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LIVE on P8TT: You got Prop 8 questions, we got answers.

9th Circuit Court of Appeals Community/Meta Prop 8 trial Trial analysis

by Adam Bink

Please welcome Shannon Minter and Chris Stoll, who are joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community following today’s 9th Circuit ruling.

Shannon is the Legal Director at National Center for Lesbian Rights, and was the lead attorney on In re Marriage Cases, which was the original 2008 California Supreme Court case holding that the ban restricting marriage to opposite-sex couples is unconstitutional and that laws treating gays and lesbians differently because of their sexual orientation are subject to strict judicial scrutiny. He’s a respected voice in the legal community fighting for LGBT equality, and a friend of P8TT who we’re happy to have stop by. Chris also worked on the 2008 marriage case as a senior member of the legal team. You may remember Shannon and NCLR senior staff attorney Chris from our earlier Prop 8 Q&A chat a few months ago, which hit 300 comments and well over a hundred questions answered.

To set the  stage, today the 9th Circuit (a) decided  to submit a question relating to whether proponents of Prop 8 have standing under state law, and how that can be reconciled with federal law with respect to Arizonans  for Official English v. Arizona (b) Ruled that Imperial County has no standing in this case (c) did not make a decision on the constitutionality of Prop 8.

A couple logistical notes:

  • If you have a question, please leave it in the comments below. You can leave a comment with a question by clicking “Add your own” just above where the comments start. This comment thread may get long, so if you have a question, please preface your question with “Question:” or “Q:”  so Shannon and Chris can easily distinguish between general comments and questions so as to get to as many as possible.
  • Shannon and Chris are going to get to as many different questions from different people as possible. If you have a follow-up question to one of their responses, or a different take on something, whether as a response to your question or someone else’s, please leave a comment with the question/response, and time permitting he will go back through to get to as many follow-up questions/comments as possible.
  • They have agreed to stick around for at least 45 minutes, and longer if he has time (and if he’s having fun!).
  • For first-time commenters here, two things. One is that you don’t need an account to comment. Two is that to reply to a comment, make sure to hit “reply” between the comment you’re looking at and the next comment. You can also use “@username”. An example:  “@adambink: This is a response to your comment immediately below. I believe [substance of your comment]” or “@Shannon Minter: Thanks for the response.” Your response will then appear below the comment you wished to respond to, and it helps make things clearer for those reading along.

So please welcome Shannon and Chris, click “Add your own” below, make sure to preface with “Question: or “Q:”, and fire away!

481 Comments Leave a Comment

  • 1. ben  |  January 4, 2011 at 7:28 am

    Assuming that the CA supremes do NOT find standing, does this mean that walker's ruling will set federal precedent?

  • 2. Ann S.  |  January 4, 2011 at 7:28 am

    Just scribing for now.

  • 3. Adam  |  January 4, 2011 at 7:28 am

    What kind of time frame are we looking at? CA Supreme Court will look at it, give an opinion and then that'll go back to the 3 judge panel correct? When should we expect to get more info?

  • 4. Dave  |  January 4, 2011 at 7:29 am

    Considering that the 3 Judges from the Ninth Circuit just asked for clarification from the California Supreme Court, do you think they have already come to a conclusion on Judge Walker's ruling and are simply waiting to release that decision based on how the CASC rules on the standing issue?

  • 5. JenV  |  January 4, 2011 at 7:30 am

    What is the timeline that we should expect for the SC decision? It seems like there really isn't much of an end in sight, even if things are in our favor.

  • 6. Kevin  |  January 4, 2011 at 7:30 am

    Q: Is a CASC response to a certified question a final judgment subject to appellate review? Or, would a party need to wait for a final judgment from the 9th circuit before requesting cert.?

  • 7. adambink  |  January 4, 2011 at 7:30 am

    Please preface questions with "Question" or "Q:" so it's easier for them to distinguish general comments from questions.

  • 8. JC (1 of the 18,000  |  January 4, 2011 at 7:30 am

    Q: One of the options for the CA Supremes is to ignore the question. a) How is that possible? b) Why would they do that? I can understand the other two options (finding standing or not) but not ignoring the 9th Circuit's question altogether. Light shed, please! Thanks!

  • 9. Ann S.  |  January 4, 2011 at 7:30 am

    Shannon, you said you feel confident that the CA Supreme Court will find NO standing. If so, will that be the end of the matter? Will Walker's ruling then stand?

  • 10. Raymond  |  January 4, 2011 at 7:30 am

    Question: Why does the 9th court of appeals not lift the stay on same sex marriages. If a law is called unconstuional then it should immedtily not be followed no matter politics or etc. Why is it that this issue doesn't get public support, an appeal can still go through the courts without following prop 8, it's no longer a law. Have you tried to get them to lift it?

  • 11. Jeff  |  January 4, 2011 at 7:31 am

    Q: Has the CA Supreme Court ever granted standing to non-government entities when dealing with an imitative?

    If so did they still have to fill the Federal requirements for standing?

  • 12. Ann S.  |  January 4, 2011 at 7:31 am

    I mean, once the 9th presumably finds no standing?

  • 13. Patrick Lannan  |  January 4, 2011 at 7:31 am

    QUESTION: Why has a federal court turned to a state court to comment on a question of standing? Isn't this something that the federal courts would normally decide? Is this common or somewhat uncommon?

  • 14. Carpool Cookie  |  January 4, 2011 at 7:31 am

    Hi, everyone. I have no questions at the moment, but am onboard with my eyes and mind OPEN!

    Welcome to Shannon : )

  • 15. Amanda  |  January 4, 2011 at 7:31 am

    What's the likelihood of the stay being roomed anytime soon, i.e. when can Gay and Lesbian Californians expect to start being able to receive marriage licenses again?

  • 16. Joe Mello  |  January 4, 2011 at 7:31 am

    Q- Signifigance of not allowing Imperial County?

  • 17. adambink  |  January 4, 2011 at 7:32 am

    Question: First, thanks for joining us! Second, if the California Supreme Court decides the proponents do have standing, how quickly do you expect the 9th Circuit rule on the merits, or constitutionality, of Prop 8?

    Meaning, do you believe they already have weighed the constitutionality of the case and can rule if there is standing, or not?

  • 18. Andy abowitz  |  January 4, 2011 at 7:32 am

    Hi shannon, If the court determines that the proponets of prop 8 does not have standing, does that mean that the appeal will be thrown out and that prop 8 will be repealed? If that happens, does that mean that gay marriage is legal in all areas covered by the ninth circuit? What is the impact on the rest of the country?

  • 19. randy  |  January 4, 2011 at 7:32 am

    If the California Supreme Court rules to reject the Prop 8 proponents right to appeal AND the US Supreme Court reinstates Judge Walker’s ruling that Prop 8 is unconstitutional… Is it over or is this going to continue on or go down another rabbit hole?

  • 20. Amanda  |  January 4, 2011 at 7:32 am

    *removed.

  • 21. Dan  |  January 4, 2011 at 7:32 am

    Q: Isn't this just another way for the courts to avoid dealing with the issue?

  • 22. Shannon Minter  |  January 4, 2011 at 7:33 am

    @ben, if the CA Supremes find no standing, then Judge Walker's ruling stands and Prop 8 cannot be enforced in California. That will be a huge victory, although not technically setting a federal precedent. Nonetheless, other federal courts will no doubt look to his decision for guidance.

  • 23. Randy  |  January 4, 2011 at 7:33 am

    Q: Do you feel this is a way for the 9th Circuit to dodge ruling or legit – covering their bases for the future ruling. AND what took so long to get this decision? Couldn't they have done it a lot earlier?

  • 24. Anonygrl  |  January 4, 2011 at 7:33 am

    Question: If the California SC finds NO standing, can the 9th still find standing, or are they bound by the CA SC decision at that point?

  • 25. Nelson Garcia  |  January 4, 2011 at 7:33 am

    So, is what happened today a good thing or a bad thing, and why?

  • 26. Carpool Cookie  |  January 4, 2011 at 7:33 am

    Okay

    Q: Did the 3 judges unanimously request the certification? Is there opportunity for dissent in this step? I like the image of them all agreeing.

  • 27. JC (1 of the 18,000  |  January 4, 2011 at 7:34 am

    Q2: I adored Judge Reinhardt's explanation today for his refusal to recuse himself. In that text, he made it sound like the 9th Circuit has done all it can for now. Do you think that means that they just agreed to punt the standing question to the CASC or that you think they went ahead and debated the whole question? Just asking for a tea leaf reading…/

  • 28. Shannon Minter  |  January 4, 2011 at 7:34 am

    @Dave, no i think they have NOT come to any conclusions on the merits of the underlying constitutional questions, but are really focused on the standing issue and whether this case is even properly before them.

  • 29. Marlon  |  January 4, 2011 at 7:34 am

    Question:

    If the issue of standing is decided such that the proponents of Prop 8 DO have standing, and the 9th circuit proceeds to rule on the issue of Constitutionality, will the specifics of the case mean it will only apply to California, or will the decision have a broader impact?

  • 30. Anna  |  January 4, 2011 at 7:34 am

    What exactly does the ruling mean to gay and lesbian couples?

  • 31. Elena Perez  |  January 4, 2011 at 7:34 am

    I think most of us following this case closely expected today's outcome, but what the likeliest course of events from here? Is there any sense of how the CASC might rule on standing?

  • 32. Chris Stoll  |  January 4, 2011 at 7:34 am

    Thanks everyone for joining us. We're happy to answer your questions.

  • 33. Tom Cluster  |  January 4, 2011 at 7:35 am

    Just trying to listen to the conversation.

  • 34. Dalton  |  January 4, 2011 at 7:35 am

    Question: If Imperial County does not have standing, who might? Have the original named proponents lost their right to defend by not attaching their names to the case in any way?

  • 35. Carpool Cookie  |  January 4, 2011 at 7:35 am

    I would say, merely as a humble secretary within the legal system, that it's good….in that every step of this trial has been as thorough as possible so there's no loopholes left open to challenge anything. The more carefully a decision is rendered, the more rock solid it is.

  • 36. Dave  |  January 4, 2011 at 7:35 am

    Thank you! Sorry for not putting a Q in front. :( But I do appreciate the response.

  • 37. Shannon Minter  |  January 4, 2011 at 7:35 am

    Hmmm, I don't think they are punting, I think they really want to be sure that the appeal is properly before them. If the proponents don't have standing, the case is over, and there is no appeal for them to decide.

  • 38. Kathleen  |  January 4, 2011 at 7:36 am

    Q: The 9th Circuit says that if the CASC certifies Proponents particularized interest, that's sufficient to grant standing in federal court. I'm assuming the US Supreme Court could disagree. So, I have questions on procedure and also your opinion as to what Plaintiffs might do if CASC answers in the affirmative.

    1. Would the question of standing have to be argued directly to the US Supreme Court in order for them take up the question? i.e., would Plaintiffs have to either appeal that decision directly, or at least bring it up in an answer to an appeal by Proponents? Or is it possible that if this case reaches the USSC on the merits (and they grant cert) that they could just decide on their own that the 9th shouldn't have given Proponents standing?

    2. If the CASC does say Proponents have sufficient interest, and then the 9th grants standing and rules on the merits in Plaintiffs' favor, do you think Plaintiffs are likely to appeal the standing question to the USSC?

  • 39. Denise Brogan-Kator  |  January 4, 2011 at 7:36 am

    Q: Isn't is possible that a ruling by the CA SC that there does exist a particularized interest — thus conferring standing — would be to everyone's advantage? In other words, so many are hoping that standing is denied, but a ruling that standing is granted, followed by a finding that Prop 8 violates the US Const. would be most helpful. Yes?

  • 40. Kathleen  |  January 4, 2011 at 7:36 am

    Q: In a footnote, there's a statement, “proponents argue that if they lack standing to appeal, then we are require not only to dismiss the appeal but also to vacate the district court judgment.”

    Do you see any indication in the opinion that the judges see any merit that argument? Do you see any merit to that argument?

  • 41. Amy  |  January 4, 2011 at 7:36 am

    Q: Whatever is decided (lack of standing or unconstitutional), if the ruling is in our favor, is there a possibility that the stay will be removed, and that marriage licenses will start being administered with the Court of Appeals decision?

  • 42. Shannon Minter  |  January 4, 2011 at 7:36 am

    Imperial County is now definitively OUT, so the only other group that might have standing is the Prop 8 proponents. The AG and the Governor did not appeal, so they are out as well.

  • 43. Roger  |  January 4, 2011 at 7:36 am

    Q. I'm confused. Is there where we see the responses of Minter and Stoll? If not, where?

  • 44. Wine Country Lurker  |  January 4, 2011 at 7:36 am

    'scribe!

  • 45. Jayne  |  January 4, 2011 at 7:37 am

    Question:
    Equality California says, "Our amicus brief is the only amicus brief from our side they are sending the California Supreme Court, out of the 25 total amicus briefs filed in the case."
    Of these 25 how many were from 'our side' and how many were from 'the other side'? AND, How many of the 'other side's' amicus briefs are being sent to the CA Supreme Court?
    Thank you for your time.

  • 46. Erin Callahan-Price  |  January 4, 2011 at 7:37 am

    Q: Could you summarize in layman's language what this ruling means? It would be nice to get an explanation archived for people with a little less legalese fluency. Thank you Sharon and Chris!

  • 47. lindsey  |  January 4, 2011 at 7:37 am

    Q: The issue came up again on the scope of the injunction that might result against Proposition 8–Judge Rheinhardt remarked in his concurring opinion that the 'right/statewide' defendants were not named in the complaint (based partially on Bois' oral argument) and thus the injunction barring the enforcement of Prop 8 might only apply initially to two counties. How do the defendants differ in this case from those in In Re Marriages and do you think that difference is really that significant?

  • 48. Shannon Minter  |  January 4, 2011 at 7:37 am

    It is possible the Ninth Circuit would remove the stay, although not likely as they could have done that already and chose not to.

  • 49. Dave Garrity  |  January 4, 2011 at 7:38 am

    QUESTION: I'm still concerned about the case only covering two counties rather than all counties in the state. Can you explain why? Any potential pitfalls?

  • 50. Chris Stoll  |  January 4, 2011 at 7:38 am

    Kevin, no, the California Supreme Court's response is not itself an appealable ruling. The Cal Supreme Court's answer will be transmitted to the 9th Circuit, which will then decide how to resolve the appeal. That decision of the 9th Circuit could then be reviewed if the US Supreme Court decides to take the case.

  • 51. adambink  |  January 4, 2011 at 7:38 am

    Please preface with "Question" or "Q:" as you can see, there are already several dozen questions and it is easier to sort through for them. Thanks.

  • 52. Sagesse  |  January 4, 2011 at 7:38 am

    Me too. Will catch up later.

  • 53. JC (1 of the 18,000  |  January 4, 2011 at 7:39 am

    Kathleen,
    Which doc is that footnote in, please? And, it's proponents saying that the court is "required" to vacate Judge Walker's judgment not that it actually IS required if they are found to lack standing, right? Or is this another thing to worry about? Thanks!

  • 54. Randall  |  January 4, 2011 at 7:39 am

    Q: During oral arguments, some of the panel judges made remarks that they were not bound by Walker's findings of fact. Can you comment on that?

  • 55. Shannon Minter  |  January 4, 2011 at 7:39 am

    @Erin, the ninth circuit held that Imperial County cannot intervene to defend Prop 8. The court also asked the california supreme court to decide whether california law gives a group that proposes a ballot initiative the power to appeal when the official state representatives–the AG and the Governor–have decided not to appeal. This is important because if the answer to that question is "no," then there is NO APPEAL and the case is over. That means Prop 8 is gone and couples can marry again.

  • 56. Anonygrl  |  January 4, 2011 at 7:39 am

    Shannon is posting his comments after each question… you have to keep refreshing the thread to see them coming up.

  • 57. Carpool Cookie  |  January 4, 2011 at 7:39 am

    Q: What is your favorite color, and why?

    (I like to keep these things informal)

  • 58. Nathan  |  January 4, 2011 at 7:39 am

    Q: Suppose the CA Supremes and the current 9th Circuit panel deny standing. Do you see any likely rationales that SCOTUS (or an en banc 9th Circuit) could use for reversing that decision?

  • 59. LOrion  |  January 4, 2011 at 7:40 am

    Please let the answer! Don't just keep asking.

  • 60. Kathleen  |  January 4, 2011 at 7:40 am

    And thanks for being here!!!

  • 61. lindsey  |  January 4, 2011 at 7:40 am

    Q: The issue came up again on the scope of the injunction that might result against Proposition 8–Judge Rheinhardt remarked in his concurring opinion that the 'right/statewide' defendants were not named in the complaint (based partially on Bois' oral argument) and thus the injunction barring the enforcement of Prop 8 might only apply initially to two counties. How do the defendants differ in this case from those in In Re Marriages and do you think that difference is legally operative to that extent?

  • 62. mcc  |  January 4, 2011 at 7:41 am

    Followup Q: If what you describe happens, what do you think would be the likelihood or timeframe of similar suits being filed in other district courts, challenging "marriage amendments" in other states using reasoning similar to Judge Walker's?

  • 63. Roger  |  January 4, 2011 at 7:41 am

    How could those plaintiff's possibly be found to havce standing? It seems obvious to me that they don;t.

  • 64. Anonygrl  |  January 4, 2011 at 7:41 am

    Yes indeed!!! This is lovely of you!

  • 65. Chris Stoll  |  January 4, 2011 at 7:41 am

    Adam, you are correct that the Cal Supreme Court's answer to the panel's question will then go back to the same 9th Circuit panel which will then decide how to resolve the case. There is no set time frame for the Cal Supreme Court to issue its decision. It's reasonable to think it will take at least several months.

  • 66. Shannon Minter  |  January 4, 2011 at 7:41 am

    @Garrity, that is actually not true, although I know there is a lot of confusion about this. The decision enjoins the state from enforcing Prop 8, and that applies statewide. The AG is the state official who has the authority to tell county clerks what is CA law, so if Judge Walker's decision stands, Prop 8 will not be enforced anywhere in California and couples can marry again.

  • 67. Carpool Cookie  |  January 4, 2011 at 7:42 am

    Trying to help out in my own little way:

    Note Minter posted above: "@Dave, no i think they have NOT come to any conclusions on the merits of the underlying constitutional questions, but are really focused on the standing issue and whether this case is even properly before them.

  • 68. David B. Cruz  |  January 4, 2011 at 7:42 am

    I agree with Shannon's assessment. See my latest blog entry at http://cruz-lines.blogspot.com/2011/01/prop-8-cas

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law
    Los Angeles, CA 90089-0071
    U.S.A.

  • 69. john (18,000 club)  |  January 4, 2011 at 7:42 am

    Q: If we win at the State level, who can join our opposition in Federal Court?

  • 70. Shannon Minter  |  January 4, 2011 at 7:42 am

    @Nathan, yes, the supreme court has the final say, although they would have to reinterpret their current law on standing, which is clear.

  • 71. Denise Brogan-Kator  |  January 4, 2011 at 7:43 am

    But, Shannon, what about the argument that the Proponents put forth that the 9th Circuit should vacate the lower court's ruling, for lack of standing? (Personally, I don't think that's likely — but I think it would be nice if you addressed it, since the court did footnote it).

  • 72. adambink  |  January 4, 2011 at 7:43 am

    Q: If the CA Supreme Court rules there is no standing, that cannot be appealed in any way? The case is over?

  • 73. Jonathan  |  January 4, 2011 at 7:43 am

    Q: My question is one of timing. How long would you estimate it will take the CA Supreme Court to respond to this issue of standing? Assuming their response is "YES – they have standing." – how long before the Appeals Court issues a ruling on the constitutionality of banning gay marriage? If they find in favor of gay marriage proponents are they likely to issue a stay on their ruling until the Supreme Court can way in? In short – how many months or years before I can get married in CA – or should I just go to Boston?

  • 74. Randall  |  January 4, 2011 at 7:43 am

    During oral arguments, the anti-prop-8 side pointed out that a determination by the CA SC as to standing by the proponents didn't matter for federal standing rules. Has this been rejected?

  • 75. Nelson Garcia  |  January 4, 2011 at 7:43 am

    Thanks for replying.

  • 76. Shannon Minter  |  January 4, 2011 at 7:43 am

    @Roger, I agree! And I hope the CA S Ct does as well!

  • 77. Chris Stoll  |  January 4, 2011 at 7:43 am

    Yes, you are right that a final decision in this case could be many months away. That is pretty common for federal appeals. The referral to the California Supreme Court will definitely slow things down.

  • 78. Teddy Partridge  |  January 4, 2011 at 7:43 am

    Q: Do federal appeals courts do this often, refer state issues back to state Supreme Courts? Why wouldn't the federal appeals court simply rule on their own understanding of CA state law? Why involve the CA Supremes?

    Thanks for chatting today!

  • 79. Kathleen  |  January 4, 2011 at 7:43 am

    It's a footnote in the OPINION issued today (pdf pg 7; document pg 6). It's just the Court noting that this is what Proponents are asking for.

  • 80. Erin Callahan-Price  |  January 4, 2011 at 7:44 am

    Very clear! Thanks again for your help.

  • 81. Steve D  |  January 4, 2011 at 7:44 am

    Q: If I understand correctly, the California Supreme Court will decide whether there is "standing" or not for "the proponents"?

    Which side of the issue is regarded as the proponents, those who promoted Proposition 8 or those gay couples for whom the challenge to Proposition 8 was created?

    What, in simplified layman's language would be the practical outcome of each of both possible decisions by the California Supreme Court and the next steps in the case?

    Thank you very much.

  • 82. jsteven  |  January 4, 2011 at 7:44 am

    The question asked if the prop8 people had standing “upon its adoption or appeal.” This does beg the question of to whether one can separate standing of the appeal and the original federal court case. Walker was vague in stating why he gave prop 8 standing in the first place.

    What basis could one give for deny standing in the appeal, but allowing it in the initial Federal case to allow Judge Walker’s full ruling and conclusions of fact and law to remain intact? (Emphasis of why original standing?)

  • 83. Rhie  |  January 4, 2011 at 7:45 am

    Watchin

  • 84. randy  |  January 4, 2011 at 7:45 am

    ^^^^QUESTION^^^^

  • 85. Mrs Mrs  |  January 4, 2011 at 7:45 am

    QUESTION: In regards to something I read on sfgate, quoted below:

    "The federal panel – Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith – made its preference plain. California's initiative process, which grants lawmaking authority to the people, "would appear to be ill-served," the judges said, if elected officials could nullify a voter-approved initiative by refusing to defend it."

    What does this mean? It sounds as though the judges are admonishing the AG and Governor for doing a disservice to the voters by refusing to defend it. If that is what they meant, what does this imply about how the judges might be leaning?

    Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/

  • 86. Shannon :)  |  January 4, 2011 at 7:45 am

    Is there any way that the rulings may only be for the 2 couples named in this case and not the rest of California couples? I heard something about that stated during the televised trial. Thank you!

  • 87. Shannon Minter  |  January 4, 2011 at 7:45 am

    @Randall, as a general rule, higher courts are bound by a lower court's findings of fact, but there is always some wiggle room as to whether a particular finding is "pure" fact or a mixture of fact and law, in which case the higher court has more disrcretion. Also, the rule about higher courts being bound by lower courts' findings of fact is not as strict in constitutional law cases.

  • 88. Carpool Cookie  |  January 4, 2011 at 7:45 am

    Imperial County is now definitively OUT

    Oooh….I didn't catch that. Thanx.

    Q: Can Imperial County, or I guess I should say that one clerk, appeal that to the Supreme Court?

  • 89. adambink  |  January 4, 2011 at 7:46 am

    Please scan the comment thread to make sure you are not asking the same question as others. I see several "what's the timeline on the CA Supreme Court ruling" questions already.

    Redudancy makes it less likely Shannon and Chris will get to your question, not to mention everyone else's.

    Love, your friendly moderator.

  • 90. Liz  |  January 4, 2011 at 7:46 am

    “Question:” If this law passes will I be able to help my girfriend become a legal citizen? She is from Mexico, has a 10 year old daughter that was born here, and we have been together for 5 years. Please let me know..
    (P.S. I am a legal US citizen )

  • 91. James  |  January 4, 2011 at 7:46 am

    Q: If the Prop 8 Proponents do not have standing and Judge Walker's ruling sticks, what, if anything, can the SCOTUS do to nullify walker's ruling? Would it really really really kill prop 8?

  • 92. jsteven  |  January 4, 2011 at 7:46 am

    Q:
    The question asked if the prop8 people had standing “upon its adoption or appeal.” This does beg the question of to whether one can separate standing of the appeal and the original federal court case. Walker was vague in stating why he gave prop 8 standing in the first place.

    What basis could one give for deny standing in the appeal, but allowing it in the initial Federal case to allow Judge Walker’s full ruling and conclusions of fact and law to remain intact? (Emphasis of why original standing?)

  • 93. JPM  |  January 4, 2011 at 7:46 am

    Presumably the question of standing could be appealed to the US Supreme Court.

    Also, there is no absolute requirement that the Ninth accept the CASC's decision on no standing, although it would seem ridiculous for them not to do so.

  • 94. Shannon Minter  |  January 4, 2011 at 7:47 am

    @Lindsey, I think this issue is a bit of red herring, although it is a little concering that the Ninth Circuit keeps hammering on that point. In truth, though, I think there is not really a serious question that if Judge Walker's ruling stands, it will mean that Prop 8 cannot be enforced anywhere within the state of California.

  • 95. David B. Cruz  |  January 4, 2011 at 7:48 am

    That's there argument, and they've sold law prof Vik Amar on it. As far as I can tell, they rely on one mid Twentieth Century SCOTUS (circa 1970 or 1971) decision holding that there was no case or controversy where parents who sued a segregated school district and the district agreed that a state education law was unconstitutional, so they desired the very same thing. But that almost certainly cannot be right, or that would mean that a federal court defendant could always get a case against it dismissed by saying they agreed with the plaintiffs.
    Here, the plaintiffs are being denied marriage licenses, and the Attorney General and Governor represented that they would continue to do so pursuant to Prop 8 unless the court ordered them otherwise, even though they agree that Prop 8 is unconstitutional. This is almost exactly the same situation as in INS v. Chadha, decided by SCOTUS in 1983. The INS agreed that the law at issue was unconstitutional, but were going to deport Mr. Chadha anyway. SCOTUS held that this presented a case or controversy, so they did not dismiss the appeal for lack of standing.

  • 96. Kathleen  |  January 4, 2011 at 7:48 am

    Jayne, I'm clearly not Shannon, but in the ORDER, the only other AC being transmitted is from the Center for Constitutional Jurisprudence – in support of the 'other' side. There were actually approx 25 filed on each side – about 50 total.

  • 97. Shannon Minter  |  January 4, 2011 at 7:49 am

    @Denise Brogan-Kator, great question. As I heard Ted Olson say today (and I strongly agree!), there really can't be a question that Judge Walker properly had jurisdiction over the case and that the plaintiffs had standing, since the state of CA was enforcing Prop 8 and the plaintffs therefore could not marry. This is not a case in which the state was not enforcing a law. That would be a different matter.

  • 98. Steve D  |  January 4, 2011 at 7:49 am

    Very interesting blog. Thank you, professor Cruz.

  • 99. jbf  |  January 4, 2011 at 7:50 am

    What are the chances that the 9th Circut court could find not only Wakers ruling on Prop8 valid, but also rule DOMA is unconstitutional? Are we staring at the begining of truel Equal Rights or more court battles? In your opinion please.

    Thank you
    (Wanting to get Married in Texas)

  • 100. Shannon Minter  |  January 4, 2011 at 7:50 am

    @Jayne, there were tons of amicus briefs on each side, but not very many that addressed the issue of standing. the court is sending one amicus on each side of the standing issue to the ca supreme court

  • 101. Roger  |  January 4, 2011 at 7:50 am

    I hope so, Liz! But the question will be whether the decision makes same-sex marriage legal in all states or just California, in which case it wouldn't create any Federal rights.

  • 102. David B. Cruz  |  January 4, 2011 at 7:50 am

    obviously I meant "That's their argument,…"

  • 103. Ann S.  |  January 4, 2011 at 7:51 am

    I am not Shannon or Chris either, but DOMA is not before the 9th Circuit in this case, sorry.

  • 104. Dave Garrity  |  January 4, 2011 at 7:51 am

    Thanks, Shannon. I watched the hearing and remember quite a lengthy dialog on this subject between Boies and I think Judge Reinhardt. Reinhardt commented that Boies is lucky the elections worked out the way they did.

  • 105. Alyson Young  |  January 4, 2011 at 7:51 am

    Q: Doesn't a careful standing analysis, even if it is followed by affirming the trial court's judgment, more or less force SCOTUS to examine this issue? After all, affirming the trial court ruling would be squarely in conflict with the 8th Circuit decision from 2006 (Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). A split of federal authority makes certiorari almost a lock, doesn't it?

  • 106. Chris Stoll  |  January 4, 2011 at 7:52 am

    The certification process is part of our federal system, which recognizes that state governments and the federal government are separate and independent. When the federal court asks a state supreme court for the answer to a question of state law, it's essentially asking the state court, as a courtesy, to give guidance on an important issue of state law that will help the federal court decide how to resolve a federal case. State supreme courts sometimes do decline to answer a certified question. When they do that, they are saying to the federal court, "we don't want to answer this question until a case comes to us through our own state court system. Use your own best judgment about this issue."

  • 107. Randall  |  January 4, 2011 at 7:52 am

    @randy — you're asking multiple things, I think. My understanding is that if the CA SC says the proponents have no standing, then there is no reason for the US SC to rule, since there is no basis for appeal.

    Alternatively, if the CA SC says the proponents do have standing, then there could be a US SC appeal of whatever the 9th circuit decides.

  • 108. Anonygrl  |  January 4, 2011 at 7:52 am

    Question: Will others be allowed to file NEW briefs with CA SC in this case, and/or will there be any oral arguments?

  • 109. Shannon Minter  |  January 4, 2011 at 7:52 am

    @Denise, I don't see any benefit to that for two reasons. One, I want Prop 8 gone as soon as possible. I would prefer not to have to wait for this case to go all the way to the u.s. supreme court if we can be rid of Prop 8 now. Two, as a more general matter, a ruling that ballot initiative proponents can override the decision of state officials and force an appeal would have devastating consequences and would result in more terrible, discriminatory initiatives being put forward and defended in California.

  • 110. Kathleen  |  January 4, 2011 at 7:52 am

    Prof Cruz, thank you for your reply. Do you see anything in the opinion that suggests the judges find any merit in this argument? (and yes, I've seen Vik Amar's comments on this all over the web…. annoying! :))

  • 111. JC (1 of the 18,000  |  January 4, 2011 at 7:53 am

    Thank you! That makes sense. Context is, indeed, important ;-)

  • 112. Carpool Cookie  |  January 4, 2011 at 7:54 am

    I would think it's because remedies are not usually put in place until all legal resouces in the system are exhausted. For instance (though every area of law is different), if a judge finds I owe you damages of $100,000 and I appeal, I do not have to write you a check if I appeal. The remedy is "on hold", basically, until a final answer is arrived at. Because it would get very messy and confusing if you had to return the $100,000 if the appeals court decided in MY FAVOR, then I would have to write out another check if a HIGHER court decided again in YOUR favor. I believe it's a way of simplifying the process, somewhat, without things flipping drastically back and forth throughout a case.

  • 113. David B. Cruz  |  January 4, 2011 at 7:54 am

    DOMA has not been challenged in this litigation, so the Ninth Circuit would not address it in this case even if they concluded that the Proponents have standing to pursue an appeal.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 114. Mike Holzman  |  January 4, 2011 at 7:54 am

    COMMENT – Thanks for doing this. Really appreciate reading the questions and response.

  • 115. Shannon Minter  |  January 4, 2011 at 7:54 am

    @Kathleen,

    1. standing goes to whether the court has jurisdiction, so it can be raised at any time and considered by a court at any time regardless of whether any party raises it
    2. yes i think plaintiffs would appeal an adverse ruling on standing

  • 116. Elizabeth Oakes  |  January 4, 2011 at 7:54 am

    I'm hoping–though I have no reason to think this other than optimism–that the little Law Firm for Faith and Equality or whatever it was called that tried to press Imperial County's suit would be too ashamed to even try to advance the "Where's Dolores?" argument on further appeal….but they were pretty arrogant in the first place, and it might be nice to see that attorney finally smelted into a pile of ashes by SCOTUS.

  • 117. Wine Country Lurker  |  January 4, 2011 at 7:54 am

    QUESTION

    PREAMBLE: To ME at least the whole vacate-the-ruling idea seems – legally – so far out in left field that if this was junior high, all their colleagues (or at least those with a clue) would be laughing and pointing at them, and rubbing their faces in it for years to come. ("OMG can you even BELIEVE what they tried to do! If you ever catch me trying to do something like that, please just shoot me!")

    Hopefully that makes sense. :-)

    ACTUAL QUESTION: So in your opinion (humble, professional, or otherwise) is this whole "well then you must vacate Walker's ruling" thing just a "Hail Mary pass" on the part of the H8rs?

  • 118. Yuki Togawa  |  January 4, 2011 at 7:54 am

    Thank you for hosting this chat and thank you everyone for being in here. I came to USA and decided to have a family with a US citizen and a few children only to find that international same sex marriage immigration right is no where found. I have stayed inside USA knowing that I can count of everybody working on equal marriage rights will get this right. I never had the chance to thank all of you that pay attention or work on policy making that are trying to secure our rights, that should be a given.
    Again, thank you for this arrangement. I am paying close attention.

  • 119. Shannon Minter  |  January 4, 2011 at 7:55 am

    @Carpool Cooke, yes imperial county can appeal

  • 120. Wine Country Lurker  |  January 4, 2011 at 7:56 am

    Whoops, attached my post to the wrong thread. This was supposed to go somewhere else in the discussion tree. Sorry… Hopefully it still stands out as a question.

  • 121. Shannon Minter  |  January 4, 2011 at 7:56 am

    @Elena Perez,

    They are once again in the political hotseat, but I am confident they will recognize this is a hugely important issue and that they will clarify that initiative proponents can't override the decisions of elected state officials. A contrary ruling would lead to chaos.

  • 122. randy  |  January 4, 2011 at 7:56 am

    @RANDALL – THANK YOU – I think that i understand what you are saying. That the proponents AND Federal side are finished altogether. The case is finished and people are getting married again?

    ps – cool name

  • 123. Chris Stoll  |  January 4, 2011 at 7:57 am

    Raymond, we are not representing the plaintiffs in this case, so we don't have the ability to ask the court to lift the stay. It's terrible that this delay is causing couples to have to wait even longer to get married. It's fairly unlikely, though, that the 9th Circuit will lift the stay until there's a final decision in the appeal.

  • 124. David B. Cruz  |  January 4, 2011 at 7:57 am

    The California Supreme Court (CSC) cannot grant federal court standing to anyone. The Ninth Circuit has asked CSC what authority state law gives the proponents. The answer will be an input into the Ninth Circuit's federal court standing analysis, but will not directly govern. Ballot initiative sponsors have sometimes been allowed to defend initiatives *in California state courts*. See http://cruz-lines.blogspot.com/2011/01/prop-8-cas

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 125. Carpool Cookie  |  January 4, 2011 at 7:58 am

    The judges involved do have other matters before them, I believe. Nothing in the legal system happens quickly. In fact, I would say this decision to send the question to another court was rather speedy. (Has it even been a full month?)

  • 126. Shannon Minter  |  January 4, 2011 at 7:58 am

    @adambink,

    The Ninth Circuit and then ultimately the US Supreme Court have the final say, although they are bound by whatever the CA Supreme Court says about California law. In practice that means if the CA S CT says that the proponents don't have the power to appeal under state law, they don't have standing under the applicable federal standard either.

  • 127. Kathleen  |  January 4, 2011 at 7:58 am

    "The Poponents" refers to the people who promoted Prop 8. If they Proponents are found to lack standing to appeal, there is no appeal and Judge Walker's ruling stands – i.e., ss couples can marry again in California. If they are found to have standing to appeal, then the 9th Circuit Court of Appeals (and possibly the US Supreme Ct) will have to decide if Prop 8 is to be struck down or remain in effect.

  • 128. Ann S.  |  January 4, 2011 at 7:59 am

    I agree, and no, not even a month. It was Dec. 6.

  • 129. Shannon Minter  |  January 4, 2011 at 7:59 am

    @Carpool Cookie,

    all three okayed the request, but only one authored a long concurring opinion setting out the background facts and law. that was Judge Reinhardt

  • 130. David B. Cruz  |  January 4, 2011 at 8:00 am

    If the appeal is dismissed for lack of standing, there will be no Ninth Circuit opinion addressing whether Prop 8 is unconstitutional, just Judge Walker's decision. Such federal trial court decisions are not binding on other courts or in other cases. But it would be "persuasive precedent" to be considered in other marriage equality litigation in the western states covered by the Ninth Circuit, as well as across the country and in other nations' courts as well.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 131. JonT  |  January 4, 2011 at 8:00 am

  • 132. mary  |  January 4, 2011 at 8:01 am

    Question: I read that pundits believe that Arizonans will control the standing issue, but believe that California Supreme Court will find standing, thus requiring the 9th circuit to rule on the merits. Woiuldn't it be great to get this challenge dunked on standing grounds??

  • 133. Shannon Minter  |  January 4, 2011 at 8:01 am

    @Nelson Garcia,

    It is good in that it puts us a step closer to getting rid of Prop 8, and shows that the Ninth Circuit recognizes that there is a serious question about whether the proponents have standing. It was also great to have the ruling that Imperial County is out of the case. But it is frustrating that now there will be a delay while the CA S Ct rules.

  • 134. Eric Ross  |  January 4, 2011 at 8:01 am

    QUESTION: Can you please clarify the part about Jerry Brown and Kamala Harris? Can the courts force them to defend Prop 8? If so, doesn't that open everything up to more issues like the other side saying the state lost the case on purpose?

  • 135. Chris Stoll  |  January 4, 2011 at 8:02 am

    Jeff, as far as I know, the California Supreme Court has never dealt with the exact question posed by the 9th Circuit, which is whether initiative sponsors have a legal right to defend an initiative they sponsored when the Attorney General has decided that it can't and shouldn't be defended. Sometimes initiative sponsors have been allowed to participate in defending a law, but only when the AG was also defending.

  • 136. LOrion  |  January 4, 2011 at 8:02 am

    Do go read David's blog. when you get a chance.

  • 137. Shannon Minter  |  January 4, 2011 at 8:02 am

    @Randy, in court time, I guess a month is pretty fast. I do wish it had been sooner, but for a court they are acting pretty speedily, especially given the holidays.

  • 138. David B. Cruz  |  January 4, 2011 at 8:02 am

    The Ninth Circuit could theoretically find standing even if the California Supreme Court (CSC) said the Proponents lacked general authorization to defend the measure in all litigation. But if they were inclined to do that, they would not have needed to certify this question to the CSC (though they could have done it hoping for cover — 'blame them, not us'). So I don't see this as an at all likely scenario.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 139. Kathleen  |  January 4, 2011 at 8:03 am

    The Prop 8 proponents didn't need to have strict Article III standing in order to INTERVENE at the trial level. There were already state and county defendants as part of the lawsuit (even if they chose to not mount a defense) so there was the "case or controversy" necessary for a federal judge to hear the case. The Proponents were merely granted intervenor status in order to mount a defense.

    But once the state defendants dropped out of the case, by choosing not to appeal, the proponents need to satisfy more than just intervenor status in order to bring the appeal.

  • 140. Ann S.  |  January 4, 2011 at 8:03 am

    I'm not Shannon, but that's a question of state law and the CA Supreme Court has already declined to force them to do that.

  • 141. Shannon Minter  |  January 4, 2011 at 8:03 am

    @Dan, no, honestly, the question of standing is very serious and real, so I think the Ninth Circuit genuinely wants to be sure about whether the proponents have standing before they rule on the constitutional questions.

  • 142. Carpool Cookie  |  January 4, 2011 at 8:04 am

    @Patrick: see Chris Stoll's reply at 2:52

    "The certification process is part of our federal system, which recognizes that state governments and the federal government are separate and independent. When the federal court asks a state supreme court for the answer to a question of state law, it’s essentially asking the state court, as a courtesy, to give guidance on an important issue of state law that will help the federal court decide how to resolve a federal case. State supreme courts sometimes do decline to answer a certified question. When they do that, they are saying to the federal court, “we don’t want to answer this question until a case comes to us through our own state court system. Use your own best judgment about this issue.”

  • 143. Joe Mello  |  January 4, 2011 at 8:04 am

    Q-No standing = no appeal,,,but could you comment on the possible senarios if CAL Supreme Court finds standing?

  • 144. Anonygrl  |  January 4, 2011 at 8:04 am

    Thanks!

  • 145. Kevin  |  January 4, 2011 at 8:04 am

    In the trial at district court, protectmarriage.com is a defendant-intervenor. Intervention is not the same as standing.

  • 146. Shannon Minter  |  January 4, 2011 at 8:05 am

    @randy, if the ca s ct says prop 8 proponents don't have a right to appeal, then the ninth circuit will disimiss the case. the proponents can appeal that ruling to the us s ct, which could either take the case or let Judge Walker's ruling stand. If that happens, the case would be over. Prop 8 would be gone and couples could marry again.

  • 147. Kathleen  |  January 4, 2011 at 8:05 am

    Currently, with DOMA in place, even a marriage recognized as legal by the state in which you live is not recognized by the federal government. So the answer is, sadly, no, this will not help. We need to get rid of DOMA or pass UAFA.

  • 148. David B. Cruz  |  January 4, 2011 at 8:06 am

    The Ninth Circuit could affirm Judge Walker's decision invalidating Prop 8 on the merits on narrow or broad grounds. Narrowly, they could focus on the prejudice and bias that was deployed in the official arguments and the campaign for Prop 8; that would not necessarily apply in any other state. Broadly, they could accept the "fundamental right to marry" argument, which would be binding in the other Ninth Circuit states. Either way, the precedent could offer a persuasive example that other courts might follow. But the former narrow ruling would be less likely to be reviewed by SCOTUS than the broader ruling. And at the oral arguments in December even "liberal" Judge Reinhardt was pressing Olsen to agree that they could rule narrowly in favor of the plaintiff same-sex couples.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 149. Bob  |  January 4, 2011 at 8:06 am

    Bingo, a contrary ruling would lead to chaos,,,,, i.e. NOM rule……… thanks for your vote of confidence on the hugely important issue here…….

  • 150. LOrion  |  January 4, 2011 at 8:06 am

    From above, I understood that no this stays a CA only issue.

  • 151. Wine Country Lurker  |  January 4, 2011 at 8:06 am

    This thing is growing so fast I can't keep up or scan the actual content being posted to check for duplicates!

    …quietly wishing for a "mark comment as read" feature to make things become hidden so I COULD only see what is newly posted and check for duplicates that way….

  • 152. Kathleen  |  January 4, 2011 at 8:06 am

    I answered this somewhere, but my answer seems to have been misplaced. Maybe you can scan for my name.

  • 153. Carpool Cookie  |  January 4, 2011 at 8:07 am

    I would think pre-judgement communication between courts such as this also can bring them into a joined understanding of the law for the future…..so you don't have radically different rulings being made all over the place to a similar question. It has the potential to bring those two courts, anyway, onto the same page.

  • 154. Chris Stoll  |  January 4, 2011 at 8:07 am

    Patrick, the 9th Circuit isn't asking the state court whether the proponents of Prop 8 have federal standing. They have asked the state court to answer a question of state law that is relevant to the decision of whether or not there is federal standing. The 9th Circuit ultimately will decide the standing issue, using the California Supreme Court's answer as part of its analysis.

  • 155. Shannon Minter  |  January 4, 2011 at 8:07 am

    @Joe Mello,

    Very significant to have Imperial County out of the case. If they were in, then the appeal is valid, and there is no possibility of having the case end right now and Prop 8 being gone right now. The Ninth Circuit would have to reach the constitutional questions, and the US S Ct would be likely to take the case and reach those questions as well. That might or might not turn out positively, but it will take a long time. It would be better (in my view) to have Prop 8 gone now.

  • 156. Melissa  |  January 4, 2011 at 8:07 am

    I laughed hysterically at "Where's Delores?". Thanks for that – I hope that same thing.

  • 157. Anonygrl  |  January 4, 2011 at 8:07 am

    Question: If CA SC rules that the proponents do not have standing, what is the next court of appeal for THEM? Do they have to go back to the 9th for an en banc ruling, or can they jump to SCOTUS?

  • 158. Alyson Young  |  January 4, 2011 at 8:08 am

    I'm not Shannon or Chris, but I think I can help…
    This case is already in federal court. In fact, the only higher and broader forum than the 9th Circuit is the US Supreme Court (also called "SCOTUS" both here and elsewhere.)

    Are you asking who can join an appeal to SCOTUS from the 9th Circuit? If so, I suspect that depends in no small measure on what exactly the 9th Circuit does, which is not yet clear.

  • 159. Rev. Joseph Shore-Go  |  January 4, 2011 at 8:09 am

    Q: was it ever clarified what affect prop 8 had on out of state/country marriages that were originally ruled as recognized by the state of CA. does this case affect those marriages or are they still recognized.

  • 160. Claudia Center  |  January 4, 2011 at 8:10 am

    NotShannon reply — Though every case finding constitutional protection for gay and lesbian couples is helpful re ultimately striking down DOMA and other federal provisions that discriminate.

  • 161. Carpool Cookie  |  January 4, 2011 at 8:10 am

    Merci : )

  • 162. David B. Cruz  |  January 4, 2011 at 8:10 am

    @ Kathleen:

    No, although I haven't carefully scoured the concurrence yet — too busy blogging and trying to help out here! Thanks for your ongoing work posting docs for the world!!

    (For those who don't know me, I teach various courses in constitutional law, federal courts, and sex/gender/sexual orientation law at USC.)

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 163. Shannon Minter  |  January 4, 2011 at 8:10 am

    @Eric, the courts cannot force them to defend Prop 8, but if the CA S CT says that the Prop 8 proponents have the power to force an appeal over the wishes of Brown and Harris, it would strip the AG and the Governor of the ability to exercise their responsibility as elected officials to decide when and whether to appeal a court decision striking down a state law. They will essentially become bystanders, while private groups will be acting on behalf of our entire state with no real accountability. Unlike elected officials, ballot initiative proponents don't have to run for office.

  • 164. Ann S.  |  January 4, 2011 at 8:10 am

    I don't think they do that — they are supposed to rule only on the case properly before them, not discuss with other courts what sort of uniform rule they should all apply.

    If there's no case or controversy before them, they can do nothing official, and they seem to have no trouble making radically different rulings all over the place.

  • 165. Chris Stoll  |  January 4, 2011 at 8:11 am

    See my reply to a similar question above. It is sad, but it's likely that certification will delay the ability of couples to get married.

  • 166. Amy  |  January 4, 2011 at 8:11 am

    Q: Just jumped in, read previous questions and didn't see this … What will happen to the existing 18-20k marriages? Has that been addressed yet by the court?

  • 167. Tracy Greene  |  January 4, 2011 at 8:11 am

    Follow-up Question: Is this the first time that the california supreme court has been asked this question: "california law gives a group that proposes a ballot initiative the power to appeal when the official state representatives–the AG and the Governor–have decided not to appeal."?

  • 168. Shannon Minter  |  January 4, 2011 at 8:11 am

    @ Rev. Joseph Shore-Goss,

    It is clearly decided that the marriages entered by same-sex couples before Prop 8 was decided are still completely valid and entitled to full recogniztion and respect. This case will not affect that one way or the other.

  • 169. Shannon Minter  |  January 4, 2011 at 8:12 am

    @Amy, those marriages are valid and will continue to be valid. That is not an issue in the Perry case. –

  • 170. Ann S.  |  January 4, 2011 at 8:12 am

    I don't think there's any appeal from that CA SC ruling — rulings by state supreme courts on federal constitutional questions can go straight to the SCOTUS if they'll grant cert, but there's no federal constitutional question being asked of the CA SC.

  • 171. David B. Cruz  |  January 4, 2011 at 8:12 am

    @ Whine Country Lurker Grrl:

    Search for my comment above including the word "Chadha."

    And yes, this vacate-the-trial-court-ruling plea is a desperation argument, imho.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 172. Shannon Minter  |  January 4, 2011 at 8:12 am

    @ Amy,

    here is a resource on that:
    http://www.nclrights.org/site/DocServer/SB_54_FAQ

  • 173. Eric Ross  |  January 4, 2011 at 8:13 am

    QUESTION: For clarification, I'm referring to the statements on page 10 of the filed document:

    "the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so. Cal. Const. art. II, § 10(c).4 Most relevant here, “the Governor has no veto power over initiatives,” Kennedy Wholesale, Inc. v. State Bd. of Equalization, 806 P.2d 1360, 1364 n.5 (Cal. 1991), and the Attorney General possesses no veto power at all.

    Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so.5

  • 174. Tony  |  January 4, 2011 at 8:13 am

    Question: Can you list out the next couple of levels as a decision tree … e.g. CASC says they have standing ->
    1) 9th circuit rules Walker was right -> Prop8'ers appeal to SCOTUS
    2) 9th Circuit overrules Walker -> Boies et al. appeal to SCOTUS

    CASC says no standing -> 9th circuit can do nothing. -> Can Prop8'ers appeal to SCOTUS???

  • 175. Amy  |  January 4, 2011 at 8:13 am

    Thank you!

  • 176. Sheryl  |  January 4, 2011 at 8:13 am

    do you think the fact that CA Supreme court has a new chief justice will have any impact of a possible ruling?

  • 177. Carpool Cookie  |  January 4, 2011 at 8:14 am

    OMG….can you imagine that lame little, hound dog-eyed attorney before the U.S. SUPREME COURT ? ! ? ! ? !

    Actually, I hope he gets the CHANCE!!!!

    Moments like these…priceless.

  • 178. Rev. Joseph Shore-Go  |  January 4, 2011 at 8:14 am

    Q: yes fior those within the state how does it affect those from out of state that move here or those that leave state and get married and come back as that was the case of troy perry and his husband who were married in spain and it was recognized in the original rulling. . . .does prop 8 address that or can folks still leave the state/country get married and be recognized here?

  • 179. Rick Bligh  |  January 4, 2011 at 8:14 am

    Thanks for a clear analysis of the situation. I've reposted your blog entry to my FB page.

  • 180. Doug  |  January 4, 2011 at 8:14 am

    Thanks–this is a great question, and I appreciate the answer.

  • 181. Claudia Center  |  January 4, 2011 at 8:15 am

    Question: What is the public policy and/or legal response to the argument that the procedures and decisions here create an unfair "veto power" in the Governor and AG? Putting aside the substantive constitutional questions, is the answer that those whose initiatives are abandoned may try to elect new and different Governors/AGs who may then take steps to enforce Prop 8 (though a new/different action?)?

  • 182. David B. Cruz  |  January 4, 2011 at 8:15 am

    No, this certification of a question does not reject Boies argument on this. (I may have written Olsen when I meant Boies in a different comment — apologies.) If the California Supremes say that state law does not grant the proponents general-purpose litigation authority to defend Prop 8, that almost certainly dooms their chances of getting federal standing for an appeal. But a contrary Cal Supremes ruling does not guarantee a ruling that there is federal standing, although it probably would make it somewhat more likely.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 183. Carpool Cookie  |  January 4, 2011 at 8:15 am

    Oh boy.

    Pass the popcorn!

  • 184. LOrion  |  January 4, 2011 at 8:15 am

    Thanks I ccouldn't see any answers either just questions.

  • 185. Denise Brogan-Kator  |  January 4, 2011 at 8:15 am

    Ah, I see that second point for sure!

    And, while I clearly see your first point, is it your opinion that this case isn't well-suited for SCOTUS? Assuming no change on the bench, isn't this a nearly ideal case? Are you worried about Kennedy?

  • 186. Kathleen  |  January 4, 2011 at 8:15 am

    I should add… if the Proponents are determined to not have standing, they can appeal that decision to the US Supreme Court, which could further delay a decision. But if they are ultimately (at all appeals levels) determined to not have standing to appeal, then Walker's decision stands and Prop 8 goes into the dustbin of history where it belongs.

  • 187. Shannon Minter  |  January 4, 2011 at 8:16 am

    @Anonygrl,

    No one can appeal the CA S Ct's ruling on whether CA law gives ballot proponents the power to appeal when the official state representatives do not want to pursue an appeal. But that is technically a separate question from whether the proponents have standing in federal courts to appeal. As a practical matter, though, if the CA S Ct says they don't have the power to appeal under state law, the federal courts are not likely to find a way around that.

  • 188. jsteven  |  January 4, 2011 at 8:16 am

    Do you think the California Supreme Court ask for amicus briefs and even oral argument before deciding or will they big boys and girls and make a decision on their own?

  • 189. Elizabeth Oakes  |  January 4, 2011 at 8:16 am

    *makes popcorn for us all and waits to Imperial Co. to appeal to SCOTUS, eyes ablaze*

  • 190. Wine Country Lurker  |  January 4, 2011 at 8:16 am

    EEK! un'scribe

    Memo to self : Don't 'scribe to "live chat" using email addy connected to Blackberry!

  • 191. Chris Stoll  |  January 4, 2011 at 8:17 am

    If the 9th Circuit decides no one has standing to appeal, they will dismiss the appeal. Judge Walker's decision will then become final, as will his injunction prohibiting the state from enforcing Prop 8 anywhere in California. So yes Prop 8 will effectively be dead.

  • 192. Elizabeth Oakes  |  January 4, 2011 at 8:17 am

    LOL Cookie, I typed that before I saw your comment. Great minds think alike about their snacks, methinks.

  • 193. RichardO  |  January 4, 2011 at 8:17 am

    This one I can handle: The original suit was initiated by the plaintiffs against the Gov, AG, Registrar, and LA and SF Clerks. The Prop 8 people were allowed to be added as defendants (and they basically ran the defense). To appeal Walker's ruling, only the state officials have any right to Federal appeal (at least that is the current approach to standing). If they decline (which they did) there is, in theory, not anything the non-CA govt entities (Prop 8 people) can do about it.

    The 9th's Panel, however, seems to be concerned that AG and Gov, in not actively defending, may have subverted the process and appear hesitant to just accept it.

  • 194. Shannon Minter  |  January 4, 2011 at 8:18 am

    @Joe Mello,

    If Ca s ct finds that the proponents have a legal right to appeal under state law, then the Ninth Circuit still has to decide whether they meet the criteria for federal standing. If the Ninth Circuit finds that they do, then it will let the appeal proceed and move on to the underlying constitutional questions.

  • 195. john (18k Club)  |  January 4, 2011 at 8:18 am

    thnx

  • 196. Amanda  |  January 4, 2011 at 8:18 am

    QUESTION: If CASC rules "NO STANDING", or on the other hand, if it comes back and the 9th district rules prop 8 UNCONSTITUTIONAL, what's the likelihood of marriage licenses being administered immediately after the decisions? Or will another stay be put on while it is appealed to the SCOTUS? Would love to get married while I can still have children.

  • 197. David B. Cruz  |  January 4, 2011 at 8:18 am

    This is another red herring. Neither the Gov. nor the AG has "vetoed" Prop 8. A duly commissioned, independent federal judge has held it unconstitutional after a full and fair trial. The Proponents of Prop 8 often speak as though this was dictatorial, unilateral action by the state officers, completely ignoring the role of the federal judiciary as guardians of our constitutional rights.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 198. Rev. Joseph Shore-Go  |  January 4, 2011 at 8:19 am

    Thank you that clarifies a long held question around my household

  • 199. Ann S.  |  January 4, 2011 at 8:19 am

    David, when I re-read today's ruling it seems to say that if the CA SC will issue an opinion on whether or not Proponents have standing under CA law, they will be bound by that, and will find federal standing if there is standing under CA law.

    So they appear to disagree with Boies's argument that state standing is "necessary but not sufficient".

  • 200. Shannon Minter  |  January 4, 2011 at 8:19 am

    @Mary, yes it would be great to get Prop 8 knocked off the books now, and not have to wait for several more years.

  • 201. Kathleen  |  January 4, 2011 at 8:19 am

    The Proponents can appeal an adverse ruling on the standing issue to the SCOTUS. If SCOTUS gets involved and rules that they do have standing, then the case is not dead. Then, even if the 9th Circuit strikes down Prop 8 in their ruling on the merits, that decision could be appealed to SCOTUS.

  • 202. Denise Brogan-Kator  |  January 4, 2011 at 8:20 am

    Agreed! Thanks for the time, Shannon.

  • 203. Shannon Minter  |  January 4, 2011 at 8:20 am

    @Yuki,

    thank you Yuki. that is such an important issue. the current law causes so much hardship and suffering. I am sorry you are facing that. Thanks for your support.

  • 204. David B. Cruz  |  January 4, 2011 at 8:20 am

    I don't know about amicus briefs, but the Cal Supremes have on prior occasions accepted briefing and argument by the parties to the federal court litigation prompting certified questions from the Ninth Circuit.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

  • 205. Sheryl  |  January 4, 2011 at 8:20 am

    Q – Sorry forgot the Q. See question above.

  • 206. Shannon Minter  |  January 4, 2011 at 8:21 am

    @Alyson,

    I may not understand your question correctly, but if the Ninth Circuit finds no standing, then the only issue that will go up to the Supreme Court is the standing issue.

  • 207. Ann S.  |  January 4, 2011 at 8:22 am

    Well put.

  • 208. Carpool Cookie  |  January 4, 2011 at 8:22 am

    I still want to know what their favorite colors are, but am content to wait.

  • 209. David Glasser  |  January 4, 2011 at 8:22 am

    Q: If the CA Supreme Court says that the proponents have no standing and thus the 9th Circuit case evaporates due to lack of standing, does Prop 8 disappear all across CA or just in Alameda and LA counties?

  • 210. Shannon Minter  |  January 4, 2011 at 8:22 am

    @jbf, DOMA is not directly at issue in this case, although there is a DOMA challenge pending before the 1st Circuit right now.

  • 211. Wine Country Lurker  |  January 4, 2011 at 8:23 am

    Thank you, I will go look.

    P.S. "Wine" as in "tasting" ( though on occasion I have been known to ask for cheese with my "Whine". *grin* )

  • 212. Shannon Minter  |  January 4, 2011 at 8:24 am

    @James, I agree with kathleen's answer on this.

  • 213. Alyson Young  |  January 4, 2011 at 8:25 am

    For what it's worth, DOMA has been found unconstitutional in federal court, but only (so far) at the trial level. For more information check out http://www.glad.org/doma/

  • 214. LOrion  |  January 4, 2011 at 8:25 am

    HOOT!

  • 215. Chris Stoll  |  January 4, 2011 at 8:25 am

    If there's a final decision by the 9th Circuit either that no one has standing to appeal or that Prop8 is unconstitutional, and the US Supreme Court decides not to review the case, then yes the stay will be lifted and people will be able to get married again. But that could be many months away.

  • 216. Shannon Minter  |  January 4, 2011 at 8:25 am

    @Liz,

    Sadly, no, a victory in Perry will not change the current horrible immigration law, which does not give any protection to same-sex couples regardless of whether or not they are married. this is another very important issue that we must do more work on.

  • 217. Shannon Minter  |  January 4, 2011 at 8:26 am

    @Claudia Center,

    Great point Claudia!

  • 218. Carpool Cookie  |  January 4, 2011 at 8:26 am

    But I mean, in a future case, it gives them the opening to say "and the state supreme court agrees on this point as recently as Jan. 30, 2011", or whathaveyou.

    As most of you know, though, I primarily do legal FILING…and legal coffee making.

  • 219. Shannon Minter  |  January 4, 2011 at 8:27 am

    @Shannon (the other Shannon!),

    No, the ruling will apply to all couples in California if it is upheld.

  • 220. Kathleen  |  January 4, 2011 at 8:27 am

    Seems to me this would have been more of an argument is there had been no one willing to defend the proposition at trial. But there way – Proponents mounted a vigorous defense and lost. The decision to not appeal in no way 'vetoes' the proposition, it just allows a federal judge's decision to stand.

    Yech. It really bothers me that the Court seemed to buy into this line of thinking.

  • 221. Alyson Young  |  January 4, 2011 at 8:27 am

    Clarification:
    I'm on about what happens if the Ninth Circuit does find standing, and then affirms Judge Walker's decision on 14th amendment grounds. If both of those things happen, we would have a split of federal authority concerning a federal right to same-sex marriage. In that case, and assuming someone appeals, wouldn't SCOTUS be obliged to finally face the issue?

  • 222. Kathleen  |  January 4, 2011 at 8:27 am

    What a bunch of typos – hopefully the comment is still coherent.

  • 223. Shannon Minter  |  January 4, 2011 at 8:28 am

    @Mrs Mrs

    That quote is taken from a concurring opinino that was written only by Judge Reinhardt, not by the other two. In addition, although I do not like the way he framed the issue, I think he may just be playing devil's advocate.

  • 224. Ann S.  |  January 4, 2011 at 8:29 am

    It might make it somewhat more likely for SCOTUS to take the issue, but not "obligated", no.

  • 225. Shannon Minter  |  January 4, 2011 at 8:29 am

    @Kathleen,

    Great answer Kathleen. Thank you.

  • 226. Chris Stoll  |  January 4, 2011 at 8:29 am

    See above. It could be many months.

  • 227. Manilow  |  January 4, 2011 at 8:29 am

    @David B. Cruz – in your blog, you said that you thought a decision from the CA Supreme Court would be in about six months at the most. Is there a way for either party in the case to request a decision sooner?

  • 228. Samantha  |  January 4, 2011 at 8:30 am

    More of a rhetorical question really… I can't think of a single issue before any court in decades that this many people cared about? When people are anxiously awaiting a decision and questioning every facet of the process, because it truly affects their lives, isn't that the true definition of civil rights?

    Amazing and thank you legal experts for answering all these questions I have had!!

  • 229. Shannon Minter  |  January 4, 2011 at 8:31 am

    @Teddy Partridge,

    Federal appeals courts do sometimes certify questions to state supreme courts. That is not uncommon. Part of the reason is that a state supreme court has final authority over the meaning of state law. Therefore, if the federal courts are not sure about the meaning of a particular state law, they sometimes ask the state supreme court to give them a definitive answer.

  • 230. Shannon Minter  |  January 4, 2011 at 8:31 am

    @Samantha,

    yes, that is a great point Samantha.

  • 231. Kathleen  |  January 4, 2011 at 8:32 am

    @ Rev. Joseph Shore-Goss, answers to the questions you're asking were clarified through a bill in the California legislature. And it depends on whether the out of state marriage was performed before or after passage of Proposition 8. I'll find it for you and post here.

  • 232. Scott Lowder  |  January 4, 2011 at 8:32 am

    If the CASC says that proponents don't have standing under STATE law, then the 9th Circuit COULD say that they don't have Article III standing in federal law. Then, the appeal is dismissed, but Prop 8'ers could (and probably would) appeal the dismissal of the appeal to SCOTUS.

  • 233. elliom  |  January 4, 2011 at 8:33 am

    Purple, because I find it soothing.

    (I like informality.)

  • 234. Shannon Minter  |  January 4, 2011 at 8:33 am

    @David Glasser,

    It is gone for the whole state.

  • 235. Alyson Young  |  January 4, 2011 at 8:34 am

    Of course not obligated; SCOTUS has very few avenues of nondiscretionary review. I said "obliged." The Supreme Court does, generally, step in to resolve such splits.

  • 236. Shannon Minter  |  January 4, 2011 at 8:34 am

    @Amanda,

    Sadly the decision is likely to be stayed while the supreme court hears the case.

  • 237. RichardO  |  January 4, 2011 at 8:34 am

    I watched the hearing and it seemed to me in the dancing around during the discussion that, from a practical matter it really wouldn't matter (much). At minimum, the ruling would apply to the Gov, AG, Registrar, and LA and SF clerks. Thus, while one might have to travel to get same-sex married in SF or LA, such a marriage would be recognized statewide. Further, the Registrar would be impelled to change its forms to remove gender distinctions of the two parties and would administratively require the rest of the County Clerks to comply in marrying same-sex couples. There seemed to be the implication during the hearing that once this happened, it might be possible that individual Clerks or county employees required to implement the change could sue to resist but given the state's experience previously, it doesn't seem like much of a likely threat. One might expect the anti-equality forces to pick up their pieces and go fight other battles.

  • 238. Rev. Joseph Shore-Go  |  January 4, 2011 at 8:34 am

    Just a thought: I always found it interesting that most of the rhetoric has been around the word Marriage since day 1. How is it was is considered a sacrament, defined by churches differently all over the world has made its way into goverment. Shouldn't goverment only be involved in civil unions. as in Germany and other countries?

  • 239. Shannon Minter  |  January 4, 2011 at 8:35 am

    @jsteven,

    I am sure they will want to hear from the parties and amicus on the question. That is normal procedure, and this is a very important issue with ramifications for the state that go far beyond Prop 8. The court's answer will apply to every future ballot initiative as well.

  • 240. Chris Stoll  |  January 4, 2011 at 8:35 am

    Steve, if the Cal Supreme Court decides that state law does not give proponents the right to defend an initiative, I think it's very unlikely that 9th Circuit would then say they have standing anyway. But if the Cal Supreme Court says they do have a right to defend under state law, it's still possible the 9th could still say there's no federal standing based on Boies's argument that the proponents are no personally affected by Prop 8.

  • 241. LOrion  |  January 4, 2011 at 8:36 am

    Thanks! This was not explained above!

  • 242. Ben  |  January 4, 2011 at 8:36 am

    While I agree that Prop 8 is a stain of discrimination in California and it should be gone as soon as possible, please don't forget those of us who live elsewhere (Atlanta, here) who would love for this case to get to the SCOTUS and have gay marriage ruled a federal right nationwide. Sure, it may be riskier and would certainly take a lot more time, but it's really the only hope many of us have.

  • 243. Kathleen  |  January 4, 2011 at 8:36 am

    It's California SB 54 http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&amp

    I think there's a FAQ on the above page somewhere. If this doesn't answer your questions, feel free to write to me:
    p8TT at gmail dot com
    and I'll look it up for you.

  • 244. Melissa  |  January 4, 2011 at 8:37 am

    Question: Shannon and Chris, you've covered a lot of what will happen if CA SC says "yes" and "no" to standing, but what happens if they punt (ie decide not to answer)? Either here or the previous thread, someone explained why this might happen. If it does, then does the 9th get to make the straight-up standing decision?

  • 245. Shannon Minter  |  January 4, 2011 at 8:38 am

    @Claudia Center,

    The AG and Governor have a responsibility as elected officials who represent the interests of the entire state to use their best judgment about whether and when to appeal a decision striking down a state law because it violates the federal constitution. They would be abdicating their responsibility if they appealed every such decision–regardless of the cost to taxpayers or their views about the merits of the decision. If the people disagree with those choices, they can and will elect different public officials. In this case, Brown and Harris both made their positions on Prop 8 crystal clear, and the voters elected them.

  • 246. Ann S.  |  January 4, 2011 at 8:39 am

    Sorry, my mistake.

    They do generally step in, I agree. But they might let it percolate for years before doing so. I seem to remember that the law affecting anti-miscegenation cases developed in lower courts quite a while before Loving v. Virginia.

  • 247. Wine Country Lurker  |  January 4, 2011 at 8:39 am

    QUESTION:

    Found it, thanks. I had already read it, but it was about standing so I didn't make the connection. (But now I understand the "case or controversy" thing better!)

    I guess what I'm getting at goes more like this:

    Do you know of any possible legal basis upon which to even come up with the vacate-Walker's-ruling idea?

    It common practice just to pull anything and everything, with no supporting citations, no matter how hair-brained, including pocket-lint, and throw it in with hopes that just one "sticks"?

    Would one to expect "desperation arguments" to appear in a situation other than one where they know their case is weak?

    (I ask because I presently have a need to better understand how the court system works.)

  • 248. adambink  |  January 4, 2011 at 8:40 am

    All, Shannon has to leave in a few minutes, so get your last questions in.

  • 249. LOrion  |  January 4, 2011 at 8:40 am

    Answer is currently # 168. Kathleen.

  • 250. Shannon Minter  |  January 4, 2011 at 8:41 am

    @Sheryl,

    The composition of a court always makes a difference. I am sure the court will not relish being back in the spotlight on this issue, but the stakes could not be higher–not just in terms of what happens with Prop 8, but in terms of our entire state system of government. I hope the court will not focus on the immediate politics of this issue but will look at the bigger issue and do the right thing. It would be a disaster if initiative proponents can veto the decisions of the AG and Governor about when to appeal. That would lead to sheer chaos and prevent the state from ever engaging in settlement negotiations or making reasonable decisions based on considerations of the public fisc and the best interests of the entire state.

  • 251. Jayne  |  January 4, 2011 at 8:41 am

    Thank you for taking the time to address my question and for the clarification.

  • 252. Shannon Minter  |  January 4, 2011 at 8:41 am

    @Tony, I agree with Scott's answer below.

  • 253. Elizabeth Oakes  |  January 4, 2011 at 8:41 am

    And I seem to recall there were a few holidays in the interim as well.

  • 254. RodW  |  January 4, 2011 at 8:42 am

    It's my understanding that California recognizes *all* same-sex marriages legally contracted *anywhere* before Prop8 passed in November 2008.

  • 255. Shannon Minter  |  January 4, 2011 at 8:42 am

    @Scott, thanks Scott. Good answer, I agree with that.

  • 256. Claudia Center  |  January 4, 2011 at 8:42 am

    Thank you, that is helpful. It is very interesting to see the difference/disconnect between the decisions of the California governor and AG re Prop 8, and the decisions of the Obama administration and the federal DOJ re the DOMA and DADT challenges.

  • 257. Jayne  |  January 4, 2011 at 8:42 am

    Thank you, Kathleen.

  • 258. RichardO  |  January 4, 2011 at 8:42 am

    I think the 9th's Panel noted that it was a tactic on the part of the Plaintiffs to name only certain Counties as Defendants but that it was certainly understandable/acceptable for them to have approached it that way.

  • 259. AndrewPDX  |  January 4, 2011 at 8:42 am

    Scribing, late to the party (drat this 'work' thing)

    Liberty, Equality, Fraternity
    Andrew

  • 260. Shannon Minter  |  January 4, 2011 at 8:44 am

    @Rev. Joseph Shore-Goss,

    That is an interesting proposal. Right now, however, marriage in the U.S. is a civic status, and that is not likely to change anytime soon. The most important thing to me is that all people should have access to the same legal status and rights.

  • 261. Ann S.  |  January 4, 2011 at 8:44 am

    It is understandable — but as I think about it, if they are really as determined to take this case to the SCOTUS as they say, you'd think they'd have had some plaintiffs from a county that was going to appeal.

  • 262. JC (1 of the 18,000  |  January 4, 2011 at 8:44 am

    Sorry. "Punt" was poor word choice; I understand that they're being careful. I was really just trying to get a reading about whether his comment "Now that our panel has completed the immediately pressing matters regarding the appeal…." meant that they had decided ONLY to send the question to the CASC OR that they had finished debating the whole enchilada. An earlier response indicates that that the 9th would NOT have debated the whole thing; they will do that once the standing issue is resolved. Sorry that my haste caused consternation. No disrespect intended!

  • 263. Chris Stoll  |  January 4, 2011 at 8:45 am

    Once we have a final decision of the 9th Circuit panel (whether based on standing or on the merits of the constitutional issues), the losing party can either ask the US Supreme Court to review the decision directly, or it can ask for "en banc" review by a larger panel of 11 9th Circuit judges. In both cases review is not automatic. The Supreme Court and the full 9th Circuit both have discretion to decide whether or not to review the case. If there is no further review, the panel's decision becomes the final decision in the case.

  • 264. Shannon Minter  |  January 4, 2011 at 8:45 am

    @Melissa,

    yes, if the ca s ct punts, the question goes back to the 9th circuit, who will then decide what CA law says about initiative proponents. That could happen, although I would hope the CA S Ct would want to rule on such an important question of state law for itself. We will just have to see what happens.

  • 265. AnonyGrl  |  January 4, 2011 at 8:46 am

    Question: In that it seems giving the proponents standing would set a really horrible precedent, do you expect that CA SC will prefer to weigh in on this simply to nip the problem in the bud, or do you get the impression they are likely to want to avoid the issue and just hand it back to the 9th? Obviously they have not yet had time to even start to deal, so I am asking based on your prior experience with the CA SC.

  • 266. Gregory in Salt Lake  |  January 4, 2011 at 8:47 am

    ditto 'work' thing…

    Thanks to all! scanned most the comments….itching to read more thoroughly…

    p.s. Thank you Shannon for coming to Utah recently for Transgender awareness!

  • 267. rick Jacobs  |  January 4, 2011 at 8:47 am

    Thanks all for a very educational and lively discussion. This community has been and is the backbone of the effort to disseminate the essence of this trial. And this trial is going to change the country. Thanks to all of you and the lawyers on this case, it already has!

  • 268. Shannon Minter  |  January 4, 2011 at 8:47 am

    I have really enjoyed chatting, great questions, folks! And many thanks to Professor David Cruz and Kathleen and other who were helping answer questions. This was another important turning point in this case. I am so glad to be part of such an active community that is so engaged and following this case so closely. Thanks to all of you for all you do.

  • 269. Carpool Cookie  |  January 4, 2011 at 8:48 am

    Yeah….for one thing, think about how crowded the court systems ALREADY are with cases!

  • 270. AnonyGrl  |  January 4, 2011 at 8:49 am

    THANK YOU Shannon and Chris ( and all the others who are helping answer questions)!!!!

    We love you for taking the time to help educate us on all of this. It is an amazingly wonderful thing!!!!

  • 271. Chris Stoll  |  January 4, 2011 at 8:50 am

    If the Cal Supreme Court declines to answer the certified question, then the 9th Circuit will have to decide the federal standing issue without the benefit of the Cal Supreme Court's views on the state law issue. That means the panel will have to make it's decision based on its own best assessment of how the Cal Supreme Court would have resolved the state law issue.

  • 272. Denise Brogan-Kator  |  January 4, 2011 at 8:51 am

    Thank you, Shannon. Your insight, as always, is very much appreciated.

  • 273. KCmarried  |  January 4, 2011 at 8:51 am

    Really? You think the rhetoric is about the word? You have much to learn about why this issue is so important and vital to all humans.

  • 274. adambink  |  January 4, 2011 at 8:52 am

    Thanks for joining us, Shannon and Chris. It is immeasurably helpful for everyone, really.

  • 275. Daren  |  January 4, 2011 at 8:52 am

    Let's say the California Supreme Court rules that Protect Marriage has no standing. What would happen then? Considering both Jerry Brown and Kamala Harris plan on NOT defending prop 8 in court, who will?

  • 276. JC (1 of the 18,000  |  January 4, 2011 at 8:53 am

    Latest from NPR: "The high court does not have to respond, but legal experts expect it to." http://www.npr.org/2011/01/04/132659998/appeals-c

  • 277. Ann S.  |  January 4, 2011 at 8:53 am

    Yes, thank you, Shannon and Chris, and thank you, Adam and Courage Campaign for setting this up and hosting it.

  • 278. Ed Cortes  |  January 4, 2011 at 8:54 am

    Ditto on the "THANKS!"

  • 279. Wine Country Lurker  |  January 4, 2011 at 8:54 am

    Good point, Samantha! I'm sure all of us have read several lifetime's worth of court documents as compared to "the average Joe".

    Now I understand what people mean when they say that if you care enough about something, you can make it happen… Things didn't "stick" for me a lot in school when they were general. Now I have a "specific" and I've read more text on pleading paper in the last several months than I've read of "normal" pages and content in years.

    Two years ago if you told me I'd be staying up unto the wee hours of a work night, digging through numerous documents hundreds of pages long in legalese, reading all the footnotes, going back to "as referenced above" sections, etc to make the connection between points — and then calling up my friends to translate it into laymen's terms — OMG I'd most certainly have said you were nuts!

    If nothing else — this has served to better educate us all about our court system / process, to better prepare us for future battles.

    Armed. Educated. Prepared.

    Sounds like a needlepoint sampler. LOL!

  • 280. Liz  |  January 4, 2011 at 8:55 am

    QUESTION: If this law passes with I be able to help my girlfriend with her legal statusand help her become a US citizen if we marry? We have been together for 5 years , she has a 10 year old that was born here, and I am a US citizen. Please advise. Thanks.

  • 281. Dave  |  January 4, 2011 at 8:56 am

    Just wanted to leave a quick note before Shannon leaves…..thanks to you and Chris for keeping us up to date on the developments in this case. It is much appreciated.

  • 282. LOrion  |  January 4, 2011 at 8:57 am

    Good point too. It is neater to have Civil Unions give Civil Rights and Church Sacraments give sacred ones. But in US we decided to make it 'easier' to just let clergy validate our legal Civil Unions and now everyone is confused.

  • 283. Carpool Cookie  |  January 4, 2011 at 8:57 am

    It would be interesting to read more about how America adopted a policy that required civil marriage. There were days of testimony about marriage history during the trial, and the transcripts are elsewhere on this site.

    It might be because the state wanted some control over who could legally be recognized as married. For instance, what if a particular church allowed polygamy and that was not something government wanted to endorse or be involved in…they wan who ever's getting married to appear at City Hall and register to be screened.

    Also, it gives the government a firm record of who is and who is not married, and therefor who gets benefits, is effected by probate law (inheritence rights, etc.). A church wouldn't have to open up its marriage registry rolls to the government…(I wouldn't think)…whereas when it is done through a government system, it's very clear. (I'm not against this, BTW, and don't see anything Big Brotherish about it.) (Just a few thoughts)

  • 284. AnonyGrl  |  January 4, 2011 at 8:58 am

    There were some comments on this question earlier in the thread, Liz… look around your earlier comment at #186.

  • 285. Wine Country Lurker  |  January 4, 2011 at 8:59 am

    *tap* *tap* "Is this thing on?"

    Main article says 30 to 45 minutes of question-answering. It's now been an hour and a half….and I'm still seeing answers show up. (A good thing!)

    Any chance of some status updates in the main article letting us know…. if this thing is still on, so when we refresh we know if the party is over? :-)

    Thanks!

    –WCLG (Apparently not lurking today)

  • 286. Rev. Joseph Shore-Go  |  January 4, 2011 at 8:59 am

    No it is not strictly about the word but studies and discussions, many I had at seminary, show that there is a protective mode around the term marriage. If the goverment wants to offer civil unions and allow churches to marry most, not all, arguements fall away.

  • 287. AnonyGrl  |  January 4, 2011 at 8:59 am

    No one. Except that the proponents could appeal. If they do not, the case is over, Prop 8 is dead.

  • 288. Ann S.  |  January 4, 2011 at 9:00 am

    @Liz, if we win this case you should be able to marry her in California.

    However, unfortunately this case will have no direct affect on federal immigration laws.

    But if we win it will be another step toward full equality.

  • 289. Carpool Cookie  |  January 4, 2011 at 9:00 am

    Yes, thank you for being our Guest Speakers today!

    Hope you're here again soon : )

  • 290. Kathleen  |  January 4, 2011 at 9:00 am

    I wouldn't necessarily characterize it as the 9th being bound by the CASC decision, but the opinion seems to state pretty clearly that they intend to grant standing if the CASC certifies the proponents as having the requisite interest.

    I was, frankly, a bit surprised by that thrust of their opinion.

  • 291. AnonyGrl  |  January 4, 2011 at 9:01 am

    We've been doing goodbyes and thank yous for a few minutes, so I think it is over for Shannon and Chris. There will probably be some more discussion here, though, I would guess.

  • 292. Carpool Cookie  |  January 4, 2011 at 9:01 am

    Q: Even though it's not of me, wouldn't most people here agree that my avatar is the most awesome?

  • 293. Rev. Joseph Shore-Go  |  January 4, 2011 at 9:02 am

    The goverment is under no obligation to recognize a "Church wedding" and it only does so through organized churches who have registered and have agreed to abide by certain govermental laws. (The Pastor acts as a goverment agent and a pastor). So some, smaller churches their marriages are not recognized and one still must marry in court to be recognized.

  • 294. Ann S.  |  January 4, 2011 at 9:02 am

    Yes, but some of us would like the right to call ourselves married without having to have a church wedding.

    I can't see us moving in this direction after all these many years of having the present system where churches, temples and synagogues can marry people.

  • 295. AnonyGrl  |  January 4, 2011 at 9:03 am

    But of COURSE darling!

  • 296. Ann S.  |  January 4, 2011 at 9:03 am

    It is much, much more awesome than mine, certainly.

  • 297. Wine Country Lurker  |  January 4, 2011 at 9:04 am

    <cite>When they do that, they are saying to the federal court, “we don’t want to answer this question until a case comes to us through our own state court system. Use your own best judgment about this issue.”</cite>

    Look ma — I is smarter today!

    Big thanks to Chris and Shannon for their time and energy. It's gonna be a looooong night when I finally get sit down and start reading this from the top.

    P8TT is my digital Pringles. (Bet I can't read just one!)

  • 298. Rev. Joseph Shore-Go  |  January 4, 2011 at 9:04 am

    isn't that riter skeeter?

  • 299. Elizabeth Oakes  |  January 4, 2011 at 9:05 am

    @Richard, if I may:

    CA State marriage licenses are already gender-neutral and have a box for indicating "termination of SRDP[state-registered domestic partnership]." They've been that way since 2008 and have remained so. IANAL, but as someone who works in the County system it seems to me that the notion of the ruling affecting only the two named counties is a legal technicality, and it would not play out that way bureaucratically/in reality.

    All CA counties must abide by the dictates of the State (specifically the DHS/Dept. of Health Services, or whatever they're calling it now) and the Secretary of State, which has jurisdiction over the recording of public marriage licenses. The Legislature, AG, and Governor can also have their say, but whatever orders they give have to filter through these agencies which have the mandate to issue/record CA marriage licenses.

    When Prop8 is finally dead after a SCOTUS look-see and all stays are lifted, rest assured all CA counties will be required by the State to issue same-sex marriage licenses again, not just L.A. and SF (even Imperial County, hah!)

  • 300. AnonyGrl  |  January 4, 2011 at 9:05 am

    Not to mention that if you get your marriage license, then have the JP do a quick civil ceremony and sign it for you, you are married, at which point you are free to do any sort of solemnization that you like with whoever you want to officiate, since the legal part is already done.

  • 301. Carpool Cookie  |  January 4, 2011 at 9:07 am

    @E: White is not technically a color (being the combination of ALL colors), but I like all shades of white for decor, clothes, flowers, etc.

    I liked dark Moss Green best as a child, but now would have to say a paler Eucalyptus Green is my fave. This color became really trendy over the past decade…but I refuse to abandon it! It's cool and soothing.

    PS: Purple has traditionallt been the color of royalty, because the dye found in nature was scarce.

  • 302. Kathleen  |  January 4, 2011 at 9:08 am

    Just want to add my heartily felt "thank you" to Shannon and Chris. I also want to extend a thank you to Prof David Cruz for stopping by and helping out, as well.

  • 303. Elizabeth Oakes  |  January 4, 2011 at 9:08 am

    I remember getting irked at Dr. Cruz a few months ago when he said he thought Proponents would be granted standing, but must admire your acuity–good call, David!

    Am no longer irked, BTW.

  • 304. Kathleen  |  January 4, 2011 at 9:10 am

    Just letting you know I'm still around and am willing to pick up any questions that are still unanswered. I realize I'm not Shannon, Chris or David, but will do my best.

  • 305. Wine Country Lurker  |  January 4, 2011 at 9:11 am

    Another thought…maybe in the future, the "official" question answers could prefix with "ANSWER" — so that we too "can easily distinguish between general comments and [answers] so as to [read] as many as possible." :-)

  • 306. Kathleen  |  January 4, 2011 at 9:11 am

    I don't know about time frames, but AFER has stated that if this doesn't go all the way to the US Supreme Court, it will prepare another case in another state.

  • 307. Wine Country Lurker  |  January 4, 2011 at 9:13 am

    We love you just as much! :-)

  • 308. Wine Country Lurker  |  January 4, 2011 at 9:14 am

    ty!

  • 309. Carpool Cookie  |  January 4, 2011 at 9:14 am

    But why do they even have to "recognize" a church wedding one way or the other….since it is the civil ceremony done under the state's system that's recorded.

    Anyone can found a church. I'm not sure the state really has much interest in the religious side of it, either way. You can get certified through an ad in the back of a comic book and officiate a wedding ceremony.

  • 310. Kathleen  |  January 4, 2011 at 9:16 am

    Parties can ask for an expedited briefing and argument schedule, but ultimately, the pace is at the discretion of the Court. Given that the 9th Circuit expedited the appeal schedule, I would hope that the CSC would likewise recognize that we're dealing here with delayed justice and speed things along. Of course, "speed" is a relative term and when we're dealing with the courts, nothing seems very quick.

  • 311. Elizabeth Oakes  |  January 4, 2011 at 9:18 am

    And that's the scary part about how this ruling could go. Seems to me that some weight should be granted to an elected official exercising his/her voter-granted discretion not to appeal a court case. Really bothers me that the Ninth might be considering throwing out THIS avenue of the voters for the privately-funded initiative voters.

  • 312. RebeccaRGB  |  January 4, 2011 at 9:19 am

    Q: Say Walker's ruling is upheld in every court, and Prop 8 is therefore unenforcible. Does the language of Prop 8 still remain in the CA Constitution, even though it's unenforcible?

  • 313. Carpool Cookie  |  January 4, 2011 at 9:19 am

    No…I found her when I did a search once under "lipstick librarian." I will try to find the full pic some time. I think it's a modern fashion advertisement with a 1930's feel (her hairs marceled in the bigger pic) It's neat that when it's shrunk down so tiny like that, it could also be a friendly little Nancy Boy, too : )

    Thanks to all of you for your avatar support. And Ann, I will help with an avatar makeover if you want.

  • 314. Leo  |  January 4, 2011 at 9:21 am

    I think it took this long in part because they wanted to resolve the Imperial County appeal first. If they decided to let Imperial County in, it wouldn't matter whether the Proponents have standing, making certification unnecessary.

  • 315. Ed Cortes  |  January 4, 2011 at 9:21 am

    Kathleen, you are always here for us, and able to untangle all the legal stuff to make it intelligible for un non-legal people. A big THANKS to you for everything!!

  • 316. Elizabeth Oakes  |  January 4, 2011 at 9:22 am

    Oy, so this means we'll have to wait for them to calendar a hearing, huh? Sigh.

  • 317. Kathleen  |  January 4, 2011 at 9:22 am

    FWIW, AFER has stated they intend to bring another case in another state if this case doesn't make it to the Supreme Court.

    I also think that if marriage equality is reinstated in California, it creates a momentum that will impact the entire country. The population in CA is huge – what is it? 1 in every 8 people in the country live in CA? The pressure that would put on the feds to begin recognition can't be underestimated.

    Of course, I realize nothing short of a federal law or court ruling is going to pressure Georgia to come around, and I'm not sitting here waiting to marry my partner, so I'll admit that it's easier for me to take this perspective.

    I guess I'm just trying remind everyone of the positive that comes of this once we sweep California into the states granting marriage rights, even if it isn't national yet. And this Californian will still be there fighting just as vigorously as ever until we achieve universal equality.

    xoxo

  • 318. Carpool Cookie  |  January 4, 2011 at 9:23 am

    OH MY GOODNESS!!

    She's still alive and kicking out there in the dusty depths of Yahoo!

    http://www.ohjoy.org/wp-content/uploads/2007/11/from_the_editor.jpg

  • 319. Ann S.  |  January 4, 2011 at 9:25 am

    What, you don't like my avatar???!!!

  • 320. Kathleen  |  January 4, 2011 at 9:25 am

    @Andy abowitz, with the caveat that the decision on standing can be appealed to the US Supreme Court. If the US SC were to decide that the 9th Circuit erred in denying standing to Proponents, then the case is not yet dead.

  • 321. Elizabeth Oakes  |  January 4, 2011 at 9:26 am

    You'll find if you study the history of civil marriage in Western history, the term "marriage" was a civil law term long before it was made a sacrament by the Catholic Church. IMHO, religious organizations should be the ones who relinquish the term "marriage," since they have demonstrated an inability to administer it fairly, and go back to offering "blessings" of marriages as they did before.

  • 322. Kathleen  |  January 4, 2011 at 9:32 am

    The other matter that was before them was whether Imperial County could be granted standing to appeal. They resolved that matter as well.

  • 323. Elizabeth Oakes  |  January 4, 2011 at 9:33 am

    This is news to me. I don't think that's true in the Ninth Circuit.

    As someone who issues CA marriage licenses and solemnizes them, I can clarify somewhat:

    Getting legally married is a two-step process. The first step is obtaining a civil marriage license, which must then be solemnized (second step.) That solemnization can be conducted by any "authorized person," and CA law authorizes clergy of any denomination, active and retired judges, active legislators, and Deputy Commissioners of Civil Marriage (I'm one of those too.)

    California is very liberal to grant both civil and religious authorities the right to solemnize marriages; in many European countries, clergy are NOT authorized to solemnize marriage licenses and a civil marriage must be performed first before a church blessing can take place (so all of you who want destination weddings in romantic places, be sure you get the rules/requirements straight before you go!)

  • 324. nightshayde  |  January 4, 2011 at 9:34 am

    Purple is my favorite, followed closely by magenta & various shades of green.

    When given the choice though, I always pick rainbow. I've been obsessed with rainbows since I was a toddler. The colors HAVE to be in the right order (though I'll allow for purple in lieu of indigo & violet). Mom made me a Kindle cover over the weekend — I chose a fabric with rows of rainbow-colored stars (in the correct order, natch) on a black background.

  • 325. Kathleen  |  January 4, 2011 at 9:35 am

    At the moment, nothing has changed. The stay of Judge Walker's decision is still in place, so no marriages can take place. In a practical sense, this means that the decision from the 9th Circuit is going to be delayed, while we wait for the California Supreme Court to answer the question the 9th Circuit has asked.

  • 326. Ben  |  January 4, 2011 at 9:37 am

    Brown. Because it's the color of the love of my life's eyes.

  • 327. Kathleen  |  January 4, 2011 at 9:37 am

    I just wanted to comment again that this question being asked of the CA SC has implications for our state well beyond this specific case. I certainly don't want to see proponents of initiatives being given standing to defend initiatives in federal courts. Our initiative system is already democracy run amok, IMO.

  • 328. Wine Country Lurker  |  January 4, 2011 at 9:38 am

    +like

  • 329. Kathleen  |  January 4, 2011 at 9:39 am

    In case you're still reading, thank you!

  • 330. RichardO  |  January 4, 2011 at 9:40 am

    @Elizabeth. Thanks for the info re:forms; makes sense that the stayed the same.

    Anyway, I think your experience is basically Plaintiffs position. This discussion came up with regard to Imperial Co's position: was the Clerk enjoined or not? Plaintiffs basically said no, they are not currently a Defendant. Then the judge says, well then, will the ruling apply to them? Plaintiffs, yes, but via administration not the ruling directly. At that point there was a discussion whether Clerk could complain then. Plaintiffs noted that there really wasn't much problem when the CASC ruling was implemented.

    On the other hand, I do anticipate that there could be individual trouble spots as I could see the anti-equality forces busting out religious freedom argument. Still, I think such people complaining on those grounds would simply be re-assigned to a different government position.

  • 331. Mouse  |  January 4, 2011 at 9:41 am

    The "veto" argument is extra-offensive given that this discriminatory proposition was immediately enforced and has continued to be enforced even after being ruled unconstitutional.

  • 332. Kathleen  |  January 4, 2011 at 9:41 am

    You're welcome and can't thank you enough for dropping by here as often as you do.

  • 333. Carpool Cookie  |  January 4, 2011 at 9:42 am

    No…no! I mean, it has a nice, really…universal quality! Sorry!

    Simple really is best. You're right.

  • 334. Chris in Lathrop  |  January 4, 2011 at 9:42 am

    I usually claim opaque, but sometimes clear. I think it had to do with transparency and the control of the information flow. I guess I'm just a control freak in that regard! ;) On the other hand, if I were to choose an actual shade, I go with black and blue because I find them soothing.

  • 335. Ann S.  |  January 4, 2011 at 9:42 am

    I completely agree (of course!) but I think that even if the CA SC opines that proponents of propositions may defend them in court, this will not be important all that often, since generally the state does defend them and then the proponents may generally intervene.

    That said, those cases where the state won't defend them because the Governor and AG believe them unconstitutional and proponents want to defend them are likely to be some of the worst propositions, almost by definition.

  • 336. Elizabeth Oakes  |  January 4, 2011 at 9:42 am

    As for the idea of clergy acting as a "government agent," that's patently untrue: "government agents" (like myself) are required to abide by state equal protection laws, from which churches may exempt themselves re: weddings, employment, etc. Just because the State chooses to allow clergy to solemnize marriages does not make them "government agents," though I'd love to see a law that allows only those who agree to abide by equal protection laws the right to solemnize a marriage license.

  • 337. Kathleen  |  January 4, 2011 at 9:44 am

    BTW, Jayne, if you're on Facebook, go to the "Prop 8 Trial Tracker" facebook page and look under the discussions tab for listings (and links to) all the amicus briefs filed by both sides.

    If you're not on facebook, you can find them here, but you'll need to scroll through to find them all: http://www.scribd.com/ownbycatz

  • 338. Ann S.  |  January 4, 2011 at 9:45 am

    LOL

  • 339. nightshayde  |  January 4, 2011 at 9:45 am

    I think (though I very well could be wrong) that the DOJ is required to defend federal statutes in the courts where there is no such requirement on the state level.

  • 340. Chris in Lathrop  |  January 4, 2011 at 9:47 am

    Legalities aside–and this is just an intuitive comment, mind–the CA SC was jilted in their ruling striking down Prop. 22 and might be anxious to get to business on this one. Of course, I'm prone to wishful thinking. ;)

  • 341. Elizabeth Oakes  |  January 4, 2011 at 9:48 am

    Well, it had been made clear in the L.A. Registrar-Recorder/County Clerk's office via memos when we had our marriage equality months in 2008: all employees of course have the right to believe whatever they want, but they are required by their positions as public servants to provide service to same-sex couples and discrimination would not be tolerated. Those who could not do so were either reassigned or left, and in general things went pretty smoothly.

    Once again, our L.A. County Clerk Dean Logan has been really great with all this, and I'm sure he'll mobilize quickly once again when marriage equality is law of the land….however long the wait may be.

  • 342. nightshayde  |  January 4, 2011 at 9:52 am

    Yours is quite awesome in the category of "photo."

    I happen to think mine is rather awesome in the category of "drawn."

  • 343. Gregory in Salt Lake  |  January 4, 2011 at 9:59 am

    !!

  • 344. Gregory in Salt Lake  |  January 4, 2011 at 9:59 am

    !!!!!!!!

  • 345. Wine Country Lurker  |  January 4, 2011 at 9:59 am

    So we should just change the civil marriage laws to require an immediate JP ceremony upon granting the license.

    Problem solved. EVERYone gets civil-married by a JP, so everyone is "married". And those who want to also be religiously-married can do so — but all their clergy are no longer officiating on the behalf of the state.

    But it will never happen.
    Far too logical and simple.
    And eliminates "their" ability to feel superior.

    Oh! And we could make it go the other way around, too, and require all church-marrieds get church-divorced before the state will recognize and issue a civil-divorce.

    Hrmm… I wonder which of these two options the anti-SSM crew would scream about more….

    I can just see it…. {wavy lines} everyone is "married", and to feel spayshul "they" have to say (out-loud) that they are _also_ "religious-married".

    "So, are you two married?"
    "Why yes, we are."

    "So, are you two married?"
    "Oh yes, we're RELIGIOUS married!"

    "So, are you two married?"
    "No, we're civil-unioned."

    Kinda forces their superiority complex out in the open now, doesn't it?

    Could you see one of them having to answer with:

    "Oh, well, um, we're CIVIL-married, but not religious-married until next month…"

    Or would they just answer "yes" ?

  • 346. Kathleen  |  January 4, 2011 at 10:04 am

    It's one of the consequences of this case and the impacts of this site that I love. I'm convinced that it makes people more effective advocates (and better citizens) if they understand how our courts work – even if they never use them directly for redress.

  • 347. JonT  |  January 4, 2011 at 10:07 am

    I prefer colors in the 420-450nm wavelength range.
    :)

  • 348. James UK  |  January 4, 2011 at 10:09 am

    Q: Assume CASC says that Proponents do have standing and the 9th Circuit says that Proponents thus have federal standing. The 9th reaches the merits of the constitutional question but upholds the judgement of Judge Walker. The case goes to SCOTUS and SCOTUS upholds Walker 5/4. Who pays the costs, which will be astronomical?

    I ask this as I know that generally the proposition that the "loser pays" is not a regular feature of US civil suits. However, in these sort of cases involving denial of constitutional rights, a winning plaintiff can seek his or her costs of bringing the suit. The plaintiffs in Perry have asked for their costs as a remedy.

    Would the good taxpayers of California be left with the bill? Or if not, what security for costs, if any, will be demanded from the proponents? Assuming the scenario above, I can't imagine that the Protect Marriage front group would not at least attempt to declare bankruptcy.

    And of course that could happen in other cases if a state refuses to appeal a Federal District Court finding and ballot proponents can automatically have standing to appeal. Ballot iniative proponents could then as of right litigate on behalf of the state, however they choose, potentially leaving the taxpayers with costs of suits lost, or victims of denial of constitutional rights without the costs remedy, if the neither the state nor the proponents can be required to pay.

  • 349. JonT  |  January 4, 2011 at 10:10 am

    :)

    I believe mine is awesome in the category of 'Cat'.

  • 350. Ann S.  |  January 4, 2011 at 10:11 am

    This is a very interesting question. I hadn't thought much about this.

  • 351. Kathleen  |  January 4, 2011 at 10:13 am

    Ann and I intentionally coordinated ours.

  • 352. Ann S.  |  January 4, 2011 at 10:15 am

    Yes, but I like yours better than mine.

  • 353. Kathleen  |  January 4, 2011 at 10:19 am

    I don't know the answer to this. I can see that if the CA SC and the 9th Circuit determines that the Proponents are acting on behalf of the State of California the Proponents might have a legitimate claim for their expenses. (That would be disgusting).

  • 354. Kathleen  |  January 4, 2011 at 10:20 am

    Not 100% sure of this answer, but my guess is Yes – with a note that it has been nullified. Or the language might be removed, but the section (as a kind of place holder) remains there with language that the section has been nullified.

  • 355. Michelle Evans  |  January 4, 2011 at 10:22 am

    That is unfortunately not the case. Legal same gender marriages that were in effect in California prior to Prop 8 (such as that between Cherie and I) are considered invalid in the state of California. The Supreme Court here made a very narrow ruling which allows this to be the case by saying that only same gender marriages in California performed between June and November 2008 are valid. Since ours was a valid marriage prior to June 2008, CA has ruled it invalid.

  • 356. Kathleen  |  January 4, 2011 at 10:28 am

    Indeed it is. :)

    p.s. Caprica tonight!

  • 357. Carpool Cookie  |  January 4, 2011 at 10:30 am

    I see your Hello Kitty has a new winter ensemble!

    Very smart.

  • 358. Kathleen  |  January 4, 2011 at 10:30 am

    You're welcome. I'm glad I can help.

  • 359. Kathleen  |  January 4, 2011 at 10:31 am

    And I love you back!

  • 360. Carpool Cookie  |  January 4, 2011 at 10:31 am

    Definite preciousness, there!

  • 361. JonT  |  January 4, 2011 at 10:37 am

    'p.s. Caprica tonight!'

    Ahh! Final 5 episodes!

    Will have to wait for them to show up via my 'usual access methods' :)

    Wonder if they'll do the same with the remaining (and now cancelled) Stargate Universe.

    PS: To everyone else, please forgive my OT geekery.

  • 362. Peterplumber  |  January 4, 2011 at 10:40 am

    I don't know why they would waste the time or money. This is not the first ruling against them.

  • 363. Steven  |  January 4, 2011 at 10:42 am

    Be warned by this link.. I went to NOM site to see what they are saying about the Prop 8′s partial decision/request. ONE WORD: they are spining it in their favor……. OR better yet LYING………………..
    http://www.nationformarriage.org/site/apps/nlnet/

    Reply

  • 364. Kathleen  |  January 4, 2011 at 10:43 am

    The legal services are being provided pro bono by Advocates for Faith and Freedom. I'm sure they see it as god's work.

  • 365. nightshayde  |  January 4, 2011 at 10:46 am

    Indeed. It's a bit early to be decked out in Valentines' Day gear. I have a lot of fun finding season/holiday appropriate kitties. =)

  • 366. Elizabeth Oakes  |  January 4, 2011 at 10:48 am

    Exactly. One wonders when they'll get the clue that God's great for comfort and inspiration but a little short in the cash-advance and courtroom departments.

  • 367. nightshayde  |  January 4, 2011 at 10:52 am

    Their site makes me dizzy.

  • 368. Alex Gill-Gerards  |  January 4, 2011 at 11:08 am

    The new California Supreme Court Chief Justice Tani Cantil-Sakauy performed some same sex marriages before Proposition 8 passed…..

  • 369. MJFargo  |  January 4, 2011 at 11:09 am

    And the more I'm exposed to all the going's on, the greater respect I have the courts and their advocates.

  • 370. Kate  |  January 4, 2011 at 11:11 am

    Funny how much the NOMbies are now liking the guy they had wanted to have recuse himself just a month ago……

  • 371. Kathleen  |  January 4, 2011 at 11:12 am

    That's nice, too. :)

  • 372. Kathleen  |  January 4, 2011 at 11:14 am

    This came in on the docket earlier: "Order Certifying Question and all supporting documents were hand delivered to the California State Supreme Court" So the CA Supreme Court officially has it now.

  • 373. Bill  |  January 4, 2011 at 11:15 am

    Q: I am 41. Will I be able to marry in my home state of CA before I die at, let's say, 76?

    Seriously. How much more of this can we take?

  • 374. Ann S.  |  January 4, 2011 at 11:20 am

    Bill, I know this is frustrating. Although I'm not personally waiting to get married, I'm still frustrated, too.

    But the legal process is always slow. As these things go, difficult as it may be to believe, the 9th Circuit appeal process has been moving at lightning speed. Hopefully the CA SC will also deal with this on an expedited basis.

  • 375. nightshayde  |  January 4, 2011 at 11:32 am

    Awwwww!

  • 376. RichardO  |  January 4, 2011 at 11:32 am

    @Elizabeth Seems like I can't reply to your comment below (seems like a nesting limit). Anyway, yes, LA was very good in getting ready after the CASC ruling and were on standby for Walker's ruling (assuming no stay). As I recall, there was some resistance in one or more of the central Valley counties (Kern?). What with consistent increases in marriage support statewide I would think that, when the final rulings are made, any complaints at that time will be seen by the majority as being complete "dead-enders" and won't be given any unified support.

  • 377. Peterplumber  |  January 4, 2011 at 11:37 am

    Woo Hoo!! 420!!!

  • 378. nightshayde  |  January 4, 2011 at 11:40 am

    I was just thinking that a few minutes ago…

  • 379. Tyler A  |  January 4, 2011 at 11:41 am

    Q: Is it at all possible that the CA Supreme Court could further remand the standing question to lower state courts in order to have it make its way through the entire state court system?

  • 380. Kathleen  |  January 4, 2011 at 11:43 am

    No.

  • 381. Ann S.  |  January 4, 2011 at 11:44 am

    I really doubt they could or would do that. They accepted Strauss v. Horton right after the election to get that decided right away.

  • 382. Joel  |  January 4, 2011 at 11:45 am

    Didn't know that there was a Japanese person following this blog! Greetings! I lived in Japan (Osaka) for 17 years. Yokoso!

  • 383. Bob  |  January 4, 2011 at 11:48 am

    wow what a day, thanks Shannon, Chris, Dr. Cruz, Adam, Courage Campaign, and of course Kathleen, and Ann S our resident legal eagles,,,,,,,,

    just a reminder not to forget rep Serlins earlier post re New Hampshire,,,,, we can jump from one fire to the next,,,, and there's one burning there now….. any thoughts…… they could use some energy and attention……..

  • 384. MJFargo  |  January 4, 2011 at 11:51 am

    Question (for anyone): Apologies if this has been asked already….

    Is the 9th's interest in the standing issue "extra?" Since they were chastised by the SCOTUS previously in the Arizona case, could they now be using this as an example of why they so ruled before? It seems so very clear (to me) that the proponents/appellants do not have Title III standing and there are many good reasons that is so.

  • 385. Peterplumber  |  January 4, 2011 at 11:56 am

    I want to apply for MY marraige license in Imperial County and watch Elizabeth Vargas squirm as she hands it to me. Too bad I live in San Diego, albiet East County.

  • 386. Ann S.  |  January 4, 2011 at 11:58 am

    I doubt they're "using it as an example" although I'm not completely clear what you mean by that.

    Reinhardt and Hawkins were involved in the Arizonans case that was reversed (on other grounds) by the SCOTUS, and they remember very well what SCOTUS said in that case about their "grave doubts". That's why they're pursuing the question they are, I think, so I suppose they're giving this "extra" attention because of Arizonans. But it's likely they well might anyway, as it is the current precedent most on point.

  • 387. Kathleen  |  January 4, 2011 at 12:00 pm

    I can't answer this with any authority, but I can offer my gut reaction. The question of standing is critical; it will always be an important one. But from my reading of the opinion, I think if there had been clear state case law on point, they would have ruled without asking for guidance from the CA SC. I could be wrong, but I think judges from circuit courts of appeal are accustomed to having their opinions reviewed and, on occasion, overturned, without it giving them cold feet.

  • 388. Kathleen  |  January 4, 2011 at 12:02 pm

    Just a short jaunt, maybe worth it. Ask for her by name. :)

  • 389. the lone ranger  |  January 4, 2011 at 12:12 pm

    I wonder if this "next state" could be NH?

  • 390. Bob  |  January 4, 2011 at 12:43 pm

    NH is definetly getting some heat right now,, but they're fighting to keep civil unions as opposed to marriage equality, is that a distinction or am I off base,,,

    but yeah New Hampshire is on the hot seat right now.. check it out

  • 391. RebeccaRGB  |  January 4, 2011 at 12:47 pm

    ♫ I'm so dizzy my head is spinning. Like a whirlpool it never ends… ♫

  • 392. JC (1 of the 18,000  |  January 4, 2011 at 12:54 pm

    Excellent point!

  • 393. Kathleen  |  January 4, 2011 at 12:58 pm

    NH is one of the five states (+DC) that currently give full marriage rights to ss couples.

  • 394. Richard A. Jernigan  |  January 4, 2011 at 1:08 pm

    Will come back tomorrow to read in more detail. Busy day today, and have fallen WAY behind on everything.

  • 395. Kathleen  |  January 4, 2011 at 1:10 pm

    That's the DOMA challenge pending in 1st Circuit Shannon referenced above.

  • 396. adambink  |  January 4, 2011 at 1:11 pm

    I will have a piece on NH tomorrow.

  • 397. Dave  |  January 4, 2011 at 1:14 pm

    Even if they don't have standing why can't the 9th issue an opinion on the case that would be non binding? Just so people knpow how they would have ruled. I think that would be very helpful.

  • 398. Dave  |  January 4, 2011 at 1:17 pm

    Question: Even if they don’t have standing why can’t the 9th issue an opinion on the case that would be non binding? Just so people knpow how they would have ruled. I think that would be very helpful.

    Sorry I forgot to put question in front of the original one.

  • 399. Kathleen  |  January 4, 2011 at 1:26 pm

    Federal courts don't issue advisory rulings in the U.S. That's the crux of the problem here. Only an actual "case or controversy" can be heard and in order for there to be such, there has to be someone who is actually harmed by the decision to appeal it.

  • 400. MJFargo  |  January 4, 2011 at 1:27 pm

    I just remember being struck during the hearing that they commented on how they felt the Arizona decision was a good one, and the US Supreme Court making the comment in the Arizona decision on the standing issue seemed to annoy them. That's too strong a word, but they clearly believe someone with standing should have represented Prop 8 during the appeal. While I don't feel that way–objective as I am :)–I wonder if approaching the Californa Supreme Court is a way of "taunting" SCOTUS, pointing out that propositions passed by "the people" do need someone to defend them, like here with Prop 8…and Arizona.

    All along, I've felt Prop 8 was doomed because LGBT people are a protected class in California. Singling them out in any restrictive way flies against the California Constitution. So asking the Govenor/Attorney General to advocate for a restrictive law is counter the State's law. I'm not sure why the 9th is having such a hard time with the standing issue…unless it is about something else.

  • 401. Kathleen  |  January 4, 2011 at 1:32 pm

    I do agree that they seem to want to grant standing here. I had the same feeling at the hearing, that the panel really wants to get to the merits of this case. But I think it's really stretching it to allow proponents standing here, especially in California where any idiot can get an initiative on the ballot and, with enough money, can get some really bad laws passed.

  • 402. Carpool Cookie  |  January 4, 2011 at 1:34 pm

    Yes, logically they're not going to put in the hours and hours of research and staff time and scheduling involved (while there are other matters in other cases to be addressed) to argue the merits of the constitutionality if they're not required to "go there" because no one has standing to appeal.

    It's sort of like, Before they renovate the house, they have to first be clear that they even legally own the house.

  • 403. Kathleen  |  January 4, 2011 at 1:35 pm

    Oo, excellent analogy.

  • 404. Kathleen  |  January 4, 2011 at 1:38 pm

    :)

  • 405. Ann S.  |  January 4, 2011 at 1:39 pm

    OMG, that song was my favorite for a while when I was in junior high.

  • 406. JonT  |  January 4, 2011 at 1:40 pm

    Yeah… And as soon as he does something they don't like, he'll be the 'Bad Guy™' again.

    They are frauds in every sense of the word.

  • 407. JonT  |  January 4, 2011 at 1:41 pm

    Well… :)

  • 408. Ann S.  |  January 4, 2011 at 1:48 pm

    Kathleen is right, and the reason is that we want vigorous advocacy from both parties, and the best way to ensure that is thought to be to have parties with a direct and personal stake in the outcome.

  • 409. Ann S.  |  January 4, 2011 at 1:53 pm

    The overly broad generalization people like to recite is that liberals want to expand standing, conservatives want to restrict it.

    Reinhardt and Hawkins seem to be champing at the bit to grant standing, but are being careful by certifying the state law question to the CA SC so as hopefully not to get spanked by SCOTUS a second time. Not sure where Smith is on this right now.

  • 410. josh kelley  |  January 4, 2011 at 2:03 pm

    if the california supreme court decides to ignore the question and not answer it how long would it take for the 9th curcuit to then decide or if CSC decides not to answer does that just leave gay marriage in limbo indefinitly. please clarify

  • 411. Kathleen  |  January 4, 2011 at 2:08 pm

    If the CSC decides not to answer, they will say so. And if they decide not to, the 9th Circuit will come to a decision about standing without the input from the CSC. I don't know about time lines; it would just be wild speculation.

  • 412. Carpool Cookie  |  January 4, 2011 at 2:12 pm

    Thank you, Kathleen. Coming from the specifically LAUDED little pet of our guest Shannon Minter today, that is QUITE a compliment!

    I should also clarify that when I wrote "[before the judges] argue the merits of the constitutionality" I mean more accurately, "Before the judges weigh the arguments already made before them in court and in briefs about the constitutionality"….though I imagine they also do some additional "arguing"/debating amongst themselves before they vote.

    (What is that process like for them, anyway? They meet at a big table in chambers and talk, then vote? Or they meet, then take a day to reflect, and vote? Then they have to elect someone amongst themselves to write a decision, right…and they all reciew that and suggest editing?)

  • 413. Kathleen  |  January 4, 2011 at 2:18 pm

    oh, you di'n't.

    I like to imagine they all just do shots and whoever is left standing directs their clerks to write a decision.

  • 414. Ann S.  |  January 4, 2011 at 2:23 pm

    LOL!

    Love the mental image I now have of judges in their black robes sitting around doing shots.

  • 415. Carpool Cookie  |  January 4, 2011 at 2:31 pm

    Yeah, we can all do it, gay or straight, as long as you've got a friend that's willing. We can all get divorced afterwards. But send Ms. Vargas merry, frolicsome pics from the "honeymoon" first.

    Also, sign prenups and make sure you're not taking on your friend's credit history!

  • 416. Lawrence  |  January 4, 2011 at 2:38 pm

    A certain amount of discussion here has been about who is punting decisions to whom, but I can also see a certain exasperation from the 9th on wondering how this weird CA proposition stuff is supposed to work at all! You have this strong CA constitution that you (CA supremes) find supports ss marriage, yet moments later a slim majority of voters on the day can change all this and you don't (Strauss v. Horton) find these rights disappearing at all strange. You have all kinds of rules about the legislature not being able to remove propositions and the gov not being able to veto, yet you have no requirements that they defend them and in fact want gov/DA to represent the state with good discretion. So it seems quite reasonable for the 9th to be asking : how is this mess supposed to work then? Brought up here around a very specific question of standing.

    I am just getting into a fine paper by Prof. David Cruz, who was pitching in here today, at http://mylaw2.usc.edu/why/students/orgs/rlsj/docu… which digs into the question of how the CA constitution is supposed to work on this topic, and whether even the CA supremes got it right. Which got me thinking that the 9th is asking a perfectly reasonable and non-obvious question.

  • 417. Carol  |  January 4, 2011 at 2:57 pm

    Judge Walker gave proponents the right to intervene in order to litigate their side fully, and found their evidence and arguments insufficient to uphold the ban. So, with respect to the proponents' presentation of evidence as well as the arguments that they were unable to improve even at the appellate level, they cannot say that the AG and governor deprived them of the ability to present their best case for validity of the ban.

  • 418. Carol  |  January 4, 2011 at 2:58 pm

    Sorry, Kathleen, I just said what you had already said.

  • 419. Bob  |  January 4, 2011 at 3:04 pm

    looking forward to New Hampshire…

  • 420. Ronnie  |  January 4, 2011 at 3:06 pm

    =
    <3…Ronnie

  • 421. Carpool Cookie  |  January 4, 2011 at 3:16 pm

    "I’m so dizzy my head is spinning. Like a whirlpool it never ends…"

    You spin me right 'round, Baby, right 'round…

  • 422. Kathleen  |  January 4, 2011 at 3:24 pm

    Thanks for the link to Prof Cruz's article!

  • 423. DaveP  |  January 4, 2011 at 3:28 pm

    Here in the bay area, our judges drive up into the moutains where they burn sage, beat a drum and pass the "talking stick". It's just one of those San Francisco 'things'.

  • 424. DaveP  |  January 4, 2011 at 3:37 pm

    Oh… my.. gawd… I just had an idea…. We could create a "WHERE'S DOLORES?" game! Similar to "Where's Waldo" but it's photographs of huge crowds of marriage equality supporters at the various rallies that have taken place during the past two years, with tiny photos of Dolores photoshopped into each big photo, and you have to find Dolores in the crowd!!

  • 425. Cat  |  January 4, 2011 at 3:38 pm

    @Michelle, you're only speaking about the ss marriages entered in CA before the CA SC made ss marriage legal, right? IIRC CA Senate Bil 54 (see Kathleen's entry above) does acknowledge all out of state ss marriages before Nov 2008 as marriages, and all of those after Nov 2008 as having the equivalent rights, except for the name 'marriage'.

  • 426. Kathleen  |  January 4, 2011 at 4:00 pm

    Brilliant!

  • 427. Elizabeth Oakes  |  January 4, 2011 at 4:18 pm

    So…and forgive me if this has been answered before….if the Ninth grants standing and rules on the merits, can SCOTUS then look at the standing issue de novo upon appeal and deny standing at their level, even though the appellants got that far already? In which case, if the Ninth IS trying to "prove something," wouldn't that be fruitless if SCOTUS still disagrees? They'd just get re-spanked.

  • 428. Lawrence  |  January 4, 2011 at 4:23 pm

    Wow. Proving a useful link to a document for Kathleen is kind of the Everest of P8TT commenting – I may think of retiring now!

    (Which means: thank you.)

  • 429. Kathleen  |  January 4, 2011 at 4:32 pm

    Yes, if this case gets to SCOTUS, they will undoubtedly review the issue of standing de novo and could disagree with the 9th Circuit on the question.

  • 430. Johnny-In-GA  |  January 4, 2011 at 5:09 pm

    Well, I am sitting around waiting to marry my partner in Georgia — he's Spanish and as of now prohibited from entering the United States because he "visits the US too much" and has been flagged/banned for entry after 4+ years of our traveling back and forth; because he is now a student (although 33, because of economy in Spain is currently in grad school in Spain), US govt will not even issue a regular tourist visa or business visa. So, our lives are being DESTROYED by this. Financially, it is becoming devastating. I'm nearly ready to walk away from my house in Atlanta to move to Spain so we can be together. You should always remember real LIVES are being damaged by this every single day!!!!

    What is in happening in the DOMA caeses – maybe that is a more effective way to expect nationwide marriage rights to be recognized, including immigration sponsorship rights????

  • 431. Kathleen  |  January 4, 2011 at 5:21 pm

    I'm so sorry you're faced with this. It is just horrible. Believe me, I'm aware that real lives are impacted by this. it tears me up. I'm sorry if my post suggested in any way that I don't understand this.

    Getting rid of DOMA should address the immigration rights, but only for people who are in states that recognize same sex marriages. It's unconscionable.

    As to the status of the DOMA cases, the two cases out of Massachusetts are currently being appealed in the 1st Circuit. Opening briefs are due next week.

    I can understand that Spain likely seems a more reasonable solution than waiting for the slow pace of the courts.

    Again, I'm so sorry.

  • 432. Roger  |  January 4, 2011 at 5:34 pm

    What if the California SC rules that they don't have standing and they go out and successfully implement a ballot initiative saying something to the effect that "proponents of a ballot initiative have standing to appeal any case that involves the initiative in question" in 2012?

  • 433. Dave  |  January 4, 2011 at 5:43 pm

    One of my fears is this case will be bounced around and take years to resolve it self. That is the worst thing that could happen, short of them just saying gay marriage is banned every where.

  • 434. Johnny-In-GA  |  January 4, 2011 at 5:44 pm

    That is very confusing; if marriage were established nationwide with a favorable ruling in Perry, why would all federal rights incident to marriage not immediately follow?

  • 435. Sagesse  |  January 4, 2011 at 9:52 pm

    What I heard from the 9th Circuit judges was 'this decision is important and should be subject to appellate review'. In a case like this, 'standing' is the only way to get there.

  • 436. Mormons for Marriage &raq&hellip  |  January 4, 2011 at 9:54 pm

    [...] If you’ve got a question that’s not addressed here, you might find it asked and answered over here. [...]

  • 437. anonygrl  |  January 4, 2011 at 11:46 pm

    Mmmmm… legal coffee….

  • 438. Bill  |  January 4, 2011 at 11:48 pm

    I would assume that the language would be intact. The CA Constitution is not being amended. Judges can't really "strike down" laws, only stop the government from enforcing them. For example, in 2000 Alabama voted to amend its Constitution to delete language forbidding interracial marriage. Of course, it was prohibited from enforcing that provision since Loving v. Virginia, but the text was present in their constitution all those years regardless.

    (Sidenote: The "NO" vote on that initiative still got 40% of the vote :-/ )

  • 439. anonygrl  |  January 4, 2011 at 11:57 pm

    Here in New York, they drive by each other's houses and shoot. Whoever is the last judge standing writes the ruling.

    Isn't this a wonderful and diverse country?
    :)

    OK… for anyone reading my nonsense, I am just re-reading the thread because it all came pretty fast last night… please ignore me. Thanks.

  • 440. anonygrl  |  January 5, 2011 at 12:03 am

    Yes, but wouldn't that mean, if the proponents get standing, that in future, proponents of the worst propositions could force their case through the courts, taking up time and money that the state would rather not spend on the bad propositions?

    Ultimately, the state will defend the good ones, and by not defending the bad ones, can let them die a quieter death without all the time and expense, but if proponents are given a broader shot at standing, then the worst initiatives are going to cost the most money. Right?

  • 441. AndrewPDX  |  January 5, 2011 at 12:04 am

    I think the Imperial County Clerk's argument is just stupid. EVERY job has parts to it you don't like. If you worked at McDonald's, you wouldn't be allowed to stop serving burgers just because you're a vegetarian.
    If you don't like part of your job, you either A) talk to your manager about it and then just do it anyways like the rest of humanity, or B) quit and find another job you like.

    Liberty, Equality, Fraternity
    Andrew

  • 442. AndrewPDX  |  January 5, 2011 at 12:08 am

    And this would also let those churches that DO bless same-sex couples to have 'RELIGIOUS marriages' as well as the civil JP versions.

    Liberty, Equality, Fraternity
    Andrew

  • 443. anonygrl  |  January 5, 2011 at 12:29 am

    Green. As a redhead, I look great in green. So if any of you are ever at a loss as to what to get me for my birthday, just remember, emeralds are green…
    :)

  • 444. MJFargo  |  January 5, 2011 at 12:33 am

    Well, the Arizona case was also important. While the challenge became moot, it is clear that had the appellant not resigned, SCOTUS would have said, "The plaintiff's don't have standing" in Federal Court.

    Even if the language had been included in Prop 8 that the proponents of the proposition could represent any challenge in Federal court, that still doesn't satisfy the Title III requirements.

  • 445. John D  |  January 5, 2011 at 1:10 am

    You might want to do a little more research. Let's go before Christianity and look at the references to God in a ketuba, the Jewish marriage contract: 0.

    To put this in Christian terms, the wedding at Cana was a civil affair.

    You owe it to your congregation and yourself to become informed. As others have pointed out, marriage was civil first. It became a sacrament only in the 11th century. There wasn't even a form for church marriage until the 8th.

  • 446. SA  |  January 5, 2011 at 1:11 am

    Kathleen, can you post a direct link to the Facebook page you mention? I don't find a group or page called "Prop 8 Trial Tracker" and I would like to see the amicus briefs, particularly since my professional organization (AAMFT) announced they would join the APA in an amicus at the appellate court and I want to, uh, check up on them so to speak. Thanks.

  • 447. anonygrl  |  January 5, 2011 at 1:23 am

    The solemnizing I was speaking of was the ceremony you have with family and so forth. If you have already had the ceremony performed by an authorized person which in many places (not everywhere, yes, there are some states that have waiting period) can be done right there, almost on the spot, then you are legally married. After that, you can do whatever the heck you want to celebrate that fact, including having a big ceremony where you ride in on elephants and are dunked in chocolate pudding, if that makes you "feel" married.

    The point is, by having the LEGALIZING part of the ceremony done by a judge or justice of the peace or whoever at the point where the license is issued, it would free everyone up to have the religious ceremony of their choosing or not, as they saw fit, in whatever manner they chose to do it, with no legal ramifications one way or the other about it, officiated by anyone they want.

    In fact, this is probably the safest way to do a destination wedding. Get the license in your home town, have the appropriate legal person do the quick ceremony, then you are covered. The ceremony at the exotic destination does not need to be a legal one at that point, it is just for the celebration of it. This is how my sister did it, when she got married on a cruise ship. My father, the minister, did the paperwork before the cruise left, so that it was legal, and the ceremony was not the legalization, but merely the celebration.

  • 448. Andrew_SEA  |  January 5, 2011 at 1:30 am

    Kathleen (a "sidebar")

    I hope you realize just how much you are loved here for your insights and candid responses.

    If you ever have a doubting moment – just know that your expertise and understanding is affecting many people's lives and the hope that it gives.

    If I could freeze time, I just want to inject a moment of gratitude for all you are doing here.

    I believe I can speak for quite a few here in that we owe you a big LGBT hug!

    (ok – back to reading the comments….)

  • 449. Don in Texas  |  January 5, 2011 at 1:40 am

    Excellent point, Professor. I was hoping someone would point out this blatant misdirection. Judge Reinhart went off on a tangent by pursuing this. He should have known better than to mischaracterize the matter.

  • 450. Kathleen  |  January 5, 2011 at 2:43 am

    That won't do any good for this particular case. The deadline for filing an appeal has passed.

  • 451. Ann S.  |  January 5, 2011 at 3:08 am

    Cookie, yes, they look to what other courts have decided for guidance (if they find the other argument persuasive — if not, they're free to reject it if the court decision isn't binding on them). But I doubt there's pre-judgment communication of the type I thought you were describing in your post of 3:07 pm yesterday.

    I'll pass on the legal coffee myself, thanks — I'm a tea drinker.

  • 452. Ann S.  |  January 5, 2011 at 3:12 am

    If by "good" we mean "propositions that are likely to be constitutional even if we think they're bad policy" and by "bad" we mean "propositions thought by the governor and AG to be unconstitutional" then, yes, that's what I think we're saying.

  • 453. Bob  |  January 5, 2011 at 3:29 am

    @Kathleen, I get the significance of this decision for California,,, and didn't mean to deflect from the importance of that in my rather flip comments intially in the discussion,,,,, re bring it on,,,,, out with the ruling already,,,,,

    for me the most important response was by Shannon Minter @ 113 where he says the court realizes they are in a political hotseat, that they will realize the huge significance that proponent initiatives can't be allowed to outweigh those of elected state officials….

    I think that is where we could do some educating while waiting for the ruling,,, i.e. more discussions re the importance of this for the general public,,, and of course, add in the most recent information about the fact that the proponents in this case are basically 4 or 5 wealthy donors to NOM…

    gotta get that info out there in the public realm,,,,,

  • 454. Gregory in Salt Lake  |  January 5, 2011 at 3:31 am

    @Johnny-In-GA
    so sorry to hear this! Words are inadequate : ( Precisely what me and my hubby are trying to avoid. EQUALITY NOW!!!!!!!!

    Love, Gregory

  • 455. Elizabeth Oakes  |  January 5, 2011 at 3:34 am

    @anonygirl: wasn't contradicting you at all, my comment was in place earlier referring to the Rev. JSG's comment that churches have to register to solemnize marriages. That's not true in CA and some other states–which is why Universal Life Church and other "mail order ministry" clergy can conduct ceremonies here–but many states and counties do have registration programs–for example, Clark County NV (home of Las Vegas, which most people think is so free-wheeling about this stuff.)

    Otherwise, in agreement! Carry on.

  • 456. Kathleen  |  January 5, 2011 at 3:35 am

    I would never ignore you, anonygrl. xoxo

    btw, don't know if you've caught up with correspondence – did you get my note about the action planned in Albany next month?

  • 457. Elizabeth Oakes  |  January 5, 2011 at 3:47 am

    Some sources say it wasn't a sacrament until the 15 c.–I believe Marilyn Yalom's book points out that, though the Catholic Church granted sacramental status to weddings in the 11th c., it wasn't one of the mandatory "Big Five" sacraments until centuries later.

    It was very painful for them to grant any status to marriage, you know. Early Christianity fostered anti-sex and anti-marriage doctrines and the Church only sanctioned marriage after it became clear–over ten centuries clear–that the end of the world wasn't imminent and Christians would have to encourage sex and reproduction if they wanted their faith to survive.

  • 458. Elizabeth Oakes  |  January 5, 2011 at 3:51 am

    Well, then we'd finally get a definitive ruling on THAT issue, huh? Though hmm, might also be a convenient way for them not to reach the merits, huh?

  • 459. Michelle Evans  |  January 5, 2011 at 4:13 am

    My marriage to Cherie was made legal in 1987. It was changed to a same gender marriage when I legally and medically transitioned in 2007. Prior to Prop 8, these types of marriages were never invalidated. So, in essence what has happened is that even though same gender marriages from other states performed prior to November 2008 are considered fully valid marriages within California, that same type of marriage is not afforded the same rights within the state.

    Much has been made of the various classes of marriages that were created by Prop 8, but never had there been any mention of yet another underclass of discrimination that Prop 8 caused by invalidating a same gender marriage including a transgender person.

    Of course, on top of that is the fact that say a couple were in a lesbian relationship here in California, but one of them is trans, and now is able to fully and legally transition to a male, then that couple is absolutely able to marry today and have all the full rights and responsibilities entail.

  • 460. Kathleen  |  January 5, 2011 at 4:15 am

    Here is the page: http://tinyurl.com/2a8mbse

    Here is the discussion thread with ACs in support of Plaintiffs. Be sure to look at all the comments, as I added others after the initial post. http://tinyurl.com/2g49fe3

    And yes, the AAMFT is represented. :)

  • 461. Kathleen  |  January 5, 2011 at 4:24 am

    Thank you, Andrew. It means a lot to me that I have something to offer and that it's helping. xoxoxo

  • 462. Ann S.  |  January 5, 2011 at 5:01 am

    Michelle, I'm so sorry you are having this legal trouble.

    It's very ironic that you would be considered legally married in Texas, because as I understand it Texas law only recognizes birth gender throughout someone's life. The second couple in your example could marry here, but not in Texas.

    Very strange.

  • 463. anonygrl  |  January 5, 2011 at 5:44 am

    If it came in email, no… I just got the computer yesterday, followed the discussion here with great interest, then had a ton of other things to do. I will try and get my email set up tonight. If it is the Marriage Equality NY thing on the 8th I am aware of it an have taken a quick look at their site about it, but don't know much.

    Are YOU going to be here? (Ooh ooh ooh!!! Tha would be GREAT!!! )

  • 464. ron tosi  |  January 5, 2011 at 6:31 am

    What a disapointment. I am married to a Canadian 5 years. We have to travel every 6 months back and forth. Our home in Florida and Temp summer park model in Canada. I am now thinking at 62 that it's time to sell my now worthless home here and move there. I was notified Jan 1st that Ryan White that has gotten me meds will now only cover donut hole meds and at the pharmacy was presented a bill for $600.00 for 1 month.33% of the price. I am on SS. What is going on here?We can't afford this anymore. I relied so much on Justice. This seems to be a slow bleed. After working 32 years and loving my country I am sick.

  • 465. Ann S.  |  January 5, 2011 at 6:36 am

    Ron — I'm so sorry. Health coverage in this country is so very poor. What healthcare options are available to you in Canada?

  • 466. anonygrl  |  January 5, 2011 at 6:40 am

    It is sad that our government has so badly dealt with these problems. I am sorry to hear about your troubles. And, if all else fails, if you can find a happy home in Canada, that it works out well for you.

    There are so many ways that we need to work to improve how we deal with people here… equality, health care, social security, etc.

  • 467. anonygrl  |  January 5, 2011 at 6:44 am

    Between "in Canada," and "that it works out,…" please insert an "I hope"

  • 468. Kathleen  |  January 5, 2011 at 7:47 am

    I think it's the one on the 8th. I WISH I could be there. But that's not likely. Although if I find myself anywhere on the east coast on that date, I'll make it! I just saw a notice about it somewhere and wanted to make sure you knew about it.

  • 469. Carpool Cookie  |  January 5, 2011 at 8:59 am

    My Legal Coffee is made with very level measurements. Because if it ever varies in strength even the littlest bit, they all start arguing about Who Made This!

    Sometimes I'm tempted to drop Valium in it, like that chick from the news last year.

  • 470. Ann S.  |  January 5, 2011 at 9:20 am

    Oh, the joys of working with a bunch of argumentative attorneys — yup, been there and done that. One of the reasons I work from home.

  • 471. Ann S.  |  January 5, 2011 at 9:21 am

    Try playing on a softball team with a bunch of lawyers, against a bunch of lawyers. Oh, wait, maybe you have. I gave it up years ago — some of them take it very seriously, and I am not a serious softball player at all.

  • 472. Top Posts — WordPre&hellip  |  January 5, 2011 at 4:13 pm

    [...] LIVE on P8TT: You got Prop 8 questions, we got answers. by Adam Bink [...]

  • 473. ron tosi  |  January 6, 2011 at 10:16 am

    Thanks, Our marriage was in Ontario and I can file for permanient residency as spouse.Yearly Cost of Meds there are based on yearly household income.
    I am still of the hope that we can stay here under the same prospects soon. I marched to Washington twice. I believe in the fight for Equality.
    It is upsetting to see the court so complcatedly take so long to rule on the most obvious

  • 474. Richard A. Jernigan  |  January 6, 2011 at 2:39 pm

    That sounds very similar to Maxine's recipe for a stress free Thanksgiving–Stuff the turkey with Prozac. The first time I saw that one, I took out the family pictures trying to decide where to start!

  • 475. Summary: developments in &hellip  |  January 9, 2011 at 9:46 am

    [...] Campaign held a live chat/conference call with attorneys Shannon Minter and Chris Stoll to answer questions about the ruling.  I’ve [...]

  • 476. Prop 8 Trial Tracker &raq&hellip  |  June 13, 2011 at 7:47 am

    [...] community on the Perry case and the appeals process, the transcripts of which can be found here and here [...]

  • 477. Prop 8 Trial Tracker &raq&hellip  |  September 6, 2011 at 5:36 pm

    [...] Prop 8 legal questions from the Prop8TrialTracker community (you can find the transcripts here and here, they are incredibly informative if you have legal questions about where the case heads from here), [...]

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