112 Sleeps To Go!
August 16, 2010 5:22 PM Subscribe

Last Friday, prop 8 supporters filed an emergency stay of Judge Vaughn Walker’s ruling with the 9th circuit. Today the stay was granted but the appeal has been expedited and oral arguments will be heard on the 6th of December, less than four months from now.

The appeal has run into a problem with standing issues under Article III of the California Constitution. Legal Insurrection provides a perspective on standing (as a new governor who may choose to defend prop 8 may be voted in by the time oral arguments are taking place) while the NCLR has a "what happens next" article.

posted by Talez (145 comments total) 2 users marked this as a favorite

i suspect the oral arguments will result in a tongue-lashing from the judge, who may side with those who feel something is being shoved down their throats
posted by kitchenrat at 5:32 PM on August 16, 2010 [7 favorites]

let me just express what many are thinking ... ahem .. FUCK YOUUUUUUUUUUUUUUUUU!
posted by liza at 5:39 PM on August 16, 2010 [4 favorites]

Yeah, the Governor and Attorney General elections will have a big impact here. Jerry Brown is definitely not going to defend Prop 8, but Whitman supported Prop 8. Similarly, I'm positive Kamala Harris would continue Brown's position on this as AG, I know very little about Cooley.
posted by wildcrdj at 5:44 PM on August 16, 2010

(While technically this will all continue either way, the lack of defense by the state of CA was actually part of the reasoning behind Walker's decision, so a reversal of that would presumably have bigger implications)
posted by wildcrdj at 5:45 PM on August 16, 2010

Oh yay another election fueled by the spectre of GAY DOOOM.
posted by msbutah at 5:45 PM on August 16, 2010 [7 favorites]

Once the state goes bankrupt we'll all be marrying our pets and first cousins, so why waste our precious remaining time? Also, anyone want to help me build my Thunderdome in Petaluma?
posted by GuyZero at 5:47 PM on August 16, 2010 [1 favorite]

My response to many political issues is not only that of the eloquent liza, but also MYOFB.* If people just took care of themselves -- which is really classical conservative behavior -- they'd have enough to worry about (high divorce rates and poverty in red states, for example) and less time to figure out irrelevant religious rules to impose on others who are just trying to achieve legal partnered happiness. End result: lowered assholery.

———
* Mind your own fucking business.
posted by theredpen at 5:47 PM on August 16, 2010 [5 favorites]

One thing that having a JD will do for you is take the edge off an outrage-fest. It's a stay pending appeal. It's specifically provided for in the Rules of Appellate Procedure. It's not great, but it's not bad; it is, of itself, just a thing that happens in a Court of Appeals. Whether it is an indicator of how the wind is blowing in that Court is a different question; I don't know. The third link suggests that it's not necessarily a bad sign.
posted by Countess Elena at 5:49 PM on August 16, 2010 [10 favorites]

GuyZero... ah but if we tax recreational use of Pot, ala Prop 19, perhaps the state won't go bankrupt.

While I intensely dislike this stay, I think it was probably the right move for the 9th.
posted by gryftir at 5:51 PM on August 16, 2010

It's certainly good to see that the American right is focused on the important issues such as preventing gay marriage and the building of mosques, rather than side issues such as the sustainable future of the nation and planet.
posted by unSane at 5:52 PM on August 16, 2010 [19 favorites]

So one effect is Walker's ruling is going to galvanize the whacknuts to seize the Governor's seat?

For the record, did anybody see the looming change of governor as being interpreted as possibly changing the standing because the state MIGHT choose to defend after the election?

I'll freely admit that one went right past me? So did anybody make that catch?
posted by warbaby at 5:53 PM on August 16, 2010

The apppeal has run into a ... what?

An idiot that deleted something when he copied and pasted over some already selected text.

But basically the appeal has run into a problem with standing issues under Article III of the California Consitution.
posted by Talez at 5:53 PM on August 16, 2010

Yeah, the Governor and Attorney General elections will have a big impact here.

Seeing as the new governor isn't inaugurated until January, and the trial starts in December, I'm not so ure.
posted by drjimmy11 at 5:53 PM on August 16, 2010

Why haven't thumpers seized onto global warming as confirmation of their beliefs? They could claim that the earth is slowly turning into aitch-ee-double-toothpicks on account of all that gay marriage 'n' stuff.
posted by telstar at 5:54 PM on August 16, 2010 [1 favorite]

This is really not going to end well for gay people, I'm afraid. Eventually this will go to the Supreme Court and a positive ruling from the court (Prop. 8 is unconstitutional) will effectively mandate gay marriage in all 50 states and territories. The outcry will be enormous, as same-sex marriage is arguably less popular now than bi-racial marriage was in the 1960's. I don't see Justice Kennedy signing onto that, no matter the sound legal reasoning behind it.

A negative ruling (prop. 8 and others like it are constitutional) will likely seal the fate of same-sex marriage in this country for most of our lifetimes. Gay marriage may be available in a handful of states, or eventually banned by Congress or Amendment (It would take 31 states to add an Anti-Gay Amendment to the constitution, currently about 40 states ban same-sex marriage outright).

Everytime I hear about a groundswell of support for same-sex marriage among straight Americans I'm forced to remember that a supermajority of our states prohibit the act in their very constitutions. Where is this groundswell when we need it?
posted by Azazel Fel at 5:54 PM on August 16, 2010 [2 favorites]

I'm lost track, which side is winning now? No, seriously.
posted by nomadicink at 5:55 PM on August 16, 2010

I'm lost track, which side is winning now? No, seriously.

The same-sex marriage side is winning.
posted by The World Famous at 5:56 PM on August 16, 2010

The same-sex marriage side is winning.

Not really. It's more of a same-sex marriage is at a "you've got one more chance to give us a good reason before we just toss this stupid shit out" stage.
posted by Talez at 5:57 PM on August 16, 2010

(Here is a list of when CA governors take office; it happens in January. Schwarzenegger took office in November only because it was a recall election. They don't seat governors a week after the election.)
posted by drjimmy11 at 5:58 PM on August 16, 2010

The outcry will be enormous, as same-sex marriage is arguably less popular now than bi-racial marriage was in the 1960's.

Interesting argument, considering polls show support nearing or above 50% and constantly rising.

This reminds me a bit of the naysaying and handwringing about how Obama couldn't possibly win every time one little thing went wrong.
posted by drjimmy11 at 6:00 PM on August 16, 2010 [6 favorites]

Azazel Fez: There is no way in my life time that there will be a Constitutional Amendment banning same sex marriage. In over 200 years there's been a total of 17 added. SSM doesn't even rank. The Constitution of the United States is intended to protect the inalienable rights of it's citizenry, not to abridge them.
posted by FlamingBore at 6:01 PM on August 16, 2010

Well, relevant or not, this will certainly fuel the conservatives to turn out at the polls this November. It looks more and more like California is going to get an insane right-wing Senator to make Obama's work harder (Fiorina replacing Boxer - Fiorina is running ahead of Boxer in the polls), and Whitman is even with Brown for Governor. Great going California, replacing the gay-friendly liberal Boxer with a whackjob who is against gay rights and also against a woman's right to choose. And Whitman who is also against gay rights spent over $100 million of her own money, and looks like might be able to buy the governorship. Sometimes it's so depressing, living in the supposed blue state. First the abomination of prop 8. Now this. Soon, Republicans in key positions in California. Meanwhile, Democrats, who have higher voter registration in CA are not bothering to vote (even Nate Silver puts the Repubs as having at least a 4% advantage in voting enthusiasm, compared to Democrats). One step forward, ten steps back.
posted by VikingSword at 6:04 PM on August 16, 2010

Not really. It's more of a same-sex marriage is at a "you've got one more chance to give us a good reason before we just toss this stupid shit out" stage.

I respectfully disagree. While the current state of the case does not represent total victory in and of itself, I think there is absolutely no question that same-sex marriage will, in the very near future, be legal across the United States. There is still some question as to precisely how that will come to be and what arguments will prevail in court and/or before the legislature. But again, it is my opinion that the same-sex marriage side is winning - big time.
posted by The World Famous at 6:05 PM on August 16, 2010 [1 favorite]

The outcry will be enormous, as same-sex marriage is arguably less popular now than bi-racial marriage was in the 1960's

I don't think it's as bad as you make it out to be. Take a look at these recent polls here at pollingreport

CNN has roughly half of respondents supporting gay marriage. Even Fox News reports 37% in favor of recognition of gay marriage.
posted by Roger Dodger at 6:07 PM on August 16, 2010

More coverage at SCOTUSblog, which is also an excellent resource for matters of Constitutional law.
posted by ubernostrum at 6:08 PM on August 16, 2010

Interesting argument, considering polls show support nearing or above 50% and constantly rising.

See, I keep hearing that but it doesn't seem to materialize into reality. In 1967 there were, by my reckoning, 17 states wherein interracial marriage was prohibited, almost all of them in the South. By contrast, 40+ states have recently -- not since time immemorial but recently -- prohibited same-sex marriage in the strongest possible legal terms.

You can make the argument, I guess, that the American citizenry is broadly supportive of gay rights but the sinecured Political Class who we constantly elect is inexplicably anti-gay, but I think a more likely explanation is that most American voters will admit that they love their gay uncle and hope he settles down one day, but in the privacy of the voting booth, they find gay people just repulsive enough to consistently vote against our interests.
posted by Azazel Fel at 6:10 PM on August 16, 2010 [1 favorite]

Majority still rules in a democracy. But there is no denying that the trend is towards accepting gay marriage. Eventually the tide will turn. Maybe not before the end of the year, but change is coming.
posted by Roger Dodger at 6:13 PM on August 16, 2010

Here's what I'm not looking forward to. In 40 years, there's going to be some perfectly reasonable human (or animal?) rights thing that, right now, we think is ridiculous. And I'm going to be swayed by some stupid conservative Republican argument against it, because I'll be almost 80 years old and I'll think "boy, the GOP sure used to be stupid and conservative but this time they've got it right". And I'll be the laughingstock of the bionet.
posted by DU at 6:16 PM on August 16, 2010 [25 favorites]

I respectfully disagree. While the current state of the case does not represent total victory in and of itself, I think there is absolutely no question that same-sex marriage will, in the very near future, be legal across the United States. There is still some question as to precisely how that will come to be and what arguments will prevail in court and/or before the legislature. But again, it is my opinion that the same-sex marriage side is winning - big time.

When I read the appeal document it came across that prop 8 supporters had to show good reason why it should even be appealed to the 9th circuit under Article III before they'd even consider the questions presented. Then you they have to overcome the very reasonable findings of fact.

From the looks of it, the judicial system has basically come in and said that three wolves can't vote the sheep to be the one for dinner.
posted by Talez at 6:21 PM on August 16, 2010

Of course you are right, FlamingBore. There are definitely checks and balances to protect minority groups. I was merely responding to Azazel's claim that voters consistently vote against gay marriage. Margins are getting smaller and soon the majority will swing the other direction.
posted by Roger Dodger at 6:21 PM on August 16, 2010

While I wholeheartedly hope marriage equality happens now, I truly believe it is just a matter of time. I don't have any reliable polls on hand to support this notion, but from my personal experience I feel that youth today support gay marriage at a much higher rate than the typical voter.

I am, however, in a liberal state, in a liberal city, and just graduated from a very liberal university, so I could be very wrong.
posted by Defenestrator at 6:23 PM on August 16, 2010

I recently flew from Denver to LAX with Carly Fiorina and I spent the enter flight wanting to smack the holy living shit out of her. If not for her awful stances, her mean spirit and a host of other personal issues - if for nothing else than her horrid hair so soon after giving Boxer a hard time about hers. ;)

The Fiorina-Boxer contest proves that it's really not about qualifications. It would be hard to finda a more grotesquely unqualified candidate than Fiorina. Never mind her anti-gay or anti-latino or anti-woman stances. She failed spectacularly at HP, fired over 30,000 workers, got herself fired for incompetence (voted the worst CEO by multiple business magazines), got a golden parachute which she now uses to buy herself a senate seat, misspeaks constantly (basically non-stop making up stuff about alleged Boxer record), has not had a single proposal that made sense (her entire platform is "cut taxes and regulations"). Meanwhile Boxer has a very solid legislative record with clear benefits for the environment, women's rights, workers rights etc. And yet who is up in the polls? Forget it. Merit, and qualifications have nothing, but nothing to do with getting elected.
posted by VikingSword at 6:23 PM on August 16, 2010 [8 favorites]

Because I've always found appellate procedure to be a fun little mind exercise, here's the relevant part of the syllabus from "Arizonans for Official English" case cited by the 9th Circuit in today's order requesting briefing on the standing issue:

"Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III's case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U.S. 54, 62. Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII's state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez's departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363, 364, n. Pp. 18-21."

Link to the full text of the AOE case here; syllabus here.
posted by webhund at 6:25 PM on August 16, 2010 [1 favorite]

Here's what I'm not looking forward to. In 40 years, there's going to be some perfectly reasonable human (or animal?) rights thing that, right now, we think is ridiculous. And I'm going to be swayed by some stupid conservative Republican argument against it, because I'll be almost 80 years old and I'll think "boy, the GOP sure used to be stupid and conservative but this time they've got it right". And I'll be the laughingstock of the bionet.

I figure it'll be the furries, with organic tail implants. But that's why you examine your held beliefs.
posted by kafziel at 6:25 PM on August 16, 2010 [1 favorite]

Roger Dodger - majority rules until it hits SCOTUS - and then the constitution, or the SCOTUS interpretation thereof, rules. It's there to protect the rights of all citizens - not just the popular ones.

If you actually WANT this decision to go up to the Supreme Court, you're nuts. The decision is a slam dunk, but something tells me this Court is not the Warren Court, and this case is most certainly not Brown v. Board.
posted by SeizeTheDay at 6:26 PM on August 16, 2010

A negative ruling (prop. 8 and others like it are constitutional) will likely seal the fate of same-sex marriage in this country

If this happens, there will be rioting in the streets, and I fucking will move to Canada.

_{PS. California? Most of us are highly-educated and don't have kids, which means that we've got lots of disposable income. California's prettier than DC, and has nicer weather than Massachusetts. Given the state of your economy, you would do well to do everything in your power to draw us to your state in droves. Currently, you're doing the opposite.}
posted by schmod at 6:28 PM on August 16, 2010 [7 favorites]

Roger Dodger - Oh, I see - didn't read that from your comment. Good deal.

VikingSword - this is what I just don't get. But Californians are not exactly known for looking at credentials when voting for their office holders, are they?
posted by FlamingBore at 6:28 PM on August 16, 2010

SeizeTheDay - I don't actually want this to go to the SCOTUS now, but I can hope for a miracle if it gets there.
posted by FlamingBore at 6:31 PM on August 16, 2010

Majority still rules in a democracy. Thank goodness American isn't a pure democracy. Or else we'd still forbid Chinese from owning property in California and Obama's parents would not have been able to marry.
posted by Nelson at 6:31 PM on August 16, 2010 [1 favorite]

The outcry will be enormous, as same-sex marriage is arguably less popular now than bi-racial marriage was in the 1960's

When I looked this up two weeks ago, the numbers were a little over 50% opposed to gay marriage now, and over 70% opposed to interracial marriage when it was made legal.
posted by olinerd at 6:32 PM on August 16, 2010 [3 favorites]

I guess it'll be back to the original plan - try to get a proposition passed in CA overturning H8 in 2012. Maybe by then enough mean old people will be dead.
posted by VikingSword at 6:34 PM on August 16, 2010

If the Ninth Circuit upholds the decision and it is then appealed to the Supreme Court, as seems likely, will there be another stay such that no marriages will be allowed until the Supreme Court rules?
posted by enn at 6:35 PM on August 16, 2010

Thank goodness American isn't a pure democracy. Or else we'd still forbid Chinese from owning property in California and Obama's parents would not have been able to marry.

One of the most terrifying moments of my law school career was hearing someone honestly and sincerely espouse in Family Law class his belief that if 50% plus one of the voters vote for something, that should be the law. I'm not sure how or why you'd go into law if you don't think rights are a thing that should exist.

Guy was arguing in my Property class, too, that tenure was the worst thing ever to happen to education because it meant his Knights of Columbus group couldn't get a teacher fired for teaching a book about sexuality in dreams.
posted by kafziel at 6:37 PM on August 16, 2010 [3 favorites]

If you actually WANT this decision to go up to the Supreme Court, you're nuts. The decision is a slam dunk, but something tells me this Court is not the Warren Court, and this case is most certainly not Brown v. Board.

Ann Althouse (a constitutional law professor who happens to be my mom) says the Supreme Court will hold, 5-4 with Justice Kennedy as the crucial vote, that there's an Equal Protection right to same-sex marriage.

Here's a one-minute Bloggingheads video snippet where she makes the same point.

Now, maybe you think my mom's "nuts." You're entitled to your opinion. I don't think she's nuts.
posted by Jaltcoh at 6:41 PM on August 16, 2010 [10 favorites]

Now, maybe you think my mom's "nuts." You're entitled to your opinion. I don't think she's nuts.

No, but the commenters on her blog sure are. Holy moly.
posted by zerbinetta at 6:51 PM on August 16, 2010 [1 favorite]

the appeal has been expedited and oral arguments will be heard on the 6th of December, less than four months from now.

There is nothing expeditious about this at all.
posted by Back to you, Jim. at 6:56 PM on August 16, 2010

Even it we assume that this goes all the way to supreme court and even if we assume that the result is favorable (same-sex marriage must be recognized) as any mostly sane person with even a rudimentary understanding of the constitution will recognize is warranted, the only recourse left to the people who support prop 8 would then be an amendment to the U.S. constitution (I think). Even if we assume that this will fail to pass (and I have to assume it will or lose my faith in humanity and move to the moon).

At the very least I'm simply going to hate the public discourse that will result from that movement. Even in the best-case scenario, I'm going to want to be a hermit until its over.

I don't really understand how there is any legal basis for this law. How can even four judges support it?
posted by VTX at 7:00 PM on August 16, 2010

"The American people will always do the right thing, after exhausting all alternatives." -- Winston Churchill. This is still in the "exhausting alternatives" phase.
posted by aeschenkarnos at 7:01 PM on August 16, 2010 [4 favorites]

And I would totally play GAY DOOM.
posted by Back to you, Jim. at 7:03 PM on August 16, 2010 [5 favorites]

I personally think this is the most important civil rights case since Dread Scott. This isn't about gays rights to marry. It is about the limits of the state to regulate behavior that harms no one and the result of the regulation provides no clear benefit. If this lawsuit fails the government will be able to reach into any part of your life; unless specifically protected in the constitution and mess with you; just to mess with you at the whim of the majority. The alternative argued by the opponents of prop 8 is a much more restricted view of government that says for the state to pass any law or prohibition they must have some clear and compelling reason. There must be some demonstration of harm or benefit. Do you want a state that is unlimited in its expanse capable of invading any area of life where it is not specifically prohibited; or do you want a state limited in power to areas where it can show a clear social benefit from acting.
posted by humanfont at 7:08 PM on August 16, 2010 [1 favorite]

let me just express what many are thinking ... ahem .. FUCK YOUUUUUUUUUUUUUUUUU!

Today's decision is not unexpected, not abnormal, and not outrageous. Nobody is being oppressed by the structure of the court system.
posted by one more dead town's last parade at 7:17 PM on August 16, 2010

Do emergency stays and expedited appeals normally take four months?
posted by kirkaracha at 7:23 PM on August 16, 2010

The Constitution of the United States is intended to protect the inalienable rights of it's citizenry, not to abridge them.

"After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. "
-Eighteenth Amendment to the United States Constitution
posted by codswallop at 7:28 PM on August 16, 2010 [1 favorite]

Do emergency stays and expedited appeals normally take four months?
The legal issues are not easy (if you limit yourself to using real law), and the court has other shit to do too.
posted by planet at 7:29 PM on August 16, 2010

For an appeal in federal court, four months sounds quick to me.
posted by one more dead town's last parade at 7:31 PM on August 16, 2010

Well, that and a big whopping Red Scare that made a lot of people deathly afraid of what those unionizing immigrants were doing in pubs.
posted by KirkJobSluder at 7:42 PM on August 16, 2010

You know what would be awesome? If the Supreme Court votes against same-sex marriage and that very day the big one hits sending California into the sea*.

It would be awesome because Pat Buchanan's head would explode as he tried to rationalize how the country clearly went in the Christervative direction but that a disaster was inflicted on us by his God anyways.

*Except, of course for the small matter of massive loss of life and untold misery for decades.
posted by Joey Michaels at 7:42 PM on August 16, 2010

It would be awesome because Pat Buchanan's head would explode as he tried to rationalize how the country clearly went in the Christervative direction but that a disaster was inflicted on us by his God anyways.
Not sure whether Pat Buchanan or Pat Robertson would be more irritated by your failure to distinguish them.
posted by planet at 7:45 PM on August 16, 2010

Four months to oral argument is fast. The average time for an appeal to be decided in the Ninth Circuit is about 15-16 months. (See "statistics" link here, .pdf.) An oral argument within 4 months likely means a decision on the merits in 2-3 months after that (maybe faster), meaning the appeal will take about 6 months, or less than half the "normal" time.
posted by Mid at 8:00 PM on August 16, 2010

Not sure whether Pat Buchanan or Pat Robertson would be more irritated by your failure to distinguish them.

Ha! I am thrilled with my own error in this situation.
posted by Joey Michaels at 8:10 PM on August 16, 2010 [1 favorite]

Today's decision is not unexpected, not abnormal, and not outrageous. Nobody is being oppressed by the structure of the court system.

It's pretty obvious the appellants don't have standing, yet the court extended the stay. You might not be oppressed by that but anybody in CA waiting to get married certainly is. Walker's legal reasoning was pretty solid. The facts aren't at issue (and they are not a matter for appeal in ordinary circumstances). So what is doing the oppressing if not the "structure of the court system"?
posted by GeckoDundee at 8:15 PM on August 16, 2010 [1 favorite]

It's pretty obvious the appellants don't have standing, yet the court extended the stay.

"Pretty obvious"? As much as I am for nation-wide gay marriage, and as much as I detest the prop system here in California, finding that no-one but the state has standing to appeal here would be extremely troublesome. Think through the implications: If only the state can defend laws passed by proposition, and propositions are not uncommonly passed to which the state government is opposed, the state can essentially negate any propositions it doesn't like by declining to defend them in court and asserting that no-one else has standing to do so.

That can't be right. If the state refuses to defend a law passed by proposition, other parties must be allowed to intervene or you've just gutted the entire system. Which can't be an intended result of the concept of having standing in court.
posted by Justinian at 8:26 PM on August 16, 2010 [2 favorites]

Even where it is "obvious" that a party lacks standing, federal courts tend not to summarily reject an appeal without briefing. The appellants' brief is due on 9/17, or in one month. That is a very short time to put together an appellate brief.

Be careful what you wish for -- it is usually the conservative judges that are quick to throw out cases on standing grounds. That's because it has usually been more "liberal" causes that have run into problems with standing -- such as when a harm is too diffuse for one person to claim a specific "injury in fact" (e.g., environmental cases) or when a membership organization seeks to challenge a law of broad application (e.g., NAACP cases).

In fact - I think there is an irony in the Ninth Circuit's order requiring briefing on the issue of standing under Arizonans For Official English v. Arizona because, IIRC, that was a case where the conservative members of the Supreme Court really smacked the Ninth Circuit for supposedly getting a standing issue wrong.
posted by Mid at 8:27 PM on August 16, 2010 [1 favorite]

Also, if you are for gay marriage you really, really, really don't want this case to stop here because of issues of standing. It's going to be a long time before a case where the judge in the initial trial issues findings of fact and law this strong for equality and before the advocates for the case are as overwhelming as Boies and Olson. I believe marriage equality is inevitable in the long term but in the near term if you're going to push a case to the Supreme Court you can't ask for a better one than this.
posted by Justinian at 8:29 PM on August 16, 2010

Sometimes it's so depressing, living in the supposed blue state.

California as a whole is much more conservative than many people who live in Los Angeles County and the Bay Area are willing to admit. In actuality, even Los Angeles County and the Bay Area are more conservative than many people who live there are willing to admit.

Only 16 out of 58 California counties voted no on Prop 8. Prop 8 lost in LA County by a margin of only 6%. Humboldt, Mendocino, Sonoma, and Marin Counties voted no on Prop 8 by far wider margins than LA County did. Even Mono and Alpine Counties, far from being liberal places, voted no by wider margins than LA County did.

As a native Californian, it's not surprising (or even that depressing) to me that Fiorina is ahead of Boxer in the polls or that Meg Whitman has got an even chance of getting the governorship. People who don't live in the coastal counties are tired of Boxer. She's been in the Senate for almost 20 years. They also don't have any sense that Jerry Brown is anyone to get all that excited about. He's 72 years old. He's had his 2 terms as governor. Meg is slick and has pretty TV ads and feel-good slogans and that's all that really matters to many Californians. Schwarzenegger proved that.
posted by blucevalo at 8:39 PM on August 16, 2010 [1 favorite]

Aww, man, I shoulda taken the bet from the asshole lawyer who wanted to argue with me that not only was gay marriage already legal (just practically unavailable), but also who was so sure the stay would be lifted that he kept screaming at me "Wanna bet? Wanna bet?"

And he had the gall to say that I was the one making things worse for our side. Dick.
posted by klangklangston at 8:41 PM on August 16, 2010 [1 favorite]

Only 16 out of 58 California counties voted no on Prop 8.

I don't think that's a fair way to look at it: the population of those counties varies wildly.

In any case, I think the idea that California is a "supposed blue state" or more conservative than one might think is overstating things. Is California as a whole as liberal as Berkeley? Of course not. But it is a shining bastion of equality and progressivism compared to most of the country. Yes, Prop 8 narrowly passed and that sucks. That doesn't prove California isn't one of the most progressive states; Prop 8 would have passed by larger margins in almost any other state.
posted by Justinian at 8:44 PM on August 16, 2010 [1 favorite]

""Pretty obvious"? As much as I am for nation-wide gay marriage, and as much as I detest the prop system here in California, finding that no-one but the state has standing to appeal here would be extremely troublesome. Think through the implications: If only the state can defend laws passed by proposition, and propositions are not uncommonly passed to which the state government is opposed, the state can essentially negate any propositions it doesn't like by declining to defend them in court and asserting that no-one else has standing to do so."

Hold on a sec: There's nothing in this that would prevent parties with actual harm being done to them from defending propositions. However, given trial record, the Prop 8 proponents were unable to show any harm coming to them from same-sex marriages (or to anyone, really). That's different from, say, a hypothetical student group defending a school funding prop or medical marijuana patients defending a pot prop.
posted by klangklangston at 8:46 PM on August 16, 2010

To give some perspective, gay marriage has come up for a vote 31 times in various states. It has lost all 31 times. The margin of that loss was narrowest in California. Next was Maine. The rest weren't even close. Even in supposedly progressive Oregon the margin was something like 15%. So to criticize California for this is weird.

California: Damn them for being the most progressive state in the Union on this issue!
posted by Justinian at 8:49 PM on August 16, 2010 [1 favorite]

Ah, but if you can determine at the outset whether someone has suffered "actual harm," then what's the point of a trial (or an appeal)? Let's just decide who has been harmed and who hasn't at the start and only give trials (or appeals) to those that have been harmed!

(This is why standing is traditionally a favorite refuge of conservative judges; people who value open access to the courts should avoid standing arguments.)
posted by Mid at 8:53 PM on August 16, 2010

Hold on a sec: There's nothing in this that would prevent parties with actual harm being done to them from defending propositions

That's a reasonable point but it seems like it might be begging the question a little. If the judge had found that the proponents of prop 8 (or whatever prop gets challenged in court) were harmed, he would not have overturned it in the first place. Since the proponents are claiming they are being harmed and wish to appeal the judge's decision, saying they have no standing because they aren't harmed is kind of ruling-on-the-merits without actually ruling on the merits.

In any case despite GeckoDundee's assurance that it is obvious the appellants have no standing here, I think it very likely either they or Imperial County will be allowed to appeal. I also reiterate that it is a serious tactical error not to hope this appeal goes forward. Oh, Boies and Olson need to argue that point; their responsibility is to win for their clients, not for all gay people in America. If they can do so by preventing an appeal they have done their job. But it's better for us all if they win for everyone and not just Perry (and California by extension).
posted by Justinian at 8:57 PM on August 16, 2010

Also, Mid is correct: dismissing cases for lack of standing is historically sketchy.
posted by Justinian at 8:58 PM on August 16, 2010

Please excuse my lack of legal knowledge (I'm also Canadian and don't know shit about our laws, so you know...), but I'm slightly confused by this bit of information from the NCLR article: "Once the Ninth Circuit rules, the losing side can ask the United States Supreme Court to hear the case. The Supreme Court then has discretion to take the case or to let the Ninth Circuit’s decision stand." If I'm permitted, can I ask what might prompt the SC to hear or not hear the case? I have been hearing for a while from a couple of interested Americans up here that the will to take this to the SC is misguided because it risks setting the entire project back. These people favour the incremental route of winning state battles. These victories demonstrate the "harmlessness" of gay marriage, and they argue that the institutionalization of same-sex marriage in progressive states normalizes the practice and, as a result Americans across the board will, over time, begin to relax about it.

NYRB blogger David Cole speculated last week on what may go down if this legal struggle goes all the way. He's cagey about making predictions, but he cautions that it may be a slow road.
posted by Roachbeard at 8:59 PM on August 16, 2010

I don't think that's a fair way to look at it: the population of those counties varies wildly.

It may not be a fair way to look at it, but it's one way to look at it. Another more profitable way to look at it is that Prop 8 passed comfortably when the money was on it failing to pass.

In any case, I think the idea that California is a "supposed blue state" or more conservative than one might think is overstating things.

If saying that California is more conservative than one might think is "overstating things," what is the proper way to state it? California is extremely conservative in some parts and on some issues. Same-sex marriage turns out to be one of those issues.

"One of the most progressive states" is a sweeping generalization. In some areas, in some instances, of course it is. In others, it is not. California has a very strong conservative history and a very significant conservative streak.

Is California as a whole as liberal as Berkeley?

Berkeley is also not as liberal in some respects as you are characterizing it.
posted by blucevalo at 9:00 PM on August 16, 2010

Justinian: I like to aim for winning instead of losing, even if it's easy to accept losing by a thin margin. Why should we wait until tomorrow for justice?

We're criticizing California for divorcing people who were married. Did that ever happen before on gay marriage ballots?
posted by mccarty.tim at 9:01 PM on August 16, 2010

[fixed the typo in the original post]
posted by jessamyn at 9:04 PM on August 16, 2010

I must not have been clear, mccarty.tim: It's perfectly fair and just to criticize California for not being progressive enough. It's unfair and odd to criticize California for not being progressive relative to other places in America. California isn't progressive enough on gay marriage. Never the less, it is the most progressive state in terms of its populace's stance on gay marriage as evidenced by the ballot box. That's all I'm saying.
posted by Justinian at 9:06 PM on August 16, 2010

We're criticizing California for divorcing people who were married. Did that ever happen before on gay marriage ballots?

If that's what you're criticizing California for then you're quite mistaken. We have done no such thing.
posted by Justinian at 9:07 PM on August 16, 2010

"One of the most progressive states" is a sweeping generalization.

Can you name a few of the issues on which California is not one of the most progressive states please?
posted by Justinian at 9:08 PM on August 16, 2010

it bodes pretty well for Judge Walker’s ruling being upheld, or more precisely for the appeal itself to be thrown out entirely for lack of standing.

@Justinian: In Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C., marriages for same-sex couples are legal and currently performed. Not sure where you're getting your data, but I beg to differ.
posted by garnetgirl at 9:08 PM on August 16, 2010

garnetgirl: please don't address me with the @ symbol if you don't mind. Metafilter generally deprecates it.

In any case you can differ all you like but it doesn't make you correct.. I said that gay marriage has come up for a vote at the ballot box 31 times and been voted down 31 times, with California having the narrowest margin of loss. Which is true. The places you mention didn't vote in gay marriage at the ballot box they mostly did it via the courts.
posted by Justinian at 9:14 PM on August 16, 2010

codswallop - perhaps you're also familiar with the 21st amendment?
posted by FlamingBore at 9:18 PM on August 16, 2010

The Constitution of the United States is intended to protect the inalienable rights of it's citizenry, not to abridge them.

"After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. "
-Eighteenth Amendment to the United States Constitution

Yeah, arguably the only part of the constitution abridging the rights of citizens and not of government, however. (The arguable other part would be the Thirteenth Amendment, but I think we can all agree that one's really a net-win, as far as rights are concerned.)

I had a long conversation this weekend with a bunch of lawyers at our friends' wedding, about this, and the standing issue, and how strong Walker's opinion was, and so forth. The one gay man in the conversation was also probably the smartest among us, and worked on the plaintiff's brief in this case, and was the least optimistic of all of us.

And he was unenthusiastic because he was certain that the Ninth Circuit would deny standing.

So I'm seeing this as a good thing, in general. I wish that gays and lesbians in California didn't have to wait anymore, but this could very easily be the victory needed for gays and lesbians in the rest of the Ninth Circuit.
posted by Navelgazer at 9:21 PM on August 16, 2010

I'm not saying nobody but the state should have standing. I'm not even saying these particular bigots shouldn't have standing (though I believe they do not). I'm not saying the Supreme Court shouldn't have a chance to rule on ballot initiatives that seek to deny citizens their civil rights.

I am saying that Perry (and everyone else) should be allowed to marry until the Supreme Court says they can't.

Popular initiatives, by their very nature, are not vetted for constitutionality before being passed. Any such initiative which seeks to deny people their civil rights should be assumed to be bullshit until ruled otherwise. That's not the way the law works though.

In this particular case the defendants have said they do not want to appeal (I think, has San Fransisco decided yet?). It's pretty generous of the legal system to even consider letting these other idiots get involved but in the meantime there should be no stay. The grounds for that should be that prima facie they don't have standing. Why? Because I, a guy on the Internet says so? No. Because Judge Walker has said so.
posted by GeckoDundee at 9:25 PM on August 16, 2010

Justinian - Thanks for the clarification - missed the "ballot box". Though I don't fully understand how these two differ in the end result. Does voting confer different privileges?
posted by garnetgirl at 9:26 PM on August 16, 2010

Can you name a few of the issues on which California is not one of the most progressive states please?

Do you think that Prop 13 is progressive? Do you think that California's prison overcrowding is progressive? Do you think that California's straitjacket initiative system is progressive? Do you think it progressive that California has a dysfunctional requirement that only a two-thirds majority in both houses of the legislature can pass a budget? Do you think that California's immigration policy is progressive? Do you think that California automatically terming out its legislators is progressive? Do you think that the budget cuts that California has made and will continue to have to make over the next several years are progressive?

I'm not disagreeing with you that California is progressive in the way that its laws treat same-sex couples, even with Prop 8 in place, although in truth, its supposedly progressive tax treatment of same-sex couples creates more problems than it solves when it conflicts with federal law's ongoing refusal to regard same-sex couples as having the same tax rights as opposite-sex married spouses.

I'm arguing with your seeming insistence that California cannot possibly be conservative in other areas, or that it is indeed one of the most progressive states in all respects. In some areas it is, in some it isn't. That's not a controversial assertion.
posted by blucevalo at 9:31 PM on August 16, 2010

California as a whole is much more conservative than many people who live in Los Angeles County and the Bay Area are willing to admit

In the Magic Kingdom, marriage is strictly between one Mickey and one Minnie.
posted by eddydamascene at 9:31 PM on August 16, 2010

Any such initiative which seeks to deny people their civil rights should be assumed to be bullshit until ruled otherwise.

Since the issue in the Perry case is whether or not Prop 8 denies people their civil rights, such an assumption wouldn't really help here.
posted by The World Famous at 9:35 PM on August 16, 2010

Justinian - Thanks for the clarification - missed the "ballot box". Though I don't fully understand how these two differ in the end result. Does voting confer different privileges?

No but it is a more accurate reflection of the opinion of the populace. Don't get me wrong, I'm all for courts recognizing the right of gay people to marry. But I was specifically talking about how progressive the people of various states are and the results at the ballot box are a far better metric to use for that.

Thankfully other states don't usually have CA's crappy proposition system where any bigot with money can (at least temporarily) take away the rights of others.
posted by Justinian at 9:36 PM on August 16, 2010

It's pretty obvious the appellants don't have standing, yet the court extended the stay.
Since this is obvious to you, maybe you can answer a question that's kinda bugging me. When you have an ex parte Young action (like Perry), where the plaintiff wins at trial and the defendant declines to appeal, how do you apply issue preclusion to a subsequent similar case against a new administration? I.e., after the 2010 elections, there is a new governor, attorney general, etc. who reinstate the denial of marriage licenses to same-sex couples, contrary to Perry. The previous district court case will only be advisory in a new action, as a matter of stare decisis, so do you look through the Young fiction, and say, haha bam, non-mutual offensive collateral estoppel, we were just kidding about the suit not being against the state? Or is there some subtlety here I'm missing.

Apologies if it's a stupid question. I'm a tax lawyer.
posted by planet at 9:42 PM on August 16, 2010 [5 favorites]

i suspect the oral arguments will result in a tongue-lashing from the judge, who may side with those who feel something is being shoved down their throats

This is an appeals court case, with multiple judges. There are no tounge lashings of Ted Olsen. Ever. Ted Olsen delivers them. The two guys running this case for the pro-gay marriage side are the two preeminent litigators in the country. They are the two lawyers called upon to lead the charge on both side of the most important court case in history, Bush v. Gore.

This is on a fast track to the Supreme Court. The case will be essentially over before the California change of government. Hence, Schwartzenneger's no-appeal strategy will cover the entire time of the litigation. There are powerful reasons for this--if they can't get standing, gay marriage is 100 legal in the largest state in the union and nobody can do anything about it. This case is greased. It is a missile. It is going to be really tough to stop. If I were the Prop 8 people, I would not petition for cert if I lost at the 9th. It is really very well-set up for a finding that gay marriage is a constituional right.
posted by Ironmouth at 9:43 PM on August 16, 2010 [5 favorites]

Since this is obvious to you, maybe you can answer a question that's kinda bugging me. When you have an ex parte Young action (like Perry), where the plaintiff wins at trial and the defendant declines to appeal, how do you apply issue preclusion to a subsequent similar case against a new administration? I.e., after the 2010 elections, there is a new governor, attorney general, etc. who reinstate the denial of marriage licenses to same-sex couples, contrary to Perry. The previous district court case will only be advisory in a new action, as a matter of stare decisis, so do you look through the Young fiction, and say, haha bam, non-mutual offensive collateral estoppel, we were just kidding about the suit not being against the state? Or is there some subtlety here I'm missing.

Best to grant them standing and then rule against them on the merits. You gave them something, so they can't complain. Sometimes the judge gives one side one with the full intention of balancing off the adverse ruling on the merits.
posted by Ironmouth at 9:45 PM on August 16, 2010

Best to grant them standing and then rule against them on the merits. You gave them something, so they can't complain. Sometimes the judge gives one side one with the full intention of balancing off the adverse ruling on the merits.

Yep. The Ninth Circuit wants the case, and it is likely to find a way to keep it. I suspect that the Supremes will be the same way. Nobody wants this issue to remain unresolved any longer than it needs to be.
posted by The World Famous at 9:47 PM on August 16, 2010 [1 favorite]

I suspect that the Supremes will be the same way. Nobody wants this issue to remain unresolved any longer than it needs to be.

If I were a conservative on the court, I'd punt on this one and wait for a less well lawyered case to come up to reverse.
posted by Ironmouth at 9:49 PM on August 16, 2010

Best to grant them standing and then rule against them on the merits.

I haven't been following this closely, but part of the problem, as I understand it, is that there are real open questions regarding whether state law structural separation-of-powers (for lack of a better term) concerns can give rise to Article III standing. It's not as sexy of an issue as same-sex marriage, but it's also not something you want to get wrong.

The difficulty here is that generalized "taxpayer" grievances (so named because the line of cases arose with respect to people suing basically alleging that the injury they were suffering was the use of their tax dollars in unconstitutional activities) don't typically give Article III standing, but it's unsettled whether there's special "taxpayers as legislators" standing, for lack of a better term, that would apply to suits involving ballot initiatives.
posted by planet at 9:53 PM on August 16, 2010

blucevalo: I think a lot those things don't fall on a progressive-conservative axis or don't reflect the current state of California's politics. For example, Prop 13 is from 1978. And that aside it is still supported by most progressives. I think they're mistaken but that doesn't make their position conservative.

So: I don't think prop 13, the 2/3 majority to pass a budget, or term limits are something it makes sense to discuss as progressive/conservative issues. Term limits in particularly are orthogonal. California's prison problem is certainly not progressive, but neither is the prison situation anywhere. Progressivism/conservatism is graded on a curve. I do actually think California's immigration system, so far as a state can be said to have one, is rather progressive in practice. The largest population centers in the state are basically giant sanctuary cities.

The budget cuts are your best argument. I think budget cuts are probably necessary even from a progressive point of view but only when coupled with tax increases (particularly on the wealthy) to balance the budget, and those are not forthcoming. In that sense you are correct that they are not progressive.

I'm arguing with your seeming insistence that California cannot possibly be conservative in other areas

I'm not saying that. I'm saying that it is at least as unfair to just throw up one's hands and say that California is progressive in some instances and conservative in others without acknowledging that it tends to be among the most progressive states in the nation on most issues. One could say that Utah is progressive in some instances and conservative in others. Or Massachusetts. Or Iowa. Or North Dakota. But those are trivially true assertions. It is much more reasonable to say that, for example, California tends to be much more progressive than Alabama or Texas even though there are some areas where California still falls short.
posted by Justinian at 9:53 PM on August 16, 2010

Do you think that California's immigration policy is progressive?

California has no immigration policy. It's a state.
posted by one more dead town's last parade at 9:54 PM on August 16, 2010 [1 favorite]

If I were a conservative on the court, I'd punt on this one and wait for a less well lawyered case to come up to reverse.

I see the logic in that. But I think the issue of whether or not a constitutional right is implicated is a big question that is moving more and more to the affirmative as time passes. I think that particular holding of Judge Walker's order is one of the very few weak points in terms of room for legal (rather than factual) argument. And the next case to come along is unlikely to leave that issue unresolved, either because the issue will be addressed more persuasively or because same-sex marriage, through the passage of time, will be more well-established in the fabric of American jurisprudence as a legal form of marriage equal to opposite-sex marriage.

Now, I think the anti-same-sex-marriage side has already missed the boat where that argument is concerned. But I dont' think the Perry order adequately addressed the issue as a holding of law, and that is a weak spot that I don't think will ever be there again.
posted by The World Famous at 9:54 PM on August 16, 2010

codswallop - perhaps you're also familiar with the 21st amendment?

No, mind doing an FPP about it?

Of course I am and that in no way undermines my point in undermining someone else's point that the Constitution isn't to be used to abridge freedoms. It's there to do whatever it's components are ratified to do.
posted by codswallop at 9:56 PM on August 16, 2010

The Constitution of the United States is intended to protect the inalienable rights of it's citizenry, not to abridge them.

There's also the Sixteenth Amendment to rebut that assertion.
posted by The World Famous at 10:00 PM on August 16, 2010

Justinian: I'm saying that it is at least as unfair to just throw up one's hands and say that California is progressive in some instances and conservative in others without acknowledging that it tends to be among the most progressive states in the nation on most issues.

How is it "throwing up one's hands" to argue that California is conservative on some issues and progressive on others?

Obviously, whether California is "progressive" on "issues" depends on the issue that you're talking about. You say that certain issues are trivial or orthogonal or that they are not properly placed on a conservative/progressive continuum. I disagree.

I still don't think it's controversial to assert that California is strongly progressive on some fronts, not on others, that its politics have tended to be historically very conservative, and that it is not progressive on "most" rather than on some issues.

one more dead town's last parade: California has no immigration policy. It's a state.

Gee, that'd be news to these guys, among others. And maybe California having no immigration policy is why it passed Prop 187 in 1994 and radically changed state (and national) politics around the issue of immigration.
posted by blucevalo at 10:08 PM on August 16, 2010

codswallop: That's an extremely mechanistic viewpoint. It's equivalent to taking issue with a statement that the purpose of a pencil is to write or draw because, no, the pencil is just there to shed graphite onto a surface through the use of friction.
posted by Justinian at 10:10 PM on August 16, 2010

Apparently sexual orientation classifications are subject to intermediate scrutiny in the 9th circuit, because of Witt v. Department of the Air Force, but indeterminate scrutiny at the Supreme Court level, because they forgot to say in Lawrence and said "rational basis" in Romer.

I wonder if you could end up with the 9th affirming on the merits, based on the factual record in Perry and the application of intermediate scrutiny, but the Supreme Court reversing and basically ignoring the factual record (as they can do, if the right standard is rational basis).

What do you do as plaintiff's advocate in that case? Is it OK to hammer Witt at the circuit court level, knowing you'll have to come up with an entirely new argument if this gets granted cert?
posted by planet at 10:10 PM on August 16, 2010

codswallop - yep, you got me. My civil/equal right to marry the person of my choosing is smack on par with prohibition, which applied to all citizens and was later appealed because it was so clearly a mistake. How silly of me.

The World Famous - maybe I'm misunderstanding, but how does the 16th amendment abridge my rights?
posted by FlamingBore at 10:11 PM on August 16, 2010

I still don't think it's controversial to assert that California is strongly progressive on some fronts, not on others, that its politics have tended to be historically very conservative, and that it is not progressive on "most" rather than on some issues.

Well, okay. I have no idea how controversial that statement is. I do, however, believe it to be obviously incorrect. (Apart from how conservative California's politics have historically been; I don't believe California politics from 50 years ago have any bearing on what we're talking about now).

Basically you are arguing that if you ranked states in order of progressivism California would rank in the bottom half. That just doesn't reflect the reality that I live in nor can I figure out how you came to that conclusion.
posted by Justinian at 10:15 PM on August 16, 2010

The World Famous - maybe I'm misunderstanding, but how does the 16th amendment abridge my rights?

The assertion was that "The Constitution of the United States is intended to protect the inalienable rights of it's citizenry, not to abridge them." That statement is incorrect. The 16th Amendment did nothing to protect the inalienable rights of the citizenry. Indeed, it expressly granted power to the federal government to asses income tax, whereas the citizens previously had the right not to have their income taxed by the federal government.

The purpose of the Constitution is to set forth powers of the government and to set forth some of the rights of the citizens. An amendment to the Constitution can change either of those things in either direction.
posted by The World Famous at 10:17 PM on August 16, 2010

(This is why standing is traditionally a favorite refuge of conservative judges; people who value open access to the courts should avoid standing arguments.)

Fair enough when the question of standing is used as a "loophole" but not when it's a real issue. Or do you think that the nutter up the street should be able to bring a trespass action when my neighbours' kids hop my fence to get their ball back even though I'm cool with it?

This is a civil rights issue so it's important to get it right. Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com should be allowed to appeal against the decision not to allow them to join the action but they should not have been granted a stay. They applied for the stay on the grounds that same sex marriages would cause them "irreparable injury". To accept this is to assume that the lower court got it wrong until proven otherwise. It effectively begs the question of the appeal they want to make.

On preview I'm a tax lawyer. No kidding? Tax lawyers here talk about "precedent" rather than "stare decisis" but then, with Latin America being so far away, we go with Dan Quale on the speaking Latin thing. The subtlety you're missing is that, with the possible exception of ProtectMarriage.com, the intervenors are arguing for article 3 standing on the grounds of, inter alia, (you being big on the Latin and all) injury in fact. This is a necessary element of article 3 standing so without it they are screwed. Walker already ruled on this. Pop quiz, what does stare decisis have to say about appeals on grounds of fact?
posted by GeckoDundee at 10:20 PM on August 16, 2010 [1 favorite]

The subtlety you're missing is that, with the possible exception of ProtectMarriage.com, the intervenors are arguing for article 3 standing on the grounds of, inter alia, (you being big on the Latin and all) injury in fact.
You seem to be telling me why they don't have standing, which isn't what I asked.
posted by planet at 10:24 PM on August 16, 2010

Justinian: It seems like you've invested a whole lot in California's tag as a progressive state. This is not healthy.

Back on topic ish: OMG! Olson and Boies arguing in front of the Supremes! I'd pay cash money to see that. I'm especially interested in how Alito will engage in the argument, given his perfervid dissent in Lawrence.
posted by dogrose at 10:26 PM on August 16, 2010

The facts aren't at issue (and they are not a matter for appeal in ordinary circumstances).

That is not so clear, even though a lot of people are saying it. (For instance, Dahlia Lithwick had a Slate article where she said this over and over -- I don't find that convincing in the slightest.) It's not a given that the appellate courts (including the Supreme Court) are just going to defer to the trial court's "fact findings." They're not real findings of fact in the normal sense of "This party did this." We shouldn't just assume that the appellate judges are going to avoid second-guessing the trial court's findings of fact in accordance with the standard principle of deferring to the trial court. If this gets to the Supreme Court, do you really think Scalia is going to say, "Gee, I guess we can't question Judge Walker's findings, because he's the trial judge"? I don't think so.
posted by Jaltcoh at 10:29 PM on August 16, 2010

Justinian: It seems like you've invested a whole lot in California's tag as a progressive state. This is not healthy.

Bless your heart.
posted by Justinian at 10:33 PM on August 16, 2010

You seem to be telling me why they don't have standing, which isn't what I asked.
You took issue with my statement that they pretty obviously don't have standing. I replied by "telling you they don't have standing". That seems straightforward to me and I note you're not taking issue with it.

Or did you mean your non-sequitur (this Latin business is fun) about collateral estoppel? I was ignoring that.
posted by GeckoDundee at 10:36 PM on August 16, 2010

You took issue with my statement that they pretty obviously don't have standing.

Not at all. I just assumed you knew a lot about it, so you were the right person to direct my question to.

Or did you mean your non-sequitur (this Latin business is fun) about collateral estoppel? I was ignoring that.

Gotcha.
posted by planet at 10:39 PM on August 16, 2010

Justinian: Basically you are arguing that if you ranked states in order of progressivism California would rank in the bottom half. That just doesn't reflect the reality that I live in nor can I figure out how you came to that conclusion.

Since you have no evidence to support a conclusion that California is one of the most progressive states on most issues, if not the most progressive, which I believe to be a very broad claim and one that is difficult to support with hard evidence, I find it hard to figure out how you come to your conclusion either.

In fact, if you are talking about rankings, research done on the 2000 Annenberg survey of voters in all 50 states and the District of Columbia showed California voters falling in about the middle of the pack in terms of the conservative-liberal continuum on social and economic issues, with perhaps a slight tilt toward the liberal end of the spectrum on social issues. So, no, that's not panning out to "one of the most progressive states."

Now if we're arguing about policy as implemented by the legislature, it's an imperfect measure, because (among other things) the legislature is so partisan and has been for years. But it's the only measure that I can find that comes close to giving the sort of "progressive ranking" that you are referring to.

And no, I'm not arguing what you claim I'm arguing, by a long shot.
posted by blucevalo at 10:46 PM on August 16, 2010

Ok then Mr Tax Lawyer. Explain it to us non-lawyers.

If Judge Walker's ruling ordering an injunction with immediate effect against Prop 8 were allowed to go ahead, why would this be bad for same sex marriage in California and elsewhere? Go nuts on the Latin if it helps (though I doubt it will).
posted by GeckoDundee at 11:21 PM on August 16, 2010

The 16th amendment had a positive impact on personal liberty. Congress always had the power to levy an income tax. The only thing this changed was the formulation of what could be counted as income and how the tax could be apportioned. The result was the ability to levy a progressive income tax. The consequence was a blossoming of the middle class and a great expansion of civil rights.
posted by humanfont at 12:20 AM on August 17, 2010

It's pretty obvious the appellants don't have standing, yet the court extended the stay.

The corruption of the system is pretty well evident here.
posted by Blazecock Pileon at 12:51 AM on August 17, 2010

If Judge Walker's ruling ordering an injunction with immediate effect against Prop 8 were allowed to go ahead, why would this be bad for same sex marriage in California and elsewhere? Go nuts on the Latin if it helps (though I doubt it will).
Why on earth do you think that I think it would be bad for same sex marriage in California and elsewhere?
posted by planet at 1:26 AM on August 17, 2010

GRAR.

(that is all)
posted by LMGM at 3:46 AM on August 17, 2010

Gee, that'd be news to these guys, among others. And maybe California having no immigration policy is why it passed Prop 187 in 1994 and radically changed state (and national) politics around the issue of immigration.

None of that is immigration policy. As the group itself says, those are "immigrant-related" policies. Implementing policies that are important to immigrants is not the same thing as having an immigration policy. They can't do it any more than Arizona can.
posted by one more dead town's last parade at 4:16 AM on August 17, 2010

What will Anthony Kennedy do on gay marriage?

This is the only real question that matters. And some conservatives are so scared of the comparisons between Perry and Romer v. Evans that they're encouraging California to DROP its appeals!
posted by anotherpanacea at 4:38 AM on August 17, 2010

Implementing policies that are important to immigrants is not the same thing as having an immigration policy. They can't do it any more than Arizona can.

You're right -- I should have phrased what I said differently.
posted by blucevalo at 4:43 AM on August 17, 2010

And I'm going to be swayed by some stupid conservative Republican argument against it

Keep your eyes on the message and ignore the messenger and you'll be alright.
posted by Civil_Disobedient at 8:20 AM on August 17, 2010

"Ok then Mr Tax Lawyer. Explain it to us non-lawyers.

If Judge Walker's ruling ordering an injunction with immediate effect against Prop 8 were allowed to go ahead, why would this be bad for same sex marriage in California and elsewhere? Go nuts on the Latin if it helps (though I doubt it will)."

Man, can you stop being a dick to him for a moment? He's asking questions, not arguing, and you're coming across badly. Seriously, harping on the Latin?
posted by klangklangston at 8:54 AM on August 17, 2010 [2 favorites]

California isn't progressive enough on gay marriage. Never the less, it is the most progressive state in terms of its populace's stance on gay marriage as evidenced by the ballot box. That's all I'm saying.

Don't get me wrong, the ballot box matters.

But some very smart people (pdf) have looked at this and other issues and figured out the statistical juju necessary to get good estimates of state-level opinion on different issues when there aren't identical large-sample polls from each state.

Anyway, on explicit support for same-sex marriage in 2008, the states with the highest level of overall support were, in order:

Massachusetts
Vermont
Rhode Island
Connecticut
New York (it would have passed here years ago if not for the gerrymandered Senate)
New Hampshire
Maine
California
Washington
Hawaii

Interestingly, the only states where a majority if 18-29 year olds do not explicitly support same-sex marriage are (from most support to least*)

Texas
North Carolina
Louisiana
Georgia
South Carolina
Kentucky
Tennesee
Arkansas
Oklahoma
Utah
Mississippi
Alabama

...and even the floor is at about 37%.

*I had to eyeball this from a figure so some orderings mayhap should be swapped
posted by ROU_Xenophobe at 9:00 AM on August 17, 2010

Best to grant them standing and then rule against them on the merits. You gave them something, so they can't complain. Sometimes the judge gives one side one with the full intention of balancing off the adverse ruling on the merits.

This is what I'm hoping for because holy FSM, if you've read the other side's briefings, they hold about as much water as a shot glass and that's not going to float this barge. I mean they actually argued yesterday that the 9th circuit should issue a stay because marriage makes fewer welfare mothers. I'm not kidding.
posted by Sophie1 at 10:09 AM on August 17, 2010

some conservatives are so scared of the comparisons between Perry and Romer v. Evans that they're encouraging California to DROP its appeals!

Last I checked, California wasn't going to appeal. CA didn't even defend the challenge to Prop 8 in front of Judge Walker. ProtectMarriage.com might be moving forward with the appeal, but CA certainly is not.
posted by hippybear at 10:28 AM on August 17, 2010

Last I checked, California wasn't going to appeal. CA didn't even defend the challenge to Prop 8 in front of Judge Walker. ProtectMarriage.com might be moving forward with the appeal, but CA certainly is not.

I'm sure this seemed like an important correction when you made it, though it's obvious from the link that I was using "California" as a shorthand for "California anti-marriage-equality activists," but the state of California can pick up the appeal process at any point along the line after a new governor and attorney general are installed by the coming elections.

The new administration will get another bite of the apple if for some standing or financing reason ProtectMarriage.com is unable to proceed past the appellate level. The state's position could be very different by the time the Supreme Court gets hold of the case.

The important point is that there are good reasons to hope that Kennedy, and thus the court, would side with equal rights, as he has evinced a commitment to that position in the past in a somewhat similarly-homophobic state constitutional amendment.
posted by anotherpanacea at 10:55 AM on August 17, 2010

I said that gay marriage has come up for a vote at the ballot box 31 times and been voted down 31 times, with California having the narrowest margin of loss. Which is true.

And you're wrong.
posted by MikeKD at 7:00 PM on August 17, 2010

And you're wrong.

MikeD: Sorry, I stepped away from this thread yesterday since it seemed weird to be getting into a huge argument over something so tangential to the point of the thread.

In any case I'm not incorrect about the 31/31 statistic; you're misreading that link.

Proposition 17 wasn't a vote on legalizing gay marriage in Arizona. Gay marriage was already illegal in Arizona. Prop 17 was about making civil unions illegal and saying that Arizona could not give gay people any rights equivalent to civil unions. That's a very different thing than a vote about gay marriage.

Arizona passed a constitutional amendment to ban gay marriage in 2008 by 13%. Note that this was basically a big "fuck you" to gay folks since gay marriage was already illegal in Arizona by statute. So I think holding up Arizona as somehow progressive on gay marriage is a strange reading of events.

Don't get me wrong, the ballot box matters.

ROU_Xenophobe: I've seen that paper before through 538... is that where you found it too? It's definitely very interesting and informative. But I think the results at the ballot box are important and solid in a way that statistical analysis of polling on an issue like this can't replicate. Even on 538 Nate (or one of the co-bloggers?) has wondered if gay marriage is the new Bradley Effect.

For example it may well be true that the population of New York state is slightly more in favor of allowing gay marriage than the population of California. However, the actual results we've seen in the real world are California becoming the first state in the nation to pass legislation recognizing gay marriage without pressure from the courts and doing so fairly solidly. (The Governator vetoed it) while the legislature in New York voted down gay marriage by almost a 2/3 majority. So there's that. But I'm perfectly happy (as I already did) to say that it is possible a slightly higher percentage of the populace of a handful of states support gay marriage...

we just have never seen it at the ballot box.
posted by Justinian at 4:09 PM on August 18, 2010

Also, Schwarzenegger's position on prop 8 and gay marriage is second only to Obama's in terms of being confused, illogical, and internally inconsistent.
posted by Justinian at 4:14 PM on August 18, 2010

How I Learned to Stop Worrying and Love the Proposition 8 Lawsuit
posted by homunculus at 5:23 PM on August 18, 2010

Sorry if someone has already posted this, but I thought I'd share. Activist Judges

Enjoy.
posted by nola at 8:41 PM on August 18, 2010

I've seen that paper before through 538... is that where you found it too?

I couldn't say where I first saw it... I do political science, state legislatures mostly, so probably I was either in the audience when Jeff and/or Justin were presenting this, or on the panel with them.

the legislature in New York voted down gay marriage by almost a 2/3 majority.

It passed the Assembly by a wide margin, the first time in 2007; the Senate is strongly gerrymandered in favor of Republicans.
posted by ROU_Xenophobe at 9:15 PM on August 18, 2010

the Senate is strongly gerrymandered in favor of Republicans.

Didn't Democrats have a small majority in the NY senate despite the gerrymandering and just failed to hold a bunch of their members?
posted by Justinian at 9:28 PM on August 18, 2010

It's more complex than that. The state Senate at the time was (iirc) 32D, 30R. This is wildly out of step with the state's population; the state Assembly is more than two-thirds Democratic and the state's US House delegation is 93% Democratic.

There were always a few Democrats who were dead-set opposed to it. Part of why the control of the state senate was up in the air for so long was that a few conservative Democrats had actually started caucusing with the Republicans, in part out of opposition to SSM. Also in part because they're just assholes.

Anyway, some set of Republican votes were going to be necessary to pass SSM in the Senate, and they thought they had them.

However, for whatever reason a couple of people (can't remember which party but probably D) who had been cajoled into promising to vote yes voted no. This meant effectively that SSM didn't have the votes to pass, at which point even more people from relatively conservative districts bailed as they took the positions they thought expedient.
posted by ROU_Xenophobe at 11:00 PM on August 18, 2010

That makes sense. You're saying that the actual vote total after a few expected yes votes flipped could still have been something like 32-30 but since it hardly matter if you lose by 2 votes or 14 everybody and their brother jumped shipped.

Sadly they were probably smart; I expect a no vote lost them far fewer votes than a yes vote may have.
posted by Justinian at 1:34 AM on August 19, 2010

There's one more reason why at least some of the judges on the Ninth Circuit motions panel could have supported a stay besides concern about the status quo: It makes it more likely that the Supreme Court would ultimately find Proposition 8 unconstitutional. Had the Ninth Circuit upheld Judge Walker's denial of a stay, the issue would have fallen into the lap of Justice Kennedy (the Supreme Court Justice who handles emergency appeals from the Ninth Circuit) on an expedited schedule. Observers believe he's likely the swing vote on Proposition 8's constitutionality, and an emergency stay request could have brought the issue to him without giving him time for adequate reflection and rumination on the constitutional issues.

Now the case is on the back burner. The Ninth Circuit can be very slow in issuing opinions. There's no deadline after the scheduled December argument for the court to issue an opinion. Once an opinion issues, the losing party can ask for a larger "en banc" panel of Ninth Circuit judges to hear the case. It is even possible that the case could be heard by the entire Ninth Circuit. It is entirely possible for a few years to elapse before the case could get to the Supreme Court. By then, public opinion could shift more firmly toward gay marriage, and it is possible that such an emerging social consensus could influence Justice Kennedy toward striking down Proposition 8.
posted by anotherpanacea at 6:50 AM on August 19, 2010

The 'New' DADT Enforcement Rules Ensare A Sailor Who Wasn't Asked And Didn't Tell
posted by homunculus at 9:08 AM on September 1, 2010

It would be hard to finda a more grotesquely unqualified candidate than Fiorina. Never mind her anti-gay or anti-latino or anti-woman stances. She failed spectacularly at HP, fired over 30,000 workers, got herself fired for incompetence (voted the worst CEO by multiple business magazines)

HP is still cleaning up after Carly Fiorina
posted by homunculus at 9:10 AM on September 1, 2010

Stop8's point by point video rebuttal to NOM's latest national radio ad.
posted by cybercoitus interruptus at 5:35 PM on September 5, 2010

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