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Round-up of coverage and reaction to today’s Prop 8 hearing before the CA Supreme Court

Prop 8 trial Trial analysis

By Adam Bink

A collection of coverage and responses (some via e-mail):

Shannon Minter of the Nat’l Center for Lesbian Rights, who along with his colleague Chris Stoll previously stopped by to answer Prop 8 legal questions from the Prop8TrialTracker community (you can find the transcripts here and here, they are incredibly informative if you have legal questions about where the case heads from here), and who argued the original In re marriage cases before the CA Supreme Court, wrote:

I was concerned by the tenor of many of the justices’ questions today.  The court has a responsibility to enforce the California Constitution, which gives elected state officials—not private initiative sponsors—the authority to decide whether to appeal a federal court decision invalidating a state law.  Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures.  Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy.   I was disappointed that, with some notable exceptions, too many of the court’s questions today did not address the specific legal questions before them, but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to “the people.”  The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution.  I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.

NCLR’s Kate Kendell also commented:

It would be an unthinkable blow to California’s democratic system of government if the handful of individuals who sponsored Prop 8 could make decisions for the entire state. Today’s arguments raised critical questions affecting the future of all groups who may be targeted by unconstitutional ballot initiatives, and the California Supreme Court’s decision will determine whether our state can be held hostage by special interests with no accountability to the public. We are hopeful that the Court will affirm that a handful of private citizens representing only their own narrow interests cannot usurp the role of the duly elected officials of the state of California.

Maura Dolan of the LA Times opines that the court leaned towards giving standing to the proponents.

The Advocate looks at Olson’s comments after the hearing.

Ari Ezra Waldman does some summary and Q&A.

Any other interesting takes you’ve found?

Update: Archived video of today’s hearing can be found here.


  • 1. ĶĭŗîļĺęΧҲΪ  |  September 6, 2011 at 4:57 pm

    Yeah, it does seem like the Court was leaning towards granting the proponents standing. Maybe it's only in our imagination?

  • 2. Paul  |  September 6, 2011 at 5:12 pm

    I honestly just don't see it happening from this court. What law will they use to grant proponents standing? Some idea that the people didn't intend to give the Governor and Attorney General the sole responsibility to defend the laws when they wrote in the constitution that the Governor and Attorney General have the sole responsibility to defend the laws?

  • 3. ĶĭŗîļĺęΧҲΪ  |  September 6, 2011 at 5:20 pm

    Well, we'll find out within 90 days.
    After all, these are the same judges that heard Strauss v. Horton and decided in favor of Prop 8.

  • 4. Paul  |  September 6, 2011 at 5:39 pm

    EAXCTLY. They found in Strauss that there wasn't a law that clearly spelled out that Proposition 8 was a revision rather than an amendment and ruled that it was therefore unconstitutional.

  • 5. Doug  |  September 6, 2011 at 8:01 pm

    aaaah, the rule just opposite. They said it was constitutional. If they said it was unconstitutional we wouldn't be here.

  • 6. pgbach  |  September 6, 2011 at 9:20 pm

    incorrect, this court has two new members, the Chief Justice & Justice Liu.

  • 7. grod  |  September 7, 2011 at 6:46 am

    Kirîlle, I thought the same until I saw/heard the tape. Those of the seven judges who asked questions were giving both sides a final chance to articulate their viewpoint – in law. As Ted Olsen reminded the court, the Court was being asked to address two narrow questions relative to the ballot initiative process. He is more precise in replying to the asked question than is Charles Cooper. Can the anticipated ruling be appealed to the US Supreme Court?

  • 8. MFargo  |  September 7, 2011 at 2:44 pm

    It could only happen if somehow (who knows how?) the 9th used the language of the CA SC; State courts are the providence of each state, unless there is some violation of the U.S.Constitution. However, if the 9th grants standing, THAT could be appealed to the SCOTUS, but Olson doesn't sound like he'd do that, unless his clients would want it appealed.

    What can i say? It's a mess, and I hope the CA SC doesn't add to all the tangle some controversial opinion. ,

  • 9. Sagesse  |  September 6, 2011 at 5:02 pm

    I have been busy all day, but did manage to read the live blog after the fact. Is the video archived somewhere that I can watch it?

  • 10. Sagesse  |  September 6, 2011 at 5:25 pm

    Found it at the Advocate link above.

  • 11. MichGuy  |  September 8, 2011 at 3:26 pm


  • 12. stuart  |  September 6, 2011 at 5:16 pm

    you will lose the case. Prop 8 will stay and you wont

  • 13. Ronnie  |  September 6, 2011 at 5:31 pm

    OTIO…… 8 / …Ronnie

  • 14. Elizabeth_Oakes  |  September 6, 2011 at 5:50 pm

    Sorry Troll-y darling, but in case you hadn't heard…you've ALREADY lost your case, which is why your inept legal team is so desperately trying to appeal. Prop 8 has already been ruled unconstitutional, and it's just a matter of time before we have marriage equality back in CA. You can always move to another state if you can't hack it.

  • 15. FlexSF  |  September 6, 2011 at 5:50 pm

    Hi stuart, please explain how the gays will lose the case.

  • 16. fiona64  |  September 7, 2011 at 9:02 am

    Obvious troll is obvious … and pathetic.

  • 17. Ann S.  |  September 6, 2011 at 5:16 pm

    Yes, they talked a lot about the "precious" right of initiative and referendum reserved to the people. Politically I think they may feel that they have more to lose by saying that there is no standing than that there is standing.

    Werdeger seemed to want to merely tell the 9th Circuit what current law is, rather than being boxed by the 9th Cir. into making new California law, but I don't know that the other Justices agree.

    Whether the 9th Cir. will think that is enough to confer federal standing is another question altogether.

  • 18. Elizabeth_Oakes  |  September 6, 2011 at 5:43 pm

    Well, wasn't the question about whether current law grants standing to proponents of initiatives, but the problem is CA has never faced this particular set of circumstances before?

  • 19. Ann S.  |  September 6, 2011 at 9:24 pm

    Elizabeth, this is correct, because CA courts have always been permissive about allowing proponents to intervene — but this is not the same as it being a matter of right.

  • 20. Elizabeth_Oakes  |  September 6, 2011 at 9:54 pm

    It's just like training a dog…too permissive and they start stealing food off the table. BAD! BAD NOM!

  • 21. Doug  |  September 6, 2011 at 5:48 pm

    We need to write a letter to justices like Liu who face voter confirmation or reconfirmation in 2012 or 14 election that we the people can have them removed if they vote wrong.

  • 22. VoiceofConcern  |  September 6, 2011 at 7:47 pm

    "wrong", as in contrary to the California Constitution & Stare decisis?
    Or "wrong" as in contrary to some narrow agenda?

  • 23. Phillip R  |  September 6, 2011 at 9:08 pm

    Your comment is seriously a bit scary. Justices shouldn't be pressured one way or the other through threats.

    Doing something like this would be no different than the stuff NOM pulled with the Iowa judges. It was wrong then and it's wrong now.

  • 24. Steve  |  September 7, 2011 at 1:32 am

    Ideally, judges shouldn't be voted for either. It's the height of insanity. After all they are supposed to keep people enacting laws in check

  • 25. FlexSF  |  September 6, 2011 at 5:48 pm

    I thought Olson batted the ball out of the park. When asked if the initiative system is threatened when the AG or governor refuses to defend a proposition he stated the following paraphrase: "No, the state constitution says that a person or group may propose and enact a proposition, but it doesn't say they may DEFEND it." He drilled this point home, over and over again. Whether or not the majority of CSC justices agree is out of his control.

    Frankly, I know I'm not seeing the bigger legal implications from the outcome of this ruling, but I would like to see proposition 8 destroyed on it's merits. It would really stick a proverbial knife in the backs of the Christianist bigots.

  • 26. Jeff  |  September 6, 2011 at 6:02 pm

    If I understand what Olson said correctly. Apparantly, ballot proponents can include the right to defend their proposition in court if they include it into their proposition. However, Prop 8 proponents did not include that right into their propositon.

  • 27. Ann S.  |  September 6, 2011 at 6:05 pm

    He said that if they include it in an initiative that amends the constitution, they can do it — but if it's merely a statute then the Calif. constitution would prevail, and that puts the power to defend the state's laws in the attorney general, not in the legislature or the people exercising legislative power via initiative.

  • 28. Jeff  |  September 6, 2011 at 6:32 pm

    I thought propositon 8 was an ammendment to the California constitution

  • 29. Ann S.  |  September 6, 2011 at 6:37 pm

    It was an amendment to the California constitution, but it did not contain any provision conferring standing on the proponents.

  • 30. jpmassar  |  September 6, 2011 at 6:39 pm

    Yes, it was. Ann was clarifying that Olson believes that his remedy only applies to constitutional amendments, not to other ballot initiatives.

  • 31. Tyler  |  September 6, 2011 at 6:56 pm

    Listen, I hate Prop 8 as much, if not more, than anyone out there. But think about the precedent you want to set here. Washington state's disclosure law was invalidated by a district court who catered to bigots' desire to keep secret. Should the attorney general (a Republican) have been able to kill that disclosure law simply by not appealing? What about in Maine, where we're going to have a marriage equality initiative? If that's enacted, should the Republican governor be able to kill it in cahoots with one conservative federal district judge? Clearly the people of the state have a concrete interest in seeing the laws they vote for enforced. You've got to divorce your hate for Prop 8 (which is justified) from the undoubtedly far-reaching results that this case is going to have in the future. There's nothing improper about giving Proponents of initiatives standing to defend laws.

    I think a lot of this issue has been clouded by the distinction between the proponents' being able to assert the interests of the state as opposed to having their own interests. But there's no reason they have to represent the state. They can have an interest in whether their proposition is enforced without representing the state. Attorney General Harris can concede in federal court that Prop 8 is unconstitutional, just as then-Attorney General Brown did in state court. That doesn't give him the final say though. Courts must have the final say.

    With respect to the argument that nothing in California law gives proponents a particularized interest in the validity of the initiative, that is, quite frankly, bullshit. The California Constitution creates the initiative. That power is meaningless if it cannot be given effect. When you have a right or a piece of property, it must have substance to have any meaning. The right to physically say what you want means nothing if it doesn't also come with the right not to be punished by the government for exercising it. It's such an elementary proposition it's actually relatively hard to come up with a way to explain it (e.g., when you buy a car, you also buy the keys with which to turn it on and the right to do so).

    Anyway, ultimately, I think if you take the lens of Prop 8 away from it, we would recognize that initiative proponents should have standing. And even looking through the Prop 8 lens, we as a community stand much more to gain, and more quickly, from being granted standing.

  • 32. DaveP  |  September 6, 2011 at 10:47 pm

    Some well-thought-out points there. How about the issue of showing injury? How are the Prop 8 proponents able to show any harm if Walkers' ruling is allowed to stand without appeal? And don't they need to be able to show this to have standing to appeal?

  • 33. fiona64  |  September 7, 2011 at 9:09 am

    In short, yes. There must be particularized (meaning, particular to those seeking to defend the now unconstitutional law) harm. There is no such harm to those attempting to intervene in this case.

  • 34. Derek Williams  |  November 18, 2011 at 4:54 am

    The more the Prop 8 proponents say about it, the bigger the grave they dig for it. I say let them Speak! There is a lot to be said for open debate and freedom of speech. Where would we have been without Harvey Milk's open debate with Anita Bryant?

    I don't believe it's in our interests to seek to deny our opponents due process. For one thing, it's not fair, and for another, we might want Due Process ourselves in the very near future.

  • 35. PoxyHowzes  |  September 6, 2011 at 7:04 pm

    I'm not understanding all the gloom and doom in the what-if scenarios that say what if the CA Supremes find an excuse for the Proponents' standing.

    First, all CA initiatives from now on are going to include a clause giving the proponents the right to defend. ALL of them, whether constitutional amendments/revisions or simple statutes.

    Second, the CA Attorneys General of the future will defend ALL changes enacted by proposition, and these AGs will exercise discretion only in how eptly or ineptly they handle the appeals.

    The CA Supremes will never be able to get around the question that was asked near the end of the hearings today: What if BOTH the CA AG and the Proponents want to defend the proposition? Unless ballot propositions begin incorporating the idea that ONLY the proponents shall have the right to defend!

  • 36. MFargo  |  September 7, 2011 at 7:57 am

    If he had it to do over, I doubt the former Attorney General would do anything differently in this case. It is interesting, though, that if future initiatives have to bear the burden to defend their legislation, we might get less crackpots…or not. It's not every initiative that has the riches of the Mormon and Catholic churchs to squander.

  • 37. jhon  |  September 6, 2011 at 7:15 pm

    YES ON PROP 8!

  • 38. Ronnie  |  September 6, 2011 at 7:18 pm

    BWAAAAAAAAAAAAAAAAAAAAA!!!!!…….. 8 / …Ronnie

  • 39. thark  |  September 6, 2011 at 8:22 pm

    And then "NO" on its constitutionality.

    (See that? Everyone's happy!)

  • 40. dx dx  |  September 6, 2011 at 7:28 pm


  • 41. Ronnie  |  September 6, 2011 at 7:34 pm

    MARRIAGE = MAN and MAN, MAN and WOMAN, or WOMAN and WOMAN…… 8 / …Ronnie

  • 42. VoiceofConcern  |  September 6, 2011 at 7:51 pm

    Judge Walker's ruling held that there is legitimate State (Government ) reason to deny marriage, on the basis of gender. Gender Neutral Marriage is inclusive to men, women, bisexuals, trans folks & intersex folk. Just as one would expect, for a basic human right.

  • 43. Seth from Maryland  |  September 6, 2011 at 8:05 pm

    Marriage=the coming together of two adults to show their love whether two women, two men, or a man and women

  • 44. FlexSF  |  September 6, 2011 at 8:21 pm

    The gays are about to resume the practice of marriage equality in California, and you can't do anything about it. 🙂

  • 45. thark  |  September 6, 2011 at 8:21 pm

    Except in CA where it is ALSO recognized between a man and his man, and/or a Woman and her woman, 18,000 times over (we're not going anywhere, Sport!)

  • 46. Steve  |  September 7, 2011 at 1:34 am

    Biblical marriage = Man + as many wives (aka slaves) as he can afford

  • 47. Chris in Lathrop  |  September 7, 2011 at 3:52 pm

    Love and marriage, love and marriage
    Go together like a horse and carriage
    This I tell you brother
    You can't have one without the other

    Love and marriage, love and marriage
    It's an institute you can't disparage
    Ask the local gentry
    And they will say it's elementary

    Try, try, try to separate them
    It's an illusion
    Try, try, try, and you will only come
    To this conclusion

    Love and marriage, love and marriage
    Go together like the horse and carriage
    Dad was told by mother
    You can't have one, you can't have none, you can't have one without the other!

    No Sir!

    See? Even Sinatra agrees! 😛

  • 48. Ronnie  |  September 6, 2011 at 7:30 pm

    Calif. Gov Signs Equal Benefits Law

    "California governor Jerry Brown today signed into law a bill requiring businesses that have large contracts with the state to provide equal spousal benefits for all employees, gay and straight."

    (me) Awesome…….. <3…Ronnie

  • 49. VoiceofConcern  |  September 6, 2011 at 7:52 pm

    The obvious Troll is Obvious

  • 50. Tomato  |  September 6, 2011 at 7:55 pm

    Would it rock the Troll's world to realize over 2,000 churches in California are actively fighting FOR equal marriage?

  • 51. FlexSF  |  September 6, 2011 at 8:22 pm

    Really? That is good news, but where are they? The only group of churches I hear about are vile ones.

  • 52. Tomato  |  September 6, 2011 at 9:04 pm

    I posted quite a lot about them 3 years ago. They filed an amicus very early in the game listing all of them. It was quite impressive. I believe that number has since grown. If you'd like to get involved on a non-demonimational and non-creedal local level, check out Unitarian churches (especially UUSF, )

  • 53. Tomato  |  September 6, 2011 at 9:06 pm

    I need to add that the liberal churches/synagogues/temples don't have the money and don't get the media attention of the vile ones. There is a multifaith social action group trying to change that:

  • 54. Elizabeth_Oakes  |  September 6, 2011 at 9:58 pm

    Awww, I missed the troll comment? Deleted by admin before we could make TrollHouse cookies with MILK??? *pout never grumble no fun no more grumble pouty*

  • 55. fiona64  |  September 7, 2011 at 9:06 am

    What Tomato said. Our MCC congregation is down to 15 members. Liberal churches do not attract the kind of *membership* that the Dominionist/"God hates the same people we do" megachurches do either, unfortunately.

  • 56. FlexSF  |  September 6, 2011 at 9:15 pm

    No thank you.

  • 57. DaveP  |  September 6, 2011 at 10:39 pm

    Just a couple of days ago I attended the Oakland LGBT Pride festival here in downtown Oakland. There were several booths from various local churches, all welcoming LGBT folks. Some were churches that I had not heard of before, and some I already knew about. I can vouch for those, they definitely walk the talk. They provide all sorts of really great services for LGBT people, they provide meeting spaces for PFLAG meetings, gay AA meetings, LGBT youth support groups and coming out support groups etc. I'm not a member of any church but I do know these people are the real deal. They are our allies.

  • 58. Steve  |  September 7, 2011 at 1:36 am

    That's because 10 of the vile mega churches are probably as large as the 2,000 friendly ones

  • 59. Sheryl_Carver  |  September 7, 2011 at 10:43 am

    Also, the media need ad dollars, which means they need readers/viewers, which means they are more likely to play up the outrageous & adversarial. If this were not true, I doubt most of us would have every heard of many of the current crop of GOP wingnuts.

  • 60. Sagesse  |  September 6, 2011 at 7:54 pm

    Retiring Gay Service Members Honored as DADT Repeal Looms

  • 61. Tyler  |  September 6, 2011 at 7:56 pm

    I've already posted this elsewhere, but I figure I'd post it here to, to respond to the prevailing opinion that the California Supreme Court should deny any particularized interest.

    I'm afraid I have to disagree with the prevailing consensus on two counts; both what should happen as a matter of California law and what would be best for gay Americans.

    Addressing the second issue first, it's a given that the panel of the Ninth Circuit we have will rule in our favor. One of the three judges on the panel has already declared DOMA unconstitutional. Another asked his very first question at oral argument last year about how this case is not exactly like Brown v. Board. Boom. There's your two votes. We win. In the Supreme Court, I think no one can dispute that we have the four "liberal" votes. And Kennedy is the one who wrote Lawrence and Romer, basically the only two pro-gay opinions the Court has written. He's also relatively cognizant of how history will look on his record, and he knows where this is going. He's our fifth vote. In fact, he'll write it. We have this at the Supreme Court. And anyway, the whole point of this suit was to get it to the Supremes. Limiting it to California will just postpone the whole issue a few more years. I can't see how people can complain that the process is taking too long and then support forcing the whole process to start over again in a state other than California. As someone who lives in a state other than California, I'd prefer a national solution.

    And, knowing of Judge Reinhardt as I do, this is exactly what he's trying to do. He knows that he is often reversed, and the Supreme Court might try to weasel out of the ruling it should give on the merit by hiding behind standing issues (as it did in the pledge of allegiance case). So he is trying to insulate his pro-marriage equality ruling from that by seeking shelter in the California Supreme Court. The United States Supreme Court has said that state law may bestow upon people standing in federal court in some instances. If the California Supreme Court answers the question it has been asked "yes," then the court will *essentially* (though not literally) convey an irrevocable (because the Supreme Court cannot change the interpretation of California law) "injury-in-fact" to plaintiffs. And of course, you have no problem showing the other two elements of standing (redressability and causation), so there will be standing. And the Supreme Court will have almost no way to reverse Reinhardt on a technicality.

    On to what should happen as a matter of California law, the idea that there's some principle being achieved by preventing courts higher than district courts from reviewing constitutional challenges to state laws is absurd. It's a mockery of the system. Let the state refuse to defend it, but there's no reason that the law shouldn't have its day in court.

  • 62. Michael  |  September 6, 2011 at 8:06 pm

    Isn’t is sad how anti-gay activists visit websites and post anti-religious messages while pretending to be a pro-equality American? Then they can go back to their large pro-homophobia pressure group, point to the fake post and scream that they are being “threatened.” It’s obvious to everyone except them who really posted the “threats.” As the Bible says, “They have eyes that cannot see and ears that cannot hear.” In the end, they will still lose on earth AND they will have to face Judgment Day for perverting Scripture!

  • 63. Sagesse  |  September 6, 2011 at 8:06 pm

    DOJ Argues DOMA's Unconstitutionality Holds, Even in Immigration Context

  • 64. thark  |  September 6, 2011 at 8:25 pm

    For civil justice's sake, right now is the perfect legal cue to lift the stay on Walker's blistering, yet unimpeachable ruling, striking CA's ban as 100% illegal.

    There are 18,000 of us already that DO have more equal rights than others so more happy couples will create no further proveable "injury" to anyone, anywhere…

    The stay in place that now prohibits marriage equality for some, but not others, is JUST as unconstitutional as Flop 8 is, for exactly the same reasons.

    Indefensible means just that: it's indefensible.

  • 65. thark  |  September 6, 2011 at 8:26 pm

    It seems to me, that the people's power to create initiatives is left in tact, if the proper denial of legal "standing" is the outcome here.

    Cooper is saying the "rights of the people" are being overriden by this "constitutional" amendment not being supported as lawful by ELECTED officials in office.

    The people have the same recourse they always did: recall the politicians that dissatisfy them or vote them out of office, and create another initiative for the "people" to decide on. CA's "liberal approach" to initiatives in untouched by the conundrum present regarding a "law" that is on it's face unlawful.

    Our system is long-winded in the way Californian ideal get thrashed about in our amazingly convoluted political system.

  • 66. AnonyGrl  |  September 7, 2011 at 10:12 am

    They had the chance to do just that, and voted in a new Gov. and AG who both supported their predecessors decision.

    Err… isn't that the "people speaking"?

  • 67. FlexSF  |  September 7, 2011 at 2:29 pm

    Not in the eyes of a bigot.

  • 68. thark  |  September 6, 2011 at 8:28 pm

    Flop 8 Proponents will certainly prove no standing federally, because there are no material injuries to anyone in CA except to some couples, but not others. Married couples, including us 18,000 are unaffected, either way. No standing.

    Yet the CA system still allows for actions "by the people" that are (allegedy) for the people.

    The standing issue FEDERALLY, and the proponents' obvious lack thereof, is at least unimpeachable grounds to lift the stay while the hobble Flop 8 goes finally into rigor mortis and dies on it "merits"…(Walker's judgment is STILL federal record, and that doesn't appear likely to go away, it was so excruciatingly meticulous in its rejection of Flop 8 as valid "law".

  • 69. thark  |  September 6, 2011 at 8:32 pm

    So BIG DEAL if the stay on Walker's ruling striking Flop 8 is lifted in the interim until it's unconstitutionality is confirmed and reconfirmed over and over and over again in every future court to be asked about it, until these H8ers *get* it.

    Unconstitutional means "Unconstitutional". How many ways are they looking to have that FACT spelled out…?

    "the People" go back to the drawing board and come up with a "constitutional" amendment initiative that harms gays and only gays, only THIS time they have discriminate in a way that IS constitutional next time. (good luck with that, but the right is intact to try. No harm. No foul as far as "The People" are concerned.

    The ONLY true "will of the people" (all of us) is the constitution itself, COMBINED with the power to vote; built in checks and balances that work, illustrated by the eventual eviceration of "constitutional" marriage equality bans nationwide.

    (Like it or not)

  • 70. MFargo  |  September 7, 2011 at 7:53 am

    Count me in. I'm ready for the stay to be lifted.

  • 71. grod  |  September 7, 2011 at 3:08 pm

    @thark – can you advance your arguement in the context of the seperation of legislative, executive, judicial functions and apparently overarching "the people". The interesting question here is what happens when the executive, legislative and the people all appear before the judiciary advancing differening positions?

  • 72. Kathleen  |  September 6, 2011 at 8:33 pm

    Good article here (not sure if it's already been posted):

  • 73. FlexSF  |  September 6, 2011 at 9:36 pm

    That was interesting, but what does this mean? "It is possible that the Ninth Circuit will order a rehearing given what it learned, but if the California court simply reiterates its liberal intervention norms, there will be no need for a rehearing." Is he say the Ninth Circuit may dismiss Walker's ruling, and we're thrown back to August 2009? 🙁
    Read more:

  • 74. Ann S.  |  September 6, 2011 at 9:44 pm

    I think the author is speculating about the possibility that the 9th Cir. would hear further oral arguments on the standing question — not that they would sent it back to the district court.

  • 75. MFargo  |  September 7, 2011 at 7:34 am

    I'm just wondering what the proponents were thinking when they put Prop 8 together? "We'll get this passed and NO one will challenge it! And if they do, we can count on the State oficials to defend it." Did they not have legal advice in putting the darn thing together?

  • 76. Greg  |  September 7, 2011 at 9:50 am

    The proponents were worried that any additional language in prop 8 would serve only to confuse voters (and lower its chances of passing) – so they kept the proposition's text as short as possible. Essentially, proponents gambled that any additional language would prove unnecessary – they were wrong then, and therefore should lose on standing now.

  • 77. MFargo  |  September 7, 2011 at 12:08 pm

    Thanks. I hope they continue their "gambling." 🙂

  • 78. Sapphocrat  |  September 7, 2011 at 2:35 pm

    Actually, Prop H8 was a watered-down version of some half-dozen prototypes that were so radical, they'd take your breath away. One (authored, IIRC, by the Randy Thomasson mob, which was trying to wrest control of the war away from Pugno's battalion) originally specified that only marriage between a *biological* male and a *biological* female would be recognized. I'm not sure if they were going to try to require chromosome testing along with the application for a marriage license (it wouldn't surprise me), but that version and and others were scrapped early on — not because they were so flipping insane, but because they clearly would have violated various California laws re transfolk. No doubt Prop H8 was worded the way it was because it was the most they thought they could get away with. (And there's still some question about whether or not Prop H8 precludes legal polygamous marriage; i.e. "Only marriage between a man and a woman…" does necessarily restrict a marriage to only *one* man and *one* woman.)

  • 79. Bill S.  |  September 7, 2011 at 8:55 pm

    It's "*A* man and *A* woman" not "Only marriage between men and women." The indefinite articles "a" and "an" specify one ("a book" = one book).

  • 80. equalitytoday  |  September 6, 2011 at 8:49 pm

    Let the case be based on merits, not technicalities. Give the proponents standing, and allow them to continue to appeal! We all know that discrimination based on sexual orientation is unconsitutional, let this case continue to be public and broadcast across the media. yeah, it hurts not being able to get married for a while, but who said that we can gain civil rights without pain? no one… keep fighting on folks

  • 81. FlexSF  |  September 6, 2011 at 9:18 pm

    I agree, but as Mr. Boutrous stated after Walker's ruling "there is no reason to throw out a good argument." That is what was tested today.

  • 82. MFargo  |  September 7, 2011 at 7:37 am

    But "technicalities" apply to both sides. The court has these rules for a reason and part of "lawyering" is being aware of them…and using them to your advantage.

  • 83. Prop 8 Watch: Haters Sue &hellip  |  September 6, 2011 at 9:47 pm

    […] For recap and reaction of the day’s events visit The Prop 8 Trial Tracker. […]

  • 84. Bob  |  September 6, 2011 at 11:32 pm

    The CSC will open a whole new can of worms if they let proponents defend their propositions. Like someone said earlier, what if proponents don't like the way the AG is defending it? Will they tie the courts up with two separate yet redundant cases. We elect our officials to do their jobs. Not appoint Reverend Billy Joe Backwater to tie up the courts with his evangelical bigoted propositions.

  • 85. MFargo  |  September 7, 2011 at 7:43 am

    I don't think the CA SC is in the position to "let" anyone have standing in Federal Court. The 9th simply asked for their opinion on whether the CA Constitution addresses this particular situation. (It doesn't. And the 9th could have figured that out in about an hour of research.) Why we're even before the CA SC at this juncture is part of the weirdness of this whole affair, and it would be nice to have a judge(s) step up and do the right thing the way Judge Walker (and too few others) have done. I call it pussyfooting. And it's disgraceful.

  • 86. loaferguy  |  September 7, 2011 at 4:30 am

    Video montage of Prop 8 opponents and supporters rallying outside the CA Supreme Court building before the hearing about the issue of standing (9/6/2011).

    [youtube wUQ7Bu7L6sA youtube]

  • 87. Elizabeth_Oakes  |  September 7, 2011 at 6:08 pm

    So nice to see some familiar P8TT faces! Thanks for this….pretty cool.

  • 88. Sagesse  |  September 7, 2011 at 4:32 am

    From Ezra Waldman's article, linked above. He's not nearly as convinced as some that the California Supreme Court will grant standing, based on legal arguments.

    "…the power to represent the state persuant to state law may be a necessary prerequisite of federal standing, but it is woefully insufficient. For federal standing, you have to show a clear and specific harm caused by an adverse ruling. That requirement, over and above California's intervention rules whatever they may be, will likely doom 'Protect Marriage'."

    Read more:

  • 89. MFargo  |  September 7, 2011 at 7:50 am

    And the 9th could have said this six months ago. All the rest of it is bluster on part of Reinhardt et al. Whatever comes out of yesterday's hearing will have zero weight if this goes to the SCOTUS.

  • 90. allen  |  September 7, 2011 at 6:06 pm

    I'm beginning to get the feeling that the 9th punted this back to CA Supremes as a way of saying "Look at how your messy initiative system is interfering with our business. Clean this up for future cases." Sucks that the delay that's caused is at our expense, not theirs.

  • 91. Sagesse  |  September 7, 2011 at 4:45 am

    California court seems torn over Prop 8 standing issue

  • 92. Sagesse  |  September 7, 2011 at 4:48 am

    Baldwin makes it official: She’s running for Senate seat

  • 93. truthspew  |  September 7, 2011 at 4:50 am

    Certainly it would be bad for California. But if they do gain standing and the case is heard and decided in favor of overturning Prop 8 then the decision becomes case law to be used by pretty much any federal or state court.

    Not only that, the bigots will most certainly try for the US Supreme Court.

  • 94. MFargo  |  September 7, 2011 at 7:46 am

    If the 9th allows the proponents standing, there's every reason to believe the SCOTUS will throw this right back to them saying the DI's don't have standing to be heard at appeal. Then what?

  • 95. Steven  |  September 7, 2011 at 10:29 am

    Judge Walker's decision will be upheld.. 9th Circuit of Appeals will throw out the appeal. That's why CA Supreme Court needs to be careful with their recommendation. Under CA law and constitution DI can't appeal.. jmo..

  • 96. Sagesse  |  September 7, 2011 at 4:54 am

    Prop 8 Trial: Did NOM Push Copyright Issues (Again) With Video Feed?

  • 97. Dwight  |  September 7, 2011 at 6:58 am

    Just a side point from a straight guy that supports your cause.

    Do you really want to win this on a legal technicality? They had nothing at the trial, zip… nada.

    They cannot introduce new evidence at an appeal ( If I understand that correctly )

    don’t let it get you down that they get to defend prop 8, they don’t have anything to defend it with.

    It might be better for them to defend and lose, than for you to win on a legal technicality. In the minds of people it is better for you to win on merits. And that you have in plenty in a nation that is supposed to be of equal justice.

  • 98. Gregory in SLC  |  September 7, 2011 at 7:46 am

    Queer Studies Program:

  • 99. Mark  |  September 7, 2011 at 8:31 am

    If it were the KKK that sponsored the proposition, and the state refused to defend it, would the courts allow the KKK to represent the people of the state of California? I see no difference…a hate group is a hate group.

  • 100. Paul  |  September 7, 2011 at 8:59 am

    which KKK club? Is only the national organization allowed to represent the state, or can local groups represent the state as well? What if the leader of the KKK heads off to open up a new hate group. Does the new hate group get to represent the People's interest, or does the KKK still get to do it?

  • 101. Dwight  |  September 7, 2011 at 1:08 pm

    I thought it was the KKK…. oh that right it was that church in Utah, I keep getting them confused.

  • 102. maggie4noh8  |  September 7, 2011 at 2:10 pm

    Off topic, but wanted to provide this link…

    Obama Administration has finalized LBGT friendly policy…


    It applies to hospitals participating in Medicare/Medicaid program (virtually 100%) and has to be included in the patient's rights as well as hospital P&P.

    Please share with anyone/everyone you know!

  • 103. biff  |  September 7, 2011 at 9:07 pm

    This might be a stupid question, but if CA SC rules that proponents can defend their initiatives, I wonder if the governor can then usurp the right to defend Prop 8 (albeit) very poorly since he is against it?

  • 104. Steven  |  September 8, 2011 at 10:09 am

    hmm I don't know if they rule that Pro-Prop 8 can appeal they might be crossing the line about executive powers…….

  • 105. dsc77  |  September 8, 2011 at 6:42 pm

    I just got the latest B.S. Brown email. Jennifer states, "None of the justices appeared to buy into Ted Olsen's argument that an initiative's proponents cannot intervene to defend said initiative, effectively arguing that it must go undefended if the governor or state's attorney general refuses to do so."

    I'm not legal scholar, but I DO buy into Mr. Olsen's argument….!

    Dave in Maine

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