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Questions and answers on next steps as the Prop 8 case heads towards Supreme Court
June 6, 2012
By Scottie Thomaston, Adam Bink, and Jacob Combs
Yesterday was the big news of the Ninth Circuit’s decision not to rehear the case with an 11-judge en banc panel. The staff here at Prop8TrialTracker.com have seen a steady stream of comments and questions about the decision and the future of the Perry v. Brown case challenging the constitutionality of Proposition 8. Here we will try to answer some of these questions. Updates with new questions from the comments or elsewhere will be added at the bottom.
1. Is there still a stay? What’s the story with that?
Yes. Yesterday’s 9th Circuit order says: “The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.”
A petition for writ of certiorari means to request that the U.S. Supreme Court review the case. If the proponents of Proposition 8 (those who put it on the 2008 ballot and helped pass it, and now are defendants in the lawsuit) decide to seek review by the Supreme Court – and they have already indicated they will indeed file a petition for certiorari – the decision will remain stayed if the Supreme Court takes the case until a final decision by the Supreme Court, likely in the summer of 2013. If the Supreme Court does not take the case, the decision will become final and Prop 8 will end.
2. What will the proponents do next?
The proponents of Proposition 8 will file a petition for certiorari at the Supreme Court. They will argue that the Ninth Circuit wrongly decided the legal issues presented in the case and they will suggest the Supreme Court should reverse the Ninth Circuit’s decision. It takes four votes out of the nine Justices to grant review of cases and set the case up for arguments before the Supreme Court.
3. Is super en banc at the 9th Circuit still possible?
“Super en banc” means review at the 9th Circuit by all the judges on the court, rather than a 3-judge panel or 11-judge panel. It’s theoretically possible under the current rule 35-3. However the wording of the rule seems to suggest that so-called “super en banc” is only possible after the en banc panel hearing with 11 randomly-selected judges, and that rehearing for an 11-judge panel was just denied by the Ninth Circuit judges. So it seems highly unlikely that this case is headed anywhere except straight to the Supreme Court.
4. When do Prop 8′s proponents have to appeal or go home by?
Proponents have 90 days to file for a writ of certiorari at the Supreme Court. After that, if there is no petition filed, the mandate will issue (meaning that the Ninth Circuit’s decision will come into effect, Prop 8 will end, and same-sex marriages will resume in California.)
5. If Prop 8′s proponents appeal, when will the Supreme Court decide whether or not to take the case?
The Supreme Court heads into summer break soon, and given the timeline for appeal, it is unlikely the Court will decide in conference whether or not to take the case until they return from their summer break around October 2012.
6. By when would the Supreme Court issue a decision if they took the case?
Oral arguments are usually heard within 4 months or so if certiorari is granted, and the Court almost always issues its decisions by July 4th. So a decision would be expected by July 2013.
7. What issues will the Supreme Court decide on appeal if they take the case?
It’s up to them. The Supreme Court has broad discretion to decide which questions it will take up in each case. In the petition for certiorari, there is a list of “questions presented” which are the legal issues the petitioners want the Supreme Court to take on. But just because proponents ask doesn’t mean the Supreme Court has to take those specific questions.
Having said that, it’s likely that the Supreme Court would decide whether or not proponents have ‘standing’ to appeal the case in federal court, and it’s of course likely that the Supreme Court will rule one way or the other on the constitutionality of Proposition 8. Beyond those key issues, Supreme Court review is typically limited to the issues raised in the court below. Since the opponents of Proposition 8 raised the issue of subjecting laws against gays and lesbians to a higher form of scrutiny and since they addressed the possibility of a broader ruling on marriage equality, the Supreme Court could decide to accept those questions if they are raised, or introduce the issue. It seems more likely that they would want to decide the narrow issue of Proposition 8′s constitutionality, but that’s just speculation until the Court has their conference and agrees on the questions it will hear.
8. Is it better or worse for the opponents of Proposition 8 if the Supreme Court does or does not review the case?
It depends on one’s goals and predictions. The Supreme Court is of course a mostly conservative court. On many issues, it is made up of four moderates and four conservatives with Justice Kennedy as the ‘swing vote’ on a few social issues. Justice Kennedy is, for the most part, fairly conservative. He did write the opinions in the two most recent pro-LGBT cases to come out of the Supreme Court: Romer v. Evans and Lawrence v. Texas, however. If the Supreme Court reviews the case, that presents the possibility that they might uphold Proposition 8. If they deny the petition for certiorari, the Ninth Circuit decision stands and California will have marriage equality as the law in the state.
If the Supreme Court reviews the case, though, there is a real potential of having at least five votes to uphold the Ninth Circuit decision striking down Proposition 8. Since Justice Kennedy has written pro-LGBT opinions, it is not outside the realm of possibility he would apply his own logic from those opinions (especially Romer, on which the Ninth Circuit’s opinion heavily relies) to this case and decide things in our favor. Even if we ended up with a narrow Supreme Court opinion striking down Proposition 8 in a way that only applies to California, the case could be used as precedent to build on in the future.
On the other hand, there 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 knows where Anthony Kennedy, nor other Justices, stand on same-sex marriage, although the 9th Circuit decision is tailored in such a way to make it more likely to turn a favorable ruling. Why risk it, especially with another case in Nevada that may reach the Court after more states have legalized same-sex marriage, public opinion keeps moving and the composition of the Court grows perhaps more favorable? Take a strong ruling that Prop 8 is unconstitutional, legalize same-sex marriage in California, and on to the next fight. Second, for the sake of couples who have waited a long time to marry, waiting another year could lead to serious harm (such as, in the case of Ed and Derence, one’s unfortunate passing). So it depends on one’s goals and predictions regarding the future of same-sex marriage in California and the nation.
You can submit more questions to us in comments and we would be happy to answer them. We will update this post with answers and suggestions.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
71 Comments Leave a Comment
1.
Alan_Eckert | June 6, 2012 at 6:28 am
I thought that the USSC 2012-13 schedule has already been set. Wouldn't the case have to be fit into the 2013-14 schedule then?
2.
Derek Williams | June 6, 2012 at 6:48 am
Makes one wonder what the whole point of the 9th Circuit's involvement was in the first place, since this has always been a US Constitution issue.
3.
jpmassar | June 6, 2012 at 7:50 am
Will the plaintiffs' attorneys be arguing to the Supreme Court that the defendant-intervenors do not have Article III standing or have they give up on that?
4.
Nick | June 6, 2012 at 7:59 am
So, let's argue that the 'people' of Washington State Repeal Equal Marriage Rights (same scenario as PropHate in CA). Washington State is in the 9th Circuit–Will the Circuit Ruling just affirmed Yesterday be applied to Washington State in future???
5.
Seth from Maryland | June 6, 2012 at 8:03 am
A Money Bomb has been Launched in Washington State
as Anti-Gay Activists Turn in Signatures to Overturn Marriage Equality
Read more: http://www.towleroad.com/2012/06/wamoneybomb.html…
6.
Scottie Thomaston | June 6, 2012 at 8:17 am
The first part is usually set by the time the summer recess starts. But there's a conference in October where they decide what to put on the docket to be decided on by the end of the term in June. So it'll likely be in the October conference with argument a few months later and a final decision by June 2013.
7.
Scottie Thomaston | June 6, 2012 at 8:18 am
Well it's the process. Federal District Court –> Federal Appellate Court –> Supreme Court. Most issues get worked out by the lower courts without any Supreme Court involvement.
8.
B_Z | June 6, 2012 at 8:24 am
No. As discussed in the other thread, it's not the same scenario, because marriage equality hasn't yet gone into effect in Washington (unlike California). However, even though the 9th Circuit ruling wouldn't directly apply, it could be cited as precedent to help our side in a future lawsuit in Washington. (Of course, let's hope marriage equality passes in November and it doesn't come to that!)
9.
Glen | June 6, 2012 at 8:31 am
This is what the Circuit Courts do. They fill in for the U.S. Supreme Court. That is why they were "invented". In order to ease the work load of the Supreme Court.
The Circuit Courts have the final say unless the Supreme Court decides to accept an appeal. The Supreme Court accepts very few of these. Circuit Court decisions can effect only those States which are covered by that court. If the decision affects more than one State or could otherwise have national implications the Supreme Court is more likely to take up the case. Otherwise they do have more pressing cases WITH national implications to attend to.
10.
Glen | June 6, 2012 at 8:38 am
I'm not so sure as it's a case of whether marriage equality has gone into effect or not, so much as it is a case of the California Supreme Court saying that the California Constitution already guaranteed same-gender couples the right to marriage equality (and it always had, it just wasn't being properly recognized).
Hence according to the court the right always existed in the California constitution, but was only now being recognized.
The ruling from the 9th circuit is that once a right is recognized as existing, you cannot then strip that right away from a minority without a valid reason, as that is a violation of the U.S. Constitution.
11.
B_Z | June 6, 2012 at 8:38 am
Is there any speculation on what took the 9th Circuit so long to deny the petition? I was expecting a long dissent (or several), but clearly that's not what was causing the holdup!
Were they waiting for the 1st Circuit, so the DOMA cases would reach the Supreme Court first?
12.
Glen | June 6, 2012 at 8:40 am
Here's hoping the VAST majority of those signatures are Mick E. Mouse.
13.
DaveP | June 6, 2012 at 8:50 am
Yeah! What's up with that? When somebody keeps me waiting, I'd like to know why.
14.
Scottie Thomaston | June 6, 2012 at 8:52 am
That's a good question. Someone else would have to take that. I would imagine since the petitioners in this case are the proponents of the initiative and they get to suggest the questions presented initially, and the trajectory of the case, that they wouldn't push the standing thing but who knows? And I think the Supreme Court could add the question either way.
15.
Scottie Thomaston | June 6, 2012 at 8:54 am
It seems possible if it's upheld that it could be applied to that since it's so similar. But right now it's stayed until the Supreme Court decides whether to grant cert (er, once the proponents file the cert petition they've promised.)
16.
Fred | June 6, 2012 at 8:54 am
The 9th Circuit is notoriously slow.
17.
peterplumber | June 6, 2012 at 8:55 am
When the anti-gay forces in Washington started a petition drive for R-71 a few years back, the barely had enough signatures to qualify. This triggered a verification of EACH AND EVERY signature. This time they are boasting over 200,000 signatures. The rule of thumb is that if they turn in enough signatures to overcome the normal amount of bogus sigantures, they will not verify ALL the signatures, just spot check a small percentage.
18.
Scottie Thomaston | June 6, 2012 at 9:00 am
That makes more sense
19.
Scottie Thomaston | June 6, 2012 at 9:02 am
It's probably just that they were slow and they're a huge circuit with a lot of judges. SCOTUSBlog suggested last week that the longer it takes to consider a request for en banc rehearing, the more likely it is that it will be denied. It seems Denniston was correct (as he usually is.)
20.
jsteven408 | June 6, 2012 at 9:14 am
The best case would be for section 3 of DOMA (fed doesn't recognize lgbt marriages where legal ) first. This is a federal vs state rights and a clear unequal treatment under the law case. One does not have to rule on marriage rights. I could see a 7-2 or greater victory. Heighten scrunity might apply for congress overturning a state prerogative in general.
Then when marriage comes up, denying "the word" triggers huge financial and legal protections making our strong case stronger. I could see this scenario even garnering Chief Justice Robert's support.
21.
jpmassar | June 6, 2012 at 9:59 am
Presumably Olsen and/or Boies would have to answer this question. Just in case you or someone sees them…
22.
Str8Grandmother | June 6, 2012 at 10:07 am
"Take a strong ruling that Prop 8 is unconstitutional, legalize same-sex marriage in California, and on to the next fight."
Well unless YOU are the next fight. In my opinion it would be great to have the Supreme Court take the Case. I believe in the case, I think it is iron clad no way to loose. If there is no way to loose then we have something to gain, at least they might recognize heightened scrutiny which can then be used in other States. Even IF they rule that this only applies to California do to California granting a right then taking it away, we could still get Heightened Scrutiny out of it. And there is also the possibility they they could rule broad and grant for everybody Marriage Equality based on the 14th Amendment.
It is going to be a long long time until Civil Marriage for Sexual Minorities makes it to Texas, Mississippi etc. If there is something in the Prop 8 Case that helps the other States with, and what I think is very little risk then I hope the case goes to the Supreme Court and they accept it.
23.
Derek Williams | June 6, 2012 at 10:22 am
Even when we lose, as we have in 31 states, we still win in the long run. If something is intrinsically and inherently right, then with information and education, world reform is inevitable. It's just a matter of superhuman effort and patience, and rather a lot of time. Certainly never giving up at the first knockdown.
24.
Kathleen | June 6, 2012 at 10:38 am
Even if the Perry case was completely on point for another state's situation, it wouldn't automatically strike down any existing law. Someone would still have to bring a law suit challenging the other state's law, citing the Perry case as binding precedent.
That said, Perry might still be useful in a state like Washington. Isn't it the case in Washington that it has a domestic partnership law that grants essentially all the benefits of marriage? It could be argued that the Perry decision stands for the proposition that granting all the benefits of marriage, while withholding access the marriage itself, serves no legitimate state interest. I'm not saying that a court would necessarily agree with that interpretation, but I think it's a perfectly reasonable interpretation of the case.
25.
Straight Dave | June 6, 2012 at 11:18 am
Even in the 9th circuit? It doesn't seem reasonable to force everyone to repeatedly have to sue over a dead law. While technically that might be the case, isn't it common for the states to just give up and not bother enforcing the law? I mean, doesn't Alabama still have their mixed-race-marriage law on the books?
Is it just up to the discretion of each state not to be assholes when someone tries to get married, or does there have to be some formal process to kill off all the laws? This is a real question. I don't know how this works in actual practice. God knows we've had enough unconstitutuional laws wiped out in my lifetime.
26.
Kathleen | June 6, 2012 at 11:32 am
No case is iron clad and there is potentially a lot to lose here.
If this case is taken up by the Supreme Court, it gives the Court an opportunity to say unequivocally that there is no fundamental right for same sex couples to marry (precluding ever using a due process argument for marriage cases in federal court).
It also gives the Court an opportunity to finally say that the appropriate standard of review for laws discriminating against gays and lesbians–at least those impacting marriage and possibly to family relations in general–is rational review. And not the kind of rational review "with bite" that we saw in Lawrence and Romer, but the extremely deferential kind that has been (only slightly jokingly) described as requiring only that a statute be framed in gramatically correct sentences in order to be upheld. You know that perspective on rational review that Judge Smith set out in his dissent in Perry? People here laughed at it, but many, many cases have used just such an extremely permissive standard to uphold laws.
I can see a scenario where even Kennedy finds a way to distinguish the Perry case from both Romer and Lawrence. The law at issue in Romer "identifies persons by a single trait and then denies them protection across the board." Prop 8 does no such thing; it only says that marriage is reserved for different sex couples. As to Lawrence, it can be argued (as O'Scainlainn did in his concurrence in LCR v. USA) that the case only stands for the proposition that it's impermissible to criminalize private sexual relations between people of the same sex. Prop 8 not only doesn't criminalize sex, it doesn't stop same sex couples from living together, adopting children, nor from having their relationships recognized under the laws of California (just not as a marriage).
Any time a case goes to the Supreme Court it's risky and the stakes are huge.
27.
Malisa | June 6, 2012 at 11:38 am
<img src=http://www.mobilediscount.info/ikea/sso.jpg>Still a long way to go til the summer of 2013 though. <img src=http://www.mobilediscount.info/xbox/xss.jpg>
28.
Glen | June 6, 2012 at 11:39 am
Ultimately we need a court that is going to rule more broadly than the 3-judge panel of the 9th circuit ruled.
We need a court to basically follow through on the Walker ruling which essentially says what we know the 14th Amendment says. That all citizens are entitled to equal treatment of laws, regardless of their individual characteristics, unless there is a valid State rationale for discriminating against particular citizens.
If the 9th had ruled favorably on THAT, then that would have eliminated bans on same-gender marriage in the entire 9th circuit, and then if the Supreme Court took that up and upheld it, it would eliminate ALL bans against same-gender marriage nationwide.
29.
MFargo | June 6, 2012 at 11:44 am
In the Arizonans for Official English v. Arizona–which frequently comes up regarding the standing of the intervenors–it was only a "State" issue and has "National implications" in very much the way Prop 8 has, Justice Ginsburg wrote "Federal courts lack competence to rule definitively on the meaning of state legislation." And chided the 9th for "interfering" with State measures. Then she nailed the 9th on the Title III (standing) issue, saying that the intervenors lacked standing at "each stage of the appeal" which, in my opinion, has always been a serioius question in the Prop 8 appeals.
For me, this case invites the SCOTUS to accept the case for the same matters without even entertaining marriage equality. It will be very interesting since Messrs. Olson and Boies are savvy before the SCOTUS.
30.
Kathleen | June 6, 2012 at 11:48 am
In actual practice, states generally repeal non-complying laws or at least stop enforcing them. But any judgment in Perry only says that Prop 8 and related California laws are unconstitutional; it says nothing about a law in another state. So if a state wants to balk, it can continue enforcing its similar law and only a judicial ruling or legislative repeal will change that.
31.
Straight Dave | June 6, 2012 at 11:50 am
I completely agree. Given a choice, I would take my "Perry" money and put it the bank, then go out and look for more, rather than continuing to double down. However, that's no longer our choice. Our opponents have chosen to take this further and we have no other option but to ride along and keep battling.
So as a spectator, I wouldn't cheer too loudly for a SCOTUS appearence. The upside in 2013 is not likely to be much more than an affirmation of the 9th's ruling. That, in itself, would a big step and could be nearly accomplished simply by denying cert and taking no more risks. Maybe not exactly the same, but psychologically close enough. And it creates a firm base to build upon. Right now, the federal marriage equality foundation is still a little thin. Not the time to overreach.
32.
Jamie | June 6, 2012 at 11:53 am
Primarily, the Supreme Court is supposed to decide cases where there is a cicuit court split, ie: one circuit court has come to a different conclusion on the same issue as another (or multiple) circuit courts or where there is an issue where there is not precedent.
33.
Jamie | June 6, 2012 at 11:55 am
+1. The 9th Circuit has relied on a decision from the California Supreme Court that invented standing for proponents with no actual law as a basis. I agree that SCOTUS us likely to knock this back to the 9th Circuit for this reason.
34.
Straight Dave | June 6, 2012 at 12:03 pm
One of the points made by SCOTUS in the Arizona case was "we are not aware of any state law that grants initiative proponents standing to defend …". That's not true in Perry, where the CA SC explicitly granted standing to the proponents. Now what does SCOTUS say? They kind of revealed their answer in advance. So I don't think the standing question is enough to grant cert, unless they just want to reinforce the standing point with SCOTUS precedent.
But if they do that, then they have the rest of the case to deal with, which they might not want right now.
35.
Glen | June 6, 2012 at 12:13 pm
Given that the 9th decided to rule so exceedingly narrowly on this case (pertaining to specific circumstances of California), I see very little reason for the Supreme Court to take it up.
It's not even like Prop 8 overturned the votes of a large percentage of California voters. It was a bare majority of voters (less than 20% of California citizens as I understand) who voted to enact Proposition 8. Plus public opinion nationally and in California has continued to increase in favor of equal marriage rights. So it's not like SCOTUS would feel compelled to come to the rescue of that bare majority of California voters.
I think the only reason they would take it up WOULD be to expand the ruling. And frankly I don't think they are interested in doing that right now. I think the Supreme Court will be glad the 9th allowed them to dodge that bullet for the time being, and accept the very narrow ruling striking down Prop 8.
If they don't deny cert, then I wouldn't be particularly concerned that they are intent on overturning the 9th.
36.
Kathleen | June 6, 2012 at 12:16 pm
The California Supreme Court specifically said that proponents of a state initiative have a right (under state law) to stand in for the state when the state declines to appeal. The situation Ginsburg's dicta was responding to in the Arizona case was quite different. From the opinion: "we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State."
My point is simply that there would be no need for the Supreme Court to resolve the broad issue of whether initiative proponents, in general, have Article III standing, as that's not at issue in this case. Unlike Arizona, there is California law "appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State."
37.
ozianscott | June 6, 2012 at 12:19 pm
I love how the Supreme Court and Congress get all these summer breaks and other long vacations, while us working class stiffs have to work through the summer. So much more would get done if these people actually worked full work weeks all year. No wonder it takes forever for things to get done.
38.
Glen | June 6, 2012 at 12:23 pm
Of course often times States will keep overturned laws on the books as a symbol of defiance.
Colorado still has it's amendment which was overturned in Romer. Though there are now calls to repeal it.
Mississippi didn't officially ban slavery, by ratifying the 13th Amendment, until 1995. 1995!!
Presumably they hoped that the 13th amendment would be overturned and they could resume enslaving black people. I suppose by 1995 they finally figured that's never going to happen.
39.
MFargo | June 6, 2012 at 12:23 pm
Thanks, Kathleen. I'll sleep better
But, but…wasn't "the law" from CASC post facto? (I like to worry.)
40.
MFargo | June 6, 2012 at 12:26 pm
Dave, can the CASC "make" law? Don't they need some legislative basis for their decision?
41.
Straight Dave | June 6, 2012 at 12:27 pm
To do what? Tell the 9th to ask CA SC to provide a better reason for standing? No thank you. Been there, done that.
But If SCOTUS vacates the 9th's ruling based on lack of standing, doesn't that effectively reinstate Walker's much broader ruling and also prevent it from being appealed? Holy crap!! How did we end up there? I guess it is possible, but I never would have imagined it. Talk about roller coasters.
I really doubt that will happen for this reason. State supreme courts are considered to be the definitive authority on state law. If they say there's standing, then there's standing. And do you really think SCOTUS will go that far out of their way to reinstate Walker's ruling with no more appeals possible? There's weird, and then there's Twilight Zone weird.
42.
MFargo | June 6, 2012 at 12:31 pm
I know, B_Z. I was a real gloomy guts before they announced their decision. I would have lost a big bet on this one. But I was so pleased when it finally went our way.
43.
Kathleen | June 6, 2012 at 12:34 pm
Not really. The CASC was just clarifying what the law is in California. It had never been asked that specific question before, but it doesn't mean the right wasn't there all along.
44.
MFargo | June 6, 2012 at 12:35 pm
It's just there's all this background (DOMA) that's developed. The SCOTUS knows what's coming to them, and if Prop 8 is stricken, a whole slew of marriages are going to occur in a very populous State. I've misgivings, but at the same time I have unequivocal confidence in the Perry legal team.
45.
MFargo | June 6, 2012 at 12:47 pm
[We've been through all of this before, so feel free to ignore me.
] What I remember from the CASC's opinion was simply (and I'm paraphrasing) was the Justices saying "In California, we tend to interpret 'standing' liberally." That was in State court and they didn't offer any citation…at least that I recall.
46.
Jamie | June 6, 2012 at 1:30 pm
Since they argued that Proponents did NOT have Article III standing at the 9th Circuit, I think it's a pretty good bet that they would make the same argument at the Supreme Court.
47.
Jamie | June 6, 2012 at 1:33 pm
I don't remember the case name, but there was one that was sitting at the 9th circuit for a few years before they rendered a decision. I think it was about 5 years. They never said what took so long.
48.
Kathleen | June 6, 2012 at 1:39 pm
The CASC said it was interpreting California Elections Codes and the state's constitution. Most succinctly stated in the decision on pg 41:
… although our past decisions have not had occasion to discuss or identify the specific source of the authority possessed by the official proponents of an initiative measure to assert the state‘s interest in the initiative‘s validity, we conclude that at least in those circumstances in which the government officials who ordinarily defend a challenged statute or constitutional amendment have declined to provide such a defense or to appeal a lower court decision striking down the measure, the authority of the official proponents of the initiative to assert the state‘s interest in the validity of the initiative is properly understood as arising out of article II, section 8 of the California Constitution and the provisions of the Elections Code relating to the role of initiative proponents.
Here's the entire decision, if you want to read it again:
http://www.scribd.com/doc/73039175/S189476-Opinio…
49.
Straight Dave | June 6, 2012 at 1:39 pm
There is no citation becaiuse it isn't written. To me, it all sounded a lot like common law and "Eminences of the penumbra of … the Constitutuion" (Roe v Wade)
They wanted it to be there, so they somehow "found" it. So it is now the law of the state – "case law" I suppose.
50.
Jamie | June 6, 2012 at 1:41 pm
Agree with many of these points, but I find it hard to conceive of a situation where the Supreme Court applies their test regarding heightened scrutiny for gays and lesbians and comes up with nothing. It's always a possibility, but they would really have to contort into knots to get there.
I also wonder what a Supreme Court decision striking Perry versus what one upholding it would ignite as far as civil protests. I could easily see any Supreme Court decision saying gay people aren't a suspect class and that they don't deserve equal rights igniting a serious civil uprising at this point. I don't see the reverse happening. There may be isolated incidents, but by and large, it will pass relatively un-noticed by most Americans. Honestly, the justices must know this.
51.
NancyH | June 6, 2012 at 1:49 pm
Question. If enough signatures in Washington turned out to be phony, does that mean the marriage-equality law is retroactively instated to the original date it was suppose to be instated?
What I mean is, if the anti-marriage equality people just stuffed the signature list in-order to buy time and deny marriage equality in Washington for a few more weeks does that mean the law taking effect was never really put on hold to begin with?
52.
MFargo | June 6, 2012 at 1:50 pm
OH! NO! Not again! Seriously, thank you (as always). I'm still miffed that we had to jump through that particular hoop, but perhaps it will turn out to be to our advantage.
53.
Jamie | June 6, 2012 at 2:07 pm
But there isn't actually a law that confers standing to initiative proponents in California. In the Arizona case, the Supreme Court rightly points out that there was such a law in New Jersey to specifically confer standing to legislators to appeal laws on behalf of the state and there isn't a law in Arizona to confer initiative proponents to appeal a law. Likewise, there is no law in California to confer the rights of initiative proponents standing to appeal a law in federal courts. There is an opinion from the State's Supreme Court, but there IS NO LAW stating that they have that right. The opinion in Arizona didn't say go back to the State Supreme Court and ask them if they think initiative proponents have standing, it said that without a specific law granting standing, that initiative proponents were not authorized to appeal in federal courts on behalf of the state.
54.
MFargo | June 6, 2012 at 2:07 pm
from the Washington Post: West Coast production of "8" rebroadcast
http://www.washingtonpost.com/entertainment/theat…
CD available at: http://www.latw.org
55.
Kathleen | June 6, 2012 at 2:09 pm
It's worth noting there are only five categories where heightened scrutiny is applied: race, national origin, alienage, sex, and 'Illegitimacy.' The last new classification was added around 35 years ago. It's apparent there's a reluctance to expand this protection.
56.
Str8Grandmother | June 6, 2012 at 2:15 pm
All great thought provoking replies. If we are ever going to get heightened scrutiny this would be the case to get it with. Look not a single one of our witnesses were impeached by the other side. And look what the other side brought. Nothing. These lawyers aren't stupid, next time they will bring forth credentialed witnesses with opposing view points. They will have learned from this court case that they have to bring better witnesses. With this case the Supreme Court looks at this trial record. And this trial record looks great for our side. Terrific in fact.
I feel this case is so strong that it is a pity if it doesn't make it to the Supreme Court. AND I did read and consider everything you all wrote. But the point is this. Eventually one case will make it there, why not this case? Because the same arguments you are using to say, "Oh not this case, just getting California Marriage Equality is enough" is the same thing that can be made for every other case that will come along after this one.
New Jersey has Civil Unions I think it is everything but the word Marriage, when that court case comes up should we hope for an Appellate win that only serves New Jersey? If we follow this path that is 44 different Court Cases. Trust me I have read and understand all of your arguments. I have a deep belief in this court case and I have a different opinion than most of you. That's okay we are all entitled to our opinions, and we are not the lawyers anyway.
I think this is the best strategy, and you think that is the best strategy, we will just have to wait and see what happens, what the lawyers do, we are not the lawyers.
57.
Larry | June 6, 2012 at 2:27 pm
From what I understand, if the appeals were vacated for lack of standing, then the broad district court ruling would stand. But it wouldn't have any precedential value and would only apply to California. Since the 9th circuit's narrow ruling all but only applies to California, that part's not so bad. But it would reduce the impact on many other cases in the 9th circuit (like the Nevada case) or DOMA cases (as I recall, the Golinski decision did have a lot of references to Perry in it).
58.
Glen | June 6, 2012 at 2:56 pm
I have confidence in them too, and I think the Supreme Court would uphold the 9th Circuits ruling, if not expand it.
I just doubt they will choose to take the case given the narrow scope. The DOMA case only asks the federal government to recognize legal same-gender marriages, not have other States recognize them.
59.
Glen | June 6, 2012 at 2:59 pm
I agree, this would be a fantastic case and legal team to come before the Supreme Court. I have a high degree of confidence that the decision would be upheld (if not expanded).
I hope they do take it up, despite delaying Californian's ability to get married, and the possibility that they would overturn the 9th circuit. I think the risk is small, and the reward would be great should SCOTUS uphold or expand the ruling.
But I'm still highly skeptical they will take this case.
60.
MightyAcorn | June 6, 2012 at 3:14 pm
Sorry Glen, meant to +1 you but was confounded by fat thumbs. +1!
61.
Kathleen | June 6, 2012 at 4:22 pm
As mentioned above, the CASC says it is interpreting the state's constitution and existing elections code. The establishes state law for in the same way U.S. Supreme Court interpretations of the U.S. Constitution and federal laws become federal law.
62.
Str8Grandmother | June 6, 2012 at 4:38 pm
When are we ever going to get another Court Case where the other side brings literally NOTHING. They even said "We don't need any evidence" Any trial after this one the other side WILL bring competing evidence. I can't in my mind imagine a better trial record to bring to the Supreme Court that could in any way be better than Perry.
63.
Kathleen | June 6, 2012 at 5:11 pm
"Any trial after this one the other side WILL bring competing evidence."
Really, what evidence? They brought plenty of (what they thought was) evidence. As to witnesses, they brought the best they could find. The lack of evidence and witnesses isn't because they didn't think they needed any, but because there really wasn't any convincing evidence or witnesses to be had.
What evidence or witnesses do you think is out there that Proponents overlooked?
64.
Str8Grandmother | June 6, 2012 at 5:45 pm
Oh maybe they will trot out half a dozen people who claim to be ex-gay and their doctors will vouch for them under oath. Their wives will testify to a robust and satisfying sex life. The ex-gays claim that anybody can be ex-gay if they just tried hard enough, no need to give Civil marriage to Sexual Minorities, they can simply change if they try hard enough. This would give Scalia something to latch onto which he does NOT have in the Perry case.
You can't make a credible claim that they did scour the land looking for experts. You were not privy to their consultations. You are assuming that but you do not know if that is the case at all. It seems to me that they thought they could win without any evidence just on Baker vs Nelson and other previous cases. But I wasn't in the room with them either, so I can't claim that either.
Can you imagine a trail record with better evidence than Perry has? What evidence is missing in Perry that you think would make a stronger case?
65.
Sagesse | June 6, 2012 at 5:50 pm
The CASC decision may not have much impact for standing. No other state has California's ridiculously broad referendum law, and the state supreme court's reverence for it. SCOTUS doesn't need to take on Prop 8 just to deal with standing.
66.
Kathleen | June 6, 2012 at 5:55 pm
They presented a great deal of evidence on the issue of "ex-gays" – it's in the trial record (you know, all those notebooks they kept referring to). The problem with all that evidence is that it's been disavowed and discredited by every legitimate medical professional organization.
I'm not suggesting that there's any evidence missing in Perry. My comment was simply addressing your suggestion that the only reason there is such a paucity of evidence from the anti-equality side is because they some how were caught off guard or didn't realize they needed to present more evidence and that they'd be better prepared next time. I don't think there's any better evidence out there for them to present.
67.
Str8Grandmother | June 6, 2012 at 7:04 pm
"They presented a great deal of evidence on the issue of "ex-gays" – it's in the trial record (you know, all those notebooks they kept referring to). The problem with all that evidence is that it's been disavowed and discredited by every legitimate medical professional organization. "
Oh yes I know about the note books. However they did not bring in ex-gays to testify under oath. If half a dozen ex-gays are brought into court to testify, along with testimony from their wives, children, and doctors how the heck could an attorney knock down that testimony? That is my point, for whatever reason that neither you nor I know the other side did not bring in people to testify to that. So in Perry we don't have that, but in a future case we might have that. One case has to make it to the Supreme Court and I like this case, I can't imagine what better evidence on our side, and a complete lack of anything on their side would look like.
"I don't think there's any better evidence out there for them to present." I tend to agree with you, however I think courtroom testimony of ex-gays and their families and doctors testifying would have impact. Of course we mitigate that by saying this is rare etc etc. but nevertheless that testimony would or could, be part of a Trial record in a later case that makes it to the Supreme Court after Perry. Perry is not burdened by that, so let's get Perry in there first.
In fact if you read the DOMA decision just out today Clementi arguing for BLAG brings up ex-gay theory. I think it impacts the court differently to bring into evidence studies verses actual witness testimony.
I like Perry, I can't imagine any trial record that could be better than Perry (well unless they discover a gay gene, that evidence would trump the Perry Trial) so I want it to go all the way. We could get a sweeping decision or Heightened Scrutiny for cases that follow Perry if it is narrowly decided (which it probably will be). I don't think I'll get my wish though, I bet SCOTUS turns down cert.
God I hope we win in Maine, Maryland, Minnesota and Washington.
68.
Mike | June 7, 2012 at 3:18 am
Summer break? Is this the Supreme Court of the United States, or is it a kindergarten?
69.
Don Gaudard | June 7, 2012 at 12:14 pm
Here's why I think the SCt will take up the Prop 8 case. In cases like Diaz v. Brewer where Arizona domestic partners had benefits and then they were taken away by the State in order to save money. The 9th Circuit granted an injunction stopping the law from going into effect. There are many State Legislatures and City Councils who are in the process of taking away benefits from gays while maintaining those same benefits for heterosexuals.
To me, it makes sense for the SCt to take up both cases and deal with most of the issues all at once — I know, they don't like to do that, but by taking both these cases, many of the issues could be immediately resolved.
70.
Don Gaudard | June 7, 2012 at 12:17 pm
Mike, the SCt has gazillions of duties besides issuing opinions!! For example, each Justice is also a Circuit Judge. In an emergency, the Circuit Judge has to make an immediate decision, which means he or she has to read all the briefs, go over the applicable law, and make an immediate decision. This often occurs in death penalty cases where a lawyer files a Petition to stop the execution. The Circuit Judge handles those kinds of decisions.
This is just one of dozens of other duties they also have.
71.
Glen | June 7, 2012 at 4:26 pm
I don't think they will find a lot of Ex-gays who are willing to take the stand and be cross-examined under oath as to the validity of their ex-gayitude
Many of them are likely in a state of denial or have otherwise found ways to live the lie that they aren't gay, and given that many are probably honestly good people, they wouldn't a) want to lie under oath and b) wouldn't want to find themselves under pressure to NOT lie under oath and have their spouse, kids, and/or others hear them admit that they really DO still have attraction for the same-gender, but have simply found ways that work for them to suppress those attractions.
Ultimately that would show that sexual-orientation is innate and that some people can effectively force themselves to behave as heterosexuals, despite not being heterosexuals. And that would of course be very damaging to the Prop-8 proponents.
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