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Via Prop 8 Trial Tracker — This morning, the CA Supreme Court ruled that the proponents of Prop 8 do have standing under state law to appeal the decision in Perry v. Brown:
…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.
Also just in, from The American Foundation for Equal Rights press release:
Today, the Supreme Court of California issued an advisory opinion in Perry v. Brown that will move the state – and the nation – one step closer to marriage equality for gay and lesbian couples. The opinion, stating that the proponents of Proposition 8 have “standing” to defend Proposition 8, paves the way for the U.S. Court of Appeals for the Ninth Circuit to issue a ruling on the merits of the case, whether gay and lesbian couples have a fundamental right to the freedom to marry.
The U.S. District Court found Proposition 8 unconstitutional on August 4, 2010. The anti-marriage proponents immediately appealed the decision to the Ninth Circuit. The Governor and Attorney General of California both declined to appeal the District Court’s decision.
“We are pleased that the California Supreme Court has now responded to the Ninth Circuit’s request for advice regarding a question of California procedural law,” said Theodore B. Olson, lead co-counsel for the plaintiffs. “Important questions of federal law remain pending before the Ninth Circuit, including, most significantly, the constitutionality of Proposition 8. We now anticipate a prompt and thorough resolution of those questions by the federal appeals court, which, we expect, will affirm the trial court’s comprehensive and compelling decision that Proposition 8 violates the Due Process and Equal Protection Clauses. We hope that the long wait for justice by gay and lesbian Californians will soon be over.”
The American Foundation for Equal Rights (AFER) is the sole sponsor of the Perry lawsuit.
“Our plaintiffs’ historic lawsuit is now back on the fast track,” said AFER Board President Chad Griffin. “We are back in federal court and on the cusp of victory for loving, committed gay and lesbian couples whose constitutional rights are being violated every minute of every day. The anti-marriage Proponents have no case. We are confident that the higher courts will uphold the District Court’s opinion that Proposition 8 is unconstitutional.”
Plaintiffs will be back before the Ninth Circuit on December 8, 2011, for a hearing regarding proponents’ appeal of the district court’s decision granting plaintiffs’ motion to unseal the digital recording of the trial.
Of course the legalese can be hard to parse for the lay person, but fear not — here are some video primers on what the ruling means.
The Prop 8 case is back on the fast track with a ruling from the California Supreme Court that sets the stage for a huge victory that could come very soon. The American Foundation for Equal Rights explains.
AFER plaintiffs Paul Katami and Jeff Zarillo respond to the November 17, 2011 ruling by the California Supreme Court on standing in the Proposition 8 case. Paul and Jeff comment on the decision and the next steps in the Prop. 8 lawsuit, as well as talk candidly about their hopes and plans to marry. The American Foundation for Equal Rights (AFER) is the sole sponsor of the Perry lawsuit.
AFER Plaintiffs Respond to CA Supreme Court Ruling on Prop 8 Standing from American Foundation for Equal Ri on Vimeo.
Reactions to the ruling by LGBT and ally orgs are below the fold.
The Courage Campaign:
“While we respect the recommendations that the California Supreme Court made to the 9th Circuit Court of Appeals– that they grant standing to the proponents of the so-called ProtectMarriage.com — it is only a recommendation,” said Rick Jacobs, chair and founder of the 750,000 member Courage Campaign. “Allowing the Prop 8 proponents to have special rights in Court may open the floodgates to wealthy special interests to do the same. The judges of the 9th Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court. Regardless, we are confident that justice and love will prevail.“
National Center for Lesbian Rights:
Statement by NCLR Executive Director Kate Kendell, Esq.: “We disagree profoundly with the California Supreme Court’s holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state’s elected executive officers. Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the Ninth Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-sex couples in California have lived under the shadow of this unfair law for far too long.”
Human Rights Campaign:
HRC President Joe Solmonese issued the following statement: “With today’s decision, the case challenging Prop 8 returns to federal court and we are one step closer to ending discrimination against loving California couples. Thousands of California families remain in legal limbo and we urge the Ninth Circuit to quickly issue its decision. We thank the courageous plaintiffs, the American Foundation for Equal Rights, and the Olson-Boies legal team for their continued fight for the equality of all Californians.”
Lambda Legal:
Legal Director Jon Davidson: ”While a disappointing ruling, this case is now back in federal court, where we expect a quick victory. The ruling addresses only a procedural legal question. The key question underlying this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right. A federal court has already ruled that it may not. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry.
“Today’s ruling also does not settle the question as to whether Prop 8 proponents have standing in federal court. It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don’t. We think the U.S. Supreme Court has made clear that they don’t.”
“In the end, the proponents of Prop 8 are just people with an opinion. That does not make them entitled to stand in for the government when they don’t agree with its decisions. We believe the U.S. Court of Appeals should rule that they lack standing under federal law and, if they don’t, that the full Ninth Circuit or the U.S. Supreme Court should rule that initiative proponents are not entitled to take over the government’s role.”
And, from the side of bigotry, reaction from the National Organization for Marriage:
“It has been nothing short of shameful to see Governor Jerry Brown, his predecessor Arnold Schwarzenegger and Attorney General Kamala Harris abdicate their constitutional responsibility to defend Proposition 8 in Court,” said Brian Brown, NOM’s president. “Although today’s ruling from the California Supreme Court confirms that the proponents of Prop 8 have the right to defend their initiative when the state officials refuse to fulfill their sworn duty, it is gratifying to know that the over 7 million Californians who supported the initiative will have a vigorous defense of their decision in our federal courts.”
“With this victory in hand, it is time for the Ninth Circuit to move the Prop 8 litigation forward to its eventual decision by the US Supreme Court,” Brown said. “We fully expect the Ninth Circuit, the most overturned court in America, to invalidate Prop 8, finding some phony right to same-sex marriage in the US constitution. However, once this case gets out of San Francisco and reaches the US Supreme Court, we fully expect to be victorious.”
21 Comments
NOM’s Brian Brown is up to his usual rhetorical deceptions, asserting that elected officials have a “constitutional responsibility” to “defend” anti-gay bigotry, when in fact, they do not have any constitutional responsibility to abet Brown in perpetuating the irrational hate and bigotry. On the flip side of Brown’s bigot coin is his assertion that where sexual orientation apartheid laws are found unconstitutional by the courts, sexual minorities are being given “phony” rights. In addition to making sober-minded counter-arguments to Brown’s “phony rights” anti-gay hate speech, somebody should be getting up in his face to say “Phuck you!” Behind the technical legal questions there is Brown’s and NOM’s fundamental lie — that including gay and lesbian married couples in American families’ circles of love will harm society. All of NOM’s and Brown’s bullying non-acceptance of gay human beings . .. for what? All this wasting of court resources . .. for what? To indulge NOM’s fantasy that we can be bullied back into the closet? Again, to Brown and to NOM, with their claims that our struggle for justice involve “phony” rights: Phuck you!
Another mixed bag on its way to SCOTUS? What do the mavens think will be the gist there? Will it be a clear cut issue of human rights driving all, or a more plebian finding about how the CA constitution can or cannot be changed and for what?
Gov’t needs to get out of the marriage business entirely at all levels, but there’s no clear path how that will come about, or not. Maybe we’ll find out this time.
I’ve only been following this case since Teddy Partridge caught my eye.
I even went to Pasadena that morning when we told that it would be live satelitted, or something, only to find out about the injunction once I got there.
Have been following the posts at FDL about the latest whatevers to delay a decision, but I’ve always seen this as a SCOTUS decision.
I don’t understand how this advances marriage equality. The opponents are getting another bite at the apple. Strikes me that’s exactly the opposite.
As for the LOL ‘fast’ track. Wasn’t the trial a year ago, and the next step occurs a year later? What’s fast about that?
Walker’s decision is the best, most solid vehicle for a favorable ruling from the supreme’s. We couldn’t ask for better.
The last thing we wanted was no standing. That would mean the case ended in Calif. We can get a national ruling out of this and that’s what we want.
We know we won’t get Thomas, Scalia, or Alito. We can be fairly confident we’ll get Sotomeyer, Kagin, Ginsberg and Breyer. I have heard from several people who are court watchers that Robert’s vote IS in play. Kennedy’s vote most certainly is, he’d almost have to overrule some of his earlier decisions to vote with the conservatives. And Walker wrote his decision with that in mind.
This is GOOD.
Boxturtle (Anyway, it was a citizens initiave so any Calif citizen should have standing)
Prop 8 is bad, but this ruling is good. Initiatives should be able to be defended in court by their sponsors, not left up to who is in office. Conversely I don’t think initiatives should have to be defended in court by the government.
Oh, no doubt. Eventually, some elected judge will rule as his voters desire and uphold one of these laws. The supremes would have to resolve the conflict. It’s a question, getting Walkr to the supremes will be much quicker.
Will the D-I’s make a strategic NOT to take it to the supremes if they lose? That would have the decision stand only in Ca. Would the haters sacrifice Ca to keep Ala and Tx a little longer?
Boxturtle (I’m already lusting to see the Supreme court filings)
Yeah, “phoney rights” = anything THEY disagree with or want to misinterpret.
The on;y thing they could really get is that lesbians can’t marry as the Constitution guarantees “all men:” equality” in the US….which is phoney and has been ever since the founding. In fact, what I see us working towards is getting rid of that little caveat. We almost did it in the 70′s with the ERA….only one state.
Now, if we could gin up enough outrage at the attack on women’s rights as we do for us queers, maybe if we still had a democracy we could get somewhere…..but I guess the dog ate our homework
the legal system is just a few notches below a kangaroo court and SCOTUS is the mother of all kangaroos. My friend works at a big prestigious law firm and tells me all the time how huge corps use he legal process and their behind the scenes power to win cases, including getting judges that are all too willing to help them win.
I’ve thought that for a long time.
Only in this case, with Olson on the side of gay marriage, it’s not certain in advance where the fix is in.
I’m sure that behind Brian Brown and NOM is the sure and certain thought that eugenics are a legitimate way to improve the Christian Evangelicals and our Country. LGBT in their world is a subset of eugenics and would cry just as loudly if the ignorant/bigoted electorate voted for and had a eugenics Proposition overturned.
I actually got the impression Olson-Boies wanted it to go higher in the courts to see if they could ultimately get a positive ruling that would apply beyond California. Even NOM acknowledges the 9th circuit is likely to invalidate Prop 8, so I guess then the question is whether the Supreme Court would hear it. If they don’t, then it’s gay marriage just for CA. But if they do and Prop 8 is found unconstitutional, then I think it’s gay marriage for every state, correct?
The other way I look at this is if an initiative I like passes someday, a court challenge ensues and a conservative governor/AG choose not to defend against the challenge, I would like my side to have the ability to fight it. Sometime you have to take the bad with the good.
I may be mistaken about how the appellate system works, but I always thought that if the 9th Circuit ruled on something it applied to Arizona, Alaska, California, Oregon, Washington, Hawaii, Nevada and Idaho, not simply the locale from which the case originated. Or does that quality exclusively reserved for cases that make it to the SCOTUS?
Since the 9th Circuit is the largest, I’m hoping it is the case that a decision for equal marriage will be applied to the entire jurisdiction. Almost 20% of the population of the US!
ETA: Okay, guess I forgot Montana, Guam and the Northern Marianas in the 9ths jurisdiction.
A legal referendum that the state chooses not to defend because the AG and gov don’t like the results of said referendum is the height of arrogance. The stat had a duty to defend the decision of the voters. I would hope that SCOTUS will have the sense to rule that same-sex “marriage” is not a civil right.
This case was designed by the Olson-Boies team to be decided by Justice Anthony Kennedy. Its arguments and central points are aimed right at him. That’s why standing is so important, so that the case can be decided at SCOTUS. It’s also why I fail to understand the position AFER has taken, opposing the defendant-intervenors’ standing to appeal the case.
It makes no sense that this team developed their case to appeal to a specific justice on SCOTUS and then argued not to let the proponents defend their proposition on its way to SCOTUS. How would Justice Kennedy ever get to look at the case unless Walker’s ruling is appeal to our highest court?
I don’t so much have a problem with the state not having to pay to defend an initiative, but I would have a very serious problem if politicians could kill initiatives. Initiatives are meant to be driven by the public outside of the politicians and it would defeat the entire purpose of the concept of initiatives if politicians could then go and kill initiatives by letting get challenged in court undefended.
These days, “are meant to be” a cost-effective way for people who have a lot of money and a willingness to lie their asses off to the public to enact legislation that the actual elected representatives can’t undo. (That’s the thing about the “initiative constitutional amendment” process — if you can deceive a 50%+1 majority of people into voting for it, you have not just a piece of legislation but a piece of legislation immune to the normal processes of representative democracy. And voters are somewhat less inclined to overturn an amendment than they are to enact one in the first place, so it’s relatively cheap to defend a bullshit constitutional amendment, especially when you have more money than the people your amendment is designed to screw over. Remember, there’s no truth in advertising law for political campaigns — so you can lie your ass off and then run an “irrational basis” legal campaign to keep your law enforced for as long as possible.)
If it stops where it is now, the only positive change it could have is within California. If it gets shot down in federal court, it would be a victory for the entire country, even in states where marriage equality has a snowball’s chance in hell of being passed at the moment.
Bear in mind that since this is an appeal, (and correct me if I’m wrong) no new evidence can be introduced for consideration. This is important because A) Olson and Boies made an extremely compelling argument for the prosecution with lots of science to back it up, B) the defense for Prop 8 was beyond weak and pathetic, and C) Judge Walker’s decision was airtight, and he used the strongest scrutiny for whether the law was unconstitutional, which is important because the appeal process is basically deciding whether there is a compelling reason to overturn his decision, meaning he’s kinda “set the bar”.
Basically, we’re not going to get a more solid chance at a judiciary branch victory than this. If it goes all the way to the SCOTUS and we win, we win BIG. If we lose, then states are allowed to outlaw marriage equality by popular vote… which is what has happened in most states already, so I don’t see much to be lost there.
@eCAHNomics-
One of the cases I follow was filed more than 8 years ago and is still awaiting a decision on the trial court level.
In other words, “fast track” is relative.
As for your other comment, the theory is that this is such a strong vehicle for marriage equality that it is highly likely to win in any court. If this is true, the higher the level of the appellate court, the better the chance on a larger portion of the country being affected by the ruling – in other words, a ruling from the Ninth Circuit similar to Walker’s opinion should help in the entire Ninth circuit – which is more than just California. A ruling from the Supreme Court similar to Walker’s opinion should help in the entire U.S.A.
That said, I’m less optimistic about the ruling in the Supreme Court than many watchers of this case are. In my opinion, as far as marriage is concerned, we only had one confirmed ally, and she left the court.
Check out the timelines of other major Supreme Court cases, or even high profile civil suits. This IS the fast track. Five years from initial incident to Supreme Court ruling is a fairly speedy one. Loving v Virginia, the current gold standard of marriage cases, took nine years. Brown vs the Board of Education, a landmark anti-discrimination suit, took only three years.
So getting it to the Supreme Court by 2013 or so would be quite prompt.
As to how it advances gay rights, if it had (and may yet) died for lack of standing, marriage would be reinstated in California, but nowhere else, and the decision, while a great model for future cases, wouldn’t be binding on anyone else. If it goes forward and we keep winning (and the bad guys sure have a pretty weak case), it will potentially apply to more and more of the country, Even if a higher court doesn’t specifically apply it directly to other states, it will still serve as a precedent and a clear higher court ruling. If, for example, the 9th circuit declares that California can’t deny same-sex couples equal marriage rights because it violates the US Constitution, it might not automatically apply to the other west coast states, but it sure as hell would after the immediate lawsuits that would be instantly filed.
I don’t know how anyone can see this as a fasttrack. Heck, a lawsuit about the Health Care Law is already heading and been accepted by the SCOTUS.