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BREAKING: CA Supreme Court rules Prop 8 proponents do have standing to appeal

9th Circuit Court of Appeals Marriage equality Prop 8 trial

By Jacob Combs

This morning, the CA Supreme Court ruled that the proponents of Prop 8 do have standing under state law to appeal the decision in Perry v. Brown:

…In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

For background on how we came to this point, what today’s opinion means and where we go from here, Prop 8 was declared unconstitutional by a California district court in August 2010.  Both the duly elected governor and attorney general at the time (Arnold Schwarzenegger and Jerry Brown, respectively) as well as the governor and attorney general elected in the 2010 elections (Jerry Brown and Kamala Harris, respectively) have declined to represent the state in the case, believing Prop 8 to be unconstitutional. So the proponents of Prop 8 ( et al, who put the measure on the ballot and worked to pass it in the first place) stepped forward to do so.

The case was appealed to the 9th Circuit, which not only heard arguments on whether Prop 8 is constitutional or not, but whether the proponents — unelected, unaccountable et al — even have standing to defend Prop 8 in the first place.  The 9th Circuit decided to ask the California Supreme Court whether or not proponents of ballot initiatives have standing under California law to represent the entire state when the state’s elected officials refuse to do so.  Today, the Court responded to that question.  The CA Supreme Court’s decision is not binding on the 9th Circuit: it’s really more of an advisory opinion. However, it is a very influential opinion that the 9th Circuit will take very seriously.

Why is this all important?  Because there are essentially two bites at the apple to take down Prop 8: constitutionality and standing.  Whether the courts find Prop 8 to be constitutional is critically important for obvious reasons.  But if the 9th Circuit rules that the proponents of Prop 8 do not have standing and we win on appeal, Prop 8 will end.  Beyond that, it has critical implications for the ballot initiative process in California and who represents the state.

As for next steps, many legal observers believe the 9th Circuit is likely to adopt the CA Supreme Court’s opinion and say Prop 8’s proponents do have standing to appeal.  That’s not for certain, however, since the proponents could have standing under California law but not in federal court (i.e., a federal appeals court).  It’s uncertain when the 9th Circuit will issue its ruling, though many legal observers believe it will be sometime in the next few months, and it may even hold another hearing for additional arguments.

The full ruling can be found here.  Check back throughout the day for updates and analysis.

Update 11: Over at SCOTUSBlog, Lyle has a lengthy analysis piece worth a read. It’s complex, but interesting.

Update 10: In response to a question over e-mail from Adam Bink on whether proponents of Prop 8 and future ballot measures are entitled to taxpayer-funded reimbursement from the state of California, Lambda Legal’s Jon Davidson replied:

It’s quite rare for the California Governor and Attorney General to decline to defend a state law, whether passed at the ballot or by the legislature. In this case, they only refused to defend Prop. 8 because they believed it was quite clear that that initiative violates the U.S. Constitution, which they have taken an oath to uphold. Because it’s so rare for government officials not to defend, I don’t think it is clear at this point whether or not initiative proponents would have any right to seek compensation from the state for defending a measure’s constitutionality. I tend to think not, as, in other cases where individuals in California are allowed to act on behalf of the state, I don’t believe they are entitled to receive taxpayer compensation for doing so. It is a different question, however, whether — if the Prop. 8 proponents are successful in defending the measure — they might be entitled to seek compensation from the plaintiffs in the Perry case. Normally, parties to lawsuits are not able to recover fees unless there is a statute specifically allowing them to. There is a statute in California, however, that does allow a victorious party to seek fees from the other side if their case has conferred a benefit on the entire state. Here, however, it’s not the intervenor’s case and intervenors often are treated differently from parties when it comes to issues related to attorney’s fees.

Update 9: One final thought from the AFER press call.  Ted Olson pointed out the follow quotation from the 9th Circuit’s ruling from January certifying the standing question to the CA Supreme Court (it’s on page 2 if you want to follow up): “[W]e agree to accept and follow the Court’s decision.”  In his opinion, the 9th Circuit has essentially locked itself in to accepting today’s ruling that proponents do have standing.

However, thanks to John in the comments for pointing out an interesting nugget from today’s ruling (page 11, footnote 7) differentiating the requirements for standing under federal law vs. California law.  The CA Supreme Court points out that a party seeking to a appeal a ruling in federal court may only do so “upon a showing that the intervener independently fulfills the case or controversy requirements of article III of the federal Constitution.”  Under California law, a party who has been allowed to intervene in a lower court can appeal a judgement “despite the failure of the original defendant to file an appeal.”

This is really just the CA Supreme Court’s way of saying, our decision is based on state law and doesn’t have any official sway in the 9th Circuit, as we’ve pointed out already.

Update 8: Some more notes from the AFER press call:

Olson and Boies expressed hope that there would be no need for further hearings at the 9th Circuit, since both sides made detailed arguments at last year’s hearing and nothing has changed regarding the facts of the case. Furthermore, they stressed that both the district court and the 9th Circuit have agreed several times to expedite the case in the past, and predicted that it would do so again moving forward.

One reporter asked whether AFER’s team could drop the standing issue and just ask the court to consider the case on the merits.  Both Olson and Boies made it very clear that every court has to determine whether a specific case is in its jurisdiction, and that therefore the issue of standing is one that is brought up by the court itself, not the litigants.  Parties can’t waive this discussion—if the court asks them to argue about standing, they must.  They also predicted that the if the case ended up before the US Supreme Court, they believe that court would ask them to address the issue of standing just like the 9th Circuit did.

Update 7: I was on a press call with AFER, which is sponsoring the case. Some notes:

Ted Olson, David Boies and Chad Griffin spoke on the call. They hope the 9th Circuit will proceed without further argument, although in some cases, they want one more briefing. They do not want to predict a day or month, however. Further, as we’ve explained here at P8TT, either side can seek review of the case to the 9th Circuit or the US Supreme Court. If petitions are filed in the Supreme Court after the panel decision, they’d be filed this spring. No prediction on when the US Supreme Court would take the case — it could be in June, or in October.

Update 6: NCLR’s Executive Director Kate Kendell also weighs in:

“We disagree profoundly with the California Supreme Court’s holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state’s elected executive officers.  Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the Ninth Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-sex couples in California have lived under the shadow of this unfair law for far too long.”

Update 5: Statement from Lambda Legal’s Legal Director, Jon Davidson:

While today’s ruling from the California Supreme Court is disappointing, the good news is that the Perry case is now back in federal court, where we expect a quick victory. It’s important to keep in mind, though, that today’s ruling addresses only a procedural legal question. The key issue in this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right. A federal court has already ruled that the federal Constitution prohibits the voters from doing that and that Prop. 8 therefore is unconstitutional. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry.
In addition, today’s ruling does not settle the federal law question of whether Prop 8 proponents have standing in federal court. It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don’t. Regardless of today’s decision, we at Lambda Legal believe that the U.S. Supreme Court has made clear that initiative proponents don’t have that right.

In the end, the proponents of Prop. 8 are just people with an opinion. That does not make them entitled to stand in for the government when they don’t agree with its decisions. We believe the U.S. Court of Appeals for the Ninth Circuit should rule that Prop. 8’s proponents lack standing under federal law and, if the judges who originally heard the appeal rule otherwise, that the full Ninth Circuit or the U.S. Supreme Court should rule that initiative proponents are not entitled to take over the government’s role.

Even if the federal courts find that the proponents have the right to appeal, we continue to believe that Prop. 8 is unconstitutional and that the appellate courts will agree. As Judge Walker ruled, there is not even a legitimate government interest in denying same-sex couples access to the title and status of marriage when the state provides them all of the rights, benefits, and duties afforded different-sex couples through marriage. Prop. 8’s only purpose was to send the message that the same-sex couples don’t deserve to be seen as equal to different-sex couples and that message is one the federal Constitution prohibits. That is especially so when, as here, the state supreme court has ruled that denial of access to marriage violated the state’s guarantee of equal protection. What Prop. 8 did was amend the California Constitution’s equal protection clause to create a gay exception and provide that all people in the state have equal rights except for lesbians, gay men, and bisexuals. That too is something the U.S. Constitution does not allow.

We therefore remain very optimistic that, one way or another, Prop. 8 will eventually be overturned.

Update 4: Attorney Adam Bonin over at DailyKos adds his take.

Update 3: More from Shannon on timing:

It is likely the Ninth Circuit will issue a ruling fairly quickly, since they agreed to hear the case on an expedited basis.  But even if they do, it likely will not be soon enough to permit the Supreme Court to hear the case during its current term.  It is also possible that the Ninth Circuit may ask for supplemental briefing, which would delay things further.

Update 2: Shannon Minter, Legal Director at National Center for Lesbian Rights who led the legal team to win In re Marriage Cases at the California Supreme Court in 2008, sent his reaction in over e-mail:

This is a terrible decision in terms of its impact on California law. The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come. That said, the Court’s ruling means that the Ninth Circuit will almost certainly find that the proponents of Prop 8 have standing to pursue the appeal, which means that the Ninth Circuit will now decide whether to affirm or reverse Judge Walker’s decision finding that Prop 8 is unconstitutional. If the Ninth Circuit agrees with Judge Walker, the Supreme Court is very likely to take the case. In the bigger picture, this is good news for same-sex couples in California. Prop 8 is blatantly unconstitutional for many reasons—not only because it deprives same-sex couples of a basic right, but because it was enacted for the sole purpose of targeting a particular group in order to deny them equal protection of the laws.

Update 1: Statement from Courage Campaign

California Supreme Court Rules Prop 8 Proponents Have Legal Standing to Appeal Judge Walker’s Decision Regarding Prop 8

Statement from Rick Jacobs, Chair and Founder of the Courage Campaign

“While we respect the recommendations that the California Supreme Court made to the 9th Circuit Court of Appeals– that they grant standing to the proponents of the so-called — it is only a recommendation,” said Rick Jacobs, chair and founder of the 750,000 member Courage Campaign. “Allowing the Prop 8 proponents to have special rights in Court may open the floodgates to wealthy special interests to do the same. The judges of the 9th Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court. Regardless, we are confident that justice and love will prevail.”

Throughout the Perry v Schwarzenegger (now Perry v Brown) Prop 8 trial, Jacobs live-blogged daily from the courthouse and documented all of the latest motions and court rulings. Prop 8 Trial Tracker (, a project of the Courage Campaign Institute, has logged over 4 million page views, 110,000 comments and is the #1 Google search result for “Prop 8 Trial.” The highly-popular blog has followed every aspect of the Prop 8 trial, in addition to its NOM Tour Tracker that followed the National Organization for Marriage on three tours across the country.

[scribd id=73039175 key=key-2noc60ui3184wlf644oz mode=list]


  • 1. Alan_Eckert  |  November 17, 2011 at 10:10 am

    Message on the embedded document. "Error: Access Key Invalid"

  • 2. Jacob Combs  |  November 17, 2011 at 10:13 am

    Should be up and working now!

  • 3. _BK_  |  November 17, 2011 at 10:22 am

    I still see the error; not sure if anyone else does.

    "Access Key Invalid"

  • 4. bjasonecf  |  November 17, 2011 at 10:23 am

    here is a link to the document

    still seeing the error, also

  • 5. Jacob Combs  |  November 17, 2011 at 10:24 am

    Just fixed it (again). Everyone see it now?

  • 6. _BK_  |  November 17, 2011 at 10:26 am

    Yes, thank you.

  • 7. bjasonecf  |  November 17, 2011 at 10:26 am

    yes. Thanks, Jacob.

  • 8. MJFargo  |  November 17, 2011 at 10:17 am

    Well, we see what SCOTUS has to say about all of this. (sigh)

  • 9. _BK_  |  November 17, 2011 at 10:22 am

    It's the California Supreme Court, not the US Supreme Court. (:

  • 10. MJFargo  |  November 17, 2011 at 10:28 am

    If the 9th proceeds citing this opinion, it's going to be appealed, and now, I'm sure, the Govenor and Attorney General have some feelings about this.

  • 11. Steve  |  November 17, 2011 at 10:50 am

    Their opinion is based on long established precedent and past practices. People should drop the standing technicalities and move on to the merits

  • 12. MJFargo  |  November 17, 2011 at 10:55 am

    I'd be willing to drop it if SCOTUS was willing to drop it.

  • 13. Brian H  |  November 17, 2011 at 1:33 pm

    the issue of standing is one that is brought up by the court itself, not the litigants.

    See Update 8, above: "Both Olson and Boies made it very clear that every court has to determine whether a specific case is in its jurisdiction, and that therefore the issue of standing is one that is brought up by the court itself, not the litigants."

  • 14. Colleen Harper  |  November 17, 2011 at 10:31 am

    At this point, the CA Supreme Court has merely ruled on whether these proponents for Prop 8 have merit to defend Prop 8. They do.

    This does NOT invalidate Judge Walker's decision. That decision is still before the 9th Circuit Court, WITH the proponents for Prop 8 being allowed to proceed with the appeal.

    Now the 9th Circuit Court must proceed with ruling on Judge Walker's decision.

  • 15. MJFargo  |  November 17, 2011 at 3:27 pm

    Yesterday, Lynn E pointed out from Justice Ginsburg's opinion in the Arizona case: "Participants in the federal litigation, proceeding without benefit of the views of the Arizona Supreme Court, expressed diverse opinions on the meaning of the amendment." And while Prop 8 is much less ambiguous than the AZ case, the standing issue is the same. For the 9th to "seek advice" from a State Supreme Court on Federal standing issues…I find that a dodge. Is there merit for them defending Prop 8? At trial, yes. At appeal, I have a problem with that.

  • 16. Colin  |  November 17, 2011 at 10:17 am

    good! now, let's get it on!
    I was hoping for standing so we could actually get to take this thing down in its worthless merits.

  • 17. Colin  |  November 17, 2011 at 10:20 am

    just to clarify….I am speaking of the Prop 8's so-called merits!

  • 18. peterplumber  |  November 17, 2011 at 10:18 am

    We the people of California need to get a new initiative on the ballot…killing the initiative & referendum process.

  • 19. Bob  |  November 17, 2011 at 10:21 am

    agreed ,,, Californian's have a new initiative,,,, and the prop 8 case has taken another step forward,,, like Colin,,,, now on with it!!!!!!!!

  • 20. _BK_  |  November 17, 2011 at 10:23 am

    That would be quite ironic, now wouldn't it?

  • 21. Drpatrick1  |  November 17, 2011 at 10:18 am

    So I am a very selfish person, apparently, but I'm happy with this ruling. I want the 9th circuit and the supremes to rule on the merits because I don't see how we lose. It will take much longer, years longer, but better for the forces for equality.

  • 22. MJFargo  |  November 17, 2011 at 10:29 am

    I think it's just going to add to the tangle…and impossible delays.

  • 23. Kathleen  |  November 17, 2011 at 10:31 am

    All aside from the implications for this case, this ruling really sucks for the state of California, imo.

  • 24. Mighty Acorn  |  November 17, 2011 at 11:33 am

    Agreed. Two bites at the apple for initiative proponents rich enough to hire lawyers….and we all know how many corporate interests sponsor initiatives here. I'm sorry, this is the CASC version of Citizens United, as far as I'm concerned.

  • 25. John  |  November 17, 2011 at 10:19 am

    Page 11, footnote 7: Sounds like they're sort of giving the federal courts a specific out on finding standing federally.

  • 26. Drpatrick1  |  November 17, 2011 at 10:29 am

    Good call. The 9th wants standing. They want any reason to allow standing so they can address the real issues. Kind of like a real athlete wanting their best opponent on the field, so a real win will mean something. They don't want a technicality, they want to address the meat of the issue. This doesn't mean anything bad for us, it means they want to address our rights. I think they will allow standing!

    However, the supremes want any reason to avoid this. We will win in the 9th and I hope the full circuit declines to rehear the case. The supremes will take the proponents appeal, but will ultimately find they didnt have standing. This will invalidate prop h8, but will not create precedent due to the unique circumstances in this case…..ummmmm… Kind of like bush v gore….hmmmm

  • 27. Kathleen  |  November 17, 2011 at 10:34 am

    They don't need to give the federal court an out. As has been stressed over and over again, even if the CASC answer in the affirmative, as it has, there is still some question as to whether this interest is sufficient to grant federal standing.

    However, that said, it seems to me the kind of interest that the California Supreme Court has articulated here will should be sufficient for Article III standing.

  • 28. MJFargo  |  November 17, 2011 at 10:58 am

    But does this take away power from the Governor and Attorney General? It seems to me it does. It was a kind of check and balance, and removing it could leave us with unchecked voter initiatives. Or at least ones that dragged on and on in court.

  • 29. Paul  |  November 17, 2011 at 10:39 am

    That is also how I read it. They are in essence saying: were this in a CA court operating under California law the interveners would have standing to appeal. But the rules are different for federal courts; so 9th Cir, you should interpret those rules as you see fit.

    The 9th Cir. panel wanted to know how CA would operate under CA law. The panel must have thought the answer could affect their reading of federal standing rules. So it seems that a positive answer would make federal standing more likely, although not certain.

  • 30. grod  |  November 17, 2011 at 3:34 pm

    John, you are a discernng reader of footnotes. The court distinguishes a circumstance available for appeal in California,that is not available federally.

  • 31. Steven  |  November 17, 2011 at 10:21 am

    So this is going to take years? Can someone map how and where this goes, and approx how long it will take?

  • 32. Alan_Eckert  |  November 17, 2011 at 10:26 am

    If someone had drawn up a map last year describing where the trial would be going, we would be way off course by now.

  • 33. Colleen Harper  |  November 17, 2011 at 10:34 am

    Generally speaking, with the CA Supreme Court decision, the 9th Circuit Court can decide the proponents for Prop 8 can defend Prop 8 before the 9th Circuit Court.

    Next it is up to the 9th CC to rule on Judge Walker's original decision overturning Prop 8. That is still to be determined.

  • 34. elliom  |  November 17, 2011 at 1:22 pm

    Ok, so technical question for you lawyerly types:

    If the main case goes to SCOTUS, and sub-cases (like recusal/vacature case) are pending at circuit level, can SCOTUS consolidate them at their level, skipping circuit? It wouldn't make sense for SCOTUS to rule, only to have case vacated by lower court with question still pending.

  • 35. Sam  |  November 17, 2011 at 2:01 pm

    Hmm, good question. I also wonder about the potential for consolidation with the 1st Circuit DOMA case, now that Perry and Gill are on roughly the same appellate schedule. Any thoughts, anyone?

  • 36. elliom  |  November 17, 2011 at 1:50 pm

    So, question for you lawyerly types:

    Can SCOTUS consolidate all the sub-cases if the main case gets to that level, thereby bypassing the 9th? Eg: Main case gets to SCOTUS, but recusal/vacature is pendig at 9th. It wouldn't make sense for SCOTUS to rule, then have that ruling vacated by a lower court.

  • 37. elliom  |  November 17, 2011 at 1:55 pm

    sorry for thedouble reply. browser acting wonky.

  • 38. DonG90806  |  November 17, 2011 at 10:38 am

    The 9th Circuit has already been briefed on this and has had oral arguments on this last Dec. The 9th Circuit assumed, for sake of argument, that the Prop 8 proponents had standing in California law to bring the appeal. They were then briefed and the issue was argued. So, now that the 9th Circuit has the decision from the Cal SCt, they can write (or finish) their opinion. It should be released in the very near future. This panel is already hearing the case of whether or not to release the video tapes of the trial on Dec. 8. So, they should be issuing both decisions in the very near future.

  • 39. Prop. H8 Watch: CA Suprem&hellip  |  November 17, 2011 at 10:22 am

    […] for  what’s next, Prop 8 Trial Tracker reports,” many legal observers believe the 9th Circuit is likely to adopt the CA Supreme Court’s […]

  • 40. Tim in Sonoma  |  November 17, 2011 at 10:23 am

    " and so are the gay's of our lives" these roller coaster rulings seem to never end. Here we go again! Let's hope the ninth circuit doesn't keep this going for another year.

  • 41. Bob  |  November 17, 2011 at 10:23 am

    Question for those who are more legally gifted than I am:

    How come while prop 8 is being challenged, the courts don’t put an injunction on it?

  • 42. DaveP  |  November 17, 2011 at 10:23 am

    OK, I say bring it on, bichezz!

    See you guys at the courthouse in three weeks!

  • 43. Kathleen  |  November 17, 2011 at 10:35 am

    Looking forward to it!

  • 44. JennyPMcG  |  November 17, 2011 at 8:08 pm

    Wis I could go with you, Dave!

  • 45. DaveP  |  November 17, 2011 at 8:39 pm

    HEY! Great to see you here! Hey you guys, it's my little sister Jen in SoCal ! Hi Jen!!! : )

    (And see you Tuesday!)

  • 46. Keith  |  November 17, 2011 at 10:24 am

    We should have allowed the standing issue last year so we could already have a decision from the appeals court. The appeals court will uphold Walker's ruling and the ProtectMarriage folks will then appeal that decision to the SCOTUS which could take years to decide on it. This just keeps dragging on year after year.

  • 47. Steven  |  November 17, 2011 at 10:26 am

    Keith, IT won't take years.. the latest to get a final decision if it goes to SCOTUS is June 2013..

  • 48. Alan_Eckert  |  November 17, 2011 at 10:29 am

    Keith, we couldn't have addressed this issue until the case went before the 9th Circuit. Standing was not a question until the case went into their court, and the 9th Circuit addressed it at the same time as the full Prop 8 case. This is as fast as anyone could have gotten a decision about this.

  • 49. MJFargo  |  November 17, 2011 at 10:31 am

    The court raised the standing issue, not our side. We just made the argument that to date Federal Court rules don't grant standing to the proponents. What a mess.

  • 50. Colleen Harper  |  November 17, 2011 at 10:36 am

    IF SCOTUS decided to review it.

    Which they just might… :::sigh:::

  • 51. Kathleen  |  November 17, 2011 at 10:36 am

    Keith, we couldn't have just "allow" standing. Standing is a matter for the federal judges to decide; a party can't just 'waive' another parties' lack of standing.

  • 52. New  |  November 17, 2011 at 11:10 am

    Wishful thinking but I'm with Keith. If defendants seek for legal standing and if they want to keep fighting for their cause, the plaintiffs shoul be allowed to waive their lack of standing. If that's was a valid option, we would be one-light-YEAR ahead in this case. JMO – I'm can't see any problem with this fictional theory. Maybe I'm wrong and too naive.

  • 53. Carpool Cookie  |  November 17, 2011 at 11:46 am

    But, the attorneys on "our side" do actually represent two, real life couples. In California.

    They would be performing malpractice if they put a desire to bring the issue to the Supreme Court (or the 9th Circuit) over a chance to have Judge Walker's ruling put into effect sooner…through the Prop H8 Proponants being found to lack standing.

  • 54. New  |  November 17, 2011 at 12:05 pm

    Thank you for this enlightenment, Cookie!
    That's why I LOVE P8TT.

  • 55. AnonyGrl  |  November 17, 2011 at 12:09 pm

    I am totally with you on that, New!

  • 56. MightyAcorn  |  November 17, 2011 at 12:39 pm

    May they rue the day they were granted standing…..

  • 57. Chris in Lathrop  |  November 17, 2011 at 4:19 pm

    And the day they managed to get a ballot initiative approved!

  • 58. Ann S.  |  November 17, 2011 at 10:27 am

    I am disappointed but not surprised.

  • 59. MJFargo  |  November 17, 2011 at 11:02 am

    I can't wait to hear what the panel at the 9th has to say about this…and how they will use it. Although waiting seems the name of this particular game. 🙂

  • 60. Cat  |  November 17, 2011 at 10:28 am

    Sounds like the CA Supreme Court decided initiative proponents can represent the *state's interest*, not just their *particularized interest*. They seem to indicate the former is exactly why the question is important and needed to be answered from a state law perpective, as the federal court may take that into consideration, even if particularized interest cannot be shown.

    IANAL. I hope some legal eagles have a more thorough analysis of what this all means.

  • 61. Steven  |  November 17, 2011 at 10:29 am

    Decisions of the United States Supreme Court clearly establish that ―a State has standing to defend the constitutionality of its statute.‖ (Diamond v. Charles, supra, 476 U.S. 54, 62; see also Maine v. Taylor (1986) 477 U.S. 131, 136-137 [―a State clearly has a legitimate interest in the continued enforceability of its own statutes‖].)

    The state legislators had a right not OUTSIDE party

  • 62. Paul  |  November 17, 2011 at 10:53 am

    I think the point of the CASC opinion is that the people are the state.

  • 63. Carpool Cookie  |  November 17, 2011 at 11:48 am

    "I think the point of the CASC opinion is that the people are the state."

    I want to ask them, Can we lower our own taxes now?

  • 64. elliom  |  November 17, 2011 at 1:35 pm


    Get enough signitures, pass it on the ballot, you can do ANYTHING!


  • 65. MJFargo  |  November 17, 2011 at 1:49 pm

    (betcha can't) 🙂

  • 66. Erica Keppler  |  November 17, 2011 at 10:30 am

    Reading the decision, it seems like the only one they could have come to. They make a very valid point that if the voters approved an initiative to limit the powers or privileges of elected officials, you could not trust those officials to defend that law. As a matter of general principle, proponents of an initiative approved by the voters should have the power to defend it if the government declines to do so, and perhaps even if the government chooses to do so if they feel that defense is not vigorous enough. The only subtle question, not apparently addressed in the decision, is if there is any distinction between laws creating a conflict of interest for elected officials (like limitations on their powers or privileges) and laws that do not presumably directly impact elected officials personally. There probably is no need of disctinction, because ever ballot initiative is bound to have some political spin to it, and political party affiliation alone may be enough to taint elected officials' willingness to defend it.

    In general, a good decition by this court.

  • 67. Taylor S.  |  November 17, 2011 at 10:40 am

    I agree. I think this is a win for democracy. While Americans do not have a inherent right to an initiative or referendum process, we do in California, and as such, those rights need to be protected. If they found they did not have standing, then that hands an effective veto to the Governor. The quotes above about how "the court has given initiative proponents unprecedented and virtually unlimited power" is a little sensationalistic. It's ignoring that the courts themselves do exist to check these referendums. I could make the same argument that legislators can pass unconstitutional laws, so they shouldn't be allowed to pass them. That's insane.

  • 68. Steve  |  November 17, 2011 at 10:54 am

    The solution is to fix the initiative process. Not by putting in limits in litigation, but by limiting which questions can be decided by initiative and especially by requiring a 2/3 majority to change the constitution like in most other places

  • 69. Taylor S.  |  November 17, 2011 at 11:03 am

    Exactly. I think there needs to be a higher standard for constitutional change.

  • 70. paul  |  November 17, 2011 at 10:57 am

    So as a California Citizen you are OK with when the proponents lose you are on the hook for potentially millions, if not 20-50 million in damages being levied against the state by the winning side because the initiative proponents of a ballot initiative went rogue defending an unconstitutional law up the Supreme Court? You are OK with this happening for any ballot initiative that you vote on?

  • 71. juliecason (JC)  |  November 17, 2011 at 11:04 am

    I don't think CASC said that. See page 56: "The question of who should bear responsibility for any attorney fee award in such circumstances, however, is entirely distinct from the question whether the official proponents of an initiative are authorized to assert the state‘s interest in the validity of a challenged initiative measure and is not before us in this proceeding. Our conclusion that official initiative proponents are authorized to assert the state‘s interest in the validity of a challenged initiative measure when public officials decline to do so does not mean that any monetary liability incurred as a result of the proponents‘ actions should or must be borne by the state."

  • 72. Paul  |  November 17, 2011 at 11:21 am

    So drains their bank account, goes bankrupt. Who do you think is going to be on the hook?

  • 73. juliecason (JC)  |  November 17, 2011 at 11:26 am

    Oh, would that went bankrupt. I'm afraid there are too many deep pockets and fearful people for that to happen. But I actually don't know who would be responsible. I just know that this ruling explicitly says that it does not mean the costs should or must be borne by the state

  • 74. Steve  |  November 17, 2011 at 11:43 am

    The Mormon and Catholic churches have literally billions. They financed Prop 8. They can finance this. Not that they want to of course

  • 75. Taylor S.  |  November 17, 2011 at 11:06 am

    Yes. If someone is legally right and is legally entitled to damages, then the state WAS WRONG. Yeah, sure, they "went rogue," but, presumably, if they won, they were "right." Granted, this isn't always the case that the right side wins, as shown in the history of gay rights, but these are the exceptions, not the rule. If the state is not following the constitution and leads to damages to a group, then yes, they need to pay them. The state should not have been so stupid to take the unconstitutional action.

  • 76. [email protected]  |  November 17, 2011 at 10:30 am

    So, if Prop 8 has standing, that could be detrimental for the CA. legal and justice system in the future!!! 🙁

  • 77. Steven  |  November 17, 2011 at 10:34 am

    "Neither the governor, the attorney general, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters," Cantil-Sakauye said.

    They didn't veto it. They are just forcing it till a court rules it unconstitutional and lift the stay………

  • 78. Taylor S.  |  November 17, 2011 at 10:54 am

    But if supporters of an initiative don't have standing to sue, that gives a governor the right to veto any initiative by refusing to defend it in court.

  • 79. Steven  |  November 17, 2011 at 2:53 pm

    No, the law STILL STANDS…………….. They didn't veto it.. They HAVE A RIGHT not to appeal a decision, which they are doing……………

  • 80. Erica Keppler  |  November 18, 2011 at 10:07 am

    If state officials don't like a ballot proposition, like say one on term limits, salary caps on officials, changes in election laws to favor the other party, etc., and they had the power to refuse to defend it and no one else were allowed to defend it either, then they could kill any ballot proposition by arranging to have any of their supporters sue to stop it. Then by refusing to defend it, they let it die in court. It's effectively a backdoor veto that gives too much power to state officials to circumvent the public will in the entire ballot proposition process, which defeats its purpose.

  • 81. MightyAcorn  |  November 19, 2011 at 8:24 am

    Yes, but allowing initiative proponents a second bite at the apple doesn't protect CA citizens either, particularly because the Govs chose in this case not to defend because the initiative was blatantly unconstitutional.

    The CA Supremes worship our initiative procedure for all the wrong reasons, and I believe the reaction will be efforts to get rid of it. It has become remarkably corrupt and needs (as CASC Chief Justice Ron George stated during Strauss) a complete overhaul.

  • 82. MacMorrighan  |  November 17, 2011 at 10:35 am

    Incidentally, NOM is also seeking to exploit the Citizens United ruling by "reminding" Elections Boards of it in state like Iowa, where our local Boards have changed their policy to conform to this SCOTUS ruling which may allow NOM to spend limitless amounts of money, oops, I mean "free speech"!

  • 83. Steve  |  November 17, 2011 at 10:35 am

    Here’s a concept. Brown should usurp their newly-given right and defend it. And he should do such a crappy job that it fails miserably. I’d rather have our Governor “defending” it than some hate group.

  • 84. Aaron LBC  |  November 17, 2011 at 10:37 am

    So let’s say the 9th Circuit still upholds Walkers ruling that Prop 8 is unconstitutional , when it goes to SCOTUS, what is the likelihood they lift the ban during the appeal?

  • 85. Ann S.  |  November 17, 2011 at 10:40 am

    I'd say slim to none, Aaron.

  • 86. Aaron LBC  |  November 17, 2011 at 10:43 am


  • 87. Seth from Maryland  |  November 17, 2011 at 10:49 am

    yea i have agree, chances are they will put a permant stay untill it makes it through court, plus the 9th circuit en banc court may want to look it before it makes it to the supreme court making it even more slower, God i was hoping there would be no standing

  • 88. DonG90806  |  November 17, 2011 at 11:01 am

    From the Federal Rules of Appellate Procedure, it seems VERY UNLIKELY that an en banc hearing would be held.

    Rule 35. En Banc Determination
    (a) When Hearing or Rehearing En Banc May Be Ordered. A majority
    of the circuit judges who are in regular active service and
    who are not disqualified may order that an appeal or other proceeding
    be heard or reheard by the court of appeals en banc. An
    en banc hearing or rehearing is not favored and ordinarily will not
    be ordered unless:
    (1) en banc consideration is necessary to secure or maintain
    uniformity of the court’s decisions; or
    (2) the proceeding involves a question of exceptional importance

    Moreover, a majority of the active judges in the 9th Circuit were appointed by Democratic presidents.

    I still don't understand how the 9th Circuit could grant the Prop 8 proponents Article III standing in light of the US SCt dicta in the Arizonans for Official Language. Can anyone explain this. And if they don't have Article III standing, won't a 9th Circuit decision be coming down quite rapidly?

  • 89. Ann S.  |  November 17, 2011 at 11:08 am

    They will try to distinguish the Arizonans for Official English case because in that case there was apparently no state law right for proponents to defend the initiative in state court.

  • 90. Franklin  |  November 17, 2011 at 11:34 am

    There still is no state law right for proponents to defend the initiative in state court. The CASC hasn't actually pointed to anything in our constitution conferring that right onto initiative proponents.

  • 91. Steven  |  November 17, 2011 at 11:55 am

    exactly………. where is the LAW? thats 9th Circuit ASKED FOR NOT BAH BAH…………….

  • 92. MJFargo  |  November 17, 2011 at 1:56 pm

    It's like waving a wand and saying, "We bestow standing because we think they should have standing." While my bitterness is hard to put under a bushel right now, I can't help but wonder where we'd be if the CASC was deciding on a voter initiative to tax religious organizations, it got passed as an initiative, and the Gov and AG didn't want to defend THAT in court. How do you think the standing issue would fall then? Bitter, bitter, bitter.

  • 93. Ronnie  |  November 17, 2011 at 10:37 am

    8 / …Ronnie

  • 94. Jeff  |  November 17, 2011 at 10:40 am

    This is a very slippery slope here… Random people can and will support measures and bills because they have the cash to do even if it is about rights being removed.. this is VERY dangerous.. they are cowards. They just didnt want to deal with it and the backlash that comes with telling the truth.. lol Sorry they are assholes.. passing the buck down the line.. This ruling ALSO might and could possibly support DOMA back into play.. US says its unconstitutional and dropped it BUT bonner picked it up and paid with tax payers money to support it back. NOW this means anyone with cash and means can and will push this through courts.. ANYONE with the cash can push this through the courts. anyone…

  • 95. Steven  |  November 17, 2011 at 10:44 am

    Jeff, because of House Speaker is part of congress he can defend DOMA in court….

  • 96. paul  |  November 17, 2011 at 11:00 am

    At least we elect the speaker of the house. The California Supreme Court has just given any person in the nation a blank check to waste California's money.

  • 97. Taylor S.  |  November 17, 2011 at 10:52 am

    So because some rich people can hijack the process, nobody should be allowed to defend it? Ridiculous. That's like saying that we should not only repeal Citizens United, but ban all forms of donations to political campaigns. The courts will still be there to check them.

    Also, slippery slope arguments are also not something you should be arguing with, for if you get the right to marry, what's to say I can't marry my dog next?

  • 98. juliecason (JC)  |  November 17, 2011 at 11:06 am

    Because we're talking about people. Consenting adults. Marrying your dog is, pardon the species mingling, a red herring.

  • 99. Taylor S.  |  November 17, 2011 at 11:21 am

    EXACTLY! But it illustrates that arguing "slippery slopes" is insane. Each legal step is taken in turn.

  • 100. Steve  |  November 17, 2011 at 11:41 am

    There are slippery slopes that are at least somewhat rational. All the ones relating to same-sex marriage are the biggest bullshit imaginable

  • 101. fiona64  |  November 17, 2011 at 1:22 pm

    Taylor, if your dog is able to read, understand and consent to a marriage contract, I'll be the first one at the courthouse to champion the rights of sentient, sapient animals.

    In the mean while, please do not demean my GLBT friends with your inanities. Which, BTW, have been seen here repeatedly. Thanks.


  • 102. MightyAcorn  |  November 17, 2011 at 10:17 pm

    I think if Taylor asked his dog to marry him, she would refuse. And rightly so.

  • 103. Taylor S.  |  November 17, 2011 at 11:04 pm

    Oh my god! Nobody understood my point! I am gay myself and think that arguing that we shouldn't extend the point to gays because then we could marry dogs is insane! Likewise, using the same frame of argument to the idea of standing is insane!

  • 104. fiona64  |  November 17, 2011 at 1:24 pm

    PS to Taylor: You seem to miss the *real* slippery slope. If you can vote to *take away rights* from some group that you deem "icky" (for lack of a better term), your own rights are in jeopardy when someone decides some group to which *you* belong is icky.

    In case you skipped school on the day that Madison's Federalist Paper No. 10 was taught in civics, this is something called the tyranny of the majority. This document is available free of charge on-line for you to peruse … and I suggest you do so.

  • 105. Chris in Lathrop  |  November 17, 2011 at 4:29 pm

    And, sadly, it is because there still is a tyrannical majority mentality that we of minority status have only the courts to rely upon for true justice.

  • 106. Taylor S.  |  November 17, 2011 at 11:06 pm

    No no no no! Of course you can't vote to take away *rights* from people, but that doesn't meant that we take away the right to defend any initiative from *everyone.* Not all initiatives have to do with fundamental rights. It's the courts' job to decide what can and cannot be voted on due to constitutionality and rights. Taking the right of the supporters of an initiative in court is NOT the right way to ensure it. Let them defend it and then let the courts decide whether or not the law is constitutional.

  • 107. fiona64  |  November 18, 2011 at 8:54 am

    Congratulations; you've just demonstrated your support of Citizens United — which is the Federal equivalent of the decision the CASC made yesterday. Ugh.

  • 108. Taylor S.  |  November 17, 2011 at 11:12 pm

    Regarding the tyranny of the majority, that's the role of the courts to limit. Everyone deserves their day in court, no matter how crazy their point of view may be, but the way to limit the tyranny of the majority is not by limiting the rights of the majority to defend their views in court. The way to limit the tyranny of the majority is to hear both arguments and then protect the rights of the minority under the constitution itself.

  • 109. Steve  |  November 17, 2011 at 10:55 am

    I was pretty disappointed when the court outright said that it is within people's rights to use the constitution to limit other people's rights

  • 110. Sapphocrat  |  November 17, 2011 at 11:58 am

    Exactly. The CASC is just kicking the can down the road. How cowardly. How shameful. How pathetic.

    Meanwhile, the state is wasting MY tax dollars to uphold nonexistent "rights" of people who do not represent ME in order to allow them every possible chance to permanently codify MY status as 3/5 of a person.

    This is MY damned state, not that of the deep-pocketed, professional anti-gay hate groups whose leaders make a tidy living by depicting me and my LGBT family as a bunch of disease-spreading child molesters whose real "agenda" is to destroy society. If (and that's a big IF) unelected initiative proponents should be allowed standing to defend their twisted ideologies, standing should at LEAST be restricted to proponents who are A) residents of the state and B) registered voters. Don't live here? Then you don't have a say in "states' rights" issues. In the same vein, I want "foreign" (out-of-state) money out of the initiative process. (Yeah, good luck with that.)

    I tell you, folks, as a native Californian, there are many things I love about my state, but our initiative process is the most ridiculous in the nation, and has been for more than 100 years. I used to think direct democracy was the answer — that We the People were well-enough informed to decide our own destiny. That's just not true. The vast majority are reactionary, unthinking, "low information" voters, with no concept of law, much less justice. The U.S. Constitution was designed to protect the minority from the tyranny of the majority, and the CASC just gave the tyrannical majority carte blanche to wipe their butts with what Bush referred to as only "a piece of paper."

    Meanwhile, how many of our brothers and sisters will be dead before they can marry legally? The professional haters know that in the long term they've lost the war (even if, goddess forbid, they were to win at SCOTUS level). They're just dragging this out as long as possible because 1) anti-gay hatred is a lucrative industry and 2) they enjoy seeing us suffer. They really, really enjoy it.

    Sign me… One of the 18K, who truly believes that "Injustice anywhere is a threat to justice everywhere," and "Justice delayed is justice denied."

  • 111. Adam Bink  |  November 17, 2011 at 10:41 am

    Reaction above from Shannon Minter, folks. More reaction coming in as we're updating.

  • 112. Prop 8: LGBT And Anti-Gay&hellip  |  November 17, 2011 at 11:01 am

    […] Shannon Minter, Legal Director at National Center for Lesbian Rights, via Prop 8 trial Tracker: […]

  • 113. Adam Bink  |  November 17, 2011 at 11:03 am

    Folks, updates above from the AFER press call with reaction from Olson, Boies et al. Jacob will have another update from the call as soon as he types it up.

  • 114. Bob  |  November 17, 2011 at 11:03 am

    While I don't like the decision, I can see the point. If a legislature passes a law and the governor vetos it, the legislature can overturn the veto. Since the initiative is a parallel legislative process, allowing the state simply not to defend the initiative if it passed and was contested in court would be like not permitting the legislature to overturn a veto. Again, I don't like it but it does make sense. Actually, I think this is a good reason for limiting the ability to legislate by ballot initiative. CA initially established ballot initiatives because the Southern Pacific Railroad had undue influence of the state legislature. The system worked for a while but now the initiative has become similarly polluted by private interests and ought to be constrained for the same reasons that it was put in place originally.

  • 115. AnonyGrl  |  November 17, 2011 at 11:37 am

    Not exactly, Bob. The proponents WERE given standing for the original trial, so they had their day in court. The issue now is appeal, which is entirely different.

    In a court case, one side (in this case Perry et. al) must show they have been harmed, and if they can't, the case doesn't even go to trial. In court, the other tries to show that the percieved harm is outweighed by the greater good. They all did that, and Judge Walker ruled that the harm outweighed any supposed good, and that Prop 8 was unconstitutional.

    In an appeal, the losing side, (here the proponents) have to prove that the ruling that went against them is in some way harmful to THEM in order to be allowed to continue. The right to appeal is not automatic, there must be proof that the ruling was harmful in specific ways to the appellants.

    The problem with ruling that proponents automatically get to appeal is that it takes out this requirement to show harm that relates specifically to them.

  • 116. AnonyGrl  |  November 17, 2011 at 11:38 am

    Part 2

    So for instance, a case where some group tries to get a law put in place that requires all newspapers to be printed in Klingon gets through the ballot and somehow it passes. Newspaper publishers who KNOW that only 27 people in the entire state speak Klingon argue that it harms them because it is expensive, unneccessary, and if they are not printed in English, no one will read them anyway. The state declines to fight for the law because it is ridiculous, and proponents step in to take over. They are allowed to do so, in order for the case to get a fair hearing in court. They lose.

    Then the proponents of the Klingon news decide they are not happy. So they appeal. Should they be allowed to drag the case on? No. They cannot show that overturning this law will harm them, and thus, the case which HAS had a fair shake in court, should be at an end.

  • 117. AnonyGrl  |  November 17, 2011 at 11:38 am

    Part 3

    Unfortunately, the CASC ruling would let them drag it out further, when there has already been a ruling and there is no proof that there is anything more than "we didn't LIKE that we lost" in terms of damage to the Klingons. That is the point of the issue of standing, and relaxing it only makes for more ridiculous and unnecessary litigation. If the Klingons could prove that they were harmed in some way (for instance they could show that English is toxic to the human brain) then they would be granted standing and could continue.

    Well, that was long winded. 🙂

  • 118. DaveP  |  November 17, 2011 at 11:52 am

    Maybe a little, but it was a colorful and apt analogy.

  • 119. AnonyGrl  |  November 17, 2011 at 12:02 pm

    Thank you. Now *I* want to have newspapers translated into Klingon. 🙂

  • 120. elliom  |  November 17, 2011 at 1:45 pm

  • 121. AnonyGrl  |  November 17, 2011 at 1:57 pm


  • 122. Erica Keppler  |  November 17, 2011 at 12:43 pm

    The issue isn't just whether they get a law put in place, but rather a ballot initiative passed, which supposedly means that a majority of voters on the day of the election supported it. That fact nullifies the 27 Klingon speakers part of your scenario. In such an instance, I would assume the case would turn on 1st Amendment grounds, not injury grounds. State officials might decline to fight a court challenge to this law, but that doesn't alter the fact that however ridiculous the law, it's what the electorate voted for. Should the opinions of a handful of state officials cause the expressed will of the people to go undefended? In general, no they shouldn't. Ballot proposals are there for the people to assert their will over those of elected officials. Proponents either have to sue state officials for not defending the law, or they sue to defend the law themselves. If they sue state officials, the state pays for their own defense. If proponents sue to defend the law, the state sits back and lets them all fight it out.

  • 123. fiona64  |  November 17, 2011 at 1:28 pm

    "Expressed will of the people"? A 2-point majority is hardly the "express will of the people." It's a "we barely got our way." (BTW, we live in a republic — which means that we elect representatives to govern. This is not a democracy.)

    Prop 8 aptly demonstrates why CA's initiative process is flawed, because it does not require a supermajority (2/3) to amend the state's constitution and because it inserts direct democracy into a republic. In this case, it was used to REMOVE rights from law-abiding citizens. What about the expressed will of those of us who believe in equal treatment for all?

  • 124. Erica Keppler  |  November 17, 2011 at 3:04 pm

    I wasn't talking about Prop 8. I was talking Klingon being voted by ballot proposition as the official language of newspapers. The issue of the court decision today is the general principle of standing for proponents of a ballot proposition, any ballot proposition, in defending it once it is passed by the voters when state officials refuse to do so. If the tables were turned and CA voters had voted in same-sex marriage and it were challenged in court and state officials refused to defend it, do you think our side should be required to tolerate that?

  • 125. MJFargo  |  November 17, 2011 at 4:50 pm

    I've struggled with that very question,, and over the last year (!) have discussed that with many on this site. The proponents–and the rest of us–knew that standing could become an issue for the intervenors at appeal. So I don't think I'm using tunnel vision in saying that if State officials refused, I'd have forehand knowledge of that and proceed…or not as an intervenor. It's a rule of the court that everyone was aware of going in. It will be interesting to see if the 9th goes ahead and grants standing. I would have preferred they ask another circuit or SCOTUS for their opinion about the standing issue. I'm not sure this opinion by the CASC answers anything other than, we wish they could have standing.

  • 126. allen  |  November 17, 2011 at 11:28 pm

    But if the tables were turned we would be able to demonstrate harm because we would continue to be denied marriage licenses and thus most likely qualify for standing? The table turning doesn't really work on this argument right?

  • 127. Erica Keppler  |  November 18, 2011 at 8:08 am

    The table turning does work because the place you demonstrate harm is in a court of law. If state officials refused to defend the law and proponents weren't allowed to, they would never have the opportunity to demonstrate harm. That's the whole point of proponents being given their opportunity to defend their law. So, in answer to your question, no, if we could not defend a law granting same-sex marriage, would not be able to demonstrate harm, or anything else for that matter. No standing no voice.

  • 128. MJFargo  |  November 17, 2011 at 2:01 pm

    I see the point too. I'm just looking for legislation, a rule, a citation that gives the proponents standing at the Federal appellate level.

  • 129. AnonyGrl  |  November 17, 2011 at 11:13 am

    Bad decision for the people of California, sadly. This will lead to ridiculous and drawn out and costly court cases where they can and should be settled in one shot.

    I don't see that the requirement for particularized harm has been met, but I am neither a lawyer nor a judge, and I do understand that CASC has been lenient on this requirement in the past.

    However… even though this is a bad decision, HURRAH!!!! The case can now go forward and be ruled on its merits, of which the Prop 8 proponents have offered precisely NONE. While it does only mean more delays which no one on our side wants, in the long run, the farther the case goes, the more useful the ruling is for all the rest of us.

    We know we are going to win, and while the delays are intolerable, the prize is getting sweeter and sweeter as we go on.

  • 130. juliecason (JC)  |  November 17, 2011 at 11:17 am

    I just read BB's gloating announcement from NOM. Ugh. But this thought gives me heart: Remember that today's opinion by the CASC just says that is ALLOWED to appeal Judge Walker's decision. It didn't say anything about them being ABLE to do so. There are still no valid arguments. CASC did not rule on the particularized interest–because they didn't have to (given their view that the proponents have the right to take up the state's interest) but we know that ole Chuck Cooper couldn't NAME any particularized injuries. So, take a deep breath, and remember this ruling just gives them the ability to keep shooting themselves in the foot in court. They have no valid arguments….

  • 131. DaveP  |  November 17, 2011 at 11:53 am

    THANK YOU Juliecason. You're right. Being permitted to go to court and actually having something to say once you get there are two completely different things.

  • 132. Carpool Cookie  |  November 17, 2011 at 12:02 pm

    "I just read BB's gloating announcement from NOM. Ugh. "

    The dumb thing about BB and NOM is that they don't see they're potentially digging their own grave by helping this lawsuit go forward.

    If the Prop H8 Proponants let this go, Walker's Ruling would only effect one state. Now it potentially will allow Marriage Equality in all the OTHER territories included in the 9th Circuit: Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. (Don't know how Guam and the Northern Mariana Islands fit in there.)

    So since they have a very weak case, this isn't a great strategy for damage control.

  • 133. NTDEsq  |  November 17, 2011 at 11:22 am

    Can I ask a question on timing? If the 9th Circuit issues a decision striking down Prop 8, and SCOTUS agres to hear the appeal, will the effect of the 9th Circuit ruling likely be stayed until SCOTUS hears and decides? Or will same-sex marriage likely be legal again as soon as the 9th Circuit ruling is handed down? I can't seem to find anything on that point.

  • 134. bythesea  |  November 17, 2011 at 1:00 pm

    If SCOTUS agrees to hear the appeal, it is almost certain that they will issue a stay. So there is no likely scenario where marriages will resume before sometime in 2013, unless perhaps the 9th upholds Walker and SCOTUS does not agree to hear the next appeal (negating the "need" for a stay whenever they deny cert).

  • 135. Alan_Eckert  |  November 17, 2011 at 11:29 am

    "I was on a press call with AFER, which is sponsoring the case."

    I'm envious of your ears.

  • 136. Alan_Eckert  |  November 17, 2011 at 11:41 am

    I have stopped receiving new comments. Anyways, here is what Brian Brown had to say about the case:

    "“With this victory in hand, it is time for the Ninth Circuit to move the Prop 8 litigation forward to its eventual decision by the US Supreme Court,” Brown said. “We fully expect the Ninth Circuit, the most overturned court in America, to invalidate Prop 8, finding some phony right to same-sex marriage in the US constitution. However, once this case gets out of San Francisco and reaches the US Supreme Court, we fully expect to be victorious.”"

    Of course he ignores the real questions at hand. We had the right to marry, but that was taken away. The only group that was affected and targeted were gay people. Prop 8 was discriminatory.

  • 137. AnonyGrl  |  November 17, 2011 at 11:53 am

    Brian is such a bag of gas, isn't he? This was not a "win" for them, nor a loss for us. Plus, we don't KNOW that this gives them standing, but all that aside, they won't win on merits, because they have none.

    But that is the noise that Brian has to make to preface "Now give us money, but not more than $100, so that we don't have to reveal that you are a bigot!" so that his salary continues to be paid. What an ass (and no, I don't apologize for saying it).

  • 138. Mighty Acorn  |  November 17, 2011 at 11:45 am

    Sorry, I don't have time to read the decision at the mo: was this a unanimous decision?

  • 139. Sam  |  November 17, 2011 at 12:26 pm

    Yes. (There was also a concurrence that I didn't quite understand, but it seemed like just the individual Justice's idiosyncrasies)

  • 140. MightyAcorn  |  November 17, 2011 at 10:23 pm

    Thanks Sam–will try to get through both tomorrow. 🙂

  • 141. Paul  |  November 17, 2011 at 11:46 am

    Can the US Supreme Court refuse to hear the case due to standing even if the 9th makes a ruling? If so, could that speed up the resolution of this case and how soon could this happen?

  • 142. bythesea  |  November 17, 2011 at 1:01 pm

    Yes they can,

  • 143. Alan_Eckert  |  November 17, 2011 at 1:57 pm

    I'd imagine they will hear it, though.

  • 144. Paul  |  November 17, 2011 at 4:34 pm

    I imagine that they will want to get as far away from this case as they possibly can at this time.

  • 145. Drpatrick1  |  November 17, 2011 at 8:04 pm

    No way they want to hear this case. Scalia has been spending the last 8 years, since Lawrence, trying to figure out just how to rule against the gays in a case like this. The circumstances in ca make it even less likely he would b able to find a way. They will rule that proponents didn't have article iii standing, invalidating prop 8, and returning marriage equality to ca, but only ca.

  • 146. DaveP  |  November 17, 2011 at 8:41 pm

    Those darn gays! They take all the fun out of being a right-wing U.S. Supreme Court Justice!

  • 147. DaveP  |  November 17, 2011 at 1:03 pm

    Oh no! The comments have gone over the 100 mark and this (still) causes all of the replies to be collapsed. This makes it really difficult to find the new comments. You have to manually click on each REPLY button one at a time to see them.

    I thought this was fixed………

  • 148. Adam Bink  |  November 17, 2011 at 1:44 pm

    Team is looking into this.

    Please remember to send all tech stuff to prop8trial at couragecampaign dot org if you haven't.

  • 149. A Site Admin  |  November 18, 2011 at 4:55 am

    DaveP, at the top of the comment column you can click, "Last Activity" which helps a little. This brings the latest comments to the top of the list, though they are still collapsed.

    IntenseDebate does not allow us to stop the collapsing of comments – collapsing at 100 comment is the highest setting possible, sadly, and that is where we have it.

  • 150. Carpool Cookie  |  November 17, 2011 at 1:06 pm

    Here, this fixes it! I know everyone's looking for MY comments, so here's my last one, all on it's own:

    "I just read BB's gloating announcement from NOM. Ugh. "

    The dumb thing about BB and NOM is that they don't see they're potentially digging their own grave by helping this lawsuit go forward.

    If the Prop H8 Proponants let this go, Walker's Ruling would only effect one state. Now it potentially will allow Marriage Equality in all the OTHER territories included in the 9th Circuit: Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. (Don't know how Guam and the Northern Mariana Islands fit in there.)

    So since they have a very weak case, this isn't a great strategy for damage control.

  • 151. Steven  |  November 17, 2011 at 2:23 pm

    9th CC might say CSC didn't answer their question..They asked what law allows us to give standing in federal court not state court.. jmo.. They give they can have standing in state courts…..

  • 152. John  |  November 17, 2011 at 3:27 pm

    I had heard at one point, back when Judge Walker's decision came out, rumors that certain conservatives were pleased to see the standing issue raised, because that would confine the ruling to California and prevent any chance of the Supreme Court stepping in and making a national ruling. Seemed like their best strategy to me, since I can't really see a situation where Justice Kennedy wouldn't at least find that civil unions are required, if not marriage altogether.

  • 153. OBD  |  November 17, 2011 at 5:57 pm

    Not only that, but I thought these dummies were whining about how this trial was fundamentally unfair because their witnesses were all "too intimidated" to testify. If that's at all true, they should be hoping for this to end ASAP, for the ruling to be confined to California only, and to have a new trial happen in a different district where they could win a case on the merits.

    I guess this means…they know their case has no merits and couldn't win in any court. Shocking!

  • 154. Str8Grandmother  |  November 17, 2011 at 1:11 pm

    This is what Chad Griffin Board President has on the American Foundation foe Equal Rights has on their website-

    Third, the potential reach of our case is greatly amplified. The Ninth Circuit is the largest appeals court in the nation, stretching the entire west coast and as far east as Montana and Arizona. This is an essential and critical step to bring our case before the U.S. Supreme Court and achieve our ultimate goal: full federal marriage equality.

    I agree with Chad, this decision from the CASC which will be taken into consideration by the 9th Circuit, does move us one step closer to the U.S. Supreme Court and the ultimate goal of full federal marriage equality. The organization promoted from the very beginning that they would take the case all the way to the Supreme Court and with this latest ruling that seems more likely, which I think is a good thing as I believe in this case and the probability of winning marriage equality for ALL. We have a good case.

  • 155. Adam Bink  |  November 17, 2011 at 1:23 pm

    Folks, I asked Jon Davidson about taxpayer reimbursement, and he sent back an interesting response, posted above as an update.

  • 156. BREAKING: Prop 8 Ruling I&hellip  |  November 17, 2011 at 1:42 pm

    […] Kendell, of the National Center for Lesbian Rights, explains why today’s ruling is both bad and good news: We disagree profoundly with the California […]

  • 157. Lester  |  November 17, 2011 at 2:17 pm

    For those of you who are looking forward to the case making it to the US Supreme court, same of Bush v. Gore and Citizens United, be careful what you wish for. You are up for a much bigger disappointment down the road.

  • 158. TPAKyle  |  November 17, 2011 at 2:43 pm

    Your comment was directed to the Prop 8 proponents, right?

  • 159. Mike  |  November 17, 2011 at 2:41 pm

    Meh, so if the government declines to do so, anybody can step up and defend a voter approved initiative. So why don’t any Californians do it? Why are these out of state organizations more interested in our laws than our own citizens.

  • 160. mike  |  November 17, 2011 at 2:58 pm

    On June 16th, 2008, SSM was legalized in California, I was 23years old and this came just months after the love of my life had to move back to his country because his visa expired. November 2008 the marriages halted due to the passage of Prop 8.

    I do not know much about court processes, but considering it took half a year for the 9th circuit to receive feedback on their question of validity from the CASC, I am not hopeful. It is going to be 2012 in a month and a half, I will be 27years old in a few months. When will I get my right to live a happy, legally protected, and dignified life. When I am 35? When my life passes me by? This is a crime

  • 161. NancyH  |  November 17, 2011 at 3:21 pm

    How about we scrap the initiative process or severely limit it.

    I propose the following:
    Any and all initiatives must pass with 2/3rds vote.
    Initiatives can only be used for certain things like taxes or regulating the legislature. Prohibit initiatives for things like things like social engineering, or human behavior
    Scrapped entirely.

  • 162. Josh  |  November 17, 2011 at 3:37 pm

    "Our conclusion that official initiative proponents are authorized to assert the state‘s interest in the validity of a challenged initiative measure…" Ok, so what is the state interest to exclude gay couples from marriage? There isn't any which the CASC already said in an earlier case. Judge Walker could find no state interest furthered by excluding gay couples. So if there is no state interest in the passing of an initiative, they no one should be able to defend it.

  • 163. DaveP  |  November 17, 2011 at 3:45 pm

    Bingo! I was wondering the exact same thing.

    Anybody here know what they meant by this??

  • 164. Steven  |  November 17, 2011 at 4:39 pm

    good question that needs to answer….

    I just read this on and the comment was RIGHT.. They didn't put out a certain law that allows standing–

    From today's ruling, and -with half still to go- a great synopsis of just how I'm reading it:

    "Neither the state constitutional provisions relating to the initiative power,nor the statutory provisions relating to the official proponents of an initiativemeasure, expressly address the question whether, or in what circumstances, theofficial proponents are authorized to appear in court to defend the validity of aninitiative measure the proponents have sponsored. Nonetheless, since the adoptionof the initiative power a century ago, decisions of both this court and the Courts of Appeal have repeatedly and uniformly permitted the official proponents of initiative measures to participate as parties…"

    So it's NOT in the Constitution (Article 8, secs 1 & 8 are silent as to court rights) and not even in the arcane Elections statutes, but rather all in case law. That's fine. But case law is merely court precedent that other courts may legitimately rely on, but it is misleading to refer to it as "California Law."

    Basically, the court is saying they are ruling that way because they've always ruled that way. While legitimate, it's like saying I ate corn flakes this morning because I *always* eat cornflakes in the morning – though there's no reason not to eat Rice Krispies every third Tuesday.

    Read more:

  • 165. Steve  |  November 17, 2011 at 4:40 pm

    Technically, that's not what they decided on. They are speaking about some hypothetical interest that may apply to any case

  • 166. Sam  |  November 17, 2011 at 5:22 pm

    They mean the State's interest in defending a validly enacted statute/amendment–they're referring to the process rather than any particular argumentation.

  • 167. DaveP  |  November 17, 2011 at 3:40 pm

    If it goes back tot he ballot and we win, then it can just as easily be taken away AGAIN a couple of years later. This will go on until the 9th circuit or the Supreme Court declares that denying equal civil marriage rights is unconstitutional. Only THAT will stop the bigots from continuing to violate our rights by spending millions of dollars to lie to the public about us and convince people to vote away our rights. They will keep doing this until the court makes it clear that these laws and state constitutional ammendments violate the U.S. constitution and they cannot be enacted.

  • 168. fRaNkLiN  |  November 17, 2011 at 4:53 pm

    Maybe a lawyer can help me out. The CASC is re: marriage cases said they had two options in that case, 1 was to allow gays and lesbians access to marriage, and the second was to throw out all the marriage laws. The court affirmed their decision following Proposition 8. Doesn't Proposition 8 simply require that the state cease issuing marriage licenses entirely? The CASC even said as much in their opinion after Proposition 8 by stating something to the effect that they didn't think that the existing Domestic Partnerships would meet strict scrutiny. Wouldn't it be pretty easy to repeal Proposition 8 if it required that all couples (even straight ones) in California could only get Domestic Partnerships?

  • 169. Leo  |  November 19, 2011 at 9:47 am

    Not a lawyer here, but I think CASC already ruled in Strauss v. Horton that that's not what Proposition 8 does. They said it carves out an exception in the due process and equal protection guarantee.

  • 170. Supreme Court Rules Prop &hellip  |  November 17, 2011 at 4:55 pm

    […] more about this latest legal development and the sometimes confusing progression of the case. Tagged as: California, marriage, Proposition 8 Leave a comment Comments (0) Trackbacks […]

  • 171. cr8nguy  |  November 17, 2011 at 6:28 pm

    does anyone know about the other appeals? i know there is a hearing for the tapes issue. what is up with the appeal of judge ware's denial of the motion to vacate? is it assigned to the same panel? i have seen nothing about this.

  • 172. Adam Bink  |  November 19, 2011 at 7:48 am

    That appeal is being requested to consolidate with this appeal, and yes, it's assigned to the same panel. Tapes is being heard on the 8th. On Friday, plaintiffs recommended the 8th for the Walker orientation appeal as well.

  • 173. colbey  |  November 17, 2011 at 7:22 pm

    for Prop 8, the ruling almost seems like a wash–yeah, it would've been nice to not give them standing and let this be finished; and yeah, it's kinda nice that since they have standing, eventually a ruling must be given that will end this question once and for all.

    but on a separate note–being from Wisconsin, i wonder what impact this ruling might have on the situation here? where we have a law essentially allowing domestic partner registry that gives, what some argue, are rights close to the same as those for marriage, and this law was then challenged by a group or groups opposed to it.

    prior to last November's election, the governor and attorney general were defending the law in court. but with walker/kleefisch in office, walker and the attorney general decided to NOT defend the law (for the same reason, apparently–they don't believe it's constitutional).

    so….(okay, maybe i should already know whether it's being defended, but i don't)…if there's no one defending the law here now, will this ruling make it possible for outside groups to step in and defend it? and, if they do and prevail, can those groups demand that the Wisconsin government cover their incurred costs?

  • 174. colbey  |  November 17, 2011 at 7:30 pm

    oh, sorry — yes, i know this is "just" the 9th circuit, but courts look at other courts' rulings, and that's why i'm wondering if this might have a more "direct" affect on the Wisconsin situation.

  • 175. peterplumber  |  November 17, 2011 at 7:48 pm

    So, I had to go on the NOMblog to see what they had to say. I never got to the blog, because I got IRATE reading Brin Brown's letter to his sheep. It started with the headline.

    BREAKING NEWS! Prop 8 Proponents Have Standing To Defend Initiative in Federal Court

    Wait, your headline is deceiving. The Supreme Court of California cannot decide federal standing. The State court said they had the right at the state level. There is still the Article III standing the fed's have to decide about.
    What this case was about; did the proponents have the right to bring the case as far as they did? If not, they could not go on to the next level. If they do (and has been decided they do) then the fed will start to consider whether or not they have standing under Federal rule.

  • 176. peterplumber  |  November 17, 2011 at 7:49 pm

    NOM also wrote:
    It's almost crazy to say this out loud — that somehow the core institution of society, marriage as the union of a man and a woman, violates our federal constitution. Yet that is what the lower court judge, Vaughn Walker, determined.

    That is not true either!! The case was about whether same sex couples could be EXCLUDED from the same institution. Allowing same sex couples to legally form a life partnership the same as opposite sex couples can and do was the question. You make it sound as if prop 8 was going to cause YOUR marriage to become invalid.

  • 177. peterplumber  |  November 17, 2011 at 7:49 pm

    NOM also wrote:
    We'll be candid — we don't hold out a lot of hope of upholding Prop 8 in the Ninth Circuit Court of Appeals. Remember, this court is noted for their extreme liberalism and is the most overturned court in America.

    Wait, weren’t you just praising the 9th for killing the Log Cabin Republican case against DADT? You really have a one sided way of looking at things.

    NOM wrote:
    NOM is confident that we will win this case when it gets to the United States Supreme Court. But there is a huge challenge we must help meet first – money.

    “WE”??? NOM was not a party to this case. All NOM did was funnel money into a losing battle. Now NOM is feeling the case is not worth further investment, so they are asking for the sheeple to contribute and fund this losing battle even further.

  • 178. peterplumber  |  November 17, 2011 at 7:50 pm

    NOM wrote:
    The good news is that supporters of Proposition 8 have secured the right to defend the intiative. The bad news is that this will cost millions of dollars—money that we don't have. We urgently need your help. [sic]

    Wait, again, NO! That defending is DONE! The proponents have not won ANYTHING. Future proponents have won the right to defend their referendum or initiative, but Prop 8 supporters did not win anything. (and the word is spelled: initiative)

  • 179. Michael  |  November 17, 2011 at 8:13 pm

    Money, money, money….NOM wants MONEY!!!! More money! Ever more money! More and more money! Send us money! Sell your home and send us the MONEY!!!!!!!!!!

  • 180. colbey  |  November 17, 2011 at 9:23 pm

    another question–from update #11, i went and read lyle's blog. i don't understand why the prop 8 backers argue that if they are (or were) found NOT to have standing, then judge walker's ruling should be nullified.

    upon what do they base this?

  • 181. Be4marriage  |  November 17, 2011 at 9:26 pm

    Wishful thinking.

  • 182. Erica Keppler  |  November 18, 2011 at 9:52 am

    If they did not have standing, then the entire Walker trial was a moot exercise. It would become just a bunch of stuff people did in a court, but with one party in the suit not having standing, there effectively would have been no suit. The trial would be nullified and the decision vacated. Opponents would have to refile their law suit and start over from scratch. Presumably, current Governor Brown would take the same position as then Governor Schwarzenegger did and refuse to defend it, leading to a certain victory for opponents, but it would drag the process out many more months at least.

  • 183. California Supreme Court &hellip  |  November 17, 2011 at 11:01 pm

    […] have already been made before the 9th Circuit Court for and against Proposition 8. The Courage Campaign points out that even though the state has ruled that the Proposition 8 supporters have standing to […]

  • 184. Kalbo  |  November 17, 2011 at 11:38 pm

    Disagree. We need a lasting ruling from the courts to settle this once and for all; people's rights should not be put to a popularity contest, especially when the other side slings lies and fear while mobilizing their legions of mindless followers to vote en bloc. That's one worry I have regarding DADT now; that trial was essential scrubbed, leaving soldiers' rights up to the whims of a fickle electorate that may well in the future usher in a far-right legislature coupled with a far-right president eager to reinstate the ban. (Side note: Another reason we need real Dems back in power: The courts have been stacked to the right for far too long.)

    Also, while SSM in CA is very important (as with NY), we must get federal rights. States benefits are nice and all, but let's get real: They're quite limited compared to federal rights, and they stop at that state's borders.

    Full disclosure: Yes, I'm biased, having been in a bi-national relationship for more than 3 years now.

  • 185. Prop 8 Trial Tracker &raq&hellip  |  November 21, 2011 at 8:34 am

    […] including from the team representing the plaintiffs on a press call. You can find that coverage here. Later that day, we got word that opponents of California’s FAIR Education Act filed for […]

  • 186. Prop 8 Trial Tracker &raq&hellip  |  November 28, 2011 at 2:26 pm

    […] week’s California Supreme Court ruling puts Perry v. Brown (originally Perry v. Schwarzenegger) back on track at the 9th Circuit.  If […]

  • 187. Prop 8 Trial Tracker &raq&hellip  |  December 2, 2011 at 3:54 pm

    […] the 9th Circuit for reply briefs from both parties regarding the California Supreme Court’s decision to grant the proponents of Proposition 8 standing to appeal under California law.  The appellate […]

  • 188. Prop 8 Trial Tracker &raq&hellip  |  December 8, 2011 at 7:16 am

    […] itself or the issue of standing.  Reply briefs regarding the California Supreme Court’s decision to grant the proponents standing under California law were due last […]

  • 189. Prop 8 Trial Tracker &raq&hellip  |  February 6, 2012 at 5:52 pm

    […] the proponents’ standing under state law.  On November 17, the California Supreme Court ruled that the proponents do have standing to appeal the decision under state law.  The distinction […]

  • 190. What to Know About Today&hellip  |  February 7, 2012 at 7:27 am

    […] the proponents’ standing under state law.  On November 17, the California Supreme Court ruled that the proponents do have standing to appeal the decision under state law.  The distinction […]

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