On Thursday, Judge Vaughn Walker denied gay marraige opponents’ motion for a stay of his ruling in Perry v. Schwarzenegger declaring Proposition 8 to be unconstitutional. One of the reasons offered by Judge Walker was that he doubts whether Prop. 8′s defenders have standing to appeal his ruling. Although Judge Walker allowed them to intervene in the case to defend the ballot proposition’s constitutionality when California Attorney General Jerry Brown refused, he does not think they have the requisite interest in the case to satisfy the requirements of Article III standing. This raises some interesing issues, which I discuss below the fold.
Judge Walker wrote in part:
As official proponents under California law, proponents organized the successful campaign for Proposition 8. . . . Nevertheless, California does not grant proponents the authority or the responsibility to enforce Proposition 8. In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would
appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages. While the court has ordered entry of a permanent injunction against proponents, that permanent injunction does not require proponents to refrain from anything, as they are not (and cannot be) responsible for the application or regulation of California
marriage law. See Cal Health & Safety Code § 102180. The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.” Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific
harm they may suffer as a consequence of the injunction.
Judge Walker goes on to explain that, although he did not address Prop. 8 proponents’ standing to intervene at trial, their intervention does not necessarily confer them with standing to appeal.
If Prop. 8′s proponents lack standing to appeal, it’s possible that Judge Walker’s decision would be dismissed. As Time reports:
at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet’s nest he may have been better off leaving undisturbed. “If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial,” Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. “This is an issue he glossed over when he allowed them to intervene in the trial.”Amar says that if the Ninth Circuit agrees with Walker that the proponents don’t have standing to appeal, the judges may well decide they shouldn’t have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene — but on the other hand, come November, voters will choose new candidates for both of those offices.
In that event, what happens next is anybody’s guess. “We’re in uncharted waters here,” Amar told TIME.
While standing to intervene and standing to appeal are not the same thing, if Prop. 8 proponents lack standing to appeal Judge Walker’s decision, I don’t see how they would have had standing sufficient to intervene and provide the primary defense of Prop. 8 in the first place, and without their standing, there would have been no case or controversy and no basis for the trial. In cases with which I am familiar, where intervenors lack standing to appeal a decision it is usually because the court decision did not directly affect their legal interest; an intervenors interest at trial may not be the same as its interest on appeal, depending upon how a case is resolved. Here, however, the interest Prop. 8 proponents defended at trial is precisely the same as that which they would seek to vindicate on appeal. Ed Whelan has further thoughts here.
In Arizonans for Official English v. Arizona, cited by Judge Walker, the Supreme Court expressed “grave doubts” whether ballot initiative proponents had “standing under Article III to pursue appellate review.” The Court did not resolve the standing issue, however. It found the case moot and ordered it dismissed. In its discussion of standing the Court went on to explain that the initiative proponents were “not elected representatives, and 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. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated.” Prop. 8 proponents, on the other hand, argue in their emergency motion for a stay that initiative proponents do have a right under California law to defend the proposition.
The California Supreme Court has granted the application of initiative proponents to defend initiatives they have sponsored but the State Attorney General and other public officials refuse to defend—indeed it has done so with respect to these Proponents and Proposition 8. See Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009); Order of Nov. 19, 2008, Strauss, Nos. S168047, S168066, S168078 (Cal.) (Doc. No. 8-10). California law thus allows proponents to defend initiatives they have sponsored when government officials “might not do so with vigor” in order “to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” Building Indus. Ass’n v. City of Camarillo, 718 P.2d 68, 75 (Cal. 1986). Thus, Proponents may directly assert the State’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing. See, e.g., Maine v. Taylor, 477 U.S. 131, 136-37 (1986); Diamond v. Charles, 476 U.S. 54, 62 (1986)
They further note that, under Diamond, state law may “create new interests, the invasion of which may confer standing.”
Another interesting twist is that Judge Walker denied the motion of Imperial County, California, and its officers — including the Deputy County Clerk — to intervene in defense of Proposition 8. (Curiously, however, he did not rule on this motion until the day he issued his decision; the order, Document No. 719, is not posted on the court’s “Case Filings and Documents of Special Interest” page.) Why does this matter? Under California law, the county clerk is a “commissioner of civil marriages” who may appoint “deputy commissioners of civil marriages who may solemnize marriages,” and is also responsible for issuing marriage licenses. As a consequence, the Deputy County Clerk’s official duties are controlled by Judge Walker’s decision — she must now issue marriage licenses to gay couples even though she believes this is contrary to valid state law — and this would seem to be sufficient interest to support standing on appeal. Imperial County and its officers have also filed notices of appeal of both Judge Walker’s ruling on the merits and his denial of their motion to intervene. As Prop. 8′s proponents argue in their emergency motion:
The district court denied Imperial County’s motion to intervene on the ground that it would not have standing to appeal an adverse judgment because the County’s “ministerial duties surrounding marriage are not affected by the constitutionality of Prop 8.” Doc. No. 709 at 17. This assertion is patently incorrect and almost certain to be reversed on appeal. True, Imperial County’s duties with respect to marriage are “ministerial,” but what that means is that they are directly controlled by operation of California law, including Proposition 8. See Lockyer v. City and County of San Francisco, 95 P.3d 459, 472-73 (Cal. 2004). Indeed, if a same-sex couple approaches Deputy Clerk Vargas for a marriage license, the constitutionality of Proposition 8 not only affects, but directly controls Vargas’s ministerial duty to grant or withhold the license. And if Vargas objected to Proposition 8’s constitutionality, California law vests her with “standing to bring a court action to challenge” it. Lockyer, 95 P.3d at 486 n.29 (emphases omitted). It would make little sense to maintain that Vargas has standing only to challenge, but not defend, the laws that govern her official actions. Indeed, a county clerk is not only a proper defendant in this action, but a necessary one. See Walker v. United States, No. 08-1314, 2008 U.S. Dist. LEXIS 107664, at *9 (S.D. Cal. Dec. 3, 2008) (dismissing suit challenging California’s ban on same-sex marriage that named only the Governor and Attorney General as defendants because “Plaintiff does not allege that either the Governor or the Attorney General were charged with the duty of issuing marriage licenses or directly denied him such a license in violation of the Constitution”).
As an academic, I find the standing issues in this case quite fascinating, and I will be very interested to see how they are resolved. If I had to guess, I ‘d say the Ninth Circuit will find standing, if not for Prop. 8′s backers at trial then for Imperial County, and the case will proceed accordingly, but we’ll see.
mahtso says:
If Imperial County is found to have standing, would that require a new trial?
August 15, 2010, 11:19 amChris Travers says:
So what does it mean if the decision is dismissed? Do you mean vacated or reversed?
I mean, the state refused to defend their laws, what then? The law doesn’t stand just because the state thinks it is unconstitutional, does it? That would be even more irrational than the argument struck down in South Dakota v. Dole, namely that the success of a law was a primary measurement of how coercive it was. Wouldn’t reversing the decision on the basis that it wasn’t really defended mean that the same logic was applying in reverse?
August 15, 2010, 11:29 amMalvolio says:
Huh. If no one who has both standing as appellant and the desire to appeal can be found then … what?
Could the ruling denying the intervenors standing simultaneously void the original trial? That sounds implausible (to me, who knows next to nothing about civ-pro). On the other hand, if the intervenors don’t have standing to appeal, who would have standing to move that the trial be voided? Would the Circuit Court do it sua sponte?
Assuming the district court’s ruling stands, Imperial Country could simply refuse to issue marriage licenses to same-sex couples. If anyone sued the county (or filed for a writ of mandamus, a “writ of mandate” as it’s called in California), then the country would have standing and the whole goat-rodeo could start all over. Maybe the state would be checkerboarded into gay-friendly counties that will issue licenses and gay-unfriendly counties that won’t and nobody tries to sue any of the gay-unfriendly ones so as to preserve the status quo.
Jeez, that might be the best solution: gays get to marry (though they may have to drive 20 miles to do so) and gay-haters get to pound their chests and hoot, “Not in my county”.
August 15, 2010, 11:40 amAttorney-in-training says:
So in your mind, what will happen if the Protect Marriage folks do have standing? The Gov. and the Atty. Gen. have declined to appeal. Will they be dragged into an appeal unwillingly, or will this case become Perry v. Protect Marriage? If so, can the 9th Circuit or the Supreme Court order the governor to carry out certain things, when he is no party to the case? Can Protect Marriage be a
August 15, 2010, 11:51 amChris Travers says:
Well, this raises a number of other questions too.
If the appeal is thrown out for lack of standing but the trial court opinion remains, wouldn’t another proposition which holds “We, the people, find the California Marriage Amendment to be Constitutional and obligate the state to defend it?” What then? How do res judicata and friends work in these cases in federal court?
ISTM that this case is about to get really interesting, not so much for the substantive Constitutional issues (if they get that far) but much more likely for the all the procedural, separation of powers, etc. rules that are going to have to be looked through before one even gets to that point.
August 15, 2010, 11:52 amAttorney-in-training says:
As for Imperial Valley’s standing, the Supreme Court has held that actual, imminent injury is necessary for standing. The mere belief that they are not issuing marriage licenses according to valid state law, aside from being incorrect (as state law has to be in harmony with federal law), in no way confers standing on Imperial Valley.
August 15, 2010, 11:54 amMichael Ejercito says:
Ed Whelan has been very critical of Judge Vaughn Walker’s conduct.
One might think that the only reason for this criticism is his disagreement with the ruling as a matter of law. And yet, Whelan never leveled similar criticism towards Judges Joseph Battailon and Tena Callahan.
Not necessarily.
It would be vacated.
Article III requires a case or controversy. In Moore v. Charlotte-Mecklenburg Board of Education, the Supreme Court dismissed a case, stating,
I do not know if both conditions mentioned in Moore are required, or if only one condition need to be met.
August 15, 2010, 12:00 pmJoe says:
As to Imperial Valley, that’s a bit confusing. Mayor Newdow once claimed the right to supply marriage licenses to same sex couples because it was the constitutional thing to do but later to my understanding the state courts held that the state itself set marriage policy. What gives an inferior official here an independent right to sue when the state position is that a stay should not be in place?
From my vantage point, though the nuances and real life arbitrary nature of these things really makes it an open question, this seems different from the Arizona case in that there appears to be a specific state law that gives standing to the intervenors here. I might be wrong on that, but at least, that seems like what has to be addressed. The California ballot system would make such a standing provision logical where it might not be in some other state.
One legal analyst also noted that the governor at the trial level did not argue the law was unconstitutional; he was on a different ground from the attorney general on that point. In effect, the governor was agnostic, which seems to me like accepting the legality of the law until the judge decided. It seems acceptable in that case to let some other party stand in to defend the law. And, there was no challenge to them doing so.
I’m speaking loosely here, I realize, but overall it seems that it is quite possible (plus reasonable) to find a way to justify the adversary trial proceedings while holding either that the state now firmly opposes an appeal (end of case) or that California law provides an interest for the parties here that want to appeal (the best result on policy grounds, imho, but I’ll wait to see if it comes to play legally).
August 15, 2010, 12:06 pmSteve says:
As a consequence, the Deputy County Clerk’s official duties are controlled by Judge Walker’s decision — she must now issue marriage licenses to gay couples even though she believes this is contrary to valid state law — and this would seem to be sufficient interest to support standing on appeal.
Are you really saying that if a state official disagrees with the instructions they’re given, they have standing to sue the state? The state can sue itself?
August 15, 2010, 12:06 pmRoscoe says:
So the Judge doesn’t think the proponents have standing, but he allowed them to intervene to defend the proposition? And, having denied intervention to a party that did have standing, he now contends that the lack of standing of the party he did allow to intervene makes his decision appeal proof?
That result might be technically correct, but it is way too cute. I can’t imagine that the higher courts are going to let the decision stand on this basis.
August 15, 2010, 12:09 pmDuffy Pratt says:
If the lack of standing rests on Article 3, and not on the broader prudential doctrine of standing, is there really a difference between standing to intervene and standing to appeal? I might be able to see how there could be a difference when dealing only with prudential standing. But if it’s actually derived from Article 3, its hard for me to figure out how “Case or Controversy” comes up with different results in the two situations.
On the face of it, it does look like an odd result to tell a party that its OK for them to come into a case and lose, and be bound by that loss. But they can’t also take the same sort of appeal that any other party who got into the case by another mechanism could take. As I recall, the rules of procedure are supposed to be simply procedural and not effect substantive rights. I’m pretty sure that the right to appeal is substantive. But intervention is largely, if not entirely, a procedural right. It governs only how someone may enter into a lawsuit.
August 15, 2010, 12:10 pmMichael Ejercito says:
Yes, they do.
It was noted in a footnote in Lockyer v. City and County of San Francisco. See also Board of Education v. Allen, where the Supreme Court recognized the standing of school board officials to challenge state laws that they believe are unconstitutional.
A county clerk, charged with issuing marriage licenses and believing that Proposition 8 is constitutional, thus has standing to defend it in court.
August 15, 2010, 12:16 pmChris Travers says:
Ok but here you have a problem. Both litigants want the same result but the result is court action, namely striking down a law and not something the litigants can do just by cooperating.
The result of holding that Moore v. Charlotte-Mecklenburg Board of Education applies to this case would be that any law that the executive declares Unconstitutional would be by nature Constitutional. That’s about as absurd a result as would have happened if the court had, in South Dakota v. Dole, held that the success of a law could be used as primary evidence of its overreach.
I don’t see how one can hold the success or lack thereof of the law as evidence of either Constitutionality or lack thereof. More importantly, I don’t think one can hold ineffective defence by the state of a law as evidence of constitutionality any more than one can hold success as evidence of unconstitutionality.
I think this case is about to get really interesting, though probably mostly from a law-geek perspective.
August 15, 2010, 12:17 pmChris Travers says:
But how would this get to federal court? Wouldn’t it get handled under state court which put it bound by the recent CA Supreme Court decisions on Prop 8?
What I am getting at is whether this would deny the litigants any reasonable recourse to the federal courts.
Was there any objection by the state to their intervention at trial? Would a third party intervenor have a right to appeal over the judgement of the litigant when standing in for the litigant at trial?
August 15, 2010, 12:20 pmSteve says:
You need to make less of a showing to intervene when there’s already a live case or controversy. There’s quite a few cases, including a Supreme Court decision, Diamond v. Charles, 476 U.S. 54 (1986), which stand for the proposition that a party who has grounds to intervene may nevertheless lack standing to appeal.
It strikes me as unfathomable that the Prop 8 proponents didn’t have the ability to intervene as of right to defend the results of their ballot initiative. While there is normally a presumption that the State will defend a law, the presumption doesn’t apply where a ballot initiative was at odds with the State’s preexisting position. Plus, I’m not even sure how the Ninth Circuit would get to the point of determining that the motion to intervene was improperly granted, because no one is going to make that argument.
August 15, 2010, 12:23 pmRoscoe says:
It is a puzzle. I agree that the Case or Controversy requirement only permits a court to strike down a state law if there is a party with standing willing to zealously defend the law. I think the answer to the puzzle is that the Gov and AG should have recognized that it was their job to defend the initiative and had the political courage to do so, in spite of the fact that they didn’t agree with it.
August 15, 2010, 12:29 pmAlessandra says:
You’re wrong there. In just about every country where homo marriage was legalized, the overwhelming majority of homos shunned marriage completely (about 99%). That’s when it was completely available to them at their doorstep. But when you have too many profound anti-marriage attitudes and behaviors, marriage is only important as a media circus to shove the normalization of homosexuality down society’s throat.
So if homos have to drive 20 miles, they will refuse. They will prefer to waste everyone’s time with another lawsuit and to flout their little propaganda circus in the media ad naseum.
As an added benefit, you will continue to beat your chest, bashing any marriage supporter as a “hater.” There’s no doubt this is what you will choose.
August 15, 2010, 12:30 pmChris Travers says:
I’d agree. Hence my concern about separation of powers issues. My concern about denying remedy in this case though is that it could very easily be gamed.
For example, pass restrictive gun control law. Tell the courts it’s clearly unconstitutional and they should strike it down. Then the courts can’t strike it down because the state is unwilling to defend it. They could even enforce it and tell the appellate court to strike down the law in every case, which would mean that the court couldn’t do this.
That strikes me as very, very wrong.
Imagine what the state could do when passing a law making it a crime to criticize the government…..
August 15, 2010, 12:34 pmKen Mitchell says:
But doesn’t current Attorney General – and Governor-wannbe – Jerry Brown have a DUTY to enforce the laws of California, as expressed by the results of the initiative? And might his refusal to do so have consequences in November? We can hope!
August 15, 2010, 12:34 pmMichael Ejercito says:
No, simply that the court will not decide on the constitutionality.
Allen reached the Supreme Court.
In any event, San Francisco was a plaintiff-intervenor in Perry v. Schwarzenegger.
In Karcher v. May, the Supreme Court ruled “[s]ince the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant appellant.”
And the state of California permitted the proponents to defend Proposition 8 against a revision-based challenge in Strauss v. Horton.
August 15, 2010, 12:36 pmOrder of the Coif says:
If this is true, Charles Dickens was correct in writing “If the law supposes that, then the law is a ass, a idiot!” Or at least this judge is.
August 15, 2010, 12:38 pmpublic_defender says:
I don’t know how the standing issue will fall out, but my guess is that lots of less-than-well-informed commentators will fulminate that it obviously goes one way or the other. Standing questions are more likely to evade personal bias of judges because limited or generous standing rules can cut any ideological way. That said, conservative judges tend to be stricter on standing, and Walker is a Reagan nominee/Bush appointee, so it makes sense that he would take a stricter line on standing.
One interesting factor here is that it appears that the Prop 8 supporters did not address standing or allege a harm in their appeal-related motions. A claim of harm may have given them standing to litigate at trial, but if they didn’t even claim a harm in their motion for a stay, that could make it easier to find a lack of standing or, on the merits, that when balancing the harms of granting or not granting a stay, that there is no reason to grant a stay since the litigants haven’t explained why they would be harmed.
As to intervention by local officials, I haven’t seen what their interest is. As others have pointed out, government officials performing ministerial tasks have an interest in following the law, whatever that might be. If federal constitutional law renders a state law invalid, I don’t see how local officials have a legitimate interest in enforcing the invalid law.
One guide for readers who want to sort through to the correct answer: If someone writes that the answer is “clear” or “obvious,” that person is probably an ideologue who is just trying to score points.
August 15, 2010, 12:39 pmMichael Ejercito says:
It was indeed his duty.
At least Texas has an attorney general willing to do his duty, as he appealed a ruling from a Texas Family Court that the Texas marriage amendment is unconstitutional (In the Matter of the Marriage of J.B. and H.B.) and the ruling on the appeal is due from the Texas 5th Circuit. (The ruling will address if the Texas marriage amendment forbids divorce to same-sex couples married in other states, and if the Texas marriage amendment is constitutional should the court find that the Texas marriage amendment would forbid the divorce.)
The controversy will come up as soon as someone is prosecuted for violating the law.
August 15, 2010, 12:40 pmDave N. says:
As I have said on other threads, Judge Walker is being too clever by half. I predict a major smackdown on the standing issue from either the Ninth Circuit or the Supreme Court.
August 15, 2010, 12:42 pmJim Ancona says:
IANAL, but doesn’t this standing decision, if upheld, gut the whole initiative process? If the executive can refuse to defend any initiative it disagrees with, and no one else has standing, then the whole process is rendered effectively advisory. Some opponent can file suit, the executive refuses to defend it and since no one else can intervene, the court overturns the initiative.
I’m suspicious of the whole idea of government by initiative (heck, I have doubts about direct election of senators), but if a state is going to have it, doesn’t simple logic require that someone be allowed to defend initiatives when they are challenged in court?
August 15, 2010, 12:43 pmMichael Ejercito says:
They may believe that the federal court erred in its ruling (this is not an issue when the U.S. Supreme Court strikes down a law as unconstitutional).
In Board of Education v. Allen, several school boards challenged the constitutionality of state laws. I fail to see how public officials charged with administering and enforcing laws have standing to challenge, but not defend, state laws.
August 15, 2010, 12:45 pmMichael Ejercito says:
His conduct in this issue is questionable.
Judges Joseph Battailon and Tena Callahan did not engage in similar questionable conduct (and Callahan had refused to stay her ruling, which would cause problems if the appellate courts fully reverse her ruling.)
August 15, 2010, 12:47 pmChris Travers says:
How is that different?
Suppose New York passes a law making it a crime to verbally defend or glorify the 9/11 hijackers or Al Qaeda. They then start arresting people and in pre-trial motions, the prosecutor urges the judge to strike down the law as Unconstitutional. When the verdict is appealed the court again, in the appellate phase, argues that the law is blatantly Unconstitutional and should be struck down. Under this theory, the law could never be struck down because the court could never decide the constitutionality of the measure. That strikes me as absurd and dangerous.
Wouldn’t that have the effect of foreclosing any defence on the basis that the law is Unconstitutional? Wouldn’t that make the law essentially Constitutional?
August 15, 2010, 12:50 pmSteve says:
Everyone, aside from maybe Prof. Adler, agrees that the initiative proponents have a right to intervene to defend the initiative.
August 15, 2010, 12:55 pmSteve says:
If the prosecutor thinks the law is unconstitutional, the proper remedy is to dismiss the indictment.
August 15, 2010, 12:57 pmBZ says:
“Law geek”??!! Chris, that hurts! I haven’t responded in public to any of these suggestions, including Judge Walker’s, but since it is my friend Adler who brings this up now, here we go:
Arizonans for Official English was my case. Since this issue was raised, I have corresponded privately with several commenters, and found that most agree with me and Michael Dorf: there are significant differences between AOE and Perry. (Note: Dorf was law clerk to Judge Reinhardt when I argued the standing issue to the 9th Circuit, and Reinhardt wrote the opinion finding standing — one of several 9th Cir. opinions in that case.) Most important for the discussion in this thread is that AOE, the initiative proponent, was not part of the District Court proceedings in its challenge, but intervened AFTER judgment, an extremely rare procedure which requires more than the usual standing analysis (and which most practitioners don’t even know about — so maybe “geek” is appropriate, though it was merely necessity, not proclivities which gave rise to the invention in that case).
The standing issue was heavily briefed and argued in AOE. The vast majority of the pre-argument moots (which included, by the way several future judges and judicial nominees) were taken up with the standing argument; the SG’s amicus brief said there was no standing. The Chief introduced me at OA by saying that the Court very much wanted to discuss the standing issue. Justice Scalia provoked laughter in the room by pointing out that the proponents wanted “to be here, but I don’t think they can be here.” (It is, by the way, an awful feeling to be standing at the podium hearing the audience, and the Justices, laughing at your expense.)
Nevertheless, Justice Ginsburg could not get five votes to deny standing, even against a Reinhardt opinion, which she dearly wanted to do to preserve the decision below (remember, it was intervention after judgment). The decision went off on mootness, which really wasn’t even argued and barely briefed.
When Justice Stevens, as he often did, asked me at the end of argument what I wanted the Court to do, I asked that they decide the merits, but if they couldn’t, that they vacate all the way down. They did, with a relatively unusual citation to Munsingwear, which holds that a vacated case should spawn no consequences because the reasoning was not upheld. Nevertheless, the AOE decision below (9th Circuit) continues to be cited (inappropriately in my view), as does the dicta on standing in the Supreme Court decision.
August 15, 2010, 1:00 pmMichael Ejercito says:
The judge would ask the prosecutor why the charges are not withdrawn.
True.
But there is abuse in the other direction as well, if state officials can effectively bypass the legislative process by arguing that a law is unconstitutional and that no one else has standing to defend the law if a second party challenges the constitutionality. This would amount to an effective judicial veto.
August 15, 2010, 1:01 pmChris Travers says:
How would this be different from gutting the legislative process too? Personally I am really interested in the separation of powers issues that come up when the executive refuses to vigorously defend a law.
August 15, 2010, 1:03 pmCommentus Anonymus says:
Federal constitutional law does not render Prop 8 invalid, one clearly biased “judge” just made it up. In a more rational society, this “judge” would be impeached, and the matter would be over. Of course, in a more rational society, the whole idea of redefining marriage wouldn’t be seriously considered, let alone that absurd notion that the constitution requires such a thing.
August 15, 2010, 1:03 pmChris Travers says:
Your Honor, this law is blatantly Unconstitutional. There’s simply no defence that can be made that the law is Constitutional. We are prosecuting this case in order to get this court to rule that the law is Unconstitutional. Please help us out and just strike down the law. Indeed, if you don’t do so, we will continue to arrest people on Friday night for violating the law and holding them until they can be arraigned on Monday.
August 15, 2010, 1:04 pmrobert says:
California voters passed a law, and the AG and Governor do not intend to enforce it.
That is a matter to fight over in state court, and it is the only reason California gives standing in its courts to proposition backers.
The proposition backers do not have standing in federal court. With no one to enforce the law, the case is pretty much moot. Judge Walker’s show trial was for no purpose.
Imperial County’s standing argument fares no better. The federal case is moot, they are not subject to any sort of order that they issue these licenses. The only way they could be in this case, is if they refuse to issue someone a license and those persons sue them- then you’d have a real live Article III case.
tl; dr; Judge Walker fails standing. The case should’ve been thrown out.
August 15, 2010, 1:07 pmGuy says:
Doesn’t seem cute to me, the proposition that someone can essentially force a state to appeal an injunction against it against that state’s will is extremely bizarre.
August 15, 2010, 1:08 pmChris Travers says:
Yep, that’s a major concern I have. As I say, the separation of powers issues here seem very interesting and complex. I think this is about to become quite interesting in terms of what will have to be decided procedurally. I don’t know if this has frequently come up before, so many of the issues could, in fact, be quite novel.
It will be a fun case to follow.
August 15, 2010, 1:10 pmMichael Ejercito says:
How many judges would actually tolerate such conduct?
“If you believe that this law is unconstitutional, you can either drop the charges now, or file for an injunction to prevent the state attorney general’s office from enforcing this law.”
August 15, 2010, 1:12 pmMichael Ejercito says:
And also,
“Indictment is dismissed for prosecutorial misconduct.”
August 15, 2010, 1:14 pmGuy says:
It’s possible that a legislature could pass a law to give itself standing to sue (Congress has passed laws giving itself standing during inter-branch conflicts before, I don’t think the Supreme Court has said whether these are valid but I would think that they usually are). But choosing not to enforce a law the executive believes to be unconstitutional sounds like it’s within executive discretion as long as the decision doesn’t affect anyone in a way particular enough to generate standing (At the federal level, the duty to take care that the laws be faithfully executed presumably includes a duty to adjudge the Constitutionality of purported laws in the first instance). The executive itself could easily get the case in court if thought it needed something akin to declaratory relief. There is also impeachment, of course, as the extreme remedy.
August 15, 2010, 1:15 pmMichael Ejercito says:
I do not know if the Ninth Circuit would vacate the trial, or admit that Imperial County and the Proposition 8 proponents have standing and as such would continue to rule on the merits.
A ruling that affirms the trial and denies standing would give state officials an effective veto over laws that they do not like.
August 15, 2010, 1:19 pmGuy says:
Of Course, standing in state court isn’t governed by Article III, so my above analysis may not be 100% applicable.
August 15, 2010, 1:21 pmrobert says:
Michael E,
(1) agreed that none of us know for sure what the 9th will do- but for the reasons I expressed, it is very likely that they (or if not them the supreme court) will have to hold that neither the backers of prop 8, nor Imperial County, have standing.
(2) I do not agree state officials would have “an effective veto.” Though I agree that their refusing to enforce the law frustrates majority will, there is a way to make them enforce the law.
As I said earlier, if California officials refuse to enforce this law, the backers DO have standing to sue them in state court to enforce the law.
At that point, the AG and/or governor can defend themselves by arguing that the law violates the US Constitution, and the state judges can address that issue (subject to ultimate review by the US Supreme Court).
So, the backers of Prop. 8 do have a remedy. They just don’t have a federal forum, because they lack Article III standing.
August 15, 2010, 1:25 pmChris Travers says:
How is that different from striking down the law as Unconstitutional?
August 15, 2010, 1:26 pmGuy says:
During oral argument in Horne v. Flores, Justice Scalia was slightly annoyed that the earlier attorney general had (it appears) sort of “engineered” a judgment requiring the state to provide more funding to public schools, said obligation the subsequent attorney general was trying to get out of via Rule 60(b)5, and this appears to have partially driven the outcome, especially given some language in the opinion. I don’t think there’s a wholly appropriate remedy provided for this sort of situation.
August 15, 2010, 1:27 pmChris Travers says:
How would the California courts treat Judge Walker’s order in this case? I don’t know, so I am asking.
August 15, 2010, 1:29 pmJohn Herbison says:
That hypothetical prosecutor would have quite a dilemma of professional ethics, especially if it were a jurisdiction that follows the void ab initio rule as to an unconstitutional statute. The ABA Model Rules of Professional Conduct (on which most states’ codes of legal ethics are based) provides at Rule 3.8(a) that the prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.
The constitutional invalidity of a statute would negate probable cause.
If there is any wiggle room, it is with the word “knows” in Rule 3.8(a). Since (most) legislative acts are presumptively constitutional, if no court with jurisdiction has declared the statute at issue to be unconstitutional, the I suppose that a prosecutor could argue that he believes, but does not know, that the statute cannot stand.
August 15, 2010, 1:31 pmDuffy Pratt says:
Those cases would make sense to me if they held that the intervenor did not have standing to appeal taking into account prudential standards. The Article 3 question in standing is almost never reached by a court. An intervenor might meet lesser standards for standing, but they can’t be standards which fall shy of the Constitutional threshold for a case. That’s my basic point. And it’s in no way clear to me that Article 3 draws a distinction between a plaintiff, an intervenor, or an appellant.
August 15, 2010, 1:31 pmrobert says:
If the litigants lacked standing in federal court, the federal courts would vacate Walker’s judgment on the merits. Thus it would have no controlling effect at all, in terms of res judicata, collateral estoppel, nor would any part of it bind the state courts.
They might find some part of its reasoning persuasive, or unpersuasive; but it would have no effect beyond that. In essence his opinion is no better than a well-done newspaper editorial or law review article.
It’s like Easterbrook once said: “without jurisdiction, judges are just pundits.”
August 15, 2010, 1:33 pmAnon21 says:
I don’t think Amar is right about this, and he seems to have implicitly adopted a premise which a fair amount of commentary about the standing problem in Perry also subscribes to, but which I find dubious. That premise is, or seems to be, that the Prop. 8 proponents were somehow necessary parties for the original trial. That seems wrong, or at least not obvious, for two reasons. The first is that I think a lot of the commentary is fairly muddled about what exactly the state officials did in this case. Did they literally come to the court and say “We think Prop. 8 is unconstitutional. Please find that it is.” Or did they merely enter an appearance but no filings? Or did they file some token statement that the obligations of their office oblige them to defend Prop. 8′s constitutionality, but that they intended to put forward no substantive arguments? The precise actions that they took or failed to take before the district court could affect whether this situation fits more into the collusive litigation situation which is barred by Article III, or whether it could be classified as more of a potential default judgment situation in which some intervenors happened to come by to actually rebut the plaintiffs’ arguments.
The second reason that I’m very skeptical that the intervenors were necessary parties before the district court is that if state officials could ensure that any federal suit challenging the constitutionality of a state law was dismissed for a lack of case or controversy so long as those officials refused to defend the law, they would have no incentive to defend any state law, ever. If I’m the anti-abortion attorney general or governor of South Dakota, and an abortion clinic files a 1983 suit challenging the new ultra-restrictive South Dakota abortion law, I can simply enter my appearance and announce my intention not to defend the constitutionality of the law, and then the federal court will be obligated to dismiss the suit because there is no case or controversy. Unless a group of hapless anti-abortion intervenors who don’t understand civil procedure happen by to create a case or controversy, my state’s law is now immunized from pre-enforcement federal constitutional review. That’s pretty obviously wrong, and it’s why I’m intensely skeptical that anything that California officials did or omitted to do could have affected the existence of a case or controversy in this case.
August 15, 2010, 1:34 pmGuy says:
Res judicata applies, so not much help there. Once the decision becomes final I think you need Rule 60(b).
August 15, 2010, 1:35 pmGuy says:
Judge Walker’s opinion says the Attorney General conceded unconstitutionality, and the other state defendants took no position.
August 15, 2010, 1:37 pmrobert says:
Your example is one of a fraud on the court- an attorney general lies to the federal court, claiming falsely that he has no intention of enforcing a law. Your example suffers from other problems too- such a lawsuit would probably also have to be directed against local police officials, whom you would also need to join in a conspiracy to lie about their intentions to a federal court.
At any rate, the problem you suggest can be defeated: on adequate proof the attorney general is not being honest about his intentions, the court finds an Article III case or controversy present, and proceeds to the merits.
The California example is different because there is no evidence to suggest Jerry Brown and the governor are lying. They have no intention of trying to enforce this law.
August 15, 2010, 1:41 pmGuy says:
Is it? If you represent to the court that the statute is unconstitutional, and the case is dismissed for lack of case or controversy based on that representation, doesn’t that bind the state to that position?
August 15, 2010, 1:46 pmSteve says:
I don’t understand the support for this statement. If there’s already a live case or controversy before the court, why does an intervenor have to separately demonstrate Article III standing just to intervene? The cases suggest these are two different questions.
August 15, 2010, 1:46 pmrtha says:
I know gay couple who have traveled hundreds or thousands of miles to get married (hell, I’ve done it myself). Stop calling us homos and please let the lawyers talk. The technical details of this are interesting and you don’t have anything to bring to this party.
August 15, 2010, 1:47 pmMichael Ejercito says:
The judge does not rule on the constitutionality of the law, but finds other reasons for dismissing the case.
I do not know. Would a federal court district covering only part of the state control how state courts over the entire state interpret federal law?
State judges in courts which are not located in the geographical jurisdiction of the California northern district may not feel bound by Perry v. Schwarzenegger. And even courts in the northern district may feel that Baker v. Nelson, Adams v. Howerton, or both control.
August 15, 2010, 1:48 pmMark Field says:
CA courts are not bound by District Court opinions. However, the state would be bound as a matter of res judicata (as Guy said).
No, only the plaintiffs need to show standing. If this scenario occurred, the state would be enjoined.
August 15, 2010, 1:50 pmrobert says:
I would agree that if a live case exists, an intervenor has the ability to piggyback on the standing of a party they’re aligned with.
Here though, we have “defendants” who have conceded away the plaintiffs’ case. There is no live case or controversy. The “intervenors” in this case, are trying to substitute themselves as defendants.
If there is no case or controversy between the plaintiffs and defendants, this case is dead, unless the “intervenors” can show they have Article III standing. They can’t do so.
August 15, 2010, 1:51 pmMark Field says:
BZ’s interesting post (thanks!) raises an issue others have touched on before, one which makes this whole dispute fascinating. In general, it’s conservative justices who favor strict standing rules and liberal justices who want broader ones. We can see this in AOE, where the initiative backers were supported by, of all people, Rheinhardt.
This case pits the presumed political biases of the justices against their long term legal interests. From a purely observational standpoint, I find it very interesting to see which will prevail (as long as we don’t get any Bush v. Gore bullshit that the opinion has no precedential value).
August 15, 2010, 1:55 pmrobert says:
One last comment: This case is going to be tossed for lack of standing.
I know of another place where the attorney general would defend a draconian anti-gay-marriage state constitutional provision though: Louisiana. Here, you could file suit in federal court and be guaranteed of standing.
The only downside is your appellate venue is the 5th Circuit, which for some years has been dominated by Texas-style Republicanism. However, after that it’s a straight shot to the Supreme Court.
I’ve always felt my native state should do something to redeem itself, legally speaking, from being the site of Plessy v. Ferguson. Maybe if a case from Louisiana got to the Supreme Court, the symbolism would be too much for the Court, and it wouldn’t re-enact one of its own most reviled moments from the past.
August 15, 2010, 1:59 pmMitchell J. Freedman says:
If Prop 8 is a law on the books, and it was when the lawsuit was filed in Federal District Court, and further, if the State did not want to defend that law, would a mere individual citizen of the State have the right to defend the law which filed in order to hold that law unconstitutional and therefore unenforceable?
I would like to think so, the way an individual shareholder has the right to bring a derivative lawsuit for a corporation when the corporation does not want to enforce its own laws or is otherwise violating the law.
The question of legal standing is, as Jonathan states, a hornets’ nest because the decisions have been among the least consistent from any sense of judicial integrity.
My personal view, and I admit to needing to read more on this, is that if the State is not going to defend a law passed by the electorate, someone in that electorate should be able to defend against someone trying to say the law should not be constitutionally enforced. This is more a defensive form of standing, than in the prosecution of a lawsuit.
August 15, 2010, 2:02 pmleo marvin says:
If that’s true, doesn’t it dispose of Amar’s theory?
August 15, 2010, 2:04 pmDennis Nicholls says:
Shouldn’t AG Brown have recused himself for prejudice and let another attorney in his office take the case?
August 15, 2010, 2:06 pmChris Travers says:
Ok… So…. that means a magistrate, who is generally not allowed to review such Constitutionality concerns would still be asked for search warrants and arrest warrants, people could be arrested on Friday and held until arraignment on Monday, and the courts wouldn’t be able to address the Constitutionality of that behavior.
August 15, 2010, 2:08 pmLawyer-in-training says:
As someone who *does not* think that everyone who opposes same-sex marriage should be called a hater, let me be the first to point out the laughable irony of you complaining about being called a hater, while spewing venom and hatred. It seems like you are intent on proving that you are a hater, unlike many others who oppose same-sex marriage.
August 15, 2010, 2:11 pmAttorney-in-training says:
How so? If the 9th Circuit rules in favor of plaintiffs, that will guarantee a review of the decision, because 1/4 of the country would be affected. On the other and, it seems to me that the Supreme Court is inclined to let a 5th Circuit denial of plaintiff’s demands stand. Why wouldn’t it?
August 15, 2010, 2:13 pmAlessandra says:
When you et al stop calling people who don’t share your views “haters,” you can even begin to talk about other people’s vocabulary.
You don’t call homos who rape, abuse, batter, and harass others “haters,” but you do smear people who don’t normalize homosexuality with the slur. Just noting how warped and hypocritical your vocabulary is, which is a reflection of your values.
“please let the lawyers talk.”
As if a lawyer, of all professions, here or anywhere, is ever going to feel unable to talk their talk because of a comment! lol
August 15, 2010, 2:13 pmAnon21 says:
No. The hypothetical AG makes no representations as to enforcement, just as Jerry Brown didn’t come into court and say California was actually granting (or about to grant) marriage licenses to same-sex couples. He just concedes the unconstitutionality of the statute.
First, I suspect there is a distinction worth making between declining to defend the constitutionality of a law and representing to a court or conceding that the statute is unconstitutional. It’s the same difference between a plea of nolo contendre and a plea of guilty. And as best as I can tell, at least some of the state defendants in Perry took the relatively modest step of refusing to defend Prop. 8′s constitutionality without actually claiming that it was unconstitutional.
Second, I suppose in my hypothetical, if the AG had made a representation that the statute was in fact unconstitutional, the State would probably be bound in subsequent criminal prosecutions. So say, instead, that the State offers public campaign funding for state candidates, but only for candidates running as Democrats. A Republican candidate wishes to challenge this subsidy program as being viewpoint discriminatory in violation of the First Amendment. He brings a 1983 suit, but the AG represents that the statute is unconstitutional, and that he doesn’t intend to defend it. (Note again that this isn’t identical to my original hypothetical in this respect.) The court dismisses the suit for a lack of case or controversy, the state officials go on enforcing the law, but this Republican candidate will never be criminally prosecuted for anything, and therefore the fact that the AG’s representation may be binding in some moral sense is irrelevant: the state law has still been effectively insulated from federal court review. Or perhaps if the AG pursues his course of enforcing the unconstitutional law, the Republican candidate can now go back into federal court and point out that the AG’s conduct is inconsistent with his prior-announced legal position.
But who actually contends that a state AG, charged with the duty of enforcing state laws, actually has the power to invalidate a state law simply by representing to a federal court that the law is unconstitutional, if that representation leads to a dismissal of a federal suit challenging the law’s constitutionality? Jerry Brown certainly doesn’t seem to think he has that power: he has represented that Prop. 8 is unconstitutional but has made no move not to enforce it in the absence of a binding federal court determination that it is, in fact, unconstitutional. So Guy, in the end, I don’t think your contention that such a representation would be binding on the State in the context of a non-criminal statute is persuasive.
August 15, 2010, 2:14 pmBuck Turgidson says:
You are assuming the facts that are in dispute–the issue at hand is precisely whether state law conflicts with federal law, so, as long as they are following state law, they have standing. As for injury, in the absence of Prop 8, the county has a state mandate to perform all marriages or cease performing them altogether. So either they are forced to abandon the civil process or invest funds into dealing with procedures they want no part of. In both cases, there is an injury to the County.
August 15, 2010, 2:14 pmAlessandra says:
What did I write that equals “venom and hatred” to you? How do you define “hater?”
August 15, 2010, 2:19 pmGuy says:
That’s a bad example because it involves the First Amendment, which has special standing rules that would allow anyone who feared prosecution under the law to seek declaratory relief and an injunction, but setting that aside this would give rise to false arrest claims.
August 15, 2010, 2:21 pmBuck Turgidson says:
On what planet does this make sense?
August 15, 2010, 2:22 pmMark Field says:
This is clearly the right approach if Brown had a merely personal objection to the law (say, for example, a devout Catholic AG who opposed an abortion rights law). However, in this case both he and Schwarzeneggar are saying that it’s the official position of the state that the initiative violates the federal constitution. In that circumstance, Brown can’t just recuse himself, he has to take the official state position.
Now, you might say that the state must take the side of the Proposition, and therefore both officials were wrong in stating the offical state position. This, I think, suffers from several problems:
1. State officials are bound by oath to support the federal constitution under Art. VI, and the Supremacy Clause means that oath supercedes any obligation under state law.
2. The whole theory of the initiative process presupposes that the people of CA and the state can have separate interests. That’s why the initiative can override what the state has done.
3. There’s lots of precedent for states refusing to defend statutes and initiatives which they think are unconstitutional.
August 15, 2010, 2:23 pmJay says:
I think are missing that there was standing, and a live controversy, in the trial court because the state officials, regardless of their stated legal positions, were continuing to actually enforce the law. Gay couples were not permitted to get married; thus, the plaintiffs met Article III standing requirements. To hold otherwise would be absurd; state officials could avoid constitutional review of any state law by declining to make arguments in its favor, then arguing there was no Article III controversy, while continuing to enforce it. If the state had really wanted the whole thing to go away, it could have agreed to something like a consent decree that Prop 8 was unconstitutional.
August 15, 2010, 2:24 pmthe other laptop says:
Is there some particular reason Allessandra is allowed to continue commenting on here with her repeated use of the word “homos”?
Civility on this site has diminished considerably in the last six months, but are the VCers really going to turn a blind eye to slurs?
August 15, 2010, 2:24 pmGuy says:
Seems to me the fact that plaintiffs were denied marriage licenses, and would have continued to be denied those licenses without this ruling, conclusively determines that there was jurisdiction in the trial court, but I’m no standing expert.
August 15, 2010, 2:24 pmGregory says:
Proponents of Prop 8 might have a right to help the named defendants (various California government officials) defend Proposition 8 – but the right to assist in the defense does not necessarily confer upon the Proponents the right to appeal the decision all by themselves. After all, if someone sues you and wins – and you decide not to appeal, then your mother (or some other sympathetic third party) is not allowed to step in (over your objections) and appeal the decision against you.
Furthermore, Judge Walker’s ruling did not force the Proponents to do anything (or refrain from doing anything) that they were not doing (or were doing) before the ruling came down. The Proponents’ autonomy has not been affected by the ruling – on the contrary, they now have the freedom (but not the obligation) to marry members of the same-sex, if they so wish. In contrast, California officials must now do something that they were not doing before the ruling: issue marriage licenses to same-sex couples.
The Proponent’s only conceivable “injury” is purely ideological – and such an injury is neither sufficiently concrete nor sufficiently particularized to the Proponents alone (and apart from, say, anyone else who voted for Proposition 8).
Face it, the Proponents of Proposition 8 are dead in the water – they have no standing to appeal.
August 15, 2010, 2:25 pmGary Myers says:
I had thought that when a plaintiff (with “injury” standing) brings suit and the named defendants fail to defend, the appropriate response is the entry of a default judgment (under FRCivP 55), not a dismissal of the law suit based on “no case or controversy.” A “mootness” dismissal would only be appropriate if the defendants (1) failed to defend (or concede the claim) and (2) give the plaintiff the relief sought in the law suit. In Perry, the the two plaintiff couples (its not a class action) surely have standing. The two county clerks named as defendants refused to give them a marriage license because of Prop. 8. The named defendants have all apparently declined to defend Prop. 8. But they are apparently unwilling to give the plaintiffs what they sought – marriage licenses – in the absence of a court order. In such a situation, the trial held by Walker can be seen as something akin to hearing required for a default judgment in a non-monetary relief context. Under such a view, Walker was more conservative than Rule 55 might otherwise require in allowing the Prop. 8 proponents to intervene to contest the ability for him to give the plaintiffs their requested relief. But such allowance does not make the Prop. 8 proponents a party, and does not give them any right to appeal in their own name. In fact, in contrast to some loose language in the final paragraphs of Walker’s findings and conclusions opinion, the actual final judgment entered by the Court (the separate document required by the FRCivP) grants no relief against the Prop. 8 proponents or anyone else except the named defendants, including the two marriage license clerks.
Walker’s opinion has no binding effect -its a District Court decision and governments are usually not bound by rules such as non-mutual collateral estoppel. The proponents’ better response might be to simply wait and when county clerks issue licenses to gay couples, to file in state court to restrain such conduct. If the proponents can establish standing under state law for such an action, Walker’s opinion would not be binding upon the state court and whole issue could be relitigated.
August 15, 2010, 2:26 pmYouKnowMe says:
Standing is measured at the time the suit is filed. At that point in time, the local officials have an interest in defending the constitutionality of the challenged (but at that point still valid) law.
August 15, 2010, 2:27 pmAttorney-in-training says:
The professor claimed that Imperial Valley has standing, because the proper application of state law is supposedly at stake. It is not. State law is necessarily subordinate to federal law, and if federal law (in this case, the federal constitution) dictates that states cannot ban same-sex couples from marrying, that is the proper application of state law.
As for the two other alleged injuries: whether or not they want no part of issuing such marriages is merely ideological injury, and not imminent and actual harm. Other countries and the governor have already stated that they can begin re-issuing such licenses without any problem, so the alleged harm in investing funds is also baseless.
August 15, 2010, 2:27 pmCornellian says:
I’m suspicious of the whole idea of government by initiative (heck, I have doubts about direct election of senators), but if a state is going to have it, doesn’t simple logic require that someone be allowed to defend initiatives when they are challenged in court?
You see this “someone must have standing” argument in the taxpayer standing cases (government is doing X, I think X is unconstitutional, I pay for it as a taxpayer, therefore I have standing to challenge X). Based on the results of those cases, I’d say federal courts are entirely comfortable with the idea that there may be things which no one has standing to challenge.
August 15, 2010, 2:30 pmCornellian says:
Since the Article III “case or controversy” requirement doesn’t apply in state court, is it possible that the Prop 8 proponents would have had standing to appeal if this case had been brought in state court?
August 15, 2010, 2:31 pmAttorney-in-training says:
What did I write that equals “venom and hatred” to you? How do you define “hater?”
Your use of derogatory language, for one. The general tone was also not very helpful to your argument that people opposing same-sex marriage are not hateful. If you are not a lawyer (I’m almost certain that you are not), I am very glad for your potential clients, because you’d make a terrible lawyer.
And I can’t shake the suspicion that you’re actually a troll, trying to give the “pro-marriage folks” an even worse reputation. But then again, one can never overestimate how deep the Falwell-crowd will sink, as the walking self-contradiction that they are: posing as defenders of marriage, while having higher divorce rates than everyone else. Truly bizarre.
August 15, 2010, 2:31 pmMichael Ejercito says:
If that same prosecutor, claiming that the law is unconstitutional, comes before the magistrate to ask for an arrest warrant to enforce the unconstitutional law, the magistrate would be very displeased at this attempt to commit fraud upon the court, to admit that the law is unconstitutional and yet not moving to dismiss the indictment.
One remedy for the magistrate (aside from informing the state bar of the prosecutor’s egregious misconduct in trying to prevent the court of considering the question of constitutionality by admitting unconstitutionality while denying the relief the defendant is trying to obtain) is to invite the attorney general or a state legislator to intervene in the question of constitutionality.
That means the whole trial is invalid, since there was no controversy before the court.
I have in fact mentioned such a case (Bonilla v. Hurst) in other posts. It is still before the U.S. district court in New Orleans.
The difference between the Louisiana and California cases is that in California, the state’s Supreme Court had ruled, in a post-Proposition 8 case, that persons have the right to establish, with a person of the same-sex, “a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage”. (Strauss v. Horton. See also Cal. Fam. Code 297.5) By contrast, in the Louisiana case, the state’s constitution
The draconianness might convince some Supreme Court justices to rule fully in favor of the plaintiffs. Some justices might be satisfied with a ruling requiring that some of the incidents of marriage be offered to same-sex couples without mandating the use of a definition.
August 15, 2010, 2:31 pmAnon21 says:
Certainly. A California practitioner might be able to fill us in, but many states have very liberal standing requirements for when the validity of a law under either the state or federal constitutions is at issue.
But it’s worth noting that this would insulate any final state judgment from SCOTUS review, even if the judgment below was based exclusively on the federal constitution.
August 15, 2010, 2:36 pmMikeM says:
IANAL by any stretch, but couldn’t the governor put up Potemkin objections to the ruling and not follow through, letting the Prop 8 proponents go for it, thus getting the judge out of a potentially sticky mess?
August 15, 2010, 2:37 pmtroll_dc2 says:
Gary Myers, your analysis seems better than any of the others that I have read, but suppose Judge Walker had wanted to rule the other way on the merits. Could he have done so when no party to the lawsuit wanted him to do so? In other words, could he have refused to enter the equivalent of a default judgment? How would that have played out?
August 15, 2010, 2:38 pmAnon21 says:
Yes. But since the governor has evinced an intent not to defend Prop. 8, why would he want to do this?
August 15, 2010, 2:39 pmK says:
Two observations.
First, standing to intervene. It occurs to me that there are two types of intervention, permissive and intervention as of right. I am not sure on which basis the district court granted the motion to intervene but I’d assume that the prop 8 supporters moved on both grounds and that the appeals court will analyze both. This is important because permissive intervention is a much more deferential standard. All permissive intervention requires is a showing of a common question of law or fact and jurisdiction (although here if there was no jurisdiction because of a lack of a case and controversy I’d imagine that could be problematic.) Under this standard I’m not sure that the district court abused its discretion in granting intervention.
Second, case and controversy requirement. Hypothetically, if the appeals court removes the intervenors from the suit I’m not sure that would deprive the court of jurisdiction. It occurs to me that the proper remedy in a suit where the defendant does not contest the allegations against him/her is the entry of default, not dismissal of the case. For instance, if I sue Steve and he does not defend the suit that doesn’t mean the court lacks jurisdiction over the matter. If that were the case, I would never be able to get a court decree (and the legally enforceable judgment against him) in federal court just because he did elects not to contest the suit. This is why the default procedure exists. I think the procedure would be especially interesting in this case because it would potentially permit the defaulting party to later come in (like when a new AG enters office)and contest the entry of default against it and actually litigate the case.
August 15, 2010, 2:40 pmMichael Ejercito says:
But they can argue that the state law is constitutional under federal law.
They are responsible for upholding federal and state law.
If they are being compelled to issue marriage licenses in violation of state law, and they believe that the state law is constitutional, they have the standing to defend the state law.
What seems to be happening is that a state government can invalidate an initiative merely by not defending it against a constitutional challenge.
August 15, 2010, 2:40 pmChris Travers says:
Ok, but under Michael’s standard, wouldn’t it be the same? I sue the state. They say to the court “Yep, it’s blatantly Unconstitutional so you should strike the law down” and now the court is prevented from doing so because there is no case or controversy.
I’m just saying that standard makes no sense.
August 15, 2010, 2:41 pmGray Peterson says:
They did actually enforce the law. November 5th, 2008, they ordered the county clerks to stop issuing licenses to same gender couples. They refused to defend the CONSTITUTIONALITY of the statute. There is a difference between the two.
Also, Imperial County’s County Registrar is a state official, not county official (they are a constitutional officer subject to the authority of the government). So they have no standing.
August 15, 2010, 2:43 pmGuy says:
How can there be no jurisdiction to issue the injunction when the state was enforcing, and has continued to enforce, prop 8? A party can’t continue to enforce an unconstitutional law and destroy jurisdiction by conceding that what it’s doing is illegal whenever it gets sued.
I steal $1,000 dollars from you, you bring suit against me, I say “Yes, this is absolutely Michael Ejercito’s money and I am legally obligated to return it to him”, and according to you… the court says “I would like to order him to give you your money back, but unfortunately I have no jurisdiction here!”
August 15, 2010, 2:43 pmGuy says:
I wasn’t agreeing with Ejercito, as my above post probably makes clear, I was just commenting on your example. The controversy is created by the enforcement of the law, not the legal positions taken by the parties.
August 15, 2010, 2:45 pmMark Field says:
No, this is incorrect. The Supreme Court can review decisions of a state’s high court, assuming there’s a federal question involved.
August 15, 2010, 2:48 pmGray Peterson says:
I have in fact mentioned such a case (Bonilla v. Hurst) in other posts. It is still before the U.S. district court in New Orleans.
Actually it is not. I checked the case in PACER and both cases that Mr. Bonilla filed are now dismissed. They didn’t actually serve the other parties.
August 15, 2010, 2:48 pmChris Travers says:
The problem I have with this is that the people don’t have standing to defend the initiative generally. So if we go with that, I think we’d have to conclude that the Yes on 8 campaign had standing to defend the Constitutionality of their amendment. I just don’t think that works.
Furthermore the legislature and the executive can have different interests. This is why a veto power generally exists and why it can be overridden with enough votes. Clearly we wouldn’t say that the legislature has to hire a separate attorney to vindicate their interest in court when the executive decides a given measure is Unconstitution, would we?
August 15, 2010, 2:48 pmAnon21 says:
Not when the plaintiff lacks Article III standing.
August 15, 2010, 2:49 pmAlessandra says:
Maybe because if you are entitled to slur and smear others as you please, you are in no position to complain about anyone using vocabulary you disapprove of.
“Civility on this site has diminished considerably in the last six months, but are the VCers really going to turn a blind eye to slurs?”
Like the slur “haters?” Is that the one?
If homosexuality zealots are allowed to be uncivil, vile, and to spew their venom on the forum, and we all have to read it, because you continuously turn a blind eye to it, it’s only too hypocritical to demand that people you don’t agree with should adhere to your agenda-driven vocabulary.
August 15, 2010, 2:52 pmSteve says:
Other than the part where the initiative proponents get to intervene and try the case on the merits, yes, that’s what happens.
August 15, 2010, 2:53 pmAttorney-in-training says:
The Attorney General is responsible for enforcing federal and state law (California Constitution, Art. 5, Sec. 13), and the counties will have to follow the law as it is interpreted by the Attorney General and the courts, not as it is imagined by them. Since the county is not being compelled to issue marriage licenses in violation of state law, and any remedy that plaintiffs might receive will necessarily be in accordance with state law (as the county will be following court orders and not the Attorney General’s whims), the county has no standing.
Well, a court would need to find it unconstitutional. If a trial court, the Governor and the Attorney General all agree that a certain law is unconstitutional, it probably is – though this is no justification, I agree that it’s bizarre.
August 15, 2010, 2:53 pmJohn D says:
Words Not To Say
There are certain words that are considered pejorative and the use of which is almost always inflammatory.
Your use of the word “homo” falls into this category. Even if you were doing something other than making specious claims about gay people, your word choice marks you are bearing nothing but irrational animus.
We would react that the same way to a reasoned critique of the President’s policy goals, if he were described in it using the well-known pejorative term for black people.
There’s a whole set of these words. I can think of such terms for gay people, black people, Jews, Asians, women, and a host of others. The terms have one thing in common: sensible people don’t use them. The default judgement one makes when someone uses one of these words is that the speaker is a bigot.
“Hater” and “bigot” as do not describe identifiable groups do not fall into this category.
What did I write that equals “venom and hatred” to you? How do you define “hater?”
August 15, 2010, 2:53 pmMax Power says:
You aren’t doing yourself or your side any favors…
August 15, 2010, 2:54 pmAttorney-in-training says:
‘Hater’ is not a slur when it it accurate, like in your case. Try not oozing with hatred when you object to being called a hatred, you’ll find more people agreeing with you. I agreed with your original point, but took exception from your ranting and hating, which you apparently think is adhering to some “agenda-driven vocabulary”.
We all have to read it? Is someone holding a gun to your head, forcing you to read the comments? If so, just type “SOS”, and I’ll call the police for you.
August 15, 2010, 2:57 pmAlessandra says:
So using derogatory language equals “venom and hatred?” As when you speak in a derogatory way of politicians and groups of people you don’t agree with? That kind of “venom and hatred?” It sounds to me, that by your definition of “venom and hatred,” we won’t find a single person who doesn’t often spew “venom and hatred” across the land. Specially liberals!
Anything else that qualifies for “venom and hatred?” Like, if I were to change to tone, would you still deem the content of what I had to say equated to “venomous and hateful” comments?
August 15, 2010, 2:59 pmAlessandra says:
So using the word “homo” equals “venom and hatred?” Why?
August 15, 2010, 3:00 pmAttorney-in-training says:
Of course. Don’t you think that it’s venomous and hateful when liberals speak of Republicans as “Rethuglicans”, though it’s less irrational than your hatred of a non-ideological group. Civilized people don’t do that. And civilized people definitely don’t say that “others are doing it, too!!!!!!!!1111!@#@#”
Not your posts on this thread. I wouldn’t know about your other writings. Considering your record on this thread alone, it wouldn’t surprise me if there were stuff that’s “out there” out there.
August 15, 2010, 3:03 pmDavid M. Nieporent says:
Of course, Bush v. Gore doesn’t say that (and it’s not clear how the Court could say that.)
August 15, 2010, 3:03 pmMichael Ejercito says:
The remedy would be a default judgment without addressing the issues of the law.
Interesting.
It was so hard for me to find news about this case.
Of course, the plaintiffs are free to refile the case, as there was no ruling on the merits. I wonder if they would be emboldened to do so.
Yes, but would we want an executive to bypass the normal legislative repeal process (or state constitutional amendment process) by refusing to defend laws against legal challenges?
It is bizarre.
August 15, 2010, 3:10 pmReaderY says:
I think the county officials definitely have standing, given that the law and the district court decision directly affect their duties. Because of this, it might not be necessary to rule on the standing of the Proposition 8 proponents,
Proponents’ standing would seem more questionable. Proponents of laws generally don’t have federal standing simply because they want the laws to be a certain way. But it is possible that California-specific law may regard ballot initiative organizers as having some sort of quasi-state status and confer on them litigation rights that they would not otherwise have under general federal law. It would seem a tricky matter.
The Proposition 8 opponents would of course be able both to supply the county officials with additional legal ideas and resources, and to file amicus curiae briefs on their own, in any event.
August 15, 2010, 3:10 pmK says:
I agree. It seems to be merely a question of how you frame the issue. Is the controversy whether you owe me the $1000 or whether or not you will pay me the $1000? If it is the later, the res judicata of the proceding is limited to whether you will pay me the money (i.e. enforcement). If it is the former, it is the substance of the proceding.
In this context, you could frame the issue as: Whether prop 8 is unconstitutional, or whether prop 8 should be enjoined. Just because there is no controversy as to one does not mean there isn’t one as to the other. If the parties agreed it was unconstitutional then there would be no preclusive effect to a judgment on that issue, the court would only be addressing whether the law should be enjoined, right?
August 15, 2010, 3:11 pmMichael Ejercito says:
What is the likelihood of partial selective recounts being used in an election again?
August 15, 2010, 3:11 pmAnon21 says:
With further research, it appears that ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989) does indicate that state defendants have standing to appeal an adverse judgment on a question of federal law under certain circumstances. The opinion there doesn’t really make clear whether that’s automatic, or whether the defendant must show some particularized federal injury.
State plaintiffs who don’t satisfy Article III standing requirements can’t appeal adverse state judgments on questions of federal law. I suppose this distinction makes sense from a policy perspective, although frankly that’s the only way I can make sense of that section of the ASARCO opinion.
August 15, 2010, 3:12 pmReaderY says:
Any comments on the impact of the Baker v. Wade decision of a quarter century ago, where a Texas local official was found to have standing in arguably similar circumstances?
August 15, 2010, 3:15 pmMichael Ejercito says:
But if these court orders are binding on the county, why would they not have standing to appeal a court order that is binding on them?
If a court order were to bind my actions, either as a private citizen or in some sort of official capacity, it would be strange that I would not be able to appeal the order.
August 15, 2010, 3:16 pmAlessandra says:
So you like to lie to yourself. You want to normalize homosexuality and to shove that down society’s throat. Your vocabulary follows. I do not agree with your normalization, nor with the false, sanitized stereotypes you pander about the media concerning homosexuals. So you glamorize homosexuality by using the word “gay” and I de-glamorize it by using the word “homo.” There is nothing irrational about playing language politics.
Just like some people say “man-boy lovers” and others call it “sexual abusers of boys,” or “perverts.” You see, one glamorizes it, the others don’t.
Of course they do. The issue is, these are the words you use to smear others, and in a liberal’s deformed world, that’s perfectly alright.
You need a false premise to silence your opponents or to deny them rights. So smearing anyone who does not submit to your views on homosexuality by calling them “haters” is not considered an act of incivility or disrespect in your warped judgement.
August 15, 2010, 3:17 pmChris Travers says:
I don’t think we would. That’s what’s troubling me about the way the state handled this case. This strikes me as a difficult and interesting problem, and it’s one reason I think we are going to see some interesting action in the appeals court.
Honestly, it’s quite possible that these issues (standing, separation of powers, etc) will be the lasting impacts of this case and not the issue of same-sex marriage.
August 15, 2010, 3:21 pmChris Travers says:
Esp. if the official is independently elected…..
August 15, 2010, 3:22 pmtroll_dc2 says:
Alessandra, please stick to the subject matter of this thread, which is standing to appeal.
August 15, 2010, 3:23 pmChris Travers says:
Suggestion for next election for California residents: Amend the Constitution to add:
“The State Attorney General shall vigorously represent the interests of the state in litigation challenging the legality of state laws and matters of the State Constitution against challenges arising under the Constitution of the United States of America, for such defence is the best defence of both.”
August 15, 2010, 3:25 pmkovarsky says:
obscure legal question – could the state supreme court issue a mandamus writ to the AG directing him to appeal the decision?
August 15, 2010, 3:26 pmMichael Ejercito says:
Agreed
August 15, 2010, 3:27 pmAlessandra says:
August 15, 2010, 3:29 pmMark Field says:
One’s a matter of state law, the other of federal.
I believe we do exactly that.
Maybe, but I suspect that state courts won’t resolve federal constitutional issues in the absence of standing. I could be wrong, though; I haven’t looked it up.
August 15, 2010, 3:29 pmAttorney-in-training says:
Because the county’s actions were bound in the first place, as its duties regarding the issuance of marriage licenses are “ministerial rather than discretionary”. The mere fact that the law may change is not a reason to confer standing on the county, unless there is no imminent and actual harm done. The fact that the county may not agree with how the marriage laws will be affected by a constitutional challenge is interesting, but irrelevant.
August 15, 2010, 3:31 pmGuy says:
I thought you were arguing there was no jurisdiction for judgment at all, what is your position then?
August 15, 2010, 3:32 pmMark Field says:
Won’t work in cases where this violates the oath under Art. VI.
No. Mandamus can only compel performance of a mandatory act, not a discretionary one.
August 15, 2010, 3:32 pmChris Travers says:
Interesting case. Since that case involved Texas state law in terms of when Hill could intervene, what does California law have to say about this matter?
August 15, 2010, 3:32 pmChris Travers says:
Such cases being?
I think the issue is that the county clerk would be a member of the enjoined class. The question might then be when and whether California law empowers such officers to intervene (see Baker v. Wade, 5th Circuit, 1985). IANAL though.
August 15, 2010, 3:34 pmGuy says:
You mean like in INS v. Chadha? (As far as I know, the only time the houses of Congress appeared before the Supreme Court, albeit as amici.)
August 15, 2010, 3:35 pmrilkefan says:
It’s true that if Gore had, instead of seeking the limited remedy he thought he could get, asked that the whole state be recounted (the solution the Florida SC imposed and which was overruled before it could lead to his victory) he would probably have demonstrated he got the most legal votes, as subsequent research has shown, so no one is likely to make that mistake again.
Is “selective” intended to mean something above?
August 15, 2010, 3:36 pmAnon21 says:
No, they do. As above, though, disappointed state plaintiffs raising federal law issues can’t appeal to SCOTUS, but state law defendants in such suits sometimes can.
August 15, 2010, 3:37 pmAnon21 says:
Or, since bills of attainder are in the news, United States v. Lovett.
August 15, 2010, 3:40 pmJames says:
Omitting the intervenors does not appear to eliminate any of the formal case and controversy (between Plaintiffs and the State of California). The cite Arizona case eliminated standing of the (only) plaintiff, leaving no controversy and thus is completely off point with the present situation.
Apparently the refusal of Defendant California to participate in the trial conflated with the active participation on behalf of Defendant by intervenors with questionable standing has fogged several of our prominent legal minds (??)
Throwing out the intervenors’ standing leaves California with full standing and, at most, an eventual default judgment for Plaintiffs. My sense is that the trial will stand and the appeal alone fail for lack of standing unless grounds can be found for voiding a trial because of the error of allowing intervention on the losing side (what possible basis can we find for such a useless finding?). I see little legal novelty here absent an agenda aligned with anti-gay marriage policy.
August 15, 2010, 3:40 pmRandy says:
Roscoe: “So the Judge doesn’t think the proponents have standing, but he allowed them to intervene to defend the proposition? And, having denied intervention to a party that did have standing, he now contends that the lack of standing of the party he did allow to intervene makes his decision appeal proof?
That result might be technically correct, but it is way too cute. I can’t imagine that the higher courts are going to let the decision stand on this basis.”
Then what should Walker have done?
Here he is with a plaintiff and a lawsuit, and the state refuses to participate. Could he have issued a writ of some sorts to drag the state into the courthouse, even unwillingly? (If so, why didn’t defendants do so as it would surely have helped their cause).
I suppose he could have just had the plaintiff bring the case without any defendant and he could do is own cross examination of the witnesses. But then, wouldn’t everyone criticize him for not allowing an opposing side to develop a defense?
So he has to find someone as in intervenor to at least raise the argument that they are harmed and have standing. No one else took up the cause except the defendants. And they put up as good a defense as they could, but they couldn’t even raise an argument that they were harmed.
And so here we are. How is that being cute? If anything, Walker took great pains to make sure there was testimony and evidence given to allow the court to make something of a rational decision.
I don’t see how he could have done anything better.
Some have suggested that SCOTUS will remand for a retrial, presumably in the hopes of having a better defendant. I highly doubt that. Charles Cooper was rated by the National Law Journal in the top ten civil litigators in Washington, so I doubt you will find a better attorney for defendants. They searched high and low for witnesses, but only had two to testify. I highly doubt anymore will come forward. At some point the reality will sink in — the defendants put on a lousy defense because they simply *have* no defense. Heck, they *still* can’t show any harm to anyone to allow gays to marry. What would a retrial bring that hasn’t been already considered?
August 15, 2010, 3:44 pmAttorney-in-training says:
But as I said, it’s rather pitiful that you have to rely on the venomous and hateful behavior of others, to justify what you yourself do.
Incorrect. Sexual orientation is not *inherently* ideological. The fact that you, and others, might associate it with certain ideologies, or lack thereof, is not sufficient justification to claim that human sexuality is ideological. The same thing with race. In the South during the era of Jim Crow, race may be ideologically laden, but that does not make it inherently ideological, it only means that there were racists who made it ideological.
You’re a typical theocrat: you write the most disgusting things about other people, but you cry like a baby that is being tortured when someone responds in opposition.
First off, you made no distinction between “homos” and “homosexuality zealot group”, you made your attack on all “homos”, thereby refuting your showing that your claim is only with the people who are after you with such great and terrifying zeal, but with all “homos”, no matter how inoffensive they might be. As such, you are most definitely at war with a non-ideological group. Secondly, I am almost positive that conservative Christians, the group that you belong to, has a far greater percentage of “violent, vile individuals”. How many abortion doctors have conservative Christians murdered? How many people have they burned at the stake over petty theological disputes? How many homosexuals have they burned at the stake? Conservative Christians like yourself have never ceased to attack, assault and kill your opponents, even while you play the victim, like Muslims do, despite incessantly attacking others. In short, as usual, the conservative Christian accuses other people of being what he is, and of doing what he does.
First off, I did not speak of a “derogatory tone”, that is your strawman, I spoke of “derogatory language”. Secondly, it may be human, but it is not civilized. Thirdly, you will hardly see a lawyer or a law professor using such language in court, as they know that uncivilized behavior will be slapped down hard. But it’s interesting that you are now tacitly admitting that you use derogatory language.
August 15, 2010, 3:44 pmCharles says:
I think this is right. Before the district court, there was an Article III case or controversy as between the plaintiffs and the state defendants, and if the Prop 8 proponents had not been permitted to intervene, the district court could still have required the plaintiffs to present evidence, and the court could have, even in the absence of a defense from the state defendants, found for the state defendants. (I’m not sure default would be appropriate since the state defendants, or at least the AG, filed an answer; besides, a court can always require a plaintiff to demonstrate entitlement to the relief sought rather than simply entering default judgment.) That the Prop 8 proponents were permitted to intervene does not change the result. Only if the state defendants had actually granted the plaintiffs the relief they sought (i.e., began granting marriage licenses to same sex couples), would the standing of the Prop 8 proponents be critical to the district court’s jurisdiction to hear the case and enter judgment since a lack of a proper defendant would mean the case was moot. Thus, if the Prop 8 proponents do lack standing to appeal, then only the appeal would be dismissed. I see no reason why the district court’s decision should be vacated. Moreover, if the Prop 8′s proponents’ standing in the district court would not affect the district court’s jurisdiction, then I do not see who would be arguing on appeal that they should not have been permitted to intervene, nor would the court have independent grounds to consider the issues because it’s not jurisdictional, nor, indeed, would improper intervention in this case be reversible error, at least given the fact that the plaintiffs prevailed.
August 15, 2010, 3:46 pmepluribus says:
Alessandra doesn’t seem to understand that using slang perjoratives to refer to people she doesn’t like isn’t acceptable in civil discussions. There are words that hate-mongers use to denigrate blacks, Jews, Italians, Germans, Frenchmen, Chinese, Japanese, even Americans. We all know them, but we don’t use them here because we want to keep our discussions civil.
August 15, 2010, 3:46 pmkovarsky says:
mark, is your discretionary/mandatory distinction something unique to california law, because the assertion that mandamus writs do not issue to correct discretionary acts under federal law is inaccurate.
under federal law mandamus writs issue to correct abuses of discretion all the time (see, e.g., denial of a motion for arbitration litigated in state court but under federal law, or certain discovery orders pertaining to federal administrative enforcement agencies). there are a million other examples.
August 15, 2010, 3:46 pmGregory says:
Absolutely not. Just because state officials believe that a state law (or ballot initiative) is unconstitutional – does not mean that they are right. Only a court can decide whether a particular law violates the U.S. Constitution.
So whether or not the defendants (in a lawsuit) mount an active defense, the plaintiff still has to prove (by a preponderance of the evidence) that the law in question is unconstitutional. Defendants in a lawsuit (just as defendants in a criminal trial) have no obligation to mount any defense at all. The burden of proof rests squarely with the plaintiff (or the prosecution). And if the plaintiffs fail to meet their burden of proof, then the defendant will prevail by default.
Naturally, an active defense (usually) has a better chance of prevailing than a passive defense – therefore, to help level the playing field, Judge Walker allowed the Prop 8 Proponents (the group that got Prop 8 on the 2008 ballot) to mount an active defense of the proposition’s constitutionality.
As it turns out, the Prop 8 Proponents mounted such a feeble and incompetent defense of the measure that they supposedly supported – that they ended up doing more harm to their cause then if they had simply let Judge Walker decide the case without their participation.
August 15, 2010, 3:52 pmSteve2 says:
Probably is baseless, but isn’t the existence or not of that baselessness properly considered a triable issue of fact?
August 15, 2010, 3:53 pmGuy says:
There’s a huge difference between a superior court issuing a writ of mandamus to an inferior court committing an abuse of discretion, and issuing a writ of mandamus to an executive officer. See Marbury v. Madison, which discusses the distinction between discretionary and ministerial tasks, and its relation to writs of mandamus and separation of powers.
August 15, 2010, 3:55 pmReaderY says:
In my view, because the attorney general has a duty to defend state laws from court challenges, if the attorney general doesn’t personally agree with the law than an outside attorney from among the proponents should be hired as a special assistant attorney general and charged with defending it. The attorney general could publicly distance himself from the business and state that he disagrees with the law and the defense has therefore been turned over to the law’s proponents.
August 15, 2010, 3:57 pmMichael Ejercito says:
Bishop v. Oklahoma The case was dimissed
In the Perry case, two county clerks were named as defendants, as they would have actual authority to issue the licenses.
August 15, 2010, 3:59 pmChris Travers says:
I put the 50/50 point before she is banned at one week……
I’m not saying that all of her points are always wrong, but there are severe civility problems.
August 15, 2010, 4:00 pmJohn Herbison says:
The first rule of holes: when one finds oneself in a hole, the first thing to do is to stop digging.
I understand that some who are put off by homosexual activity are reluctant to use the word “gay”, in that the original meaning of that adjective does not refer to sexual orientation or behavior. To conflate men who voluntarily engage in sex with other, willing men with “man-boy lovers”, “sexual abusers of boys” or “perverts”, however, is inaccurate, offensive and needlessly provocative. By any objective means, that conflation is hateful. Alessandra has also repeatedly used the slur, “persons with homosexual problems” in place of the more neutral term, “homosexual” would suffice.
Words matter. (Just ask the survivors of the doctor whom Bill O’Reilley and his ilk slurred as “Tiller the baby killer”, or the survivors of other domestic terrorism victims.)
Stereotyping and imputing loathsome behavior and/or diseased thinking to those with whom one disagrees politically is inappropriate. (I admit that I have done a bit of that myself, although I strive to include some substance even in those of my comments that include invective.) Simply spewing bile for its own sake is not persuasive.
We as commenters are guests on this site. We would do well to remember that.
That having been said, I disagree with those who would seek to ban Alessandra from commenting. Just as Bull Connor’s behavior toward civil rights demonstrators helped to change the minds of decent people who were not personally affected by Jim Crow practices and who might not otherwise have given much thought to the plight of Southern blacks, Alessandra’s bilious commentary points out how ugly anti-gay biotry can get.
August 15, 2010, 4:02 pmDebrah says:
Civil unions provide all necessary protections.
The only thing missing is the word “marriage”.
Cases such as this one Illuminate, in bold relief, the knee-jerk insanity that masquerades as sensitivity and inclusiveness.
Race/class/gender/sexual orientation has become the grand untouchable quadrumvirate, so to speak.
The insanity has become so ingrained on the Left (especially inside the academy) that any disagreement or opinion which does not glorify gay sex as stupendous will be met with intimidating episodes as exemplified in the link above.
However, most observers aren’t even remotely informed by religion with regard to this culture war issue.
In the reality-based world, just as a matter of course, the word “marriage” is distinctly a hetero term.
Quite amusing to witness those who so vehemently fight against the heteronormative world…..co-opt the appellation “marriage” to describe their own couplings.
Stockholm Syndrome vibes conquering!
August 15, 2010, 4:03 pmWilliam B. says:
The question of whether the ability to intervene does or does not track Article III standing is not a new issue; there is a great deal of authority on it. Those interested in further reading might be interested to know that there is divided authority on the question of whether intervenors must satisfy the Article III standing required to appeal, or may somehow intervene with less standing. Some of the split is discussed in this student note, although there have been developments since then, such as the Tenth Circuit’s 2007 en banc decision in San Juan County v. United States.
August 15, 2010, 4:05 pmkovarsky says:
guy, you wouldn’t look to marbury for guidance on the modern use of mandamus writs. the scope of inferior officers and courts to which they may issue is much broader in this era. they routinely issue to executive agencies, for example.
i’m not sure that the writ could issue to the state AG, but it’s certainly not because marbury’s definition of mandamus controls the inquiry, or solely based on the AG’s status as agency personnel.
August 15, 2010, 4:09 pmDuffy Pratt says:
The support for the statement comes mainly from my thinking about it. I haven’t researched the issue (at least not in many, many years). An intervenor becomes a party to the case. That means, presumably, that the intervenor is bound by the judgment. An article 3 court cannot bind a party when there is no jurisdiction, and if the party has no standing then the court has no jurisdiction over the party. That’s my reasoning. It’s what makes sense to me, based on my understanding of the system of the rules, but that doesn’t mean that courts have seen it the same way.
Also, standing very much has to do with the individual parties, and not with the case as a whole. There are a whole host of cases where one plaintiff has been dismissed because there was no standing, and the rest of the case went forward. In those cases, why not just skirt the problem by having the dismissed parties intervene. If they can’t get in as plaintiff’s then just let them in under the “lesser” standards for intervenors. Doesn’t make much sense, does it?
August 15, 2010, 4:11 pmGuy says:
I’m still confused, why would the decision be vacated when Walker had jurisdiction to issue a default judgment? Surely proceeding to trial is, at most, harmless error, no?
August 15, 2010, 4:12 pmkovarsky says:
mark and guy,
In Texas, for example, the state Supreme Court can issue mandamus writs to executive heads, including the AG.
August 15, 2010, 4:13 pmJoe says:
Civil unions provide all necessary protections.
Except when those so united go to some other state that don’t recognize “civil unions” but do recognize out of state “marriages” including those that local policy might not provide. Except for insurance and others who protect by “marriage.” Except for general understanding where “marriage” provides a ready understanding.
The insanity has become so ingrained on the Left (especially inside the academy) that any disagreement or opinion which does not glorify gay sex as stupendous
I didn’t realize Ted Olson, the lawyer who helped make the Bush presidency official, is on “the left” now. Rather, this is not about glorification of any type of sex. We allow people to marry now who make lousy couples, who many would consider immoral couples in fact, having lots of immoral sex. It is about selectively targeting one type for no good reason.
In the reality-based world, just as a matter of course, the word “marriage” is distinctly a hetero term.
Except when many religions “marry” same sex couples.
The article linked has little to do with the matter at hand. Academic freedom, like the freedom to marry someone I find reprehensible, are both things the supporters here firmly think a good thing, rights wise.
August 15, 2010, 4:15 pmjab says:
IANAL, so I have nothing to add to the fascinating discussion on standing… but I am learning a great deal.
As a gay man in California who is looking forward to the day I can legally marry my partner, I hope that Alesandra, and now Debra, continue to comment in any way they want.
Whether they realize it or not, they make it MORE likely, over time, that my side will win this war.
The only thing I fear in the battle is when very smart, civil, intelligent people make coherent arguments that counter my views. People who rant, rave and spew bile, on the other hand, actually sabotages their own side. From a selfish, pragmatic point of view, I say, keep it up Alessandra! You go, girl!
August 15, 2010, 4:16 pmepluribus says:
Debrah says:
Not true. Thousands of special benefits are conferred by federal law on those who are married but denied to those who merely have civil unions. If the law of California is changed to provide for civil unions, it does not change the laws of other states, which still have many legal provisions specifically geared to marriage. One state cannot magically make all these benefits available to its residents merely by enacting civil unions.
August 15, 2010, 4:17 pmepluribus says:
You’re right, jab. The internet does sometimes reveal things that are normally on the underside of rocks. Not pleasant to see, but we have to be reminded from time to time that they are there.
August 15, 2010, 4:20 pmGuy says:
As a Constitutional matter, I don’t see why. Standing is only necessary to satisfy the case or controversy requirement, once that is satisfied, I don’t see what else matters. Frequently, intervenors aren’t much more than glorified amici, who are only implicated by the judgment as far as res judicata is concerned, that might present a Due Process issue, but voluntarily submitting to the courts jurisdiction solves that, it’s no different than waiver. As far as anything else goes (like issuing an injunction), either that doesn’t affect the intervenors, in which case it doesn’t matter, or it does, in which case they probably satisfy Article III standing.
August 15, 2010, 4:21 pmGuy says:
I’m not an expert on the California Constitution, but I would be very surprised if any state allows writs of mandamus to issue to executive officials for discretionary tasks. In Texas, can the writ issue for discretionary decisions by the AG?
Unless there’s a clear legal obligation for the AG to appeal, I don’t see how mandamus could lie.
August 15, 2010, 4:27 pmrtha says:
True. There’s nothing like someone who claims to not hate gay people but who uses terms like “homos” to demonstrate the lie of their argument.
August 15, 2010, 4:29 pmAttorney-in-training says:
I did not know that merely granting gay relations equal status would be “glorifying” them. Do you think that they are so inherently amazing and wonderful, that they need a ‘handicap’ in order for them not to be more glorious and appealing than heterosexual relations?
August 15, 2010, 4:32 pmBruce Hayden says:
I will admit to some frustration here, being a luke warm supporter of the initiative process. My impression is that such a process was a response to run away and corrupt governments. Most often, it seems, that initiatives get on the ballot when the legislature has refused to act in the way that the people wish it to. Most often, it seems that the government, including most particular, its elected officers, are acting against their will.
The standard response is that we elected the government, so are stuck with it. But that ignores the a number of realities, one of which is that the process of election is invariably a bit corrupt, and often quite corrupt, even today. One indicium of this is that, absent term limitations, politicians are most times far more likely to win than to lose election.
Those in power, of course, tend to dislike the initiative process because it reduces their power. We had this discussion a lot when my mother was the legislative chair and head lobbyist for the League of Women Voters in Colorado. She couldn’t fathom why the process that she was involved in, privileged interest group access to legislators, wasn’t better than direct determination of controversial actions by the ballot box.
Some of the state constitutional initiatives that she opposed and did pass, such as term limits and the TABOR limitations on spending and taxation, were exemplary of why the elected state leaders shouldn’t be empowered to effectively block statutes and especially constitutional amendments passed by initiative. In both those cases, the exact same state officials who arguably could have blocked these initiatives after they had passed, if the logic here had been applied, were the ones most directly affected by those initiatives.
Indeed, that may have been what happened here with the AG. He is obviously running (again) for higher office, and active opposition to the will of the California public would been key here in funding his run to move back into the governor’s office, given his fairly liberal base. So, regardless of his personal views on the subject, his naked political advantage of opposing the initiative is one of the reasons that the initiative process was instituted in the first place. (If we are being suspicious and cynical, maybe the sitting governor is getting ready to have to deal with the liberals in Hollywood, and that impacted his decision not to support the initiative).
August 15, 2010, 4:33 pmAttorney-in-training says:
Which is why I think that this person was a troll. I don’t mind feeding trolls, though, as long as they amuse me.
August 15, 2010, 4:35 pmkovarsky says:
guy,
i would be surprised too, but if i were prop 8 supporters looking for any way to kick this case up, there are certainly crazier theories. mark field’s discretionay/mandatory dichotomy isn’t really a great way to understand how mandamus works (it really does issue to correct abuses of discretion all the time), and i could see how the prop 8 supporters would argue that there is a duty for the state AG to defend the state’s laws, if his refusal to do so is based on an error of law.
August 15, 2010, 4:36 pmjrose says:
Is there case law that Brown can either rely on in defense of his refusal to defend Proposition 8? Is there case law which suggests otherwise?
August 15, 2010, 4:37 pmGuy says:
Well, yes, but administrative agencies are in a weird place, separation-of-powers-wise. Not exactly the same thing as a department head.
August 15, 2010, 4:37 pmdhlii says:
All facets of the gay marriage debate are fascinating and troubling. Legally sanctioned gay marriage is inevitable. But using the system to advance your cause regardless of the merits of that cause over the objections of a majority of people attacks the foundations of the entire system. Many of the issues – including that of standing are supra constitutional. As our declaration observes, the power of government comes from the consent of the governed. When the government in whatever form acts against the will of the people it erodes its own authority. Walker’s entire logic works equally well in the inverse. If a majority of california’s citizens had just conferred a right to same sex marriage, the same logic could be used to overturn that outcome and deny its advocates any right to appeal.
August 15, 2010, 4:41 pmIf the legal construct of standing has any place at all it is not in legal decisions made by voters. The authority of government is derived from the consent of the governed.
Max Power says:
In the same vein, I believe Fred Phelps’s Westboro Baptist “Church” (its website’s domain name, godhatesfags.com, says all you need to know) has ironically done more to advance the cause of gay acceptance than some chronically ineffectual gay-rights lobbying groups.
August 15, 2010, 4:43 pmjab says:
I live in California, and I have despised the initiative process ever since I moved here.
Initiatives are not free from corruption, either… often be bankrolled and sponsored by industry groups to get their way when the legislature doesn’t due their bidding… it cuts both ways.
When I was a grad student at Berkeley, a number of grad students tried an experiment… we had grad students from many different disciplines (science, engineering, law, humanities, business) come together about a month before the election. We divided up the initiatives/propositions into working groups and did our best due diligence to research the propositions, collect data and independently evaluate and judge them on their merits (yeah, anything to avoid working on our theses). We did this over a few election cycles… and all came away incredibly frustrated. Many of the propositions were written in confusing and often intentionally misleading ways… the voter guides were absolutely useless… the actual data to make an informed decision was often no where to be found… at the end of the process, we were often confused and unsure… ultimately, we felt that if a dozen or so elite PhD students couldn’t really feel comfortable making informed decisions on these propositions, how the heck was the general population supposed to do any better.
August 15, 2010, 4:44 pmR O'Brien says:
“It’s true that if Gore had, instead of seeking the limited remedy he thought he could get, asked that the whole state be recounted (the solution the Florida SC imposed and which was overruled before it could lead to his victory) he would probably have demonstrated he got the most legal votes, as subsequent research has shown…”
What “subsequent research” would that be?
August 15, 2010, 4:44 pmShelbyC says:
I have a question: Cal judges aren’t bound by Judge Walker, correct? So if a married gay couple wanted to get divorced, wouldn’t the family court judge be required to dimiss the divorce action because the marriage wasn’t valid under California law, unless the judge agreed with Judge Walker, or there was controlling precedent in State court interpreting Prop 8 as unconstitutional under the fed. Constitution?
August 15, 2010, 4:45 pmjab says:
Your argument was also used by opponents of interracial marriage and Loving vs. Virginia.
August 15, 2010, 4:47 pmGuy says:
1) Who would be suing to find an SSM law unconstitutional in your hypothetical?
2) How could gay couples wishing to be married possibly not have Article III standing to seek an appeal against an adverse judgment? This doesn’t work in reverse at all.
August 15, 2010, 4:48 pmR O'Brien says:
“ultimately, we felt that if a dozen or so elite PhD students couldn’t really feel comfortable making informed decisions on these propositions, how the heck was the general population supposed to do any better.”
Because “elite” PhD students are no better at deciding these things than the general population. (As someone with an advanced degree from a UC, I find your elitism repellent.)
August 15, 2010, 4:48 pmGuy says:
California is enjoined from enforcing Prop 8. The injunction operates of its own force even though there’s no stare decisis.
August 15, 2010, 4:53 pmJay says:
I think there is a lot of confusion here about state vs. federal mandamus practice. In federal court, mandamus is exclusively a way for court of appeals to review district court decisions that are not appealable in the ordinary way, i.e., because there’s not yet a final judgment and the exceptions that allow appeal in the absence of final judgment aren’t met. This typically is limited to things like changes of venue/forum non conveniens, some privilege situations, decisions to televise trials, etc. This kind of mandamus can be used to correct abuses of discretion by a district court, but only if the right to relief is “clearly established,” or something like that — in other words, it must be a pretty egregious abuse of discretion. This kind of mandamus is more a procedural vehicle for getting your issue heard by an appellate court than a form of substantive relief; the issue is between two different courts that already have a inferior/superior relationship, with the higher court routinely determining whether an AOD occurred in other contexts.
With the caveat that things obviously vary by state, “mandamus” in state court has a different scope, and can be directed by trial courts at agencies, officials, etc. I think in this context it is typically limited to non-discretionary acts, though, because it is essentially a form of relief rather than a procedural technique, and to expand it past that would be a pretty dramatic judicial intrusion on executive discretion. In other words, it is how a court directly orders a some state official to do something the law already mandates that he do. In federal court (and in some state courts) this would just be called an “injunction” or an “order.”
August 15, 2010, 4:54 pmDebrah says:
No further modifications needed on that score.
Even the most socially/sexually liberal among us might agree that the whole bareback santorum froth aspect provides more than enough of a “handicap”.
August 15, 2010, 4:56 pmJon Rowe says:
I think you are right here. I try to be generous with folks whose religious or moral worldview sees homosexuals acts as immoral. I’ll concede that there are many religious conservatives along these lines who seem genuinely not to be bigots (though sometimes they get caught up in the heat of the moment). The late William F. Buckley comes to mind. It’s usually because they have gay friends or family members that motivates them to hold their differences respectfully.
But sometimes the bigot/hater shoe fits, as it does with Alessandra. And when it does, they wear it.
Substitute “Jew” with every time she says “homo” and you see we are in Protocols of the Elders of Zion territory.
August 15, 2010, 4:56 pmR O'Brien says:
As I posted to another forum:
The casuistry of Vaughn Walker, who fancies himself Archon of my home state, could not be more transparent. He allowed these people to defend Prop 8 but claims they don’t have standing for an appeal. Granted, they did a lousy job of defending Prop 8 but the idea that SSM is mandated by the Constitution is so ludicrous that I sympathize with Cooper’s claim that Prop 8 needed no defense. Archon Walker should have dismissed it; instead, he placed his seer stone in a hat with a copy of the Constitution* and located a “right” to SSM to the left of the emanation of the penumbra, written in invisible ink.
Over at Volokh Conspiracy, Orin Kerr asked SSM advocates when the Constitution began to require it. I love that question because SSM advocates come off as vapid no matter how they answer it. If they say it always has (or date it to the ratification of the 14th or some other amendment) then one can reply, “So, you know the Constitution better than the people who wrote and amended it?” If they give a recent date one can attack the legitimacy of judges conjuring “rights” out of thin air. For that, I don’t think one can do better than Byron White’s dissent in Moore v. City of East Cleveland:
The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930′s and 1940′s, the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably preempts for itself another part of the governance of the country without express constitutional authority.
*This forum is populated with ex-Mormons, hence the disparaging allusion to the occult activities of Joseph Smith, the founder of Mormonism.
August 15, 2010, 4:57 pmjab says:
Mr. O’Brien,
Spare me the fake pseudo-populist salt-of-the earth B.S.
The point I was making that we had the time and skills and inclination to do the research, and we had collected a group of people with expertise in many different disciplines… our goal was to NOT rely on the nonsense in the voter guides, but to go out and collects data to make an independent informed decision. Yes, that makes us “elite”, but not in the “we are superior to the riff-raff uneducated citizens” as you are insinuating, but simply that we had the time, skill, and means.
You really think the average citizen in California has at their disposal a team of experts from different disciplines to help make informed decisions? You think they have the time to do it? We were in a special situation… graduate school, which afforded us the freedom and the time to pursue such matters.
The simple fact of the matter is that the vast, vast, vast majority of Californians don’t have the time or resources to make informed decisions, so they are forced to rely on the faulty voter guides or misleading commercials.
August 15, 2010, 4:58 pmShelbyC says:
Against judges? IIRC the state wasn’t a party, just the officials who were issuing marriage licenses.
Edit: State judges are permitted to have a different view of fed law than federal courts, except scotus, correct? It would seem that the judges are bound by prop 8, but not Judge Walker.
August 15, 2010, 4:59 pmjab says:
I think you just outed yourself as really being a liberal and making extreme arguments to make the anti-SSM side look bad. The fact that you even know what “santorum froth” is (it really is, ummm… well… google it… LOL… let’s just say it was a funny word created by gay rights activists to poke fun at the rantings of former Senator Santorum)
August 15, 2010, 5:03 pmGuy says:
You’re a charming individual.
August 15, 2010, 5:03 pmAttorney-in-training says:
Thank you for making me look that up. It is interesting that conservative Christians are experts on all sorts of perverted sex, varieties that you claim to despise, but that you probably spend more time thinking about than normal individuals. Regardless, the argument you are making undermines your earlier claim that granting equal status to same-sex relationships somehow “glorifies” them. You seemed to regard them as somehow inherently glorious, and needing of state repudiation, in order to make them seem less glorious to you. I wonder why.
Furthermore, the argument that you now advance wholly excludes lesbian couples, which you apparently do regard as glorious (most men would agree, at least, the ones you see in movies). And apparently, all they need to do to escape your sex-obsessed opprobrium, is use some protection. How interesting.
August 15, 2010, 5:06 pmShelbyC says:
Or, to be more on topic, here’s who has standing to defend Prop 8: A party to a divorce action seeking disolution of a SSM has standing in state court, and in that forum the issue hasn’t been resolved. It’s certainly possible for there to be a fed/state split on the issue, correct? I’m against Prop 8, but I think it’s an interesting issue.
August 15, 2010, 5:08 pmDebrah says:
As an example of the knee-jerk mentality, commenters like “Max Powers” become livid and assign stereotypical grind with all the playbook phrases…..
…….uttered in a flourish from a parrot’s cage.
And all one has to do to evoke such tiresome predictability is to suggest that the word “marriage” doesn’t apply to men who use the elimination canal as a vagina.
This all seems rather a simple exercise in logic.
If gays were more secure in their own pertinacity they wouldn’t have to work so hard to stifle free speech.
August 15, 2010, 5:08 pmjab says:
I think Debrah has now passed even Alessandra as my favorite homophobe! I love how just naughtily graphic you are… and so up to date on the lingo and our practices. Bravo!
August 15, 2010, 5:12 pmCommentus Anonymus says:
He should have thrown the case out of court for complete lack of merit, instead of making up “constitutional rights” that are found nowhere in the constitution.
Millions of Americans are offended by the equation of same-sex relationships to marriage. Who decides which offenses are allowed and which are not?
August 15, 2010, 5:14 pmDebrah says:
Correction.
And I do hope that you will remember this…..realizing that many such as yourself use the same old lazy arguments which fall flat in reality.
I am neither a conservative or a Christian.
My comments are those shared by many—liberal and not so liberal, alike—but are rarely admitted, openly.
August 15, 2010, 5:14 pmAttorney-in-training says:
The only two comments of “Max Power” are about whether rabid haters do your side any god or not. I don’t see any livid reaction, nor anything else that you allege. Then again, you are probably expert at seeing things that aren’t there.
Ironic that someone who probably believes that the earth is 6000 years old should start talking about logic.
Oh yeah, now your free speech is being stifled.
August 15, 2010, 5:14 pmrtha says:
Yeah, no heterosexual pairings *ever* engage in unsafe/”icky” sexual practices, in or out of monogamous relationships. Heterosexuals are sexually decorous, discreet, and safe – that’s what makes them so awesome and deserving of rights!
August 15, 2010, 5:16 pmAttorney-in-training says:
Remember the things that you say? Only when I need a good laugh.
Well, your opinions are certainly shared by Ahmadinejad and Mullah Omar. I wouldn’t know about how many civilized people share your opinions. Not too many. Civilized people, conservative and not so conservative, tend to be more rational than you are.
August 15, 2010, 5:16 pmtroll_dc2 says:
So, Debrah, what do you think of the standing issue?
August 15, 2010, 5:17 pmCommentus Anonymus says:
So what? An argument that is incorrect in one context can of course be perfectly valid in another context. Race and sexual orientation are in no way analogous, especially in regards to marriage.
August 15, 2010, 5:19 pmAttorney-in-training says:
I think he/she thinks that standing is a perverted way to have sex.
August 15, 2010, 5:20 pmJohn Herbison says:
If the question here refers to a same sex marriage that occurred in California in the interim between the decision invalidating the SSM ban and before Proposition 8 took effect, then that marriage is valid under the California Supreme Court’s treatment of those 18,000 marriages, and access to the courts to dissolve the marriage by divorce is one of the incidents of marriage.
If the same sex marriage in question was solemnized outside California, that is a trickier question. I would cite to Boddie v. Connecticut, 401 U.S. 371 (1971), and argue that, if the state court is the only available forum im which a divorce claim can be heard, there is a federal due process right of access to the state courts for the purpose of dissolving the marriage.
August 15, 2010, 5:20 pmDebrah says:
I’d say that Jonathan Rauch’s latest critique in NY Daily News comes very close to my own.
This standing issue should be ushered through the Democratic process.
Not through judicial tyranny.
August 15, 2010, 5:21 pmPersonFromPorlock says:
The general population simply votes the way their faction leaders tell them to, just like members of Congress (especially Democrats) do when faced with the same problem.
(Sorry, couldn’t resist.)
August 15, 2010, 5:22 pmjab says:
That may very well be true… I am NOT making the claim that EVERY argument regarding interracial marriage is applicable to same-sex marriage. But his specific argument in that post was an appeal to public level of support. At the time of the Loving v. Virginia decision, public opinion was strongly against interracial marriage… and yet that was not reason enough for the Supreme Court to uphold bans on interracial marriage.
August 15, 2010, 5:25 pmShelbyC says:
@John Herbison, I’m talking about marriages solumnized in California after Judge Walker’s decision. I’m wondering whether his ruling is binding on state judges.
August 15, 2010, 5:25 pmepluribus says:
jab says:
More rocks, more slimy undersides.
August 15, 2010, 5:26 pmCommentus Anonymus says:
Stereotyping is wrong. (Except when it isn’t).
Attorney-in-training needs to work on his self-awareness.
August 15, 2010, 5:27 pmJames says:
Perhaps so, but another interpretation (considering the status and skills of the attorneys for the intervenors) is simply that the Proposition is indefensible in ethical, moral and Constitutional terms. If I were AG, I would file a proforma Answer and keep quiet, as the most effective strategy for defending the indefensible.
August 15, 2010, 5:30 pmAttorney-in-training says:
It was not stereotyping, it was having fun at the expense of an obviously crazy person. Or do you object to my evaluation of the logical skills of people who believe in a 6000-year-old earth?
August 15, 2010, 5:30 pmDebrah says:
LOL!!!
This is the type of silliness that causes observers to dismiss you post haste.
It’s this brand of comedy that compels one to give you a nod for knowing your station—”in training”.
Nothing quite like self-actualization.
August 15, 2010, 5:31 pmGuy says:
That’s a good point. The state, of course, can’t be a party, because of the 11th Amendment. I’m not actually sure how the Young fiction would operate if a state court refused to respect the judgment, usually it wouldn’t come up – enjoining enforcement of a criminal law would mean state courts never get to rule on the issue, but it would be very strange if this provided a way of getting around res judicata, technically, . Of course, the issue could be ducked by state courts saying the issuance of the license is conclusive of the marriage, or that marrying constitutes waiver of any objection to prop 8′s Constitutionality.
Then again, there might be precedent explaining this anomaly away somehow that I’m not aware of.
August 15, 2010, 5:33 pmR O'Brien says:
People who argue that the Constitution mandates SSM engage in the ought-is fallacy, i.e., “I think there ought to be a right to SSM in the Constitution; thus, there is.” The Constitution is a sepulcher of thought by design. People who want SSM need to go to the trouble of amending it, instead of hijacking the democratic process via judicial overreach.
August 15, 2010, 5:34 pmAttorney-in-training says:
It does happen to be accurate, regardless of how silly that you think it might be. I think we have already established that you aren’t exactly the most rational arbiter. Oh, and I’m glad that I made you laugh – a welcome change from all the angry and frustrated ranting.
Of course I know my station. I also know that it’s a whole lot more than what you are.
August 15, 2010, 5:39 pmMark Field says:
Cases like this one, in which the official sincerely believes his federal oath obligates him to act inconsistent with state law.
Yes, I was answering under CA law. Jay’s comment makes an important distinction between mandamus issued to a lower court and mandamus issue to the executive branch. The discretionary/mandatory distinction I mentioned affects mandamus issued to the executive.
No, you’re mixing 2 different legal concepts, res judicata and the binding effect of prior decisions. If Judge Walker’s decision stands, then it binds the state of CA, including all branches of government. In practical effect, it puts the state back to the point where it was when the CA Supreme Court ruled that gays were entitled to marry. Any state court judge would be bound by that ruling.
Now, if there could be some way to put the federal constitutional question in issue without involving the state or state law, then it’s true that Judge Walker’s decision would not be controlling.
Think back to the creationism trial. No other court is bound to follow Judge Jones’s reasoning as between parties other than the state of PA and its subsidiary entities. However, the state of PA can’t challenge that ruling because it remains bound by it.
August 15, 2010, 5:40 pmJohn Herbison says:
I am flying by the seat of my pants here, but I would argue that Boddie should prevent a state court judge from dismissing the case outright. If the marriage is entered into in good faith, under the belief that the parties have the right to marry, (which would be the case if and while a federal court injunction were in effect,) some means of judicial dissolution must be made available, as a matter of Fourteenth Amendment Due Process.
Whether the state court would treat the subject matter of the suit as dissolution of a marriage is a separate question. The judge arguably could invoke the powers of equity and treat it as dissolution of a de facto partnership.
Again, I am flying blind here without knowledge of California law and without the benefit of research, so any “advice” I give here may be worth what it costs.
August 15, 2010, 5:40 pmGuy says:
R O’Brien, do you really think that strawman is convincing?
August 15, 2010, 5:41 pmtroll_dc2 says:
R O’Brien, what do you think of the standing issue?
August 15, 2010, 5:43 pmCommentus Anonymus says:
Judge Walker’s decision is indefensible in ethical, moral and Constitutional terms.
August 15, 2010, 5:45 pmStrict says:
“Race and sexual orientation are in no way analogous, especially in regards to marriage.”
Race and sexual orientation are not analogous. But that’s not the point.
The point is that the way governments treat[ed] race and orientation in regards to marriage is [somewhat] analogous.
e.g. if the government had a history of employment discrimination against red hair people, and it also had a history of employment discrimination against people with unibrows, the argument wouldn’t be that red hair is analogous to unibrows, but that the government’s treatment of the two groups is similar/comparable/analogous.
“People who want SSM need to go to the trouble of amending it, instead of hijacking the democratic process via judicial overreach.”
But the Constitution and the democratic process allow this judicial activity! If it’s so wrong [a "hijacking"], why doesn’t the democratic process shut it down? The federal court here was created by Congress pursuant to explicit authorization by the Constitution. If the democratic process doesn’t want the judiciary to conduct “judicial review” of government acts, then the democratic process can eliminate judicial review by amending the Constitution. See, your “if you want it, amend the Constitution” works both ways – not just against things you don’t like.
August 15, 2010, 5:45 pmAttorney-in-training says:
Well, it’s the truth now. Someone on the Internets saids it!
August 15, 2010, 5:48 pmORID says:
I have a new answer to an old question. I didn’t post it in an old thread since I figured it was dead and more appropriate here.
On August 8, Professor Kerr posted a poll regarding same sex marriage. I’m interested in this question:
If you believe the Constitution requires the recognition of same-sex marriage, when do you think the Constitution began to require it?
I was vexed and am not sure I posted an answer, nor would I have understood how to answer. In light of giving it more thought, I think in *this case*, the Prop 8 case, I have an answer, and it would apply to other states.
1) I don’t believe that same-sex marriage is a Constitutional right.
2) However, once a state offers a domestic partnership law, there is no rational basis for having a law separate than “marriage”.
3) So the answer, in California when they passed the domestic partnership law, the Constitution required California not to treat same-sex couples any different than traditional marriages, thus the effect is that California passed a same-sex marriage law.
4) Thus, the result of Prop 8 ruling is that any state with a domestic partnership law has no rational basis from not providing the same rights as “marriage” therefore there is no rational basis for making the laws separate.
Does this make sense to anyone else? I didn’t spend time in that thread so it may have come up, but I believe this answer not only preserves states’ rights and the rights of same-sex couples. I’ve come now to think there is little problem with states providing same-sex marriage, however if the people want to gender differences should pass the rational basis test.
I think its ridiculous that the judge stated the group doesn’t have standing to challenge, however in light of my points I now completely understand why he said California has no rational basis for banning same-sex marriage. California already provides a law which is claimed to provide equal rights, so why prevent homosexuals from having marriage?
August 15, 2010, 5:48 pmCommentus Anonymus says:
That’s just what Mullah Omar said. Or maybe it was Ahmadinejad.
August 15, 2010, 5:48 pmR O'Brien says:
“R O’Brien, do you really think that strawman is convincing?”
I think it is a fair representation of the reliance on legal midrash, instead of the actual text of the Constitution, that has become fashionable among many jurists.
August 15, 2010, 5:51 pmCommentus Anonymus says:
That makes no sense. Since race and sexual orientation aren’t analogous, it’s perfectly rational for the law to take that fact into account. All laws treat different things differently, that’s what laws are for.
August 15, 2010, 5:53 pmSteven Appelget says:
Starting up a blog to rehash arguments from other blogs is . . . . (you fill in the blank).
August 15, 2010, 5:54 pmAttorney-in-training says:
No, it makes absolutely no sense at ALL. If it is constitutional for a state to offer no protections and benefits at all to same-sex couples, then surely it would be constitutional to give same-sex couples some or all of the rights, but to reserve the term “marriage” for opposite-sex couples. It’s like saying that a state is not obliged to provide educational facilities for black children, but if it chooses to offer them, they have to be equal to those of white children. It makes no sense to require full rights to be given to a certain groups, as soon as certain rights are granted. A fortiori, it makes no sense at all. If the greater rights-deprivation is permissible, then surely the lesser one is constitutional.
Uh, what? Were you trying to make a clever comment?
August 15, 2010, 5:55 pmGuy says:
I don’t think that analysis is exactly right, neither stare decisis nor res judicata apply, and the judge’s order didn’t alter the state of state law – a judge can’t order state law be repealed, it’s either Constitutional or it isn’t. The only order is the injunction, which isn’t directed to state courts, as injunctions against courts are strongly disfavored (you wouldn’t hold a judge in contempt for a judicial act). There may be some special doctrine that explains this away (it seems there certainly ought to be if there isn’t. A special res judicata-like rule that stretches the Young fiction a little more), but I can’t think of it of the top of my head.
August 15, 2010, 5:56 pmCommentus Anonymus says:
Why not? It’s perfectly rational for society to say “Category A should be granted many of the same legal protections as Category B, but Category A and Category B are not identical.”
August 15, 2010, 5:57 pmepluribus says:
Commentus Anonymus says:
Thanks for clearing that up. Kinda puts an end to the whole discussion, doesn’t it?
August 15, 2010, 6:01 pmGuy says:
But the only difference is the sex of the individuals, how do you justify sex discrimination?
August 15, 2010, 6:04 pmAttorney-in-training says:
I hope the Defendants will think of that argument. They’ll win the case for sure.
August 15, 2010, 6:05 pmAttorney-in-training says:
The same way you would justify not granting couplings of that particular sex any rights at all. I don’t see how anything would change, simply because you have opted to give those couplings some or all of the rights of marriage, but not the name. If it can be justified to give those couples no rights at all, surely it is constitutional to give them some or all of the rights of marriage, but not the name.
August 15, 2010, 6:07 pmGuy says:
Well, I was addressing the argument in a vacuum, not with the assumption that denying the rights is Constitutional. I actually think there’s a serious problem the “why just a different label?” argument, in that it gives the states perverse incentives.
August 15, 2010, 6:10 pmR O'Brien says:
Is your argument here that it is “sex discrimination” because a man (woman) can marry a woman (man) but a woman (man) can’t marry a woman (man) and that’s a violation of the 14th amendment?
August 15, 2010, 6:12 pmChris Travers says:
My point is that defending a statute in court is not inconsistent with upholding the Constitution. There’s a point where the world is a stage and a point where it is not. In court, it’s a stage and you play your part. That’s what my proposed wording would be intended to clarify. When you are deciding who to prosecute under some state law, then it’s not a stage and you get to use discretion.
August 15, 2010, 6:14 pmCommentus Anonymus says:
No, the relationships are fundamentally different. Treating different relationship categories differently makes perfect sense.
On the matter of sex discrimination, how do you justify it? Or do you believe any and all sex discrimination is wrong? The military segregates soldiers by sex. Do you believe that’s the same as segregation by race? Doesn’t just about everyone discriminate based on sex when dating or seeking a mate?
August 15, 2010, 6:14 pmGuy says:
R O’Brien, yes. And why doesn’t your quote button work? Everyone else’s do, but none of yours.
August 15, 2010, 6:15 pmGuy says:
Simply saying the thing doesn’t make it so.
When the government classifies, it always must have a justification.
August 15, 2010, 6:17 pmShelbyC says:
How so? I though RJ only applied to cases between the same parties.
August 15, 2010, 6:18 pmGuy says:
Also we’re not discussing standing. So we’re kind of off-topic.
August 15, 2010, 6:18 pmR O'Brien says:
I had to fiddle with my NoScript and I was too lazy to before. Anyway, I was asking you that in the same sense one might ask you if you “really want to make that move” in a chess game. The 14th amendment does not address sex discrimination. If it did, then the 19th amendment would have been superfluous.
August 15, 2010, 6:20 pmGuy says:
The more I think about it, the more I think this could become a backdoor to Supreme Court review. Though if the “licenses are conclusive” or “marriage constitutes waiver” theories are adopted then Supreme Court jurisdiction would be barred by the adequate and independent state ground.
August 15, 2010, 6:23 pmMichael Ejercito says:
There is more on Imperial County’s standing to appeal the decision.
Suppose that a California state appellate court ruled that a criminal law was unconstitutional, vacating the conviction and sentence of the appellant, ordering that all convictions and sentences for the unconstitutional offense be vacated, and that the state is enjoined from enforcing the law. And suppose further that neither the original district attorney or the attorney general appeal to the California Supreme Court.
It would be strange if the other fifty-seven district attorneys had no standing to appeal even though they too are enjoined from enforcing the law, and some of the convictions they had might be thrown out. Even if they have no standing to appeal the vacation of the conviction of the appellant, surely they would have standing to appeal the portions of the ruling that affect them, such as vacating convictions and sentences in their respective jurisdictions, and enjoining them from charging anyone for violating the law in question.
Indeed, civil unions essentially reframed the debate.
Vacating the decision would not stop Judge Walker from entering a stipulated judgment or a default judgment, if appropriate.
That is a legal issue for the other state, not the state that has civil unions.
Insurance is an issue of state laws regulating insurance.
Which is not a legal issue.
And these benefits are a federal law issue, and they are not available to same-sex partnerships. The Ninth Circuit pointed this out in Adams v. Howerton.
the laws of other states are issues of the laws of other states.
So there would be no way of this issue reaching the U.S. Supreme Court through the state’s appellate system? Even if the California Supreme Court were bound by Judge Walker’s ruling, is there any reason why it can not be appealed to the U.S. Supreme Court on the basis that Proposition 8 does not violate the U.S. Constitution?
And anyway, the state’s judiciary was not a party to the suit.
Was the appeals process exhausted?
And even if Pennsylvania’s highest court rules that the judge’s ruling binds the state, how would that stop the U.S. Supreme Court from deciding whether or not to take the case?
You realize that such a ruling would essentially create a perverse incentive to completely shut out same-sex couples from any sort of officially recognized relationship with any sort of legal protection?
August 15, 2010, 6:24 pmMark Field says:
I don’t think so. In my view, once Prop. 8 is taken out of the picture, the law of CA reverts to where it was before. At that point in time, binding CA authority required equal marriage rights. No superior court judge can rule to the contrary.
Again, think about it in the context of the creationism lawsuit. If Judge Jones’s decision doesn’t bind the Dover school district, then the issue could get raised again and again by any PA lower court. That can’t be right.
August 15, 2010, 6:26 pmAttorney-in-training says:
“The 14th amendment does not address sex discrimination. If it did, then the 19th amendment would have been superfluous.”
The 14th amendment does not address racial discrimination either. It addresses “equal protection of the laws”.
August 15, 2010, 6:27 pmGuy says:
R O’Brien
Or it was being misinterpreted. If the Constitution originally prevented Congress from authorizing suits against states in state court, the 11th Amendment would have been superfluous, but that didn’t stop the Court from making that ruling and declaring that “sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself” in Alden v. Maine.
August 15, 2010, 6:28 pmORID says:
No, it makes absolutely no sense at ALL. If it is constitutional for a state to offer no protections and benefits at all to same-sex couples, then surely it would be constitutional to give same-sex couples some or all of the rights, but to reserve the term “marriage” for opposite-sex couples. It’s like saying that a state is not obliged to provide educational facilities for black children, but if it chooses to offer them, they have to be equal to those of white children. It makes no sense to require full rights to be given to a certain groups, as soon as certain rights are granted. A fortiori, it makes no sense at all. If the greater rights-deprivation is permissible, then surely the lesser one is constitutional.
We are at different starting points, because I don’t believe same-sex marriage is a constitutional right. If it was a constitutional right we wouldn’t be arguing over it. But once a state starts to offer some of the benefits of same-sex couples I don’t see the rational basis for not giving them the full benefits that married couples get. I’m pretty sure one of Judge Walker’s facts had to do with the fact that California allows same-sex couples to adopt, and encourages the practice. I think he captures clearly why not allowing SSM in California is irrational, California already goes 99% of the way there. I guess there could be some debate over how far does a state have to go before they must become the same… offering domestic partnerships is already 70% of the way, I’m not sure how a state could go 1-2% of the way.
August 15, 2010, 6:31 pmMichael Ejercito says:
From Legal Definitions :
It would only apply to the plaintiffs and defendants in the case. A state or federal court would not be bound by res judicata is deciding a case with different plaintiffs and defendants.
Thus, if a county clerk outside the jurisdiction of the California northern district refuses a marriage license to a same-sex couple who lies outside the jurisdiction of the northern district, and the couple were to sue the county clerk in state or federal court, res judicata does not apply, as the plaintiffs are different even if the same legal questions are presented. The state of federal judge hearing the case may not think that the court is bound by Judge Walker’s ruling. The judge may even conclude that Baker v. Nelson controls, and summarily dismiss the case.
Of course, nothing stops the dismissal from winding its way up the state or federal appellate system.
August 15, 2010, 6:31 pmGuy says:
But how was Prop 8 taken out of the picture? Walker only issued an injunction. What’s the mechanism?
But the school district was subject to the injunction and res judicata would prevent them from relitigating the issue.
August 15, 2010, 6:32 pmMichael Ejercito says:
So what rational bases would other states have for using gender classifications in the definition of marriage?
August 15, 2010, 6:33 pmMark Field says:
It does, but as I said above, the state is now bound and state law reverts to what it was before. On purely state law grounds, equal marriage is now the law.
Now, let’s suppose that the issue of federal law could be raised in some context other than CA law. For example, suppose a suit in CA Superior Court under DOMA. In such a case, the Court would not be bound by Judge Walker’s decision and could decide he was wrong. However, that wouldn’t affect the injunction barring enforcement of Prop. 8.
Even if the hypothetical DOMA case made it to the SCOTUS and that Court not only disagreed with Judge Walker, but disapproved his opinion, that still would not lift the injunction. CA would remain bound unless and until the injunction itself were set aside.
August 15, 2010, 6:33 pmJames says:
Seems to me that many in these comments are confusing “a right TO same-sex marriage” with “a right TO PROTECTION FROM INTERFERENCE WITH same sex marriage.”
The relevant Constitutional language is the Equal Protection Clause, which says that “no state shall … deny to any PERSON within its jurisdiction the equal protection of the laws.”
Rightly or wrongly, California has always had marriage laws imposing limits and protections on the marriage of two “persons,” including community property rights, medical visitation rights, privacy rights, age limits, medical testing requirements, and licensing fees. Accordingly, the Constitutional “right” to freedom from interference with marriage in California dates back to the 14th amendment (July 9, 1868). BTW, note that “persons” also includes illegal immigrants.
So your question really is “when did gay people become “persons” under the Constitution?” I strongly suspect that you already know the answer to that one. ;)
By the way, women, African-Americans, Asians, and disabled adults (among others) are also “persons” and each group has had to remind us of that over the years.
August 15, 2010, 6:34 pmGuy says:
Clear proof of activist judges twisting the words of the Constitution.
August 15, 2010, 6:39 pmAttorney-in-training says:
You did not address why that is. If a state is required to give 0% of all rights, but gives 70% anyway, then it’s giving 70% more than necessary. It seems absurd for a court to step in and say: well, now you’ve got to give the rest too. If a state can deny all of the benefits of marriage to a certain class, then surely it can opt to deny merely 30%?
August 15, 2010, 6:39 pmMark Field says:
Yes, and that means neither the state nor any agency thereof can enforce Prop. 8.
As I said in response to Shelby, a CA judge is free to disagree with Judge Walker if the issue comes up in another context, but is bound as long as Prop. 8 is in issue.
And, of course, in the absence of Prop. 8 there is independent state law which controls.
Sure, and that means that the validity of that policy can’t be re-litigated. Now, if another school district were to require the teaching of creationism, then the issue could be litigated anew over that statute. But it can’t be re-litigated in Dover.
Similarly, here if the issue could be raised in another state, or in CA outside the context of Prop. 8, then the correctness of Judge Walker’s ruling could be re-litigated. But if there’s no appeal, there’s no way for some lower court to “overrule” Judge Walker on Prop. 8 itself.
August 15, 2010, 6:40 pmGuy says:
That’s hard to justify, since technically it is only certain state executive officials who are bound by the injunction. Surely Walker couldn’t hold a state judge in contempt for ruling inconsistent with his ruling, so the injunction doesn’t bind state courts.
Then again, taking the Young fiction literally usually isn’t good for your sanity, so maybe I should just go with your view because it makes more practical sense.
August 15, 2010, 6:41 pmGuy says:
But it would also be completely unnecessary, wouldn’t it? You’re saying he had jurisdiction to issue a judgment but it should be vacated nonetheless because he (possibly) committed a harmless procedural error? I don’t get it.
August 15, 2010, 6:46 pmMichael Ejercito says:
Why not?
We have two parallel judiciaries- the state judiciary and the federal judiciary, with parallel appellate paths.
When interpreting federal law, U.S. district courts are bound by the Supreme Court and the relevant circuit court.
The appellate path is different when federal legal questions come before state courts. A superior court judge in California, when deciding a federal question, is bound by the U.S. Supreme Court, the California Supreme Court, and the relevant appellate court. Thus, superior court judges are bound to follow Proposition 8 to the extent that it conforms with federal law. And since cases can not be appealed directly from the superior court to the U.S. district court or even the Ninth Circuit, the superior court is not bound by the precedent on this issue.
Judge Jones’s ruling of couse binds the Dover school district, as they were the defendants in the case. It does not bind other school districts outside his jurisdiction.
If similar cases are brought against school districts in state courts or other federal courts in Pennsylvania, Judge Jones’s ruling will not be controlling precedent.
Other school districts are not bound by res judicata, as I noted above.
August 15, 2010, 6:49 pmMichael Ejercito says:
Correct.
When interpreting federal law, state courts answer to a different appellate chain-of-command, as it were.
August 15, 2010, 6:51 pmJames says:
You must mean “activist legislators.” Congress defined “persons,” not the Judiciary.
The First section of the 14th Amendment refers both to “citizens” and to “persons” and there was never any confusion or imprecision about the distinction in Congress, then or now.
“All PERSONS born or naturalized in the United States, and subject to the jurisdiction thereof, are CITIZENS of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of CITIZENS of the United States; nor shall any State deprive any PERSON of life, liberty, or property, without due process of law; nor deny to any PERSON within its jurisdiction the equal protection of the laws.”
August 15, 2010, 6:52 pmRoyLitmus says:
So an openly gay judge holds a month long show trial allowing the proposition backers to incur millions in legal expenses only to then say “to bad, to sad” you don’t have standing? Well I guess this helps explain why you still can’t find ammo on the shelves.
August 15, 2010, 6:52 pmRandy says:
“But using the system to advance your cause regardless of the merits of that cause over the objections of a majority of people attacks the foundations of the entire system.”
Actually, a majority (52%) of Americans now support SSM. That number is dramatically up since just last year. Over the past ten years, the polls have gone in only one direction, and that’s up.
Furthermore, among people under 30, support is around 80%.
Moreoever, only about 20% of Americans believe that gays or gay relationships are immoral, the lowest percentage since they began polling on this issue in the 70s.
So, the Debrahs the Alessandras, the Commentatuses, the Wallaces and so on are a dying breed. The more they rail on about how our relationships are immoral or just not as good as heterosexual relationships (such as Newt Gingrinch’s third marriage or Rush Limbaugh’s fourth), the more people laugh and see it for the fear-based argument that it is. Or in the case of same, just pure hate.
Or, they see that the people who are obsessed with gays are themselves either gay (such as George Rekers and Ted Haggard) or just plain crazy, like Rev. Phelps. Or a few people on this thread.
Fortunately, Americans are seeing right through it and are not buying it. I don’t see any major outcry throughout the nation — NOM’s national bus tour to save marriage has been a total flop. So I’m not worried — by the time this case reaches SCOTUS, we’ll have a solid majority supporting us.
August 15, 2010, 6:55 pmStrict says:
Commentus: “All laws treat different things differently, that’s what laws are for.”
This is not compelling. First, it’s not true – it’s an overgeneralization. Second, your “doctrine,” if it were accepted anywhere [and it's not], would insulate any law from equal protection challenge.
“Treating different things differently” is not per se rational, as you claim. You have to look closer – what are the things, how are they different, how are they treated differently, and why.
Attorney-in-Training: “The 14th amendment does not address racial discrimination either. It addresses “equal protection of the laws”.”
So, do you also think that the 13th Amendment didn’t address racial discrimination either; it just addressed “slavery”? The slavery that had nothing to do with race, right?
August 15, 2010, 7:00 pmStrict says:
“So, the Debrahs the Alessandras, the Commentatuses, the Wallaces and so on are a dying breed.”
I don’t think so. This “breed” is dwindling, yes, but not to the point of extinction.
And in most of the world outside America, they are the majority.
August 15, 2010, 7:03 pmDylan H. says:
Sorry if this has been asked before. Reading these comments off-and-on throughout the day, it’s easy to miss something.
If Prop. 8′s defenders have no standing to appeal, isn’t this a bad thing for pro-SSM groups? As far as I’m aware, the goal with this case was to bring it all the way up to the Supreme Court. Am I misunderstanding something, here?
August 15, 2010, 7:09 pmMichael Ejercito says:
No, it is not.
State courts are not bound by U.S. district court precedent.
And of course, any party bound by the injunction has standing to appeal to the Ninth Circuit. If Imperial County is subject to the district court’s order, they can appeal.
Only over the exact same plaintiffs and defendants and the exact same legal claim.
August 15, 2010, 7:11 pmStrict says:
“So an openly gay judge holds a month long show trial allowing the proposition backers to incur millions in legal expenses only to then say “to bad, to sad” you don’t have standing?”
1. Judge is not openly gay. He might be gay – if you want to make an argument that he should have recused himself or should have been removed for cause, make that. Did any of the litigants move for his removal?
August 15, 2010, 7:17 pm2. The trial wasn’t a “month long” trial. The trial dates are available – you’re wrong.
3. The trial wasn’t a show trial. Show trial almost exclusively refers to criminal trials. Do you want to argue that there was compelling evidence presented at trial that the judge roundly ignored? Or evidence that the judge wrongly excluded?
4. The judge didn’t “allow” anyone to incur millions in legal expenses. Those were choices all their own, and he had no say about it whatsoever.
5. He didn’t tell the litigants they don’t have standing. In fact, he issued an order and opinion on the merits of the case. What he did say, is that some litigants might not have standing to appeal.
6. It’s “too.” I don’t mind typos [I make them all the time] but I have a feeling yours wasn’t a typo.
ShelbyC says:
But the “state” wasn’t a party. And I’d disagree that a state judge interpreting California law is “enforcing” Prop 8.
August 15, 2010, 7:18 pmGene Hoffman says:
A couple of relevant issues framing the standing situation.
Neither of the potential new Governor candidates will defend Prop 8. Well, I guess there is a very, very small chance Whitman would but the political repercussions for her would make Gray Davis look loved by California voters.
The likely new AG will not defend. I also don’t think Cooley would defend should he beat Harris.
Now that Prop 8 has been ruled by a Federal District Court as unconstitutional Federally, most if not all California State Court judges are going to consider that ruling persuasive – though not binding. That effectively reverts those state courts to the binding holding in In re Marriage Cases from the California Supreme Court.
-Gene
August 15, 2010, 7:22 pmStrict says:
“As far as I’m aware, the goal with this case was to bring it all the way up to the Supreme Court.”
It’s not clear. Different people have different goals.
If the people in this case seeking to overturn Prop 8 could achieve that with an un-appealable lower court order, then that should be satisfactory, possibly ideal. It’s a quick, practical victory. It doesn’t include sweeping pronouncements that are binding on the whole country, but it achieves the immediate “goal” at hand – to invalidate Prop 8. There’s also a risk that the Supreme Court would issue such a sweeping ruling against the interests of SSM proponents. Why risk anything when you can take your unassailable low court victory and go home??
August 15, 2010, 7:22 pmRandy says:
Strict: “And in most of the world outside America, they are the majority.”
True, but among western countries, it’s dwindling fast. Mexico and Argentina just went all SSM, and I hear Chile is next. Funny that this is happening in places that are very strongly Catholic.
” The trial wasn’t a show trial.”
Actually, the judge went out of his way to allow defendants to present their case, so much so that when their lead person, a Mr. Tam, wanted to withdraw, he refused him the ability to do so. Furthermore, the judge made clear his impatience with the defendant’s failure to produce more evidence helpful to their side.
Additionally, Charles Cooper was rated in the top ten civil litigators in Washington by the National Law Journal. If he believed the judge to be unfair in any way, he had ways to raise those concerns, either before, during or after the trial. He did not.
What anti-gay people really can’t understand is that Cooper tried his best to present a case, but the facts simply aren’t there. He couldn’t show any harm to marriage as an institution and still cannot. In fact, their own expert witness conceded that marriage would be good for gays, and good for America.
When the defendant’s concede their case to the plaintiff’s, what is the judge supposed to do? Ignore it and rule in their favor anyway? THAT would be ridiculous and reversible, but that is exactly what several people are arguing here.
August 15, 2010, 7:27 pmRandy says:
Strict: ” It doesn’t include sweeping pronouncements that are binding on the whole country, but it achieves the immediate “goal” at hand — to invalidate Prop 8.”
Indeed. And over time, CA will add its own evidence to that of the other SSM states, such as Massachusetts, that SSM hasn’t harmed anyone at all. So when another case does eventually make it to SCOTUS, it will be all the easier to rule in our favor, since the facts will indisputably in our favor.
As, of course, they are today.
August 15, 2010, 7:29 pmChris Travers says:
Ok, so at some point you end up with a case where the state court is enjoining the state to act and the federal court is enjoining them from acting, and the date for the appeal has passed. What then?
August 15, 2010, 7:31 pmCommentus Anonymus says:
Simply saying there’s no difference between same-sex relationships and opposite-sex relationships, ignoring basic and undeniable biological facts in the process, doesn’t make it so.
You didn’t answer my question.
August 15, 2010, 7:31 pmChris Travers says:
I don’t think a same-sex marriage license case will be the next one that will reach SCOTUS. I think right-to-travel will be first, namely whether states are obligated under the Constitution (and DOMA notwithstanding) to recognize same-sex marriages which are valid in the couples’ state of residence but not valid where they are travelling.
Also I think that historical facts do provide an arguable rational basis for SSM bans provided that other elements of family law are firmly grounded in procreation. That would apply at least to a few other states (such as Utah).
August 15, 2010, 7:37 pmCommentus Anonymus says:
OK, then cite a law that does not discriminate in some way.
I don’t disagree at all. The argument from those arguing for SSM is “the law discriminates, therefore it is unconstitutional. That is the irrational position.
August 15, 2010, 7:39 pmCommentus Anonymus says:
According to a single CNN poll. So what?
Morality is not determined by popularity.
August 15, 2010, 7:41 pmMichael Ejercito says:
We will assume that these injunctions are based on differing interpretations of the same federal law.
I do not know how the issue would be settled. Has such an issue arisen before?
August 15, 2010, 7:43 pmCommentus Anonymus says:
He ignored all the evidence that went against his personal opinion.
August 15, 2010, 7:43 pmORID says:
You did not address why that is. If a state is required to give 0% of all rights, but gives 70% anyway, then it’s giving 70% more than necessary. It seems absurd for a court to step in and say: well, now you’ve got to give the rest too. If a state can deny all of the benefits of marriage to a certain class, then surely it can opt to deny merely 30%?
I think there is more of a rational basis to give 0% of rights/privileges than to give 70% of rights/privileges. Once the state starts to give less than 100%, the harm is created. But if a state withheld giving any there’s no harm because states are free to recognize or not recognize same-sex couples. I understand that is completely controversial, but that’s the settled law as it currently stands. Maybe I’m having a hard time understanding because it’s hard for me to wrap my brain around what should be withheld from same-sex couples, once a state legally provides them with recognition/protection/status.
I think the fact that there are gender differences is enough to pass the rational basis test. Maybe I don’t understand the test, so you can feel free to call me obtuse. When I think about the “rational basis test”, I think first about things everyone would agree on are “irrational”. If Prop 8 blocked anyone born in November from getting married, it would clearly be irrational. In fact I don’t believe right now there are any class of individuals who are prohibited from getting a marriage license. Thus, people with a life expectancy of 1 day can get married, people who are not in love but want some special legal rights can get married, even felons who cannot vote can get married (not pleasant to point out in this thread, but true facts).
However, this is from the Prop 8 decision:
Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.
I simply think that relative gender composition is important, and there is a rational basis for denying marriage and any other legal recognition. Judge Walker no where found fact that men and women are biologically the same. I think this biological difference is enough. If I were to try to explain more, I am at a loss to (clearly this is a weakness of my position). I find it hard to believe that there is a fundamental protection to “relative gender composition” in a state-recognized relationship. Maybe there is and someone else will have to explain better. I don’t think this difference is something like “blue eyed people can’t get married”.
This is one of the things I don’t understand about the lawsuit strategy. Why not have a same-sex couple from CA go to Alabama and attempt to adopt a child, and then file a lawsuit there? Far more would be on the table there (like the question of whether same-sex marriage is a Constitutional right). I think the most that would get settled out o the Prop 8 case is that states like CA with domestic partnership laws will have to recognize them the same as marriage (whether the remedy is to give everyone marriages or domestic partnership depends on the state, I see no reason why not provide everyone with “marriage”).
In the Prop 8 case you know this is going to get decided in narrow terms, as is the DOMA case. I find it vexing that relationships confer individual constitutional rights, but it’s easier for me to see harm. I’m not sure California is “harming” anyone, so I think that its the plantiffs in this case who have the standing issue. The harm of not granting marriage doesn’t appear to be traceable to California, rather it appears speculative and derivative. (someone pointed me to a link claiming that it would show in CA domestic partnership and marriage has different rights, but I didn’t get that from what I read).
August 15, 2010, 7:45 pmpublic_defender says:
You are mixing up standing with the question of who should win on the merits. Those are two overlapping but very distinct questions. You can have standing to bring or defend a losing position. You can lack standing to bring or defend a winning position.
August 15, 2010, 7:45 pmShelbyC says:
I would presume that the state official believes that the law is in fact valid. Hence the controversy generating standing.
August 15, 2010, 7:49 pmCommentus Anonymus says:
You’re the one who’s confused. I wasn’t addressing the issue of standing in that comment.
August 15, 2010, 7:49 pmDylan H. says:
I know that more than a few gay rights organizations were/are wary of breaking from the state-by-state strategy. I’m speaking mainly of David Bois and Ted Olson. According to this article in The New Yorker, “[the] Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.” Without an appeal, the case can’t go to the Supreme Court.
I’m fairly certain the gay community views this case as a potential game-changer. From the get-go, it has never been about Prop 8 specifically, but about same-sex marriage in its entirety. This speaking from a cultural level, mind you. There’s so much steam behind this case, that I think it would be disappointing in the long run to miss out on the opportunity to get gay rights in front of the Supreme Court. It is dangerous, in that the Supreme Court could indeed find Prop 8 perfectly constitutional. But there’s also the chance that this case is the final battleground and the victory would go to the LGBT community. Stopping with California just seems antithetical to what has been the general feeling of what this case means.
August 15, 2010, 7:50 pmMichael Ejercito says:
I should add that the Supreme Court rules should give a clue.
Petition for extraordinary writ
If a state court and a federal court issued contradictory injunctions based upon differing interpretations of federal law, a petition for extraordinary writ would be justified.
August 15, 2010, 7:50 pmMichael Ejercito says:
True, especially if the appeals process had not been exhausted.
August 15, 2010, 7:52 pmGray Peterson says:
I hope not. Their case was crap.
That would be the job of the legal team that was hired by the plaintiffs and funded by AFER. When they filed this case, they had no idea who would be the judge, or how said judge would rule on standing issues, or whether or not the state would defend it. They were prepared to make their case all of the way to SCOTUS on it’s merits. If the Olson/Boies/AFER legal team didn’t bring up the standing problems and argue zealously for their client’s interests, they would be remiss in their responsibility as lawyers and bar complaints can be filed against them.
A lot of people on the pro-marriage equality side were wondering if Ted Olson was trying to “Set us up”. They don’t quite understand that Attorney Code of Ethics have very significant penalties for not arguing zealously and throwing a case. That can get them disbarred.
August 15, 2010, 7:53 pmGuy says:
I, personally, consider it a good thing, Prop 8 has been enjoined, and I doubt scotus would have issued a favorable ruling at this juncture.
August 15, 2010, 7:54 pmChris Travers says:
How is it determined?
August 15, 2010, 7:58 pmSG says:
Thousands of special benefits are conferred by federal law on those who are married but denied to those who merely have civil unions.
Excellent – let’s carry this line of thought a little further. Why does federal law confer benefits on married couples? I submit that the government does not provide benefits to married couples because they are pleased that you found your soulmate and wanted to congratulate you but didn’t know where you were registered.
Think back 50 years ago, the pill didn’t exist, abortion was (mostly) illegal, no-fault divorce was not an option and the medical profession considered homosexuality to be a mental illness. If a couple got married, biology almost guaranteed that there would be children. That fact was compounded by a social structure (ironically pushed by progressives in the 1920′s) that the husband/father would work and the wife/mother would leave the workplace (if she had ever entered) to raise the children. That is the social structure that those marriage benefits were designed to support and reinforce. The government doesn’t have an legitimate interest in your personal fulfillment, but it does have a number of legitimate interests in children – that they exist, that they are provided for, etc.
Of course, it isn’t 50 years ago anymore. Society has changed in any number of ways, increased acceptance of homosexuality being but one of them, and sexuality and reproduction are no longer necessarily intertwined. Yet our laws regarding marriage retain that, perhaps now out-dated, concept that marriage implies sex implies children. And that’s why we have retained those benefits.
But if the logic behind SSM prevails, marriage has become about the happiness of adults and reproduction is irrelevant to the (legal) institution. If you accept this logic, then you ought to question at least some of those benefits granted to that institution. Why should a childless adult continue receiving social security benefits from their spouses income after death? It’s not like he/she had to give up their career in order to raise the children.
The answer to the question of how does SSM harm traditional marriage is that the basic premise challenges the notion that traditional marriage was based on and invites society to reexamine the institution an the benefits conferred on it. If marriage exists for the pleasure of the adults involved and children are irrelevant, than many of those benefits it currently enjoys cease to make sense as a matter of public policy. And that will harm those who are in traditional marriages. Have you not heard the argument that the state should get out of the marriage business entirely? If that attitude prevails, well, there’s some harm.
Now, SSM supporters have a valid point when they say that heterosexual couples (12 hour marriages in Vegas, serial divorces, etc) have make more of a mockery of the institution of marriage than the (statistically rare) committed gay couple that wants to get married. But legalized SSM does alter the institution. Perhaps for the better, but altered none the less. I’m enough of a Burkean conservative to wary of that change, and enough of a (small ‘d’) democrat to think that change should be made with the consent of the government and not imposed by a court over the explicitly expressed will of the majority.
And I find the argument that the 14th Ammendment/Loving v Virginia argument that SSM is constitutionally required to be as compelling as an argument that since Equal Protection correctly forbids separate black and white drinking fountains that it also forbids separate men’s and women’s restrooms.
August 15, 2010, 7:58 pmGuy says:
A sort of reverse Rooker-Feldman under the Supremacy Clause would undoubtedly prevent the state court from enjoining a state official to enforce prop 8. The difficult question is what forces the state courts to recognize the gay marriages?
August 15, 2010, 7:59 pmORID says:
I think the question in this case isn’t whether there is “harm” from recognizing SSM. The plantiffs needed to show that they suffered “harm”. I’m not so sure they did. I think the plaintiffs have a standing issue (I’m not sure it ever came up though).
I found the economic harm on states and cities to be incorrect. Their harm is a result of the fact that they are a part of California and accept the risk that California voters may harm them economically through the legislative process.
I don’t understand the *particular* economic harm that the couples in this case claim. Just because an economist testifies that same-sex couples may suffer economic harm, doesn’t make it traceable to California. How does the California tax code harm the same-sex couples? Does California not allow health insurance for same-sex couples?
I don’t see how the plaintiffs can claim that they have suffered physical harm at the hands of California.
That religious beliefs my harm gays and lesbians is completely untraceable to California.
I think the judge ruled that to survive a rational basis challenge, there doesn’t have to be any harm proven. Is that correct? I’m simply approaching from a legal perspective. In my mind I see why Prop 8 is thrown out as “irrational”, since CA already goes 60, 70 % of the way, as the Judge pointed out and as I explained above.
August 15, 2010, 7:59 pmGuy says:
This argument makes perfect sense because gay couples never adopt or raise children. Also, the state has a legitimate interest in making sure men and women have different cultural roles that are legally enforced.
August 15, 2010, 8:03 pmGuy says:
They claimed they were legally entitled to a marriage license, the state denied them a marriage license, therefore they had standing. That was legally cognizable harm on its own, no further harm needed to be shown.
August 15, 2010, 8:05 pmChris Travers says:
Hmmm… I’ve been arguing something like that on this forum for some time.
However, here’s where I disagree with you. If a state recognizes domestic partnerships or civil unions, and the differences in policy are rationally applicable to the differences in groups then I think it would still be Constitutional.
For example, Maine recognizes first cousin marriages, but they require that either the couple cannot bear children OR that they have genetic counselling first. I would think that if a state wished to say “first cousin couples can engage in domestic partnerships but not marriages” that might be permissible if and only if there were substantive policy differences between the institutions that met a legitimate state interest. For example, if there was a requirement for on-going counselling in terms of birth defect risks in terms of having children for as long as the couple could bear them, then that might be acceptable. However, simply partitioning it separately might not.
Similarly if same-sex partnerships had important differences (say, presumption of shared parental status) then that might be enough. I don’t know though.
Does that make sense to you?
August 15, 2010, 8:06 pmGuy says:
Are we still talking about the binding effect on state courts? It seems to me none of the obvious mechanisms:
stare decisis
res judicata
collateral estoppel
the injunction
Would operate to force a state court to recognize a gay marriage in a case in which none of the parties in Perry were present. So what would? A reverse Rooker-Feldman? A finding that the license is conclusive or that entering the marriage is a waiver of the issue under state law? Or is there really an alternate path to the Supreme Court here?
August 15, 2010, 8:10 pmChris Travers says:
Pretty much.
August 15, 2010, 8:11 pmGuy says:
Whatever would rationally allow banning SSM would probably justify the distinction. But more important are the perverse incentives: “We can’t create domestic partnerships! The courts will force us to have gay marriage!”
August 15, 2010, 8:13 pmGuy says:
Are there any states that actually have “separate restroom” laws?
August 15, 2010, 8:15 pmDebrah says:
Randy–
I will address you directly and leave the subsequent janissaries from your repetitious peanut gallery with the same message.
A few of you guys seem to be incapable of even the most fundamental reading comprehension.
So infantile that one wonders on occasion how the gay community has progressed as far as it has (from your trusty statistical and cultural analyses).
You’ve been churning out the same death-warmed-over responses to anyone who has anything but glowing praise for SSM.
I just want to say…….please go get married!
Since 50% of heterosexual marriages seem to be ones of misery, why should they be alone in the suffering?
My advice to you and those whose knee-jerk flourishes emerge like clockwork is to be the person you are masquerading as.
Be diverse. Be liberal. Be open to differences.
Not everyone thinks gay marriage is anything but comical. This has nothing to do with “tradition” or “religion”.
Take your stereotypes and your packaged melodrama elsewhere.
Your weepy act doesn’t work on those who are not working against you.
For such a tiny fraction of the population, the gay community attempts to push and push as if your agenda contributes to society in some magnificent way.
And this tiresome BS is trotted into every professional arena….contaminating the atmosphere as if others should pause. For what?
Get a life and conceive of an identity that does not consist of having everyone know what’s going on below your waist.
FYI, I’m not informed by religion or anything else but by the fact that the word “marriage” is a deliberately procrusteanized appellation for a gay coupling.
But put a choke-hold on it and call it anything you want.
Who gives a flying eff?
I don’t know the other people you recklessly throw out in your bulbous comment.
They seem to be stirred by different impulses than my own.
Consequently, if you are not pathetically lazy and dishonest, only address me directly.
Do not include me with those whom you believe to be responding with regard to “morality” or “religion”.
Morals have nothing to do with illumination of what many, many people say in private on the subject.
And believe me……these opinions cover a broad demographic.
I personally don’t care if you marry a hundred men.
Happy twink-chasing!
The oxymoronic features cannot be mitigated when one conjures the word “marriage” for gay coupling.
Your tedious playbook responses are just that: tedious
People have a right to opinions that differ from yours.
If anyone comes off as proselytizing cretins, it’s those like you and your ever-exercised buddies.
The whole idea that most gay men are monogamous is also ridiculous. One wonders if you ever talk to any other self-identified gay men.
Please get married. Get those long-sought-after financial benefits and shut up.
August 15, 2010, 8:15 pmMichael Ejercito says:
Nothing.
California’s courts are only bound by federal precedent on this issue, and the only federal precedent on this issue that binds California state courts is Baker v. Nelson.
Of course, the state appellate procedure would provide an alternate means for the issue to reach the U.S. Supreme Court.
August 15, 2010, 8:18 pmepluribus says:
Dylan H. says:
Yes, you are misunderstanding something. There is no certainty that SCOTUS would affirm Walker. Some think they would, some think they wouldn’t. At best, it’s a gamble. If they reverse his decision and establish a national precedent antagonistic to SSM it would be a major setback. As it is now, the decision is a victory of sorts. It may take years for this all to become settled.
August 15, 2010, 8:19 pmChris Travers says:
Check out the divorce litigation in Texas right now.
August 15, 2010, 8:19 pmChris Travers says:
I guess I question whether the incentives are genuinely perverse. I’m saying that a state may craft a policy providing there is a meaningful POLICY difference. Maybe when a woman in a same-sex marriage gives birth her partner has to fill out some extra forms at the hospital stating that she is intending to be the legal parent too. Whatever. Just there must be some policy difference and it must be rationally related to any legitimate government interest as well as to the separate criteria of the social institutions. That’s all.
I’m saying when you treat them as if there are no policy differences, you cannot then claim a rational basis for keeping them separate. That’s it in a nutshell.
August 15, 2010, 8:23 pmMark Field says:
Only if their goal was to gain equal marriage nationwide. If their goal was only to get married in CA, then it’s a win.
Edit: I see that others have responded, but I’ll leave this up anyway.
As Guy suggests, it’s best not to get too literal with the legal fiction which substitutes state officials for the state in injunction cases (the Supreme Court case allowing that is Ex Parte Young). The state itself is bound.
I guess I don’t understand what you mean by “enforcing state law”. Either Prop. 8 is state law or it’s not. If it is, then a state judge is bound by it unless s/he decides it’s unconstitutional under the federal constitution.
If it’s not, then the existing state law is that of the CA Supreme Court requiring marriage equality. I assume there’s no dispute that lower state court judges are bound to follow that.
August 15, 2010, 8:24 pmMichael Ejercito says:
A petition for extraordinary writ. If differing interpretations of federal law by state courts and federal courts result in contradictory injunctions, that can be used to settle the legal question.
The Supreme Court could stay only the state court ruling, under a reverse Rooker-Feldman, or it can stay both injunctions until it makes a final ruling on the interpretation of the federal law in question.
August 15, 2010, 8:24 pmChris Travers says:
With due respect, I have disagreed with Randy on this forum (and even to some extent on this issue) before and have always found him eloquent and tolerant. He and I disagree, for example, over whether SSM bans are per se Unconstitutional. He argues fairly and that is what matters. One only wishes everyone else did the same.
August 15, 2010, 8:27 pmRandy says:
Thank you Chris! I too don’t always agree with you, but I certainly enjoy reading your comments, as they are always thoughtful and cogent.
Thoughtful comments are always more interesting than insults, don’t you think?
Dylan: “I know that more than a few gay rights organizations were/are wary of breaking from the state-by-state strategy. I’m speaking mainly of David Bois and Ted Olson.”
What’s really funny is that people who are angry over this case keep blaming “gay activits” or “liberals.” The fact is that this case was brought about by both Bois and Olsen, neither of whom are gay and in fact very straight. Neither has any history of pro-gay activism or litigation, and Olsen is a leading conservative lawyer. They chose to bring this case, and found the plaintiffs.
At the time they announced they were doing this, all the major gay rights organizations, notably the HRC and Freedom to Marry, condemned this action and urged them to not proceed. They didn’t feel they needed anyone’s permission to file the lawsuit, and went ahead anyway.
Walker, who is now labeled an activist, was actually nominated by Ed Meese when he was Reagan’s attorney general. Walker’s confirmation hearings were opposed by many leading liberal groups who thought him too conservative, and since then, he has only proven them correct in most of his rulings.
So — straight people and conservative people came together to forge this decision. Blame it on whomever you like, but don’t blame it on the gay establishment or liberals, as they had nothing to do with it.
And I guess that’s what has some people so bewildered — if conservatives and straights support gay rights, and even SSM, then who is left to be hate mongering?
Debrah, over to you.
August 15, 2010, 8:48 pmDebrah says:
Chris–
One only wishes that intelligent and “fair” commenters would cease trotting out religion and the fake issue of “morality”.
I encourage everyone else who isn’t religious and does not bring the “moral” aspect into this debate to take those like Randy to task as well.
This needs to be understood…..and if it isn’t, then it can be articulated on some descending level that such people might comprehend.
Be diverse. Be open-minded……as so many wish to present themselves.
Understand that people who do not think gays are “immoral” might also find the word “marriage” an oxymoron as it is being applied to gay couplings.
When the same tedious and backward rants surface, this needs to be brought home.
Learn to debate on an honest level.
The reason such responders have to use the same tiresome debating tools is that the topic becomes uncomfortable for them otherwise.
And you know how important it is for them to remain comfortable in those encysted rants.
August 15, 2010, 8:49 pmStrict says:
“The argument from those arguing for SSM is “the law discriminates, therefore it is unconstitutional. That is the irrational position.”
Strawman. That is not the argument. The argument is that “the law discriminates with no rational basis; it has no rational relation to a legitimate government interest, therefore it is unconstitutional.” Or “the law discriminates and does not further an important government interest, therefore it is unconstitutional.” Or “the law discriminates against a politically unpopular minority group, is motivated by animus, and there is no exceedingly persuasive justification for the law.” etc.
No one – NO ONE – is arguing that any law should be declared unconstitutional simply because it “discriminates.” [e.g. speeding laws are unconstitutional because they discriminate against the speeders and not the non-speeders, etc]. You are using the word “discriminate” in the most broad sense possible ["all laws discriminate. that's what laws do."], but those arguing for SSM are using a much more specific and legal meaning of “discriminate.”
Debrah: “Take your stereotypes and your packaged melodrama elsewhere. ”
You tell ‘em Debrah! This is YOUR blog and YOUR internet, GAY RANDY should go away. And he’s gross too and gay people are bad. And he has IMPULSES that are DIFFERENT from yours, and yours aren’t gross.
August 15, 2010, 8:56 pmMichael Ejercito says:
Proposition 8 is state law.
It was not repealed.
Section 3 of Amendment 73 of the Arkansas Constitution had not been repealed. In Term Limits Inc. v. Thornton, the U.S. Supreme Court ruled that Amendment 73 violated Article 1 of the U.S. Constitution. Obviously, Arkansas state courts are bound by Term Limits Inc.’s interpretation of how Article 1 supercedes Amendment 73, Section 3.
But California state courts are not bound by the judge’s decision on the issue of how the 14th Amendment applies to Proposition 8; in fact, they are bound by Baker v. Nelson.
August 15, 2010, 8:59 pmStrict says:
“Understand that people who do not think gays are “immoral” might also find the word “marriage” an oxymoron as it is being applied to gay couplings.”
How is it an oxymoron? There is no contradiction, unless you are a Hegelian [or Maoist] who sees contradiction in everything.
Do you find “not guilty” to be an oxymoron when applied by a court to someone who actually committed the crime [someone who was "guilty" in the common sense of the word]?
It’s true that gay marriage is not a traditional thing. But just as how you can live with a “not guilty” verdict of someone who was guilty, you can live with gay people being “married.”
And not at traditional things regarding marriage and family are good. Do you believe in agnatic succession? Do you believe in morganatic marriages? I know someone who was (1) married off by her family in an arranged marriage (2) at the age of 15 to a 40 year old man (3) who was her cousin. All three of these things are very traditional things. In many places, a widow couldn’t remarry – such remarriages were non-traditional and were not considered valid “marriages,” but rather abominations. Do you believe in enforced widowhood? New York is currently in the process of adopting no-fault divorce; that doesn’t simply change divorce proceedings, it also redefines marriage and what it is to be in a marriage relationship with someone.
August 15, 2010, 9:17 pmChris Travers says:
Ok. Let me respond to this. I think there are two fundamentally different things at issue. I’m not speaking for Randy here– he is capable of speaking for himself. However…..
There are fundamental problems with saying “Same-sex couples can have most rights/responsibilities of marriage as long as they don’t call it that.” These problems break down into three categories:
1) Maybe those rights/responsibilities left out are relevant and leaving them out is unreasonable discrimination.
2) There is the question of social stigma with the government’s stamp of approval, and
3) There are legitimate conflict of law issues which crop up differently when it’s not called a marriage. See, for example, the cases going on in Texas right now. Also see Cook v. Cook (AZ Appeals Court 2005), holding that the statute that purported to void all same-sex and first-cousin marriages in the state could not void the marriage of a couple that moved to the state before that passed.
So against this, I have to ask what is the rational basis for the legal, as opposed to social, recognition that this is not marriage? Is there a legitimate goal of public policy that is furthered? If not, is it about the argument of “public morality?” If that’s all it is, I don’t think that can stand. Moreover, I think all three questions are relevant to Prop 8 (which I think is Unconstitutional because of the first and third class of issues specifically).
So here we are talking about legal impacts vs social impacts. Nothing the state does here requires that you use the term “marriage” to describe such same-sex unions. You can call them “spousal contracts” or whatever. That’s your business. The question is, however, what business the state has representing these differently for purposes of benefits and conflicts of law when they have already declared they don’t believe in a policy of legal inequality.
So I don’t disregard your points. I just think that language and culture have their own methods of propagation which the state isn’t a major player in. So I think they are largely irrelevant to the questions at hand.
Maybe it’s less about public morality as public morale, but I don’t think either justify creating those issues mentioned above when the state is not pursuing some other substantive goal. Moreover, Prop 8 doesn’t merely repeal a court decision. It might change the balance in terms of how conflicts of laws are handled in California courts. One could get around that by reading Prop 8 to only refer to a “marriage” solemnized in California and therefore avoid the conflict of laws issues together but I don’t think that’s what folks had in mind.
August 15, 2010, 9:20 pmSG says:
This argument makes perfect sense because gay couples never adopt or raise children. Also, the state has a legitimate interest in making sure men and women have different cultural roles that are legally enforced.
Not that you asked, but I would support marriage for gay couples that were legal parents.
Also, the state does have a legitimate interest in seeing that children are parented and the law attempts to ameliorate (some of) the costs of that duty. How those parental duties are divided remains up to the parents. While it traditionally has been along gender lines, the law (correctly) does not require or enforce such a division. I think that’s appropriate, don’t you?
Are there any states that actually have “separate restroom” laws?
I don’t think that’s the correct question – the question is do separate restrooms violate equal protection? I don’t think the Constitution either requires or forbids unisex bathrooms.
But in response to your question, I think most states would have some some sort of criminal charge they could bring against a man who went into the women’s room if he was asked not to, even if just trespassing.
New York is currently in the process of adopting no-fault divorce; that doesn’t simply change divorce proceedings, it also redefines marriage and what it is to be in a marriage relationship with someone.
I think no-fault divorce was more destructive to the institution of marriage than same sex marriage is likely to be on its own. I’d trade support for SSM for repeal of no-fault divorce.
As it is, SSM seems like yet another straw. Although, perhaps the camel’s back is already broken, and this is just the straw that brings everyone’s attention to the paraplegic camel and motivates us to put it out of its misery.
August 15, 2010, 9:31 pmSteven Appelget says:
Deb: Please post more. If this thing gets vacated and there needs to be a new trial, the more evidence of animus, the better.
August 15, 2010, 9:33 pmChris Travers says:
I’d settle for allowing whether there is an irreparable breakdown in the marriage to be litigated. As it is contesting that is itself an irreconcilable difference. Failing that, I’d suggest a waiting period of 4 months for uncontested divorces and one year (or better, 18 months) for contested divorces.
Or, failing that, requiring some contact termination compensation for the non-moving party. IOW, you file for a divorce, you pay your soon-to-be-former-spouse some sort of compensation for breaking the contract.
August 15, 2010, 9:34 pmGray Peterson says:
When the case was originally filed by the AFER legal team, judges are randomly assigned to cases. There was a lot of unknowns to this case, about whether or not the defendants (The Governor and AG) would have stood up and defended Prop 8 in the federal courts against constitutional challenge, if the Prop 8 Proponents would be granted intervention status, there was just a lot of unknowns. When it was filed, there was a pretty strong possibility that it would have gone to the SCOTUS.
The AFER legal team is prepared to make their legal case on it’s merits up to SCOTUS. However, the unique circumstances of what happened here has caused it to where this major question of standing took place. The AFER legal team (Olson and Boies the co-leaders) need to do everything they can to annihilate Prop 8′s effect on it’s clients as soon as possible. That is their job as attorneys (Which some of the legal minded here are blinded by their cultural politics on this issue).
There is another case that may be winding it’s way up to SCOTUS:
Gill et al v. OPM et al
and Hara v. Merit Protection Systems Board in the US Court of Appeals for the Federal Circuit.
Those cases have some superior legal angles to it considering that the couples involved are already married under state law, but denied recognition by the US government due to DOMA’s Section 3.
If you look at some of the ways this is shaking out, this is a surgical strike method of dealing with marriage for same gender couples.
August 15, 2010, 9:37 pmMichael Ejercito says:
“For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.”
That was the U.S. Supreme Court in Murphy v. Ramsey. And far from having been ignored since, the Court cited that very quote in Davis v. Beason and United
August 15, 2010, 9:38 pmStates v. Bitty.
Strict says:
“I think no-fault divorce was more destructive to the institution of marriage than same sex marriage is likely to be on its own.”
What is “the institution of marriage”?? This is a serious question, I’m not trying to be snarky.
What do you mean by “destruction”?? If one of the persons in the marriage wants out, then I’d say the marriage is already “destroyed,” regardless of the legal proceedings or outcomes. Some people in New York can get around the lack of no-fault divorce by arguing “constructive abandonment” [and thus fault] instead.
No fault divorce may have facilitated divorce, but it’s also possible that it saved relationships. A mother and father could end their marriage relatively painlessly by stipulating that the marriage is just dead. Without it, there has to be a lot of airing of dirty laundry, opening up old wounds. After a stressful adversarial process [fault divorce], the relationship might be worse off and the children [think of the children!] could suffer because of it.
And what if no fault divorce facilitates a divorce which leads to a subsequent remarriage? One marriage gone, but one [or two if both remarry] new one to balance it out in terms of “destruction.”
August 15, 2010, 9:43 pmChris Travers says:
But the issue there is different. The concern had to do specifically with polygamy. This is entirely easily differentiated. It’s the same category error that folks make when they bring up Loving v. Virginia in support of requiring states to issue SSM marriage licenses.
I know you disagree with me on the scope of the rational basis review. I know you think that any law which could be enacted anywhere could be enacted anywhere else. I just disagree. A state can fatally undermine its rational basis to the point where it is meaningless without policy changes. If California wants to change the structure of domestic partnerships to address real and legitimate policy differences between same-sex and opposite-sex couples that’s fine. Until they do, I think there is no rational basis for passing such a Constitutional Amendment.
That’s an interesting case, esp. regarding the 10th Amendment side (something that seems to make Jack Balkin squirm quite a bit….).
August 15, 2010, 9:44 pmChris Travers says:
The issue is that divorce is generally hard for third parties, including children. While nobody wants folks to have to remain in an irretrievably broken marriage which causes suffering for everyone, I don’t think it’s good to make divorce easy to obtain either. Substantial procedural obstacles and/or penalties for asking for a no-fault divorce would help avoid that problem.
August 15, 2010, 9:49 pmStrict says:
“I don’t think it’s good to make divorce easy to obtain either. Substantial procedural obstacles and/or penalties for asking for a no-fault divorce would help avoid that problem.”
So marriages should be easy to obtain and divorces should be hard to obtain. But why the asymmetry?
We really want to be married: show the IDs, sign here and pay $50. Here’s the license.
We really don’t want to be married anymore, it’s just a broken relationship and we don’t even live together: no. Pay a ton, jump through hoops, tell the court everything you hate about each other… etc.
It may be often true that continuing in the broken relationship is more harmful [to them, to children, etc] than divorce.
August 15, 2010, 10:04 pmKevin Forrester says:
Erwin Chemerinsky agrees with you in his “Who has standing to appeal Prop. 8 ruling?” opinion in today’s Los Angeles Times, where he notes:
before stating that
Which means that the intervenors do not have standing, unless either the Circuit Court or the U.S. Supreme Court say they have standing.
Stay tuned.
August 15, 2010, 10:06 pmMichael Ejercito says:
No Supreme Court decision ever implied otherwise.
The anti-polygamy rulings reiterated the reason of preserving the traditional institution of marriage. Nor was the Supreme Court alone in this. In State v. Holm, the Utah Supreme Court quoted an earlier appellate decision that the state is “is justified, by a compelling interest, in upholding and enforcing its ban on plural marriage to protect the monogamous marriage relationship.” The U.S. Supreme Court denied cert to Holm.
August 15, 2010, 10:14 pmShelbyC says:
Well, my understanding is that it’s state law, but the officials that are parties to the case are enjoined from enforcing it. I gather you think that’s incorrect, but I haven’t understood why.
August 15, 2010, 10:22 pmORID says:
Chris Travers,
August 15, 2010, 10:41 pmThat makes sense to me, but I’m not sure what type of policy would be rationally applicable to same-sex couples. Couldn’t it be that the Maine law is unconstitutional since it doesn’t require anyone else to get genetic counseling? I think this is essentially what the pro-SSM argues if one says that marriage is for family purposes, which essentially seemed to be the arguments in the Prop 8 case.
Randy says:
Debrah: “I encourage everyone else who isn’t religious and does not bring the “moral” aspect into this debate to take those like Randy to task as well.”
I was sitting here thinking that your comments sound just so familiar, and then it hit me — you sound just like my boyfriend when we haven’t had sex in a while! So I think it’s time for a little girl talk, just you and me.
Now I know what you are going to say, “But Randy, all the good ones are either married or gay!” Very true. (Actually, that works to my benefit, since that means the good ones are for me. I’ll love to tell you about the married ones, but that’s another chat).
But that doesn’t mean you have to go through long dry periods. I suggest one simple tool: a vibrator. I know plenty of women for whom it’s a godsend, whether they have a husband or not (sometimes particularly when they DO). And it’s not at all icky, as doctors have been prescribing it for female “hysteria” since the 19th century.
Use it twice a day, and you’ll find that your tensions will melt away like butter. Like butter! Trust me, you’ll thank me. That’s why you need a best gay friend!
August 15, 2010, 10:49 pmRandy says:
SG: “As it is, SSM seems like yet another straw. ”
How so, SG? ARe you suggesting that people will stop getting married if gays do? Or that people will start getting divorced more? If so, you might want to look at the places where SSM has been legal for lo these ten years or so. Turns out that in places such as Massachusetts, the divorce rate is actually among the lowest in the country. And where SSM is banned? high divorce rates.
So the lesson we can take from this is …… (drum roll, please): Legalize SSM and watch your divorce rates drop like the ball at Times Square on New Years.
August 15, 2010, 10:52 pmGuy says:
Of course there are biological differences, don’t misrepresent my point, which is that there are no differences that matter.
Yes I did, classifying based on sex is not always “wrong” (by which I assume you mean unconstitutional), it is only “wrong” if there is no justification for it. I can’t think of one here, that’s why I asked you how you justify it.
August 15, 2010, 10:58 pmAlessandra says:
Incorrect. Human sexuality (a subset of which includes homosexuality) is inherently ideological. Every word used to talk about sexuality is ideological, every attitude and every concept about sexuality is ideological, every law, every norm, every debate.
The day homosexuality equals having some green pigment on your skin, you can argue that it equates to race. Until then, your equating of the two above is simply rubbish.
August 15, 2010, 11:03 pmAlessandra says:
It is a slur, because that is not my case. Unless you think that anyone who doesn’t submit to your homosexuality agenda-driven vocabulary is a hater. Oh wait, that is your false premise in the first place, isn’t it?
You smear based on ideological disagreement. That certainly qualifies you for a hater.
August 15, 2010, 11:09 pmleo marvin says:
Were they steam powered? If so, coal or wood burning?
August 15, 2010, 11:10 pmMark Field says:
No, it’s not state law. A law which is ruled to conflict with the US Constitution doesn’t remain “the law of the state”, it’s no law at all. This was settled in Martin v. Hunter’s Lessee and reiterated in Dartmouth College.
There seems to be a misimpression here that it’s somehow easy to generate a conflict with Judge Walker’s opinion, a conflict which can then be used to get around his ruling. That isn’t the case, as I’ve tried to explain.
Since I can understand that the legal issues are a bit complicated, let me try an example. Take Prop. 187 (CA’s attempt to control aspects of immigration). That was challenged in federal court and key aspects were struck down by the District Court. The state declined to appeal, just like here, which means there was no appellate review of the District Court decision, just as there will be no review here if Judge Walker is right about standing.*
My point is this: immigration is a hot-button issue. If there were an easy way around the ruling against Prop. 187, there would have been an attempt (probably multiple attempts). This hasn’t happened. Why not? Not for lack of motivation, but because it’s effectively impossible to accomplish. That’s going to be the case here if there’s no appeal.
*I’m neutral on the standing issue. He may very well be right, but I think it’s a close call.
August 15, 2010, 11:11 pmAlessandra says:
Maybe because you like to ignore how deep the Father Shanley crowd has sunk? Or the Ernst Rohm crowd? Or the Robert Wone murderers crowd? Eve Ensler?
Bizarre, isn’t it? I think so myself.
August 15, 2010, 11:13 pmAlessandra says:
I hope you know the meaning of the word “projection.”
And the most disgusting things about other people? Like what did I write that qualifies as the most disgusting things about other people?
August 15, 2010, 11:19 pmthe other laptop says:
From another thread:
Indeed.
http://volokh.com/2010/08/15/sensuous-i-cant-help-but-be-sensuous/comment-page-2/#comment-910796
August 15, 2010, 11:25 pmpdxnag says:
I had always thought that the remedy to a statute that violated a constitution was to declare the statute void. And the same for a state constitutional provision that violates the federal constitution.
If that were the appropriate remedy, or judgment, then the same-sex couples seeking such a declaration could not themselves benefit from the voided provision. They would be the ones without standing.
I viewed proposition 8 as a limit on the judiciary to craft an alternative remedy (to legislate) to insert into statute something that was not there. Proposition 8 would, however, not limit the judiciary from declaring that state recognition of all marriages was void, if not crafted so as to be gender pairing neutral. The analytical box then would leave civil unions as the only state recognized arrangement, where the gender pairing remains neutral.
If a non-same-gender couple planned to get married and were refused because the statute is declared void then they would have standing. The judiciary cannot — at least it is not supposed to — act like legislative body by way of side stepping the ordinary remedy; here so as to extend the definition of marriage.
The same-gender folk’s argument reminds me of an Oregon case where a plaintiff asserted that the Oregon Supreme Court had authority in quo warranto to hear a matter, while simultaneously arguing that the particular grant of original jurisdiction authority was itself invalid. It was circular reasoning there, just as it is here. The marriage statutes are void, but not void if extended through the legislative act of the judiciary. The legislature can reenact legislation with modification, marriage or civil union or none at all, after a court were to declare current marriage legislation void. That was supposed to be the process, in my opinion. Do you know how the legislature would have reacted? I sure don’t know, nor is it the role of a judge to substitute their own judicial legislation.
August 15, 2010, 11:26 pmleo marvin says:
Give Alessandra a break. It’s easy to look impressive when you’re the new kid on the block. Alessandra has been spreading her love for all of God’s creatures across several threads at once. If this isn’t her best work it’s only because the poor girl is working herself to the bone.
August 15, 2010, 11:39 pmGuy says:
Private segregation is perfectly Constitutional, even when enforced by trespassing laws, at least outside of strict scrutiny, where it becomes a “maybe” in certain contexts. And when the state does it it is acting as a landowner. The liberty interest in being able to use the other bathroom is de minimus, and the standard of review is intermediate scrutiny. Given that most people are heterosexual, it’s perfectly valid to segregate restrooms to avoid sexual harassment and other negative results.
Analyzing the question is better than saying “heightened scrutiny? How absurd!” because you need to ask yourself why it seems absurd, especially when you’re feeling that it is natural is the result of powerful cultural norms.
August 15, 2010, 11:46 pmGuy says:
I don’t think either of those cases stand for the proposition that a state court must defer to the judgment of an inferior federal court on the question of whether a law is constitutional. In prop 187, I would assume there was an injunction to prevent state enforcement, which essentially destroyed any hope of someone finding a way around the issue.
Here’s what’s unique about this case: ordinarily conflicts are avoided by the principles of stare decisis, res judicata, collateral estoppel, and the force of the court orders themselves. But they wouldn’t apply in a case in which California is not a party and the litigation is occurring in state court. Even so, a state court could not issue a ruling that conflicts with or sets aside the injunction, because that would be an ultra vires exercise of appellate jurisdiction over the federal court, the clearly rules out the possibility of conflicting injunctions. What’s not clear is that it would rule out a “passive” conflict in the form of the state court simply refusing to recognize the marriages (none of the three above principles, nor Walker’s injunction, would prevent this) it may (and, in my view, should), but if you have a case clearly on point I would appreciate seeing it.
August 16, 2010, 12:02 amMark Field says:
Sometimes that’s the only remedy, but often the court enjoins enforcement of the law in addition. Here, for example, the Court’s order reads in pertinent part as follows:
“Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the offical defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”
This doesn’t follow. If Prop. 8 can’t be enforced, then state law requires that the relevant officials issue them a marriage license. They have standing because the refusal to issue such a license injured them.
That’s not the way it was worded. As worded, it applied to all branches of state government.
Prop. 8 never had any effect on heterosexual marriages.
Judge Walker didn’t do that. All he did was say that the state can’t put conditions on the right of marriage without a rational basis for doing so.
August 16, 2010, 12:05 amAlessandra says:
Of course I made the distinction, or you wouldn’t even have the two terms to quote here. The term “homos” is a direct criticism to your normalization of homosexuality, to your attack at anyone who does not submit to your political and conceptual views on homosexuality, and who does not normalize and glamorize homosexuality like you do.
“Homosexuality zealots” refers to a much larger group than anyone with a homosexual psychology.
Because why do we have this attack from homosexuality zealot’s group in the first place? Why are you attacking my use of a word that does not glamorize homosexuality?
A “non-ideological” group does not systematically perpetrate insult, harassment, aggression and violence, nor dysfunctional behaviors in society. They do not deny other people fundamental rights. Neither do their defenders (like you). You like to lie about all the problems that involve homosexuality or homosexuals, I don’t. You like to trivialize and deny every act involving a homosexual or bisexual perpetrator and ridicule people for not going along with your denial. There is nothing inoffensive or ethical about what you are doing.
Let’s see your proof that conservative Christians have more vile individuals than people with a homosexual problem or than all the people who normalize homosexuality. Please continue the display of your arrogant, self-righteous chest beating.
Tell me. Millions? How many exactly? And every conservative Christian is now a murderer because one lunatic killed a doctor? By that analogy, every homosexual is also a batterer, murderer, child abuser, etc etc
“How many people have they burned at the stake over petty theological disputes? How many homosexuals have they burned at the stake? “
Tell me. Have you attended a burning at the stake recently? Where was that?
How interesting that I have never ceased to attack, assault and kill my opponents. Funny that they are all still alive and doing a lot of harm in the world. Maybe I’m dealing with zombies?
Or are you just showing your animus here towards myself based on a lot of deep-seated hatred?
You certainly qualify as a “conservative Christian” then. Or better yet, as a fanatical hypocrite.
Finally, if you want to play comparison games, who assaults more homosexuals, is it conservative Christians or is it homosexuals themselves? By whopping numbers…tell me, which one is it?
August 16, 2010, 12:10 amAlessandra says:
By your comment, I assume you are one of my “opponents.” You are being criticized in my posts. No one is denying that, certainly not myself. Which is more than we can say about the hypocrisy of some (if not all) my opponents here, when the action goes in the reverse direction.
August 16, 2010, 12:17 amMark Field says: