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NCLR’s Chris Stoll and Shannon Minter respond to LA Times editorial in favor of a defense for Prop 8
September 12, 2011
Please welcome Chris and Shannon from the National Center for Lesbian Rights back to Prop8TrialTracker.com for a guest piece on today’s Los Angeles Times editorial in favor of ensuring Prop 8 has a defense. Chris serves as Senior Staff Attorney and Shannon as Legal Director -Adam
By Chris Stoll and Shannon Minter
The LA Times really got this one wrong. The editors argue that the Governor and Attorney General should be forced to hire a private attorney to defend Prop 8 on appeal. The Times says that to do otherwise would allow state officers to usurp the courts’ role in determining whether the initiative is unconstitutional.
But Prop 8 has already had its day in court. It lost — and not because there weren’t any lawyers to defend it. Despite hiring a large team of experienced lawyers and putting on the best case they were able to muster, the supporters of Prop 8 were unable to present any good reasons to uphold it. After giving the proponents ample opportunity to defend Prop 8 and carefully considering their arguments, Judge Walker issued a carefully reasoned decision overturning the measure.
So it is the courts — and not state officials — that have declared Prop 8 unconstitutional. The only question now is whether state officers should be required to appeal that decision to a higher court. But the decision to appeal has always been left to the discretion of the responsible state officers. Appeals are not automatic. There are many reasons why government lawyers can and do choose not to appeal. For example in 1997, Governor Gray Davis entered into a settlement instead of appealing a decision striking down Proposition 187, a ballot initiative that would have prevented undocumented immigrants from accessing health care and other public services in California. In 1967, the California Attorney General not only refused to defend, but asked the United States Supreme Court to overturn, a ballot initiative that amended the California Constitution to allow real estate owners to discriminate on the basis of race in selling or renting their property. In each of these cases, state officials decided that other considerations outweighed the “will of the people” as supposedly expressed in a recently-enacted initiative. Prop 8 should be no different.
The Times seems to be arguing for a requirement that the Governor and Attorney General must appeal all decisions overturning any ballot initiative to the highest court in the land. But that has never been the law in California, and there is nothing about Prop 8 that should require the responsible officials to abandon the discretion they have always exercised in deciding whether an appeal is in the state’s best interest. We elect state officers to make these kinds of decisions, and they are responsible to the voters for the decisions they make. We should let them do their jobs.
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54 Comments Leave a Comment
1.
DaveP | September 12, 2011 at 5:50 pm
Nice! Now let's see if the LA Times will run it. I bet they don't.
2.
Ann S. | September 12, 2011 at 6:01 pm
§
3.
Alan_Eckert | September 12, 2011 at 6:06 pm
I like how the Trial Trackers were able to respond in comments before this post went up with similar comments (plus a few additional points). Watch out Shannon and Chris. We'll be able to collectively write something for you as ghostwriters soon enough!
4.
thark | September 12, 2011 at 6:25 pm
Both Harris and Brown stated before and after their due election (wining with a higher margin than tha paltry 2% that NO LONGER EXISTS IN CALIFORNIA.
"The People" have the same recourse we always had in CA: you don't like the officials you voted in? You recall them. No rights trampled. No harm. No foul. The "Peoples' rights reserved (unless of course the "people" involved are Gay, 3/5 Americans; we only have the US Constitution on our side.
5.
thark | September 12, 2011 at 6:26 pm
…And we DO have The US Constitution on our side, since it contains NO LANGUAGE WHATSOEVER that supports irrational discrimination, once discovered in a Federal court of law.
Don't look now, Antigays, but *it's been discovered*…Adjust.
(or don't; constitution says that can't matter to innocent Gay couples in love who merely wish to marry the partner of his/her choice, as in explicitly garanteed by THE SAME LANGUAGE that supports the right of straights to marry. even if they are serial killers in jail…)
It's all over for "constitutional" marriage bans, but the scene. and even if The Antigays get CA standing, Article III is a whole 'nother game.
One Antigays have yet to win in this century…
*LIke it or not*
6.
NC Update | September 12, 2011 at 6:40 pm
The NC Amendment "debate" sucked. The committee room was changed three times, the time was changed twice (earlier so that fewer would attend), and when everyone finally got settled they decided too much of the public was present to let anyone actually speak. Even the Reps. kept complaining that it was dirty business to keep the public quiet. And of course, since no one had anything to say, the meeting was adjourned early. The legislation was completely amended before the committee meeting and it was voted on not two hours later. (The minority party leader was not happy about the 'parliamentary trick'.) Worst part is, the actually vote will be during the Republican primary vote… where there is no democratic nominee on which to vote. I guess they pretty much realize that a real vote among the general populace would fail.
My bet?…. For whatever 'unknown' reason, the primary vote will get rescheduled on both place and time… several times at that!
There was a comic relief moment though, of the three Republicans who voted for the legislation only two were in favor of it. That's right, one guy stood up, railed against it and even tried to add a poison pill amendment. And the silver lining?… With the dirty political tricks to get this thing through, I highly doubt that even the Republicans think they are going stay in power come election time.
7.
Poly Guy Me! | September 12, 2011 at 7:33 pm
I say two of us (of the same sex) need to get married then go to a state that refuses to recognize the marriage and then get married to opposite sex people. Then go on the Phil show and prove that the Anti-gay amendment PROMOTES polygamy!!! Who is with me! (Seriously, I am so sick of this crap that I am desperate for some serious ironic humor!!!)
8.
Nick88 | September 12, 2011 at 7:37 pm
So if two lesbians and two gay guys all go to DC and get (same-sex) married then they could then go to say Georgia where the marriages are invalid and then get remarried to each (opposite sex) other and have a four way marriage? Someone else explain to me if this really is legal.
9.
Gregory in SLC | September 12, 2011 at 8:04 pm
tx for first-hand report!
10.
Bryce | September 12, 2011 at 9:45 pm
Any clue of where we are on the motion to unseal the video?
11.
thark | September 12, 2011 at 9:57 pm
Only that the shenanigans in NC guarantee that they will be public domain in short order.
That's when these squeamish Antigays' heads are going to explode, spattering thei walls and ceilings of their caves with…well *nothing*; considering what's left of "the source".
Once those videos go viral (and they WILL no doubt) these antigay "laws" designed to disenfranchise unmarried gays and only unmarried gays are *toast*.
And it will make for a hilarious Summer 2012 (The Mayans may be right: The Antigays' world just might be ending. *And it is Good*
But is still *Gets Better*, too!
12.
Sagesse | September 13, 2011 at 5:04 am
In Suburb, Battle Goes Public on Bullying of Gay Students
http://www.nytimes.com/2011/09/13/us/13bully.html…
13.
atty79 | September 13, 2011 at 5:40 am
Humorous indeed. I used a hypothetical with similar facts in the Family Law class I taught. Not so much to promote polygamy, but to show (and expect the students to work through) the madness that is the state of the law. My hypothetical involved a same-sex couple, married in California during the few months pre-Prop-8. The couple moved to Louisiana, only to have the marriage go south as well. The spouses separate. Without a way to separate assets through divorce, one spouse screws the other by selling all their stuff and keeping the proceeds. Soon thereafter, he marries a rich, old woman for her money. Etc, etc. The legal ramifications are ridiculous. (And what I just set out didn't even include the child the hypothetical couple had, who was taken by the other spouse up to another state that doesn't recognize same-sex adoptions.)
14.
Sagesse | September 13, 2011 at 5:40 am
Activists offer guidance on celebrating end of ‘don’t ask, don’t tell’
http://www.washingtonpost.com/local/dc-politics/a…
15.
atty79 | September 13, 2011 at 5:40 am
This is a great response.
16.
Juli | September 13, 2011 at 5:42 am
and the point would be what? That gay people really are trying to make a mockery of marriage? Leave that to the straight people.
17.
Dan Hess | September 13, 2011 at 6:01 am
I'll be honest: I hope the case DOES go to appeal. The defendants have no case whatsoever, and I'd like to see the CA Supreme Court's decision apply to all of the 9th Circuit, or even go to the Supreme Court and apply to the whole nation.
18.
Sheryl_Carver | September 13, 2011 at 7:04 am
Some very ignorant "conservative" parents need to learn the difference between acceptance, which diversity & anti-bullying instruction promotes, and advocacy, which they claim is what such instruction promotes. This also proves that they still think a person chooses their orientation.
19.
Ronnie | September 13, 2011 at 7:35 am
<3… Ronnie
20.
NetAmigo | September 13, 2011 at 7:37 am
What about the children in gay and lesbian families? Must they hide the existence of their parents in our public schools?
21.
AnonyGrl | September 13, 2011 at 7:53 am
The point would only be to show how ridiculous and convoluted the laws are. If marriage equality were universal, this situation would not be possible.
22.
Rick | September 13, 2011 at 7:58 am
I think the point is to show how ridiculous the patchwork quilt of various marriage laws are. This needs to be resolved at the federal level.
23.
415kathleenk | September 13, 2011 at 8:03 am
After i watched the footage of the hearing, i was really annoyed at all the justices rambling on about the 'sovereign will of the people." In Calfornia, this is a not very funny joke. Our initiative system has made it possible for whoever has enough money to put whatever crazy proposition on the ballot they wish. Pro 8? there you have it. SO the attorney general and the governor do the right thing- and the California Supreme COurt seeks to undermine them. Nice. Chris and SHannon have it right- tthanks for the great opinion. This is bigger than prop 8- the CA supremes decision could have a lasting and very bad effect on CA politics
24.
jpmassar | September 13, 2011 at 8:05 am
Two additional Democratic representatives — Jim Langevin (RI) and Tim Walz (MN) — have agreed to support the legislation. (Respect For Marriage Act, repealing DOMA)
ThinkProgress
25.
Ronnie | September 13, 2011 at 8:28 am
Awesome…… <3…Ronnie
26.
Menergy | September 13, 2011 at 8:37 am
Excellent response and very clear. I hope it gets some publicity!
27.
Sheryl_Carver | September 13, 2011 at 8:49 am
OT: Is there any chance that Dustin Lance Black's play, "8," will be recorded & released to the public? Even if the tapes of the Prop 8 trial are released, video of the play is likely to reach more of the "moveable middle" than the actual tapes would. & if the tapes are NOT released, well …
28.
Juli | September 13, 2011 at 8:50 am
I understand the point would be to show how ridiculous the laws are, but to actually use marriage to make that kind of point would make our oppositions point in a much grander way – they say we only want to participate in marriage in order to destroy it, and we don't respect it. Raise it as an argument, but fer heck sake, don't go through with it.
29.
fiona64 | September 13, 2011 at 8:56 am
"So it is the courts — and not state officials — that have declared Prop 8 unconstitutional."
I believe I mentioned that just yesterday.
30.
MFargo | September 13, 2011 at 8:57 am
It was the 9th Circuit Court of Appeals who raised the question of standing. In fact, they told the proponents who sought the appeal to be ready–first–to answer "why do you have standing before this court?" And the proponents and the LA Times seem to "blame" the plaintiffs in this case for the situation. No matter that at trial, Judge Walker warned the intervenors that they most likely lacked standing to appeal "Did they want to proceed?" They proceeded without offering much evidence to support a defense of Prop 8. Before the 9th Circuit Court of Appeals they didn't offer any case citation that would support their standing at appeal. And it's the rule of Federal court that you have to suffer some type of damage to proceed in the case, and they cannot offer up any evidence of how they would be damanged if Prop 8 was overturned..
So the standing issue is the result of the proponents own lack of foresight and a disregard for the rules of the court. It's not the plaintiffs in the case's fault, nor the Governor, nor the Attorney General. It's a check and balance by the judiciary for off the cuff iniatives like Prop 8.
31.
peterplumber | September 13, 2011 at 9:05 am
Off topic, but I just want to tell all the regulars that I am sorry I have not been around much. I have a lot going on in my life right now. Carlson & I are in the process of buying a house (from a professional flipper. Not recommended for the faint of heart!) and also we are trying to adopt a disabled black child. Not that him being black has anything to do with it (except to my Dad) but that is what we are up to. Although I come here every day and read as much as I can, I often don't have time to comment.
32.
DaveP | September 13, 2011 at 9:12 am
Congrats on all the good stuff going on! Take care of all the biz and just pop in here for a cameo appearance when you can.
33.
Sheryl_Carver | September 13, 2011 at 9:14 am
Yup, you have a lot on your plate, Peter! Good luck with both projects, especially with the adoption process. He or she will be very lucky to get 2 loving parents.
34.
dwpiper | September 13, 2011 at 9:52 am
Congratulations and best wishes on both counts!
35.
Justin | September 13, 2011 at 10:30 am
Uh, Gray Davis was not the governor in 1997. He was not elected until 1998. These kinds of mistakes come at a big cost to an article's credibility.
36.
Mark M. (Seattle) | September 13, 2011 at 10:50 am
I deeply HATE these people!!!
A group of district parents who are closely allied with the family council declined to be interviewed. Their Web site says that depression among gay teenagers is often the fault of gay rights advocates who create hopelessness: “When a child has been deliberately misinformed about the causes of homosexuality and told that homosexual acts are normal and natural, all hope for recovery is taken away.”
37.
David V. | September 13, 2011 at 11:05 am
By the time that Prop 187 had gotten to the 9th Circuit Court of Appeals, Gray Davis was governor and it was his call to not pursue the appeal. While the date is wrong, the rest of it is factual.
http://en.wikipedia.org/wiki/California_Propositi…
has more details.
38. WWSMD? | The Transadvocat&hellip | September 13, 2011 at 11:11 am
[...] the Prop 8 Trial Tracker site, NCLR’s Shannon Minter and Chris Stoll argue against Prop 8 deserving a defense on appeal: [...]
39.
AnonyGrl | September 13, 2011 at 11:21 am
Oh, of course! No one should DO all of that, just use it to illustrate the point.
40.
AnonyGrl | September 13, 2011 at 11:23 am
I am with you. Completely disgusted by them.
41.
AnonyGrl | September 13, 2011 at 11:30 am
I know that they are making the SCRIPT available for other theatre groups to produce. I would tend to doubt that the reading will be recorded and released simply because of union rules. The actors may well be donating their services for this one night only reading, so to protect them, there will be strict controls on recordings being made (because a producer could SELL the recording, and the actor who donated his time would not get paid for his work at that point).
This is actually a way to protect the actors from theft of their work, so I don't object to it at all.
However, if the actors are being paid for the event, there is a possibility that recording is part of the deal. From my experience, however, I doubt that is the case.
I suggest that you might check AFER's site, they may have scripts available for purchase.
42.
Fr. Bill | September 13, 2011 at 11:44 am
I hope every high school and college drama group in the country puts it on for their schools and communities.
43.
Sheryl_Carver | September 13, 2011 at 12:09 pm
Per your suggestion, AnonyGrl, I checked AFER's site. It looks like schools & community organizations will be able to produce the play, but no mention is made of recording the Broadway production. I certainly have no objection to the actors' work being protected from theft. I was just hoping those of us who have no way of seeing the live performance by so many talented actors would be able to watch a recorded version at some point. Not to mention reaching more of the public. Oh well, if wishes were horses, & all that.
44.
Trish | September 13, 2011 at 12:27 pm
I just made this exact argument to a friend two nights ago. I feel smart.
45.
dwpiper | September 13, 2011 at 12:59 pm
Off topic – but frightening:
Prop 8 Lawyers Push To Remove IRS Rules Prohibiting Churches From Campaigning
46.
Ronnie | September 13, 2011 at 1:08 pm
Then they have to pay taxes. PERIOD!!!….. > I …Ronnie
47.
dwpiper | September 13, 2011 at 1:34 pm
That's exactly the part they DON"T want to do. That would mean they'd have less to spend to fund their hatred.
48.
JonT | September 13, 2011 at 2:01 pm
I've never been one to hate, but with these people, I come pretty damn close. What pieces of human garbage they are.
49.
Mark M. (Seattle) | September 13, 2011 at 2:10 pm
Makes me so angry and sad that human suffering means nothing to these people…. they don't see us as human so our suffering means nothing.
50.
Mark M. (Seattle) | September 13, 2011 at 2:11 pm
I agree Jon, I loath using the term 'hate', but sometime it just fits ;-(
51.
Sheryl_Carver | September 13, 2011 at 5:35 pm
Forgot to say "thank you!" for the tip, AnonyGrl. My bad.
52.
Sheryl_Carver | September 13, 2011 at 5:45 pm
Is it any surprise that they want all of the benefits without any of the responsibilities or restrictions? Too many religious organizations (certainly not all!) have no problem lying & vilifying others, flouting whatever laws they dislike, then trying to paint themselves as the poor victims.
Since the IRS has allowed some to ignore the restrictions on campaigning for individuals, more are becoming embolden & are doing the same thing. Big surprise, right? Time to stop this trend. Either the IRS enforces the rules, or automatic tax exemptions are removed for ALL religious organizations. If they want to qualify as tax-exempt non-profits, they can jump through all the hoops that secular organizations have to and be held to the same standards.
Is it obvious that I'm upset?
53.
JT1962 | September 13, 2011 at 6:41 pm
Since all of this seems to hinge so much on having the financial ability to put the measure onto the ballot in the first place, let's put a new rule in place. If you can prove via documentation that 90% of the financing for your measure was gathered from California residents, then you have the right to defend your measure. And if your funding was given by a group of any sort, then they have to list the donation amounts and donor names/locations in order to prove that they are mainly Californian. What bothers me is having outside groups come in and give tons of financing from outside the state in order to win the voters' minds. The groups have nothing to do with California, the law will have no impact on them. Why do they get to have their money force a major impact on another state?
54.
Ann S. | September 13, 2011 at 7:54 pm
We are still waiting to hear from Judge Ware on the motion to unseal the trial recordings.
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