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Even Vaughn Walker Is Rolling His Eyes At Yes On 8’s Appeal


Though ProtectMarriage.com has gone ahead and filed its appeal with the 9th Circuit, the original judge the group tried defending Prop 8 in front of doesn’t think they’ve got much of a chance at getting anyone to hear it.

In denying the defense’s motion to hold down a stay on his Prop 8 ruling (at least until next Wednesday), Judge Vaughn Walker indicated he didn’t think ProtectMarriage.com/Yes On 8 has standing.

Although he allowed the coalition of religious and conservative groups that sponsored the measure to defend the lawsuit during the 13-day trial over which he presided, the judge said appellate courts have different rules for deciding when a party is eligible to challenge a lower court.

Based on his interpretation of those rules, it appears the ban’s sponsors can only appeal his decision with the backing of either Gov. Arnold Schwarzenegger or Attorney General Jerry Brown, Walker said. But that seems unlikely as both officials refused to defend Proposition 8 in Walker’s court and said last week they see no reason why gay couples should not be able to tie the knot now.

Naturally, Yes On 8 doesn’t see it that way:

Proponents also have standing to appeal because of their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law.See, e.g., Diamond v. Charles, 476 U.S. at 54, 65 n.17 (1986) (state law may “create new interests, the invasion of which may confer standing”). Under California law, the right to “propose . . . constitutional changes through the initiative process” is a “fundamental right,” Costa v. Superior Court, 128 P.3d 675, 686 (Cal. 2006), that affords proponents a “special interest” and “particular right to be protected over and above the interest held in common with the public at large,” an interest that is “directly affected” when an initiative they have sponsored is challenged in litigation, Connerly v. State Personnel Bd., 129 P.3d 1, 6-7 (Cal. 2006) (quotation marks omitted).

For all of these reasons, California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored.8Indeed, when the district court permitted Proponents to intervene in this case, it expressly recognized that, “under California law … proponents of initiative measures have the standing to … defend an enactment that is brought into law by the initiative process.” July 2, 2009 Tr. of Hr’g, Doc. No. 78 at 8.

By:          JD
On:           Aug 13, 2010
Tagged: , , , ,
    • Cam

      So the governor and the Attorney General are refusing to defend Prop 8 in court. Interesting, especially considering everybody who always comes on here saying that the DOJ HAS to defend Don’t Ask Don’t Tell because it’s a law. Nobody is saying that the Governor and AG are breaking the law in CA.

      Back to the ruling. Their argument is basically, we have nothing to do with gay marriage, but we hate gays, and got this initiative on the ballot so even though it has no effect on our lives we have standing to appeal to defend it.

      Kind of like some fan liking Lindsay Lohan and trying to go appeal Lohan’s case to a higher court because they don’t think she should have gone to prison. They would have no right or standing to do that. But NOM’s bigotry has carried them this far in spite of being not the sharpest tools in the shed so I guess they’ll keep trying.

      Aug 13, 2010 at 11:07 am · @ReplyReply to this comment ·
    • Ryan

      Tired of not being able to find a good standing analysis on the web. Here’s my legal take of the first case proponents cite to. Please get in touch with me if you’re a lawyer and want to help out with some more analysis. http://bit.ly/bngkLe

      Aug 13, 2010 at 11:45 am · @ReplyReply to this comment ·
    • iDavid

      Though the initiative process to amend the constitution is covered by law, this initiative has no merit for standing to create harm to Prop 8 supporters. Since the standless being the indefensible uggg factor and therefore should never have been allowed initiative atatus in the first place, it is being knocked down, as we are in the process of observing.

      Aug 13, 2010 at 12:16 pm · @ReplyReply to this comment ·
    • CJ

      TIME MAGAZINE has a good piece on this.

      Here is the bad news for LGBT equality: If NO appeal is allowed, this landmark LGBT marriage quality decision remains a CALIFORNIA ONLY decision.

      This particular case was handled by 2 high-powered attorneys that have exceptional SCOTUS experience. If this case doesn’t reach SCOTUS, which case does the LGBT community want SCOTUS to decide upon? Isn’t this particular case one of the better LGBT rights cases to progress to SCOTUS??? – Especially considering that the pro-Proposition team is doing such a terrible job, you would think that this case is ideal. The evidence, the attorneys, the 9th Circuit being involved… etc.

      Again, if this case doesn’t get appealed, the decision will not affect anyone outside of California. I would think that all gays WANT them to appeal it.



      Aug 13, 2010 at 12:44 pm · @ReplyReply to this comment ·
    • CJ

      Maybe Schwarzenegger and Brown should appeal the ruling – just to get higher courts to look at this case. Maybe they could find a spelling error in the ruling to object to. Anything to get this looked at by a higher court. Having this ruling stop with California = best?

      Aug 13, 2010 at 12:51 pm · @ReplyReply to this comment ·
    • Bubba in TX

      Michaelangelo Signorile said on his show yesterday that since Schwarzenegger and Brown represent California (and not the entire country), it would not be in their best interests to appeal the ruling, even if it’s only to help get it a slot on the Supreme Court docket. That seems like a fair assessment to me.

      Aug 13, 2010 at 1:03 pm · @ReplyReply to this comment ·
    • Cassandra

      “this landmark LGBT marriage quality decision remains a CALIFORNIA ONLY decision.”

      It does give California the option of a federal suit against DOMA, or to sue other states for failing to abide by the full faith and credit act should they fail to recognize same-sex marriage licenses issued in California.

      Whether either is likely to happen, is another issue.

      Aug 13, 2010 at 1:12 pm · @ReplyReply to this comment ·
    • Bruno

      AFER’s main objective is to get their particular clients a legal marriage license. I’m sure they’d like to take the case to the Supreme Court, but they can do that from another state under the same pretenses.

      This case isn’t the hit-out-of-the-park everyone seems to think it is, either. Just because it was a breeze at trial court level doesn’t mean it would go the same way at SCOTUS.

      On the subject of the proponents’ arguments for standing, that’s pretty interesting. They’re saying that California law gives them standing…however, this is a federal case. It seems pretty weak to me in that regard, but I have a feeling that someone along the way will find a way to manufacture standing for them.

      Aug 13, 2010 at 2:32 pm · @ReplyReply to this comment ·
    • B

      No. 4 · CJ wrote, “TIME MAGAZINE has a good piece on this. Here is the bad news for LGBT equality: If NO appeal is allowed, this landmark LGBT marriage quality decision remains a CALIFORNIA ONLY decision.”

      … not completely true: it doesn’t set a precedent that holds elsewhere but can still have an influence. The California Supreme Court decision allowing same-sex marriages, for example, even though overturned by the now officially unconstitutional Proposition Eight, still had an influence on other state courts deciding similar questions – those justices read the California decision and made use of the legal arguments in it, modified as necessary to fit the rules in their states. http://articles.latimes.com/2009/apr/04/nation/na-iowa-gay-marriage4 has an example – the California decision influenced the legalization of same-sex marriages in Iowa.

      While not a binding precedent, the arguments in Judge Walker’s decision can be used nationwide – at other judges’ discretion.

      Aug 13, 2010 at 5:37 pm · @ReplyReply to this comment ·
    • Brian Miller

      Wait, wait, wait. You mean executives aren’t required to “defend bad laws?”

      You mean president Obama’s outspoken, well-funded defense of DOMA in court, where he compares gays to pedophiles and murderers in legal briefs, is not required and probably due to the homophobic bigotry the president proudly boasted of in his campaign book?

      Well knock me down with a feather.

      Aug 14, 2010 at 12:05 am · @ReplyReply to this comment ·
    • Bill Perdue

      Walkers decision is a huge victory for LGBT equality on it’s own.

      If it progresses through the courts and wins us a nationwide victory all the better.

      Aug 14, 2010 at 11:23 pm · @ReplyReply to this comment ·
    • B

      No. 10 · Brian Miller wrote, “Wait, wait, wait. You mean executives aren’t required to ‘defend bad laws?'” … the AG
      is supposed to defend both the laws of the state of California
      and the constitution. You can’t do both when these conflict
      with each other.

      Jerry Brown’s office argued previously that Proposition Eight was not constitutional. If a law was obviously constitutional, he would have a duty to defend it if challenged in court, whether he liked the law or not.

      Brown’s office kind of split the difference on Proposition Eight as it turns out – he argued that it was in fact an amendment to the state constitution, not a revision (thereby defending Proposition Eight in a lawsuit) but, when asked for an opinion on Proposition Eight by the California Supreme Court, Brown’s office stated that it was in fact unconstitutional (but on different grounds than those raised by the plaintiffs).

      Aug 16, 2010 at 3:28 pm · @ReplyReply to this comment ·
    • B

      In No. 8 · Bruno wrote, “On the subject of the proponents’ arguments for standing, that’s pretty interesting. They’re saying that California law gives them standing…however, this is a federal case. It seems pretty weak to me in that regard, but I have a feeling that someone along the way will find a way to manufacture standing for them.”

      If it sounds weak and it is the best they could come up with, that probably means they have a weak case.

      One possibility that isn’t getting much discussion is that they know they are going to lose are are trying to position themselves so they can claim they lost on a “technicality” exacerbated by an “activist judge”. That may seem silly to us, but we are not the people they have to convince – it is the people who are funding their organization. You don’t get more funding by loudly announcing, “we lost because our defense was so inadequate that it bordered on incompetent.”

      Arguing that California precedents are automatically applicable in federal court may sound very strange but people skimming an article about it would probably not notice, so the message they can use is that “the courts ignored precedents”, which sounds a lot better than “half of our expert witnesses ended up agreeing with the other side and our other expert was completely discredited due to proving that he didn’t know what he was babbling about.”

      There’s a reason a very old song’s lyrics are, “YES, we have no bananas,” and it is probably applicable to the post-trial maneuvering that is going on.

      Aug 16, 2010 at 3:45 pm · @ReplyReply to this comment ·

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