

A.W. said...

Eric

What do you mean by again?

If you are implying that proposition 8 invalidated marriages, you are actually incorrect. Although that is the most natural reading of that language, the state Sup. Ct. didn't read them that way.

bagoh20 said...

I don't care which side you are on, if you don't find something terribly wrong with one unelected man redefining marriage for the entire nation in contradiction to the entirely of human history, the general public and the registered voters, then you don't respect much of value and frankly don't deserve either liberty nor rule of law.

bagoh20 said...

And if such serious decisions can be forced upon millions by one man, legally, then law is just plain dysfunctional, but that's true anyway.

peter hoh said...

Picking up on Paul Zrimsek's first comment, Andrew Sullivan posted an email from a lawyer who suggests that the AG's failure to defend Prop 8 might give the Supreme Court the opportunity to ask that the case be retried.

former law student said...

If you are implying that proposition 8 invalidated marriages, you are actually incorrect. Although that is the most natural reading of that language, the state Sup. Ct. didn't read them that way.

I doubt you would think it was so natural if a statute were passed purporting to dissolve your marriage along with thousands of others. I think the natural reaction would be WTF! and "They can't do that to us, can they?". No law ever passed regarding requirements for marriage has dissolved any existing marriage.

Interpreting the California State Constitution, on May 15, 2008, the Supreme Court struck down California's existing statutes (legislature-made and citizen-made) limiting marriage to opposite-sex couples, citing equal protection. SSMs took place from June 16 on.

That November, Proposition 8 passed with 52% of the vote, amending the California State Constitution to make SSMs invalid. But it included no provision addressing the constitutionally-authorized SSMs entered into from June to November. Indeed, under the Impairment of Contracts clause of the U.S. Constitution, any attempted retroactive effect could have invalidated the whole thing. Not to mention all the equitable arguments regarding all the couples' permanent change in position based upon reliance on the CSC's decision: houses sold, leases given up, jobs relinquished, etc.

Revenant said...

I doubt you would think it was so natural if a statute were passed purporting to dissolve your marriage along with thousands of others.

Laws get passed stripping me of my rights all the time. For example, a law was recently passed by Congress stripping me of my right to opt against buying health insurance.

You supported that law. So you can shut your trap about people losing their rights, you fascist shit-stain.

el polacko said...

the AG can elect not to try a case. brown made it clear from the get-go that he considered the prop to be unconstitutional so that was never gonna happen.
when the legislature passed equal marriage rights, the gov vetoed it citing the fact that, although he supported equality, the issue was moving through the courts and he had no desire to circumvent and complicate that legal process. many doubted his sincerity at the time, but he has proven himself to be a man of his word. he has issued several strong statements praising walker's rulings and calling for the issuance of marriage licenses to resume. we now have on record the governor, the legislature, and the judiciary in support of equal marriage rights and that STILL is not enough for some folks...could, as walker pointed to, the continuing (somewhat hysterical) objections be nothing more than bias against gay citizens? ya think ?

DJ Fruit Loops said...

"7,000,000 California voters swept aside by 1 gay judge... " Do you know how many of those voters thought that voting for Prop 8 was voting for the right for gays to marry
Oh the poor mormons thier evil underhanded plan didnt work
GOOD!

A.W. said...

Former

> I doubt you would think it was so natural if a statute were passed purporting to dissolve your marriage along with thousands of others.

So you are arguing from bias you would impute to me. mmm, okay.

Anyway, here’s what it said, in full:

> Only marriage between a man and a woman is valid or recognized in California.

Now riddle me this. Suppose a man and a man married in the period just before prop. 8 was passed. Given what the California Sup. Ct. ruled would it be correct to say “this marriage is valid in California”? Would it be correct to say that “this marriage is recognized in California”?

So the California Sup. Ct. has in effect changed that law to literally say what it doesn’t say. indeed what is the limitations on that? For instance, suppose the marriage took place in Massachusetts before the Cali S.C. ever declared gay marriage legal? Should their marriage be recognized in California? How about if the marriage had taken place in that brief period when gay marriage was legal?

Or is recognition only grandfathered in if you had your marriage recognized when gay marriage was legal?

Do you start to see how problematic and incorrect this ruling was.

But of course we all know what was behind it. they just didn’t want to do it. it was one last little gasp of activism before they succumbed to the will of the people.

shoutingthomas said...

All issues are now bigot issues. (See the repeated statements of Obama lieutenants that all disagreement with Obama is racism.)

So, all issues are exempt from the political process.

We cannot allow the bigots to be involved in any important decision.

Now that the bigots are excluded from the political process, we can proceed with the important business of lawyers.

Lawyers can now run everything without the annoying impediment of having to listen to the bigots.

A.W. said...

Btw, Ed Whelan points out that in fact the best reading of the state law is to give them standing. http://www.nationalreview.com/bench-memos/243232/prop-8-proponents-motion-ninth-circuit-stay-standing-ed-whelan

State precedent allows for it, because, well, otherwise you undermine the very concept of an initiative like this. which i suspect to some people is a feature, not a bug.

wv: burpti

A.W. said...

Shouting

Well, that is not fair. not every wrong attitude is attributed to bigotry. why just the other day Gibbs suggested that obama's leftward critics ought to be drug tested.

/sarcasm

former law student said...

Prop 22 put non-resident couples on notice that their marriages would not be recognized should they decide to move to California. It could not alter any marriage outside California.

For Prop 22 to affect you, you had to take the positive step of moving to California.

In contrast, the same-sex couples who had entered into valid California marriages would have had no way to prevent the dissolution of their marriage. No notice, and certainly no hearing. That interpretation of Prop. 8 would have violated the basic elements of due process. As a violation of people's expectations, Kelo would have been negligible in comparison.

Rev, requiring you to buy health insurance in 2014 has no retroactive effect. You can plan: you can kill yourself or move to a place free from government mandated health care provision, like El Salvador.

A.W. said...

Former

Well, fine as far as prop 22 is concerned.

But the fact remains, that the court declared that those gay marriages are presently valid, and are recognized, when the plain language of the proposition says neither is supposed to be done.

i mean if they wanted it to prospective only, they could have just said, "No marriage entered into after ratification of this amendment shall be valid or recognized in California, unless it is between a man and a woman.”

And I think if you look at the larger context, I think it makes sense. To most prop 8 supporters, the prior ruling was contrary to the California constitution. So in their mind they were not changing the constitution; they were changing it back.

You see a similar issue in regard to the citizenship clause in the 14th Amendment. In 1870, when Hiriam Revels sought to be seated as a Senator from Mississippi, a debate over the question raged for three days. Why? Because he was “black.” The democrats reasoning was actually pretty clever. They said that Dredd Scott declared that no black person could be a citizen of the U.S. Now, the 14th amendment invalidated that decision, but that was only two years ago, not nearly long enough to meet the citizenship requirements in the constitution.

The republicans had a lot of interesting arguments on that point. For one they questioned what counted as black (although the fact that they were touting him as the first black senator probably estopps them from claiming they are not certain on the subject). Another point they made was that no one objected to seating senators immediate from Texas when that state joined the union, even though prior to that date those senators were technically citizens of the Republic of Texas.

But the last argument was the most interesting. They said that Dredd Scott was never good law. And by amending the constitution, they didn’t just say it Dredd Scott was overturned. They were saying it was wrongly decided, and because of that, Mr. Revels was a citizen at birth and by that date easily met the citizenship requirements.

Those people were almost the exact same people who wrote the 14th Amendment and that argument won the day.

jr565 said...

A.W. wrote:
Well, that is not fair. not every wrong attitude is attributed to bigotry. why just the other day Gibbs suggested that obama's leftward critics ought to be drug tested.


let's be very honest about what this is about. It'marriage is or the constitution stands for they don't know their history at all. This is about hating a black man in the White House. This is racism straight up. That is nothing but a bunch of racist liberals. And there is no way around that. And you know, you can tell these type of left wingers anything and they'll believe it, except the truth. You tell them the truth and they become -- it's like showing Frankenstein's monster fire. They become confused, and angry and highly volatile. That guy, causing them feelings they don't know, because their lobotomized brainsbrain, we've discussed this before, the lobotomized brain inside a left-winger or liberal or your average black/gay/latino/anti israel/anti US activist, the lobotomized brain is much smaller in their head space than in a reasonable person, and it bounces aroudn everytime they move their head, crashing into their skull. So their synapses are misfiring. Is Jeanine Garololo listening?

A.W. said...

jr

i think you are joking, but... its really hard to tell these days. ;-)

too many people would say that in seriousness to tell its a joke.