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You are here: Home / Politics / Domestic Politics / Big news in California

Big news in California

by Tim F|  November 16, 201110:28 pm| 38 Comments

This post is in: Domestic Politics

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The CA Supreme Court will announce tomorrow morning at ten whether the legal team defending Prop 8 has standing to defend it in court. Technically (and generalizing a bit) only the State of California has standing to defend its laws against a court challenge, and the CA Attorney General has already declined. If the group backed by NOM lacks standing then the case is over and gay Californians (maybe) can get married tomorrow. Cross fingers.

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38Comments

  1. 1.

    The prophet Nostradumbass

    November 16, 2011 at 10:35 pm

    I’ve got my fingers crossed.

  2. 2.

    Lurker

    November 16, 2011 at 10:39 pm

    @The prophet Nostradumbass:

    You and me both.

  3. 3.

    James E. Powell

    November 16, 2011 at 10:39 pm

    I am not sure why the California Supreme Court would want to give the advocate group standing. I didn’t see any precedent for it, so it would be a new thing. And it would be a new thing that would make for more litigation. If ‘the people of Californa’ are upset that the governor and attorney-general refused to defend a law declared to be unconstitutional through every available appeal, their option is to vote those bad guys out.

  4. 4.

    Gex

    November 16, 2011 at 10:43 pm

    @James E. Powell: Why do I suspect these folks want this precedent to be one sided. Such as, they and other right wing groups have standing whenever they want. I’m guessing Sierra club won’t be awarded the same.

  5. 5.

    David Koch

    November 16, 2011 at 10:44 pm

    If gay marriage is legalized, then the terrorists win.

  6. 6.

    Belafon (formerly anonevent)

    November 16, 2011 at 10:47 pm

    @David Koch: Yes, they will finally be allowed to marry each other.

  7. 7.

    Frankensteinbeck

    November 16, 2011 at 10:48 pm

    @David Koch:
    I know, right? I mean, just look at Al Qaeda’s stated goals:

    1. Unite all Islamic countries into one arch-conservative theocracy.
    2. Destroy Israel.
    3. Scare America into abandoning Israel.
    4. Grant universal equality to all kinds of marriages.

    It’s right on the list!

  8. 8.

    PhoenixRising

    November 16, 2011 at 10:48 pm

    Not exactly.

    The CA Court is responding to a request from a panel of 9CA judges, who heard the appeal of the federal court’s opinion that Prop 8 is void because it’s unconstitutional. So this opinion, while important, isn’t binding. The panel of judges, and the whole 9th, and the US Supremes will all be heard from in their own sweet time before anyone else is getting married in CA.

    Shorter: If you want to get married there are flights to NY twice an hour, cheaper than renting a hall in Van Nuys.

    Musical: No one’s getting married in the morning, ding dong no bells are going to chime, etc.

  9. 9.

    David Koch

    November 16, 2011 at 10:55 pm

    gay weddings undermined Kim Kardashian’s marriage.

  10. 10.

    Suffern ACE

    November 16, 2011 at 10:55 pm

    @PhoenixRising: Don’t be a coastal elite. See those egalitarian values first hand. The airport in Des Moines isn’t nearly as crowded. Who wants their honeymoon to start at LaGuardia?

  11. 11.

    The prophet Nostradumbass

    November 16, 2011 at 11:01 pm

    I bet gay weddings are making Newt Gingrich worry about the longevity of his third marriage.

  12. 12.

    hamletta

    November 16, 2011 at 11:07 pm

    @The prophet Nostradumbass: Well, that and the cute blonde number who answers the phones.

  13. 13.

    Gin & Tonic

    November 16, 2011 at 11:08 pm

    @David Koch: It’s like you’re not even trying any more.

  14. 14.

    Zifnab25

    November 16, 2011 at 11:28 pm

    The best way to win: By default

    And just a reminder to anyone that can’t tell the difference between Republicans and Democrats. I suspect Meg Whittman wouldn’t have been shy about prosecuting.

  15. 15.

    Gex

    November 16, 2011 at 11:32 pm

    @Zifnab25: All kinds of THIS.

  16. 16.

    cthulhu

    November 16, 2011 at 11:43 pm

    Having followed the case fairly closely, I will not at all be surprised if the CSC opines that the Prop 8 people have standing from CA’s perspective. Even the most liberal judge on the panel voiced concerns about the Gov/AG subverting the direct democracy of the CA initiative system – a system, I might add, that has probably hurt CA more than it has helped (the granddaddy of all voter errors being Prop 13).

    Note that this is purely an advisory opinion as the Feds must actually determine Federal standing. It may, however, set a not so great precedent for CA. On one hand, I do agree that if the Gov/AG feel that they can ignore results of initiatives on a regular basis, that is a problem. On the other hand, there has to be a point where they do have some latitude to not waste time and money on Federal appeals (and/or to not let crazy yahoos represent the state’s interests).

  17. 17.

    James E. Powell

    November 16, 2011 at 11:50 pm

    @cthulhu:

    The Governor and AG did not ignore the results of the initiative. They did defend it at trial. What is the basis for requiring them to pursue an appeal? Do elected official have no discretion in such cases?

    What if an initiative required public school teachers to lead class prayer? When the trial court declares it unconstitutional, does the governor or attorney general have to appeal that decision? If yes, what is the basis?

    What if the legislature had passed Prop 8 and it was ruled unconstitutional in the trial court. Would a group that advocated for the legislation have standing to represent ‘the people’ on appeal?

    The real question is who are ‘the people’ of California? Who is authorized to act for them in court?

    The question is whether a group with no constitutional role in California law can insist that it has one simply because it favored an initiative. Remember, the group that gathers signatures has no legal role. It is the people who sign the petition who are putting the matter on the ballot. There could be any number of people or groups who collect signatures or advocate for an initiative.

    Granting them standing opens a can of worms. What happens if instead of the group intervening because the governor or attorney-general will not pursue a case, the group demands standing because it disagrees with the way in which the governor or attorney-general is handling the case?

  18. 18.

    Steve

    November 17, 2011 at 12:08 am

    Every state gets to make its own rules, but as a general matter, the proponent of a ballot initiative has standing to defend the initiative results in court.

    Many times the entire purpose of a ballot initiative is to undo something that elected officials have done. Most states acknowledge that it would make no sense in this context to say that those same elected officials are the only ones who have standing to defend the results of the ballot initiative, so they allow the proponent of the initiative to do so instead. That’s not exactly the situation in this case, of course.

  19. 19.

    spudvol

    November 17, 2011 at 12:14 am

    And one more time Lucy promises not to pull the football away…

  20. 20.

    Steve

    November 17, 2011 at 12:17 am

    @James E. Powell:

    The Governor and AG did not ignore the results of the initiative. They did defend it at trial.

    No they didn’t.

  21. 21.

    Spaghetti Lee

    November 17, 2011 at 12:18 am

    I’m skeptical-is anything that simple or that quick? If it does happen like you said, I’ll be happy, though.

  22. 22.

    cthulhu

    November 17, 2011 at 12:18 am

    @James E. Powell: Yes, I agree that an opinion suggesting the Prop 8 people have standing would be very problematic. But I won’t be surprised if it happens.

    Regardless, the 9th can ignore whatever position the CSC takes (and probably should; IMHO it was a waste of time for the 9th to ask the question). I get the sense, however, that the 9th really wants to rule on the constitutionality of Prop 8. Now they could rule something like, the Prop 8 backers do not have standing and btw, Prop 8 is unconstitutional anyway but that is sort of an indirect knock against Prop 8. Or it may be simply that they do plan to rule for no standing and want to have their ducks in a row for the inevitable appeal.

    Either way, this is just another step in a long process.

  23. 23.

    The prophet Nostradumbass

    November 17, 2011 at 12:23 am

    @James E. Powell: No they didn’t. Jerry Brown again says Prop. 8 should be struck down
    , from 2009. Brown was AG at the time. He absolutely refused to defend it in court.

  24. 24.

    Alison

    November 17, 2011 at 12:26 am

    Wouldn’t it be nice if bigots would just STFU and keep their bigotry to their damn selves and not insist on treating entire groups of people as second-class pseudo-citizens and everyone could live their lives as they wished so long as they weren’t causing actual harm as opposed to make-believe harm the bigots whine about all damn day and we didn’t need to argue the intricacies of my dumb ass state’s dumb ass governmental procedures and rules?

    Wouldn’t it be nice?

    Discuss amongst yourselves while I go feed my unicorn.

    Sigh.

  25. 25.

    cthulhu

    November 17, 2011 at 12:26 am

    @Steve: At the state level, backers of the initiative have legal standing but Arizonans for Official English speaks directly regarding the standing issue for Prop backers at the Federal level and on that basis, the Prop 8 people should be screwed. The fact is, it is not clear what “injury” the Prop 8 backers have suffered that makes them party to a Federal appeal.

  26. 26.

    The prophet Nostradumbass

    November 17, 2011 at 12:29 am

    I got into an argument with someone about this a few years ago, and they claimed they had a non-bigoted reason for opposing same-sex marriage. They claimed to be against it because it would allegedly have an effect on state tax revenues.

  27. 27.

    Brian S

    November 17, 2011 at 12:30 am

    @Suffern ACE:

    The airport in Des Moines isn’t nearly as crowded

    Hell, I’ll sell you the champagne. The place I work is about a ten minute drive from the airport.

  28. 28.

    Steve

    November 17, 2011 at 12:31 am

    @cthulhu: Yes, I don’t think they have Article III standing. But presumably there’s some reason why the Ninth Circuit thought it was relevant whether they possess standing under state law.

  29. 29.

    Warren Terra

    November 17, 2011 at 12:33 am

    Sorry, I refuse to hope for a win on these grounds. I despise homophobia and welcome Gay Marriage, but I abhor all these weasely judicial decisions made on the basis of Standing. Usually when we hear that some case has been rejected on the grounds of Standing, it’s a victory for the forces of repression against the little guy – for example, the ACLU lawyers who couldn’t prove their clients had been wiretapped, and so had no Standing to challenge warrantless wiretapping. There’s a case in Washington state right now, the details of which escapes me, in which the Winger Attorney General refuses to press a case brought (or defended, I forget which) by the Democratic Lands Commissioner, and the Attorney General is probably the only person with Standing. It seems that every time I see the word “Standing” in connection to a court case with policy implications, someone is being cheated – too often, all of us are being cheated.

    Prop 8 may be an expression of hate, but the legal issues around it are very real, millions of (deluded at best) people voted for it, and it deserves a real day in court, not legal trickery. See the example of the federal DOMA case, which the Obama administration rightly refuses to defend, for a better way to handle this: with the Solicitor General standing aside, a highly competent legal team employed by and possibly consisting of bigots will have their day in court.

  30. 30.

    MikeJ

    November 17, 2011 at 12:40 am

    @Warren Terra: Which sounds reasonable, except you really don’t want to allow each of 300,000,000 citizens to try and retry and retry every law they don’t like.

  31. 31.

    Roger Moore

    November 17, 2011 at 12:58 am

    @James E. Powell:

    I am not sure why the California Supreme Court would want to give the advocate group standing. I didn’t see any precedent for it, so it would be a new thing. And it would be a new thing that would make for more litigation. If ‘the people of Californa’ are upset that the governor and attorney-general refused to defend a law declared to be unconstitutional through every available appeal, their option is to vote those bad guys out.

    I’m inclined to disagree. My understanding is that California does grant special status to the sponsors of an initiative, and there’s some reason to want that to be the rule. The whole point of the initiative process is that it’s supposed to be a way of passing legislation that the elected officials can’t easily thwart because it goes against their narrow interests. I really don’t like the idea that the governor and attorney general can invalidate any initiative they like by getting their friends to challenge it in court and then refuse to defend it; some day the initiative that needs defending may be one I like.

  32. 32.

    cthulhu

    November 17, 2011 at 1:03 am

    @Steve: My bigger worry is that the 9th seems to be tending toward using the Colorado Prop 2 case and the concept of “different in name only” as the basis for their eventual ruling. Yes, this would be far more easily supported by SCOTUS being pretty much handed right to Kennedy. But the downside is that the ultimate result would be that, while marriage equality would be returned to CA, no other state would likely immediately benefit. It would tee up certain states like WA that are at or near “separate but equal.” Still, any ruling that turns upon the situation where rights first have to be granted and then removed by vote, I don’t see where one gets marriage equality in MS, for example.

  33. 33.

    Villago Delenda Est

    November 17, 2011 at 2:05 am

    @The prophet Nostradumbass:

    How in the name of Scrooge McDuck do they figure that? Furthermore, who the hell do they expect to fall for such utter nonsense?

  34. 34.

    John S.

    November 17, 2011 at 4:00 am

    some day the initiative that needs defending may be one I like.

    This is why liberals always fucking lose. Do you really think that conservatives think this way? Hell no. They seize power wherever they can, and then simply change the rules in whatever way continues to benefit them. Incongruity of logic or blatant hypocrisy never quite seem to affect them. When Dems block judicial nominees, Repubs threaten to blow up the filibuster and bend public opinion (with the aid of a compliant media) to their side. When Repubs block every fucking thing that moves for 2 years, Dems balk at even considering a change in the rules (heaven forbid the GOP follow suit which they are going to do anyway) even while public opinion is blithely unaware that such an abuse is even happening.

    Look, I realize that Dems tend not to be major assholes like Repubs are (which is why I’m a Democrat), but it sucks getting punked by opponents who refuse to play by any rules, especially ones rooted in equanimity which only one side even remotely gives a shit about.

  35. 35.

    jon

    November 17, 2011 at 7:02 am

    @Gex: Yes, the Sierra Club or left-wing groups need not apply. Back in the Bush Administration, I would often ask conservatives who loved the PATRIOT Act what they’d think of President Hillary Clinton implementing those rules. Some steadfastly approved of the idea, while others realized that power can be used against them as well as be the phantom penis of influence they so desired to fuck with the world in the way they chose.

    If a governor and attorney general don’t want to defend a law voted in by the people, that means right-wing governors can decide court cases by not showing up just as much as left-wing governors can. The people or just minority groups thereof have a right to redress grievances in before the courts, had their petitions signed, there was an election, and something was decided that became law. I’d say that group has standing from someone, even if I think they’re a bunch of backwards-thinking moron god-botherer hate-group bullshitter brigadeers.

  36. 36.

    Shlemizel

    November 17, 2011 at 8:21 am

    @Gex:

    Like Gore v. Bush
    “This decision can not be used as precedent for any other case”

    I’d expect that in many courts, packed with wingnut appointees but am hoping for better there.

  37. 37.

    Shlemizel

    November 17, 2011 at 8:25 am

    @Zifnab25:

    If I may quote the esteemed Homer Simpson:
    “The two sweetest words in the English language, DE FAULT!”

  38. 38.

    James E. Powell

    November 17, 2011 at 11:46 am

    @Roger Moore:

    And others.

    I stand corrected on the governor and attorney-general at trial. I thought the state of California, through one or both of them, were parties at trial.

    To your point that the state officials could invalidate a law that they don’t like. When a law is unconstitutional, why should the state be required to defend it? If so, how far? Through the first appeal? All the way up? If so, why?

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