Comments on: Top 10 questions on next steps in the Prop 8 trial

By: Prop 8 Trial Tracker » Questions and answers on next steps as the Prop 8 case heads towards Supreme Court

Wed, 06 Jun 2012 13:16:33 +0000

[...] are reasons to hope the Supreme Court does not take the case. Perhaps chief among them is, as Adam noted here back in February, there is a big chance that supporters of marriage equality could lose. No one [...]

By: Adam Bink » Blog Archive » Selected writing

Adam Bink » Blog Archive » Selected writing — Mon, 16 Apr 2012 23:47:57 +0000

[...] Top 10 questions on next steps in the Prop 8 trial, Prop8TrialTracker, February 8, 2012: This is a piece answering the most common ten questions from laypeople following the Prop 8 case, now that a 3-judge panel from the 9th Circuit Court of Appeals ruled that Prop 8 is unconstitutional. [...]

By: Mike

Mike — Mon, 13 Feb 2012 02:27:51 +0000

Can they go to the Supreme Court and then–for whatever reason–follow that up with an en banc appeal? Or does that avenue close once they appeal to the Supreme Court? Logic tells me they can't go backwards like that, and I've learned not to trust logic on legal matters…

By: MJFargo

MJFargo — Fri, 10 Feb 2012 22:59:23 +0000

(continued from preceding)
I don't know about you, but I see a very distinct difference between elected officials and proponents for an initiative (who are without any checks or balance). No one nor any statute granted the proponents standing in this case. In contravention of Judge Reinhardt’s own words, “It is not for a federal court to tell a state who may appear on its behalf,” when that’s exactly what the good Judge did by asking the Supreme court for an opinion, which they responded with, “Well, we tend to be liberal interpreting who has standing in STATE Court” and then take those words to somehow mean there was an existing statute which awarded the proponents standing, particularly after two Attorney General’s and two Governors believed Prop 8 to be unconstitional…which now Judge Reinhardt seems to think so too. It’s a mess and a big one. Leaving this language on the book effectively trashes Title III and I don’t think SCOTUS is going to like it.

By: MJFargo

MJFargo — Fri, 10 Feb 2012 22:58:47 +0000

Sorry, Dave. The standing issue hits a nerve with me. From the appellate ruling:

As the California Supreme Court has explained, “the role played by the proponents” in litigation “regarding the validity or proper interpretation of a voter-approved initiative measure…is comparable to the role ordinarily played by the Attorney General or other public officials in vigorously defending a duly enacted state law.” .. When the Attorney General of California appears in federal court to defend the validity of a state statute, she obviously need not satisfy the requirements of third-party standing; she stands in the shoes of the State to assert its interests in litigation. For the purposes of the litigation, she speaks to the court as the State, not as a third party. The same is true of the Proponents here, just as it was true of the presiding legislative officers in Karcher. The requirements of third-party standing are therefore not relevant. [end of quote]

By: Straight Dave

Straight Dave — Fri, 10 Feb 2012 17:41:39 +0000

But even the standing issue was fairly narrow. It hinged on an explicit declaration by CA SC that proponents can represent the state. That's CA law. In the Arizonans case, SCOTUS said they found no such AZ law, leaving the door open for CA to meet that implied standard. I don't think it's a nationwide concern now because I don't expect many states to have the strong proponents rights that CA does. Unless SCOTUS wants to question the CA SC interpretation of CA law, I can't imagine they'd want to pick that fight now.

By: DavidHart

DavidHart — Fri, 10 Feb 2012 17:41:37 +0000

Nope. This ruling is confined to the unique circumstances of California. The good news is that NOM is already spread very thin and it shows. Brian Brown has been reduced (even further) to a mindless hyperbole machine. The fire alarm never stops ringing.

By: DavidHart

DavidHart — Fri, 10 Feb 2012 17:33:01 +0000

Indeed. Walker made his ruling almost two years ago. A year was wasted on resolving standing because the California Supreme Court had no sense of urgency and Prop 8 never should have been on the ballot in the first place. Prop 8 is in recognition of religion. Yet, that argument is seldom made.

By: curious

curious — Fri, 10 Feb 2012 17:25:36 +0000

Does the 9th Circuit ruling have any bearing on Washington State? Or Hawaii? If a threatened referendum in the former state is on the ballot, isn't it already viewed as unconstitutional? And couldn't someone in Hawaii make a similar claim that a duly enacted right had been taken away by voter initiative? Could this apply to other circuit courts, the 1st for example? Didn't Maine voters repeal an enacted same-sex marriage law?

By: DavidHart

DavidHart — Fri, 10 Feb 2012 17:12:58 +0000

The reason that this is so difficult to pin down is that proponents of Prop 8 have competing attorneys. Charles Cooper has been trial counsel but he has often been at odds with the fundamentalist crazies like ADF. and Pugno. the latter group presume to be defenders of the faith and on God's contact list.