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Can the Prop 8 ruling even be appealed?

There was drama in California on Friday. The U.S. Court of Appeals for the 9th Circuit sent word that the plaintiffs in the Proposition 8 case had until 11 p.m. that night to file papers explaining why a stay of Judge Vaughn Walker’s decision this month striking down a ban on same-sex marriage should be lifted on Aug. 18. The court gave supporters of Prop 8 until 9 a.m. Pacific time today to respond. But if you ask me the real drama is not over whether gays and lesbians will be able to get marriage licenses come Wednesday. It is whether the case will actually advance to the court of appeals. If the court decides that Prop 8 proponents lack standing to appeal to it, then, as one gay legal eagle told me, "[N]o standing, no defendant, no appeal . . . we win, case over."

As Judge Walker pointed out in his decision on a temporary stay, “If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing.” He goes on to say, “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction.”

And that’s sooo not happening since both Gov. Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) are vocal in their support for overturning Prop 8. Brown even filed papers late Friday with the court of appeals calling for marriage licenses to be issued immediately. If the court grants the stay of enforcement of Prop 8, same-sex marriages would be legal again in the Golden State later this week. But if the court also decides that Prop 8 proponents lack standing to appeal to it, then the march to the Supreme Court would stop -- much to the relief of some advocates of marriage equality.

Many of them would rather see the Massachusetts case get to the high court first. Unlike the plaintiffs in the Prop 8 case, who are seeking the legal right to marry, the couples in Gill v. Office of Personnel Management are already legally married. They are seeking the same access to federal benefits that are now enjoyed by straight married couples in the commonwealth. It’s a narrower case. But it is one that gay legal advocates strongly believe could prevail at the Supreme Court.

When it comes to what the 9th Circuit will actually do, anything is possible. For instance, one legal advocate told me that the court could grant a longer interim stay than Judge Walker imposed while it assesses the questions, including standing. This advocate added that the court could also prolong the stay to allow proponents of the California law to appeal to the U.S. Supreme Court to make the stay permanent throughout the appeal process. And get this: If the question on the stay does go to the Supreme Court, it would initially be reviewed by Justice Anthony Kennedy, who oversees the 9th Circuit and who is thought to be the swing vote if a case on same-sex marriage were to make it to the high court. As a result, any action on whether to hold the stay in place “could be read by some as an early telegraph of where the court is,” said the advocate.

So, the drama continues in California. All that’s missing is a car chase.

By Jonathan Capehart  | August 15, 2010; 9:00 PM ET
Categories:  Capehart  | Tags:  Jonathan Capehart  
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Comments

California is a curious creature. The people can vote directly upon issues like proposition 8 that in turn become part of the California Constitution. Standing to defend an issue voted directly by the people of California can be defended by anyone who voted for the proposition. Standing is based upon who would be potentially damaged/aided by the law or who passed the law. Proposition 8 was not passed by the legislature or government of California. It was made law by direct referendum of the people. The judge and this writer neglect this rather important fact in determining just who might have standing.

Posted by: kdrzz | August 16, 2010 12:28 AM | Report abuse

"a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing." Voting does not give one standing. The only other way to challenge the ruling is the state attorney general acting as representative of the state. The problem that opponents of marriage equality have always had is that they can't demonstrate that any harm will come to them as a result of same-sex couples being married.

Posted by: syfredrick | August 16, 2010 5:37 AM | Report abuse

California is a curious creature. The people can vote directly upon issues like proposition 8 that in turn become part of the California Constitution. Standing to defend an issue voted directly by the people of California can be defended by anyone who voted for the proposition. Standing is based upon who would be potentially damaged/aided by the law or who passed the law. Proposition 8 was not passed by the legislature or government of California. It was made law by direct referendum of the people. The judge and this writer neglect this rather important fact in determining just who might have standing.

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US Constitution trumps any State Constitution. If 90% of the population of California supported Prop 8 it would not matter, if 90% of America supported Prop 8 it would not matter. Unless you change the Constitution and exempt gays from equal protection. Of course the Tea Klan would like to extend that to blacks, Hispanics, Muslims & basically anyone who is not a white Christian who has an IQ of more than 60.

Posted by: rcc_2000 | August 16, 2010 8:35 AM | Report abuse

Ultimately the constitution will prevail. The judge in California wrote a brilliant opinion on this case; nowhere has the point been made clearer that the rabble rousers opposing gay marriage have no stake in it. They just want to control other people. That is the ultimate position of the right in this country; we don't want to run only our lives we want to control yours too, force our religion on you, force our morals (or often lack thereof, etc., on you. Do it our way or else. It is a long and hard struggle but they are losing.

Posted by: withersb | August 16, 2010 9:12 AM | Report abuse

rcc_2000 wrote:

US Constitution trumps any State Constitution. If 90% of the population of California supported Prop 8 it would not matter, if 90% of America supported Prop 8 it would not matter. Unless you change the Constitution and exempt gays from equal protection.
-------------------------------------------------
Define equal protection. Proposition 8 does not take a civil right from gays and lesbians; it defines marriage as being between one man and one woman, which has been the cultural norm for thousands of years. Gays and lesbians can live together, give each other a power of attorney, include each other in wills. A favored minority should not be able to take standing away from the majority of voters. The fact that the State Attorney General refuses to vigorously defend a decision by the people, as is required by his office regardless of his personal politics, is a reason he should be removed from office. Surely some lawyer in the California AG's office would be willing to defend the people. But, if not, one of the organizations supporting Proposition 8 should be allowed to defend it in court. This may also need to be taken to court.

Posted by: Isaldur43 | August 16, 2010 9:23 AM | Report abuse

"...anyone who is not a white Christian that has an IQ higher than 60" should not have equal protection under the federal constitution? Wow! And the left wonders why independents find them a bit on the condescending side. Do you want real discrimination? Take a look in the mirror and that attitude above expressed toward white (but presumably not black) Christians that are opposed to gay marriage. The commenter should stow their discriminatory racist attitudes and give the Christians a break. We're a multicultural society. That includes Christians. I think gay couples have a constitutional right to the same benefits as heterosexual couples. I'm just not used to it being called marriage as I've traditionally seen it for the last 68 years. However, I'm sick of the gay bashing and Christian bashing. Let's just make all marriage licenses have "Civil marriage" written on the top of the license. Then the left and the right can go back to bashing their favorite targets because the bashies have different beliefs. It makes you proud to be an American.

Posted by: Fergie303 | August 16, 2010 10:47 AM | Report abuse

Interesting. No one can appeal because no one is harmed. Can't the same be said for polygamous marriage?

Posted by: kitchendragon50 | August 16, 2010 11:52 AM | Report abuse

no the white christians are not harmed the only ones that are is gays and lesbians so enough already,so go back to your tax free churches and do your hokus/pokus and leave the gay community alone now that equal rights for all americans are here to stay!
and pleeze no thanks to jezussssss. what a scam what a fraud those churches are they are simply moneymakers for a few.

Posted by: willemkraal | August 16, 2010 12:22 PM | Report abuse

According to article 3, Prop 8's author, Andrew Pugno and his attorney Charles Cooper, must show how Mr. Pugno is harmed by allowing same-sex couples to marry. During the pre-trial proceedings Cooper was asked how 'traditional' marriage was harmed by allowing gays to wed. Cooper repeated said that he did not know.

Anyone who either attended the trial or read through the transcripts can attest that even after untold $$ and hours were spent, Mr. Cooper was still unable to give an answer that did not depend on either religion or shaky pseudo-science.

Having failed at that level, Mr. Pugno finds that he probably does not have standing with the 9th District because he still is unable to give credible proof that he is harmed. To their credit, neither the Governor nor the California Attorney General are seeking to extend Mr. Pugno's fight to deny equal rights to those that he holds in moral disdain.
As a result, Cooper & Pugno are forced to find some other agent of the State to bail them out. They believe that a clerk in cash-strapped Imperial County will ride to their rescue.

I'm still puzzled that the good citizens of Imperial County have no more pressing economic issues than to assist Mr. Pugno - who is, by-the-way, hoping to use his new-found Pro 8 supporters as a springboard to elected office.

What standing does the Imperial County Clerk's office have? How are they harmed? One TV talking head surmised that they have standing because they are 'morally opposed to issuing a license to a same-sex couple'. Sorry dear, that ship has sailed.

As a straight, married, Catholic taxpayer in this State, I think we have wasted entirely too much time and money on this ridiculous effort to enforce puritanical ideas on a 21st century populace.

Mr Pugno lives in the next town from me and I am embarrassed that many of my neighbors are so anxious to help him in his upcoming election because "he's going to stop those perverts'. Given the large numbers of LDS and Catholics in the area, he will have virtually unlimited funds to help him in his quest. However, I think that it's time that our state got back to solving its real problems. After all, what's scarier? Allowing 2 committed adults to enter into a secular contract that strengthens the community, or allowing well-intentioned, but misguided zealots like Pugno and his supporters to impose their puritanical beliefs on the rest of us.

Posted by: deepjethro | August 16, 2010 1:37 PM | Report abuse

What about the perception problem? Doesn't the government face an issue here when they so clearly ignore the will of the people.

Using a legal gimmick to thwart election results will NOT improve the standing of the Federal Government. Already people are reading our founding documents and asking themselves how best to demonstrate the fact that they have withdrawn their consent to be governed by DC.

and those who support the gay marriage effort have to wonder why the issue has a 0 for 31 track record with ordinary citizens.

Posted by: skipsailing28 | August 16, 2010 3:35 PM | Report abuse

It's all about the rights.

1324 rights granted to married couples that domestic partnerships and unmarried couples do not get:

http://www.prideagenda.org/Portals/0/1324%20Rights%20and%20Responsibilities_FINAL.pdf

According to the Government Accounting Office report prepared for DOMA, they found 1,138 rights:
http://www.gao.gov/new.items/d04353r.pdf

Until you change the laws so that those 1324 rights go to all civil unions, I will hold out for full same-sex marriage.

Posted by: lbcentaur | August 16, 2010 3:58 PM | Report abuse

"Can it be appealed?" I guess after today it has been.

Posted by: wjc1va | August 16, 2010 11:01 PM | Report abuse

Of course it can be appealed. Over time, various societies have adopted different cultural and religious and legal rules around marriage. All societies, though, recognize marriage as the union of a man and a woman so that children can be born and raised so that the society can survive. Humans have a long childhood, so parents are essential for a society. Legally, in our country, does a federal judge have the right to redefine marriage? There is nothing in the U.S. Constitution giving Congress, let alone a judge, the power to redefine marriage. In fact, why would the founders or anyone else, want the government to have that power? Can anyone imagine Franklin, Jefferson, and Washington debating that as a federal power? Ridiculous. They only gave the federal government the SPECIFIC powers needed for national matters, like coining money. Judge Walker has clearly assumed powers which he does not have under our Constitution.

Posted by: allamer1 | August 17, 2010 2:26 AM | Report abuse

If the proponents of Proposition 8 do not have standing to appeal, then they did not have standing to be part of the original case, which should then have been dismissed. To claim that nobody can appeal Judge Walker's historically dishonest decision is itself dishonest: one cannot be a party at trial and then suddenly not be a party. But dishonesty on standing has never stopped judges wanting to push their agendas. Harry Blackmun, despite the lack of a pregnant plaintiff, faced no barrier to imposing his abortion policy on the nation. So why should Vaughn Walker be expected to be fair in saying "you can represent the issue at trial, but not at appeal?"

Posted by: grondelsjm | August 17, 2010 4:40 AM | Report abuse

Standing has always been a curious concept in the hands of activist judges.

The lack of a pregnant plaintiff never stopped Harry Blackmun from imposing his abortion regime on the nation. If there has to be a "case or controversy," Roe et al. v. Wade clearly did not meet that criterion. But tell that to the folks on Capitol Hill (mostly in the President's Party) who have made that dishonest ruling the lodestone of their Constitutional vision.

Now we have the next activist judge ready to say that "you have standing at trial, but NOBODY has standing to appeal" an historically dishonest ruling that plays fast and loose with reality in the name of the Judge's "findings of fact."

Posted by: grondelsjm | August 17, 2010 4:43 AM | Report abuse

A question: marriage has funding implications -- taxes, health insurance, retirements, etc. Would that give tax payers and insured Californians standing? (It really is a question -- I don't even pretend to know the answer.)

Posted by: griffina1 | August 17, 2010 10:44 AM | Report abuse

to all,

i'll tell you who has "NO STANDING" in this issue. = it's the FEDERAL GOVERNMENT & it's courts in this case, as the TENTH AMENDMENT prohibits the federal government from being involved in STATE issues, UNLESS those POWERS/RIGHTS are CEDED to the central government & NO state has EVER ceded anything regarding marriage issues to the federal government.

thus marriage remains the SOLE province of the STATE/CITIZENS of CA & the federal courts should say just THAT & nothing more than that
and
then promptly REMOVE ITSELF from the case.

yours, TN46
coordinator, CCTPP

Posted by: texasnative46 | August 17, 2010 12:27 PM | Report abuse

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