Prop 8 supporters can appeal

David Boies, one of the attorneys that won a ruling against Prop 8 in district court

The California Supreme Court today issued an advisory ruling indicating that ProtectMarriage.com does have standing to appeal a trial court ruling that Proposition 8, the 2008 amendment to the state’s constitution that banned same-sex marriage.

The Supreme Court issued the decision after being asked to do so earlier this year by the 9th Circuit Court of Appeals. The Supreme Court’s opinion is an advisory ruling only, which means that the appellate court is not bound by its findings. The 9th Circuit judges, however, have previously indicated they would follow the Supreme Court’s decision.

Prop 8, approved by California voters the same year that Barack Obama was elected president, was ruled unconstitutional in the summer of 2010 by District Judge Vaughn Walker, who has since retired. The amendment was defended in court by ProtectMarriage.com, the primary backer of the Prop 8 referendum, after California Attorney General Jerry Brown refused to defend it in court. Gov. Arnold Schwarzenegger also failed to defend the amendment in court.

When ProtectMarriage.com appealed Walker’s ruling to the appellate court, the three-judge panel chosen to hear the case heard oral arguments in early December 2010 and a month later asked the state Supreme Court to weigh in on the question of standing.

In its ruling issued today, the Supreme Court wrote:

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

Now the wait begins to see if the 9th Circuit abides by the Supreme Court’s ruling on standing, and how the appellate court will rule on the merits of the case. Regardless of the outcome, the case is likely to be appealed again, first to the full 9th Circuit, and then to the U.S. Supreme Court.

Since Prop 8 was voted on in 2008, more than twice as many people are covered by marriage equality laws in the United States. New York legalized same-sex marriage in June, 2011. Several states including Illinois have new domestic partnership laws and several countries have also recognized marriages between gay and lesbian couples.

 

—  David Taffet

California Supreme Court to issue ruling Thursday on question of standing in Prop 8 case

The passage of Proposition 8 sparked angry protests around the country

The California Supreme Court today announced that it will issue its opinion tomorrow, Thursday, Nov. 17, on whether supporters of Proposition 8 have standing to appeal a trial court ruling that the voter-approved amendment banning same-sex marriage is unconstitutional, according to this report at MetroWeekly.com.

Voters passed Prop 8 in the November 2008 election, 52 percent to 48 percent, just months after the state Supreme Court issued a ruling saying that a law prohibiting same-sex marriage in California violated the state’s Constitution. Prop 8, however, amended the California Constitution, adding a clause declaring that only marriage between one man and one woman is valid or recognized there.

The vote sparked widespread protests, and opponents soon filed a federal lawsuit, Perry v. Schwarzenegger, claiming that Prop 8 violates the 14th Amendment guarantees of due process and equal protection in the U.S. Constitution. Then-Attorney General Jerry Brown chose not to defend the case in court, saying he, too, believed Prop 8 was unconstitutional. Then-Gov. Arnold Schwarzenegger said he supported the lawsuit because it asked important constitutional questions that needed to be answered, but none of the other state officials named as defendents were willing to defend the case in court, either.

At that point, a group called ProtectMarriage.com, the official proponents of Prop 8 in the election, and a second group called the Campaign for California Families both filed motions to intervene to defend the amendment. District Court Judge Vaughn Walker allowed ProtectMarriage.com to intervene but denied the second group’s effort. Imperial County filed a motion to intervene to defend Prop 8, but their motion was also denied because the deadline for filing had passed.

In August 2010, Walker ruled in favor of the plaintiffs in the case, declaring Prop 8 unconstitutional. He placed the ruling on hold, however, pending appeal to the 9th Circuit Court, a stay which the 9th Court later extended. ProtectMarriage.com appealed Walker’s ruling to the 9th Circuit, and again Brown and Schwarzenegger refused to defend the amendment in court. And this time, Walker’s ruling cast doubt on whether ProtectMarriage.com actually had legal standing to appeal his ruling.

A three-judge panel from the 9th Circuit Court heard oral arguments on the case on Dec. 6, 2010 and a month later, on Jan. 4, 2011, the 9th Circuit judges sent the request to the California Supreme Court, asking for an opinion on whether ProtectMarriage.com had legal standing to appeal Walker’s ruling.

Regardless of how the California Supreme Court rules tomorrow on the question of standing, the case is still a long way from settled. Whichever way the three-judge 9th Circuit panel eventually rules on the constitutionality of Prop 8, those on the losing side of that argument will likely appeal first to the full 9th Circuit Court, and from there to the U.S. Supreme Court.

—  admin

Calif. court mulls appeal rights of Prop 8 backers

LISA LEFF | Associated Press

SAN FRANCISCO — California’s same-sex marriage ban endured its latest legal test Tuesday as the state’s high court grilled attorneys on whether Proposition 8′s backers have legal authority to appeal a federal ruling that overturned the voter-approved measure.

The tenor of the justices’ questioning during the more than hour-long hearing often leaned in favor of arguments by backers of the ban, who argue that the state Constitution gives ballot initiative proponents legal authority to defend their measures in court.

On that critical question, several justices noted that the California Supreme Court always has, as a matter of practice if not written policy, allowed the sponsors of ballot questions to appear before it when their measures were challenged.

“Never in any recorded (case) have proponents been denied the right to advance their interests,” Associate Justice Kathryn Werdegar noted during the closely watched arguments. “The present state of California law is we allow liberal intervention.”

The Supreme Court is examining the scope of the power afforded the official backers of ballot initiatives at the request of a federal appeals court that is reviewing a federal judge’s year-old ruling that Proposition 8 violates the constitutional rights of same-sex couples.

The 9th U.S. Circuit Court of Appeals has expressed doubts about the ability of Proposition 8′s sponsors to challenge the lower court ruling absent the involvement of California’s governor or attorney general, both of whom agreed the ban was unconstitutional and refused to appeal.

But the 9th Circuit punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. Although the appeals court still must decide for itself if Proposition 8′s supporters are eligible under federal court rules to appeal the ruling that struck down the ban, the state court’s input is likely to weigh heavily in its decision.

If the state Supreme Court says the ban’s proponents did not have standing to appeal, and if the 9th Circuit and ultimately the U.S. Supreme Court ultimately agree, it could clear the way for same-sex marriages to resume in California.

If the court holds the proponents were qualified to appeal and the 9th Circuit agrees, the appeals court would then weigh the broader civil rights implications of Proposition 8. A decision on the ban’s constitutionality is expected to be appealed to the U.S. Supreme Court.

While agreeing that the state Supreme Court has never refused to give initiative proponents a seat at the defense table, several justices quizzed Charles Cooper, an attorney for the coalition of religious and conservative groups that sponsored Proposition 8, on whether there was a difference between the court using its discretion to do so and issuing an opinion that would be binding on future courts.

Chief Justice Tani Cantil-Sakauye observed that in the vast majority of cases in which initiative backers have been allowed to defend their measures, they have been “standing shoulder-to-shoulder” with the attorney general’s office, not acting on their own.

Cooper agreed that he was seeking to remove some of the court’s discretion, but said the justices could draft their guidance so it would only apply to situations, such as with Proposition 8, where state officials have refused to defend laws already approved by voters.

Theodore Olson, the attorney representing the two same-sex couples who successfully sued in federal court to strike down Proposition 8, argued that permitting initiative sponsors to step in under such circumstances would infringe on the authority of elected state officials.

“There is nothing in the California Constitution or the statutes that give private citizens the right to take on the attorney general’s constitutional responsibility to represent the state in litigation in which the state or its officers are a party,” Olson said.

“Is there any authority for the attorney general and the governor to second-guess a majority of the population?” Associate Justice Ming Chin interrupted.

Olson answered yes, explaining that the attorney general is obligated not to defend laws he or she judges to be unconstitutional.

Associate Justice Goodwin Liu, who was sworn in on Thursday and serving his first day on the court Tuesday, picked up the line of questioning.

“It seems to me the 9th Circuit has set up a hoop the initiative proponents must jump through to get to appeal,” Liu said. “Given the fact that initiative proponents clearly would have standing to appeal if this litigation was in state court … why can’t we read (the U.S. Constitution) to give the initiative proponents what they need to jump through that hoop?”

Associate Justice Joyce Kennard, who along with Werdegar was in the 4-3 Supreme Court majority that briefly cleared the way for same-sex marriages in California before voters passed Proposition 8, also questioned how the court could deny initiative sponsors the right to appeal in cases where state officials have refused to defend a law.

“It would appear to me that to agree with you would nullify the great power the people have reserved for themselves pertaining to proposing and adopting state Constitutional amendments,” she said.

Werdegar suggested that the court could tell the appeals court that it ordinarily grants initiative proponents the right to defend their measures, but stop short of establishing a new legal precedent.

The court has 90 days in which to issue its opinion.

—  John Wright

WATCH LIVE: Prop 8 hearing

As we mentioned earlier, the California Supreme Court is hearing arguments today on whether sponsors of Proposition 8 have standing to defend the same-sex marriage ban in court. The proceedings began at noon Dallas time, and you can watch them live here.

—  John Wright

What’s Brewing: Prop 8 case back before Calif. Supreme Court; Baldwin announces Senate bid

Congresswoman Tammy Baldwin
Congresswoman Tammy Baldwin at the Black Tie Dinner in Dallas last year.

Your weekday morning blend from Instant Tea:

1. The California Supreme Court will hear oral arguments today on whether sponsors of Proposition 8 have standing to defend the same-sex marriage ban in court. The state Supreme Court’s ruling, due within 90 days, will help determine whether a federal court takes up the sponsors’ appeal of a decision declaring Prop 8 unconstitutional.

2. Congresswoman Tammy Baldwin, D-Wisc., formally announced today that she’s running for U.S. Senate. If she wins, Baldwin will become the first openly LGBT person to serve in the Senate. “The fact is, I’ve been honest about my sexual orientation my entire adult life,” Baldwin told the Milwaukee Journal Sentinel. “And integrity is important in public service. But what voters are looking for is somebody who understands them, is fighting for them and won’t give up. The election is not going to be about me, it’s about the voters.”

3. LGBT activists glitter-bombed an anti-gay group from a chair lift at the Minnesota State Fair this weekend. The anti-gay group, Minnesota for Marriage, reportedly was given preferential treatment to distribute literature at the fair over a pro-equality group, Minnesotans United for All Families. Watch the glitter-bombing below.

—  John Wright

Calif. AG: Prop 8 backers can’t defend marriage ban

Attorney General Kamala Harris

LISA LEFF | Associated Press

SAN FRANCISCO — California’s attorney general has again come out against the state’s same-sex marriage ban, this time telling the state Supreme Court the proponents of successful ballot initiatives do not have the right to defend their measures in court.

Kamala Harris, a Democrat who succeeded Gov. Jerry Brown in January as attorney general, submitted an amicus brief Monday in the ongoing legal dispute over the voter-approved ban known as Proposition 8.

In it, she argued that only public officials exercising the executive power of government have authority to represent the state when laws passed by voters or the Legislature are challenged.

“California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process,” Harris wrote.

The question of where the role of ballot measure backers ends is critical to the legal fight over California’s ban on same-sex marriages. Both Brown and former Gov. Arnold Schwarzenegger refused to defend the 2008 constitutional amendment on appeal after a federal judge struck it down last summer as a violation of civil rights.

Proposition 8′s sponsors asked the 9th U.S. Circuit Court of Appeals to allow them to step in, but the court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law.

If the sponsors are not permitted to intervene, the lower court ruling overturning Proposition 8 will stand.

Lawyers for the coalition of religious and conservative groups that qualified the gay marriage measure for the ballot and campaigned for its passage have argued that initiative proponents need to be allowed to advocate for laws in court to prevent elected officials from effectively vetoing measures by not defending them in court.

Harris contended in her brief that rather than empowering citizens, granting the sponsors of initiatives the ability to overrule the governor and attorney general’s judgment “would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”

The California Supreme Court is expected to hold a hearing in the case before the end of the year.

Republican State Sen. Tom Harman of Orange County introduced a bill that would grant ballot measure sponsors the right to represent the state when elected officials refuse to defend enacted laws in court. The Senate Judiciary Committee defeated it on a 3-2 vote Tuesday.

—  John Wright

BREAKING: Appeals court won’t let marriages resume in California while Prop 8 case is decided

A federal appeals court has denied a request to allow same-sex marriages to resume in California while the lawsuit challenging Proposition 8 is decided. Chris Geidner at Metro Weekly reports:

In a brief order issued today, the U.S. Court of Appeals for the Ninth Circuit denied the plaintiffs’ request to vacate its earlier stay order, which is keeping Proposition 8 in effect during the appeal of the Perry v. Brown challenge to the marriage amendment.

The order, from the three judges hearing the appeal:

“Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.”

The plaintiffs had made the request of the Ninth Circuit to lift the stay shortly after the Department of Justice announced that it would no longer be defending Section 3 of the Defense of Marriage Act. The lawyers for the plaintiffs wrote, “The conclusion of the United States that  heightened scrutiny applies to classifications based on sexual  orientation is unquestionably correct. Proposition 8 cannot survive the  requirements of heightened scrutiny because its invidious discrimination  against gay men and lesbians could not conceivably further an important  government interest. Indeed, proponents have made no serious attempt  to defend Proposition 8 under that exacting standard.”

The ongoing consideration by the California Supreme Court of the certified question sent to it by the Ninth Circuit in the Perry case, which is delaying final resolution of the case by the Ninth Circuit, was an additional reason why the plaintiffs had requested that the stay be lifted. The California Supreme Court is considering whether the proponents of Proposition 8 have any “particularized interest” in the case or any legal right under California law to defend the proposition in court.

—  John Wright

We don’t all have the luxury of time

The American Foundation for Equal Rights, the organization behind the lawsuit challenging the constitutionality of California’s Proposition 8, has asked the 9th Circuit Court of Appeals to lift its injunction and allow legal same-sex marriages to resume in California as the lawsuit moves through the appeals process.

As you probably remember, early last year federal District Judge Vaughn Walker ruled that Prop 8 — an amendment to the California Constitution approved in a 2008 voter referendum — violates the U.S. Constitution’s guarantees of equal protection. California state officials said they would not appeal the ruling because they, too, believed Prop 8 to be unconstitutional. But the folks who backed the amendment in the first place and who were the only ones to try to defend it in Walker’s court, did appeal the decision to the 9th Circuit, which issued an injunction that is keeping same-sex marriages from resuming under Walker’s ruling. But in addition, the 9th Circuit, unsure whether the Prop 8 supporters even have legal standing to appeal, have asked the California Supreme Court to weigh in on the question of standing.

And therein lies the problem. The California Supreme Court justices have said they will issue an opinion on standing, but they aren’t in any hurry to do it. In fact, they don’t plan to issue any decisions until sometime after the summer.

And that just isn’t soon enough for some people, and that’s why AFER is asking the 9th Circuit to lift the injunction.  We don’t all have the luxury of time, and that includes 78-year-old Ed Watson of Palm Springs.

Watson has joined in Courage Campaign’s efforts to get the injunction lifted by writing this letter and making the video above. I think he says it all:

“Yesterday, I found out the California Supreme Court denied a motion to speed up the Prop 8 trial. They’re going to take their summer recess and come back in around 6 months or so. It must be nice for them.

“The thing is, I am 78 years old, and I have Alzheimer’s disease. I have been with my partner, Derence, for over 40 years. And if the courts drag this out for months and months, I fear I will, God forbid, lose the ability to recognize my beloved Derence when he gets on his knee to propose to me.

“I can’t afford that, and Derence deserves better. That’s why I agreed to be named in Courage Campaign’s amicus curiae letter to the 9th Circuit, asking that the stay be lifted so I can at least have my dignity on our wedding day.

“Please watch this video of my and my partner Derence, then co-sign our letter to the 9th Circuit, begging them to lift the stay while the California Supreme Court drags its feet.

“If the California Supreme Court is going to take its time, then we deserve the dignity of marriage … before I can’t remember what marriage is.”

“Humbly, Ed Watson, Palm Springs, CA.”

—  admin

What’s Brewing: Sarah Palin on DOMA; anti-gay preacher Grant Storms on arrest; Prop 8 update

Grant Storms

Your weekday morning blend from Instant Tea:

1. Grant Storms, the anti-gay Louisiana pastor who was arrested last week for allegedly jerking off in his van while looking at kids on a playground, insists he wasn’t really masturbating — he just had his hand in his pants. In a bizarre press conference Tuesday, Storms claimed that reports saying he confessed to the crime are untrue. But he also said he knows what he did was wrong, and admitted he has a problem with pornography, which he’d been looking at an hour before the incident. Also, he’s sorry for those anti-gay protests he led at Southern Decadence and is asking for forgiveness. Well, we’re not going to forgive you just yet, Mr. Storms, but we will give you some free legal advice: Shut the hell up! Towleroad has video of Storms’ press conference.

2. Taking a page out of former Dallas Mayor Tom Leppert’s playbook, Sarah Palin slammed President Barack Obama for his decision to no longer defend the Defense of Marriage Act. In a statement she gave to the National Organization for Marriage, Palin accused Obama of flip-flopping on DOMA, which is course patently false. Obama has said all along that he wants to repeal DOMA. We’d suggest that if Palin wants a real example of flip-flopping, she should refer back to Leppert.

3. California Attorney General Kamala Harris filed a brief Tuesday in the Prop 8 case urging a federal appeals court to allow same-sex marriages to resume immediately in the state. “For 845 days, Proposition 8 has denied equality under law to gay and lesbian couples,” Harris wrote. “Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, opportunities have been missed, and justice has been denied.”

—  John Wright

Federal appeals court asked to allow same-sex marriages to resume in California

Ted Olson

The American Foundation for Equal Rights, which is challenging Proposition 8 in federal court, today asked an appeals court to lift its stay blocking same-sex marriages in California and allow them to resume immediately pending the outcome of the case.

In August, the U.S. Court of Appeals for the Ninth Circuit stayed an injunction barring enforcement of Prop 8, California’s ban on same-sex marriage. However, AFER argues in its motion filed today that due to delays in the Prop 8 case, Perry v. Schwarzenegger, the stay should be lifted.

AFER’s request is unrelated to today’s announcement by the Obama administration calling a portion of the Defense of Marriage Act unconstitutional and saying the Department of Justice will no longer defend DOMA in federal court.

“We are respectfully asking the Court to lift its stay on marriage for gay and lesbian couples because it has become apparent that the legal process is taking considerably longer than could reasonably have been anticipated,” said Theodore B. Olson, co-lead counsel for AFER. “It’s important to remember that the stay was originally ordered with the understanding that the Ninth Circuit would rule swiftly on the case before it. Now that the issue of the Proponents’ standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It’s unreasonable and decidedly unjust to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second class citizens while their U.S. District Court victory is debated further.”

Read the full press release after the jump.

—  John Wright