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Prop 8 trial: Preview of today’s California Supreme Court opinion in Perry v. Brown

Prop 8 trial

By Adam Bink

Today, the California Supreme Court will issue its opinion regarding whether the proponents of ballot initiatives have authority to represent the state of California when the state’s public officials (governor and attorney general) decline to do so. The specific case around which this arises is Perry v. Brown and the proponents being ProtectMarriage.com et al, e.g., the people who filed and helped pass the ballot initiative. It was referred to the California Supreme Court by the 9th Circuit, which will take the California Supreme Court’s opinion and then issue a ruling in the case down the road.

Some background and links:

  • You can read more about how we got to this point in the case and why today’s opinion is important in yesterday’s preview post.
  • The decision will come down at 10 AM PST/1 PM EST today. Jacob Combs, Prop8TrialTracker.com’s writing intern, will have the decision up as soon as it comes in, and update that post with coverage and reaction throughout the rest of the day. Be sure to refresh the post for updates when it goes up. We’ll also have legal commentary from Shannon Minter of the National Center for Lesbian Rights, who led the legal team for the In re Marriage Cases decision before the California Supreme Court in 2008, among others.
  • Meanwhile, on the preview side of things, many questions have come in on how long it would take for the 9th Circuit to turn around a decision in Perry v. Brown after today’s opinion is issued, and the timeline from there. Lyle at SCOTUSBlog has a thought on the timeline for the case:

Although both sides in the historic lawsuit over the gay marriage ban have expected their dispute ultimately to reach the Supreme Court, it now seems quite unlikely that the case will move fast enough in federal court from here on to reach the Justices in time for a decision during the current Term.    A case must be ready for the Justices to consider by no later than the end of January in order for it to be decided in the current Term, which is likely to end late next June.   The Circuit Court is considering the Proposition 8 case on an expedited basis, but it is doubtful that it could act quickly enough, and that preliminary filings in the Supreme Court could be made soon enough, for the case to be ready within the next two and a half months.

  • Elsewhere, Ari Ezra Waldman has an interesting meta piece at Towleroad on the implications of the Perry case overall.
  • If you’d like to read the live-blogging transcript of arguments before the 9th Circuit Court of Appeals on this issue, you can find it here. If you’d like to read the arguments before the California Supreme Court back in September, you can find them here. From a legal point of view on whether people should be allowed to stand in for duly elected officials in court (and for the sake of trying to divine how the Court will rule today), they are fascinating.
  • Many folks in the comments yesterday opined on whether the California Supreme Court will rule that state law allows for ballot proponents to have standing to represent the state. What’s your prediction of today?
  • There’s also a robust debate being had over whether the case should be decided on the merits (e.g. whether Prop 8 is constitutional or not) versus standing (which many people refer to as a more technical issue). Remember that if the proponents of Prop 8 are found to not have standing and that is held up on appeal, the case is dismissed for lack of jurisdiction and Prop 8 ends. On the one hand, many hope the California Supreme Court decides in favor of standing for ballot proponents and the 9th Circuit ultimately grants standing for the Prop 8 backers to represent the state in court so that a final decision can be had on the constitutionality of Prop 8 and perhaps even marriage equality nationwide, e.g. whether laws and constitutions across many states that limit marriage to opposite-sex couples are in violation of the U.S. Constitution. On the other hand, many others wish to see Prop 8 end however it can. Aside from the serious implications of whether ballot proponents can represent the state in California instead of elected officials, one way to view this is that there are two bites at the apple to take down Prop 8: constitutionality and standing. For the sake of allowing couples who desperately wish to wed — some, like Ed and Derence in Palm Springs, with serious medical conditions like Alzheimer’s threatening their right to the pursuit of happiness — many just want Prop 8 to end however it can end, standing or otherwise. There is also a concern on the merits side that 5 Justices cannot be had on the U.S. Supreme Court who find Prop 8 to be unconstitutional. What do you think?
  • We’ll see you when the ruling comes down later today.

56 Comments Leave a Comment

  • 1. dwpiper  |  November 17, 2011 at 7:41 am

    My take on things, as I wait impatiently for the CA Supremes:

    First, I too expect the 9th will be guided by the ruling of the CA Supreme Court. My reason for thinking so is that there is no other reason I can think of for them to have certified the question in the first place, before ruling on federal standing. They simply want to find out if there's anything in the CA law and constitution that could be used to justify standing in light of the US Supremes having expressed "grave doubts" on the issue based on the lack of anything in Arizona state law.

    Second, I found all the arguments to the CA Supremes against standing compelling. I hope that they did, too, and that what many perceived as their aggressive posture toward our side was only carefulness to appear unbiased.

  • 2. Darrell  |  November 17, 2011 at 7:44 am

    I hope they have standing and here is why…
    because it will force the 9th Circuit to rule on proposition 8 and looking at the court we have a good change of winning and it would then give the united state supreme court the right to decide whether they want to hear the case or not….. it would make a stronger case in other states but by finding they don't have standing wouldn't make a stronger case in other states and could lead to other law suits down the road……

    let me know what you think???

    should they have standing or not????

  • 3. darrell  |  November 17, 2011 at 7:47 am

    many hope the California Supreme Court decides in favor of standing for ballot proponents and the 9th Circuit ultimately grants standing for the Prop 8 backers to represent the state in court so that a final decision can be had on the constitutionality of Prop 8 and perhaps even marriage equality nationwide, e.g. whether laws and constitutions across many states that limit marriage to opposite-sex couples are in violation of the U.S. Constitution. ……

    I totally agree!!!!

  • 4. dwpiper  |  November 17, 2011 at 8:00 am

    Personally, I hope we win on standing. I'm in California. I had a right, for just a few months, at a time when my partner of nearly 25 years and I were unable to take advantage of it because of circumstances beyond our control, that was taken away later that year by the tyranny of the majority vote.

    I appreciate the longing for the case to reach the US Supreme Court in hope of a ruling in our favor that establishes marriage equality nationwide – but that isn't something we can count on, nor is it even the only ruling in our favor that could be made. Even at that level, even if they do rule in our favor, the USSC could rule so narrowly that it only applies to California anyway.

  • 5. Alan_Eckert  |  November 17, 2011 at 8:20 am

    Waiting anxiously this morning!

  • 6. Bill S.  |  November 17, 2011 at 8:36 am

    What timeline would we be looking at if the CA Supreme Court said they did not have standing?

    Presumably it wouldn't take long for the 9th Circuit to affirm this in a decision. They would likely appeal this to the Supreme Court…will we have to wait until June for a decision on standing from them?

  • 7. Wet Dog  |  November 17, 2011 at 8:40 am

    It has been suggested that the 9th circuit will go the way of the CASC. Why else would they have sent to question? Well, here's my take. If the CASC says no standing, then the 9th will agree. However, if the CASC says yes, then the 9th will look at the reason. If the CASC says yes because CA wants to give the people every chance to defend its propositions, then 9th will say "not good enough for article III standing". However, if the CASC says that if the Gov or AG do not defend a proposition, it is a real harm the the proponents, the the 9th may see that as the real harm that article III standing requires. Just my non-legal opinion.

  • 8. Ronnie  |  November 17, 2011 at 8:41 am

    Subscribing & sharing………

    Maryland Police Officer Huskens Speaks Out for Marriage Equality……. <3…Ronnie:
    [youtube NwccmO5qd4w http://www.youtube.com/watch?v=NwccmO5qd4w youtube]

  • 9. darrell  |  November 17, 2011 at 8:45 am

    standing or not….. either way is a win, win, win for the gay movement…… history is in the making people….

  • 10. Gregory in SLC  |  November 17, 2011 at 8:49 am

    L.A. Times "Prop. 8 decision due today from California Supreme Court"
    http://latimesblogs.latimes.com/lanow/2011/11/pro

  • 11. darrell  |  November 17, 2011 at 8:49 am

    just talked to my friend out in california and he said the ruling will be coming down sometime between 9:30am to 11:00am according to several news reports………….

    …………….. everyone please keep me posted:):)

  • 12. DaveP  |  November 17, 2011 at 8:51 am

    Dang it. I have to be in a couple of bac-to-back meetings starting right at 10 AM and I won't be able to check back here until about 11:30 AM. These are going to be some looooong meetings…..

  • 13. Mark  |  November 17, 2011 at 8:56 am

    I hope they are found not to have standing. It may set a precedent for individuals or organizations to step in and represent the state with regard to future propositions. Imagine if NOM were allowed to have standing in certain cases. Deny standing and let us get on with same sex marriage in California for all those individuals that have been waiting patiently for this unconstitutional proposition to be overturned.

  • 14. Ann S.  |  November 17, 2011 at 9:01 am

    I hope standing is denied because I do not like our system of propositions. What was intended to be a populist mechanism has been taken over by big money. Ridiculous laws get passed and they are far too difficult to get rid.

    It would also bring equality to California sooner.

  • 15. Ann S.  |  November 17, 2011 at 9:01 am

    Not sure I subscribed properly . . .

  • 16. Lesbians Love Boies  |  November 17, 2011 at 9:07 am

    Tapping foot…most mornings go by so quickly.

    I agree with Ann – I hope that standing is denied. I can see court cases going viral in California if they allow the people to step in and represent the state government and/or state government officials. This is probably the one reason I really believe standing will be denied.

    No matter for the rest of us who live in other states who were hoping for this to help our equality causes. It has opened the minds of so many that equality for every LGBT etc. will certainly happen one day.

  • 17. AdamK  |  November 17, 2011 at 9:10 am

    I'm wondering about the stay. If the standing question is appealed, shouldn't the 9th circuit lift the stay on Judge Walker's ruling? It gets more burdensome on people who want to marry as time passes–and after all, we WON the initial ruling. Shouldn't winning count for something?

  • 18. JayJonson  |  November 17, 2011 at 9:27 am

    I think it was outrageous for the Ninth Circuit panel to refer the question to the California Supreme Court. It has wasted months on an issue that is not germane. No matter what the ruling from the California Supreme Court, the Ninth Circuit is not bound by it. Standing in state court is not the same as standing in federal court. I am disturbed at how long the process has already taken.

  • 19. Steven  |  November 17, 2011 at 9:27 am

    Actually at 10 AM not between 9:30 to 11 am

  • 20. Ann S.  |  November 17, 2011 at 9:28 am

    I should clarify that while I hope standing is denied, I will be surprised if the CA Supreme Court denies it. There were far too many remarks about the precious right of initiative and referendum during oral argument for me to think they'll deny standing.

    That would permit the 9th Circuit to distinguish this case from the Arizonans for Official English case, too.

    I would like to see standing denied but I'm not very hopeful that will happen before we get to the SCOTUS.

  • 21. grod  |  November 17, 2011 at 9:34 am

    While California's checker board of civil marriage recognition favours a positive decision by the 9th Circuit Appeal Court on merits; a finding by the CA Supremes against standing will favour the Appeal court ruling
    against standing – the Fed's having a higher standard, and thereby increasing the probibility that the US Supreme Court would decline to hear an appeal on standing or to rule against standing. This leaves Walker's decision in place! Walker's decision can then be used within the wider 9th Circuit to achieve a positive decision on merit. It will also be referenced in other circuits cases.
    Stauss vs Horton (2009) established a CA precedent that a civil right once recognized can not be withdrawn from those to whom it was granted. If today’s decision eventually [soon] results in civil marriage equality in California, down the road, on a case on 'merits' that reaches the US Supreme Court, it is going to be equally hard for the US Supreme Court to withdraw a now recognized right from an ever growing number of Amercian citizens. – Hoping today's court does not recognize standing.

  • 22. Steven  |  November 17, 2011 at 9:48 am

    I hope that they give an opinion that pro-Prop 8 does not have standing unless they get permission from the state, which they didn't.. They have no right to appeal on California's behalf. They do it will set a dangerous precedent because AG/GOV would have no authority…

  • 23. DaveP  |  November 17, 2011 at 9:50 am

    YAAAY! My 10AM meetign was just canceleld at the last minute. I can keep tabs on things here until 11AM….

  • 24. Steven  |  November 17, 2011 at 9:50 am

    I need to correct myself if They do it will set a dangerous precedent because AG/GOV would have no authority…

  • 25. peterplumber  |  November 17, 2011 at 9:58 am

    Waiting with sweating hands….

  • 26. peterplumber  |  November 17, 2011 at 9:59 am

    I agree. Granting standing is not good for the State of California.

  • 27. Steven  |  November 17, 2011 at 10:01 am

    The California Supreme Court's website is crashing/crashed.

  • 28. DaveP  |  November 17, 2011 at 10:01 am

    I also hope they are found not to have standing because of the terrible precedent that woudl set and how it could fill the courts with all sorts of idiots claiming to speak on behalf of our state govornment.

    And yes, I also woudl like to see marriage equality back in California as soon as possible, and denying standing wouls accomplish that too.

    But I wouldn't consider that the end of the fight. As soon as we get marriage equality in California, all of my energies and donations will be redirected to wherever they need to go to continue the fight for equal rights for LGBTs EVERYWHERE. This board is filled with people who don't live in California, and lots of the work and funds that have been going to support our fight in California have been coming from out of state. I won't forget that for one minute, and I'm stating it here so others don't forget it either. We owe you guys big time, and you can count on me when we win the fight here and it moves to your state.

  • 29. Bob  |  November 17, 2011 at 10:01 am

    it's 10 a.m. on the west coast,,,,, ,,, waiting for the news,,,,,

  • 30. Lesbians Love Boies  |  November 17, 2011 at 10:02 am

    They don't have standing? I just saw a tweet…is it true?

  • 31. MJFargo  |  November 17, 2011 at 10:02 am

    They agree the proponents should have standing

  • 32. jpmassar  |  November 17, 2011 at 10:03 am

    CSC website, not surprisingly, is not being very responsive. What's the real scoop?

  • 33. Steven  |  November 17, 2011 at 10:03 am

    we need to wait to see…..

  • 34. Lesbians Love Boies  |  November 17, 2011 at 10:04 am

    They do have standing…oye.

  • 35. Alan_Eckert  |  November 17, 2011 at 10:05 am

    Tweet from AFER:

    CA court says #Prop8 forces have standing, paves way for 9thCircuit. Our federal lawsuit for #marriageequality is back on the fast track!

  • 36. Sam  |  November 17, 2011 at 10:06 am

    Have standing, can assert the State's interest
    http://www.courtinfo.ca.gov/opinions/documents/S1

  • 37. Alan_Eckert  |  November 17, 2011 at 10:06 am

    Decision can be read on Good As You:
    http://www.goodasyou.org/good_as_you/2011/11/read

  • 38. JacobRD  |  November 17, 2011 at 10:06 am

    Prop. 8 sponsors are legally entitled to defend measure, court rules
    http://latimesblogs.latimes.com/lanow/2011/11/pro

  • 39. bjasonecf  |  November 17, 2011 at 10:07 am

    Perry (Prop 8 case): California Supreme Court decision
    http://www.scribd.com/doc/73039175

  • 40. Alan_Eckert  |  November 17, 2011 at 10:09 am

    Matt Baume has a video update (already!) [youtube xa3u5OHsUc8 http://www.youtube.com/watch?v=xa3u5OHsUc8 youtube]

  • 41. Steven  |  November 17, 2011 at 10:09 am

    they set bad precedent… They are NOT PRESENTING THE STATE'S BEST INTEREST.. THEY ARE PRESENTING THEIR OWN……

  • 42. nightshayde  |  November 17, 2011 at 10:12 am

    Even though they have state standing to appeal in state court, can't the 9th circuit still rule that they don't have federal standing?

  • 43. peterplumber  |  November 17, 2011 at 10:13 am

    In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

  • 44. MJFargo  |  November 17, 2011 at 10:13 am

    I can accept the reasoning behind the decision; I just don't find the basis for it.

  • 45. Steven  |  November 17, 2011 at 10:14 am

    Big difference ITS A FEDERAL CASE not state case……..

  • 46. peterplumber  |  November 17, 2011 at 10:14 am

    Unanimous decision

  • 47. _BK_  |  November 17, 2011 at 10:14 am

    December 8th it is, then. Let the countdown begin!

  • 48. Steven  |  November 17, 2011 at 10:16 am

    okay. damnnn

  • 49. nightshayde  |  November 17, 2011 at 10:17 am

    Understood — that's why I'm not sure why the issue of state standing is even relevant. Since it's a federal case, the issue should be federal standing rather than state standing.

    So even after this long delay, it's theoretically possible that the 9th circuit will say the pro-discrimination side doesn't have federal standing … and then THAT decision will be appealed to the SCOTUS (unless the 9th says they do have standing & then rules on the merits – at which time whoever loses will appeal to the SCOTUS).

  • 50. Steven  |  November 17, 2011 at 10:19 am

    where in the constitution and state law?

  • 51. Gregory in SLC  |  November 17, 2011 at 10:23 am

    I appreciate Matt's optimism

  • 52. jack bauer  |  November 17, 2011 at 10:24 am

    By my understanding, the December 8th court day deals with the Motion to Release the Tapes, not with the 9th Circuit/Prop 8 Standings & Merits issue. Does anyone know if the 9th circuit has a specific date/time by which they have to issue a ruling?

  • 53. Sam  |  November 17, 2011 at 10:27 am

    Since the CA Sup Ct granted the right to assert the State's interest, I imagine that the federal courts will be obliged to find federal standing–if it had been on the particularized interest ground it might be a different story, but there's no doubt that a state (or, in this case, someone authorized to assert a state interest) has standing.

  • 54. Charles R. Sears II  |  November 17, 2011 at 1:27 pm

    I hope Prop 8 is overturned by being ruled uncontitutional by the 9th Circuit Court soon. As a gay elderly male I am way beyond marrying age,at 60. My lover died in 1983 after 11years together. I consider myself a widow and what we had as a common law marriage. True to form,his family swoped in and took everything,the house,clothing,cars,etc. I never saw his body or had any in put about his funeral. That is why we need to keep fighting. Also,I was dating someone and I was sick in the hospital and recovering after surgery,and my then lover was afraid to come visit me..he was in the military at the time and an officer to boot! We broke up months later because he was too much "in the closet" because of his being in the Navy.Life would be so much easier if we could be "married" and have rights heterosexuals have. That is all we are asking for…it is not a priviledge only for the Churches! They preach from the pulpit about who to vote for and raise huge sums to sponsor candidates…I say have the IRS send them a fat tax bill and tell them to back off interferring in people's lives.

  • 55. José Merentes  |  November 17, 2011 at 3:47 pm

    Well, on the subject of strict scrutiny it´s worth it to note that United Nations and many countries in the world (I think also America) recognize sexual orientation based persecution as a motive to receive refugee status.

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