Tuesday, January 04, 2011

Prop-8 Question Goes Back to the State

News today from the San Francisco Chronicle:
The federal appeals court reviewing California's ban on same-sex marriage asked the state Supreme Court today to answer a legal question that may determine the outcome of the case - whether a ballot measure's sponsors can defend it in court when state officials refuse to do so. Appeals court turns to state on key Prop. 8 issue

For the time being this means that same-sex couples still cannot marry in California.

What does it mean, really? I spent a couple hours trying to figure it out and explain it and then found that a University of Southern California law professor had already done that on his blog, much better than I ever could. So I'm just going to copy and paste what he said. It is a little complicated, and it's hard to know what's going to happen next, but here's the skinny.
“Why leave me standing here? / Let me know the way.”

The U.S. Court of Appeals for the Ninth Circuit today put the attempted appeal in the Proposition 8 case on hold so they could certify a question of California law to the Supreme Court of California (SCOCA). If that court says that the official proponents who sponsored Prop 8 do not have all-purpose authority to defend the measure in any litigation in any court, that would almost certainly spell the end of the appeal effort after the case gets back to the Ninth Circuit.

The issue, recall, is whether the Proponents are legally entitled to appeal Chief Judge Walker’s decision holding Prop 8 unconstitutional. To satisfy the “standing” doctrine that governs in federal courts, they must have a particularized, concrete, non-abstract injury resulting from the invalidation of Prop 8, not just an ideological objection to his decision or a firm conviction that he was legally mistaken. Because that is probably impossible for them to show, they are trying to argue that they should be able to take an appeal based on the injury to the voters of California acting as legislators through the initiative process.

That’s where state law comes in. The Supreme Court of the United States (SCOTUS) has previously doubted that initiative proponents suffer a sufficient injury to have standing when measures they sponsored are invalidated, but it has suggested (without definitively ruling) that legislatures have the requisite injury when their laws are invalidated provided state law authorizes them to defend their laws in court. The proponents want to extend that rule from legislatures to initiative proponents. So they want to argue that California law authorizes them to represent the state’s interests in defending Prop 8.

And California courts have, generally without extensive analysis, allowed ballot proponents to defend their initiatives – in state court, thus necessarily subject to the supervision of California state judges. That is not a general-purpose vesting of proponents with authority to represent all the states’ voters in any court. Rather, California courts, not bound by federal standing rules, have made individual decisions to allow proponents to defend laws in California’s own state courts.

But individual legislators have not had standing to represent the entire legislature without legal authorization to that end. When legislatures have passed resolutions allowing representatives to defend measures in court, that has sometimes been allowed to satisfy standing rules. The proponents, however, cannot point to an authorization by the voters of California to represent our collective interests in any courts including federal courts. Indeed, although some initiatives have contained clauses that have authorized their proponents to defend the measures, Prop 8’s proponents did not choose to include any such language.

Accordingly, the California Supreme Court should choose to answer the certified question about the authority California law does or does not give to the Proponents (as it is a matter of their discretion whether they choose to), and then after briefing and oral arguments, hand down a decision along the lines sketched above. Based on the earlier Prop 8 challenge before SCOCA and other past certified questions, I would think this would happen within six months at the very most. Then, the Ninth Circuit should hold that the proponents do not have standing; dismiss their attempted appeal; and lift their stay of Judge Walker’s order directing the Governor and the Attorney General of California to allow same-sex couples to marry again. If the appeal effort is resolved on these narrow, somewhat technical grounds, there would then be a decent chance that SCOTUS would not bother to review the Ninth Circuit’s decision and equal freedom to marry would be restored in California.

-DBC Prof. David B. Cruz: Prop 8 Case Returns to California Supreme Court

The state Supreme Court might take months coming up with an answer to the question of whether proponents have standing to appeal, and as I understand it they have the option not to respond at all. Proposition 8 has been found unconstitutional, now we go through the process of making it stick.

7 Comments:

Anonymous Anonymous said...

"Proposition 8 has been found unconstitutional"

Here's what I don't get:

the California Supreme Court found it unconstitutional to not recognize gay "marriage"

so family advocates initiated a proposition to amend the constitution

they prevailed

how can a constitutional amendment be unconstitutional?

sounds fascist

January 04, 2011 10:56 PM  
Anonymous Robert said...

Anonymous, will you marry me?

January 05, 2011 8:03 AM  
Anonymous Anonymous said...

This *is* fascist:

German Criminal Code, 1935 revision:
"§ 175 Lewdness between men
I. A man who engages as the active or passive partner in lewdness with another man is to be punished by imprisonment.
II. With an involved party who at the time of the act had not yet reached the age of twenty-one years, the Court can refrain from punishment in mild cases.
§ 175a Severe lewdness (Schwere Unzucht) A punishment of up to ten years in the penitentiary, and even with mitigating circumstances no less than three months imprisonment for:
1. a man, who by force or by threat of harm to life and limb forces another man to engage in such an act as either the active or passive partner;
2. a man, who by abusing a dependency founded in a service-, work-, or employment-based relationship coerces another man into engaging in such an act as either the active or passive partner;
3. a man over twenty-one years old who entices a male under twenty-one years old to engage in such an act as either the active or passive partner;
4. a man who professionally offers himself for such an act as either the active or passive partner."

And it sounds an awful lot like this:

Peter S. Sprigg, Senior Fellow for Policy Studies at the Family Research Council, a designated hate group and member of the MCPS Citizen's Advisory Committee for Family Life and Human Development: "I think that the Supreme Court decision in Lawrence v. Texas which overturned the sodomy laws in this country was wrongly decided. I think there would be a place for criminal sanctions against homosexual behavior."

January 05, 2011 10:36 AM  
Anonymous David S. Fishback said...

In an attempt to steer away from name-calling, here is the answer to Anon's substantive question:

The California Supreme Court ruled that depriving same sex couples of the right to marry violated the Consitution of the State of California; it was not presented with an argument that the United States Constitution barred that discrimination.

The Prop 8 proponents then won an initiative to amend the California State Constitution to require that discrimination. That amendment, of course, had no impact on the United States Constitution.

The plaintiffs in Perry v. Schwarzenegger attacked Prop 8 (and deprivation of equal marriage rights for same sex couples) as a violation of the United States Constitution, and Judge Walker of the United States District Court for the Northern District of California agreed.

While states have their own constitutions, if provisions in those constitutions conflict with the United States Constitution, the offending state constitutional provisions must give way. This is a fundamental tenet of federalism. From a purely legal point of view, disputes over whether the United States Constitution trumps state constitutions was decided by the Civil War and the post-Civil War amendments to the Constitution.

(That is why if the Second Amendment to the Constitution applies to the states, then the Supreme Court's decision to view it expansively applies to the states as well as the federal government, even if a state constitution were to prohibit private ownership of all firearms. In such a circumstance, the state constitutional provision would be invalid, because of the conflict with the federal constitution.)

January 05, 2011 11:16 AM  
Anonymous Anonymous said...

thanks, David

one more question:

does that mean the matter will eventually be decided by the Supreme Court unless one of the sides gives up?

"Anonymous, will you marry me?"

Robert, you're having trouble with definitions again.

in the words of Cat Stevens from his "Father and Son" song:

"find a girl

settle down

then, if you want you can marry"

"§ 175a Severe lewdness (Schwere Unzucht) A punishment of up to ten years in the penitentiary, and even with mitigating circumstances no less than three months imprisonment for:
1. a man, who by force or by threat of harm to life and limb forces another man to engage in such an act as either the active or passive partner;
2. a man, who by abusing a dependency founded in a service-, work-, or employment-based relationship coerces another man into engaging in such an act as either the active or passive partner;
3. a man over twenty-one years old who entices a male under twenty-one years old to engage in such an act as either the active or passive partner;
4. a man who professionally offers himself for such an act as either the active or passive partner."

aren't the above illegal virtually everywhere today?

and with more severe sentences?

"§ 175 Lewdness between men
I. A man who engages as the active or passive partner in lewdness with another man is to be punished by imprisonment."

homosexuality is no longer illegal in Western societies with a Judeo-Christian heritage today but wasn't illegal in most places in 1935?

"I think that the Supreme Court decision in Lawrence v. Texas which overturned the sodomy laws in this country was wrongly decided. I think there would be a place for criminal sanctions against homosexual behavior."

that decision wasn't that long ago and, no, we weren't a fascist society prior to that

January 05, 2011 12:40 PM  
Anonymous David S. Fishback said...

one more question:

"does that mean the matter will eventually be decided by the Supreme Court unless one of the sides gives up?"

Well, the issue probably will ultimately be decided by the Supreme Court, but whether the vehicle will be the Perry case depends on how the California Supreme Court rules on the standing issue.

January 05, 2011 6:29 PM  
Anonymous Anonymous said...

thanks again for the straight answer, David

January 05, 2011 11:13 PM  

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