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Filed under: Trial analysis

Prop 8 On Trial Yet Again: Marriage News Watch for June 13

Folks, I am seeing a lot of spurious requests for moderating comments on the system… for a lot of complicated reasons, but for those of you commenting as guests, I highly recommend getting an IntenseDebate or WordPress.com login, as those folks aren’t experiencing as many problems. Otherwise, the risk is run of staying in moderation, especially if you post many comments in a row. One of those hiccups we are getting through -Adam

By Matt Baume

Today’s the day for the hearing over whether a gay judge is allowed to hear a case about marriage. It’s also the anniversary of the ruling that ended the ban on interracial marriage. A Catholic adoption agency in Illinois is suing for the right to stop foster kids from going to adoptive LGBT parents. And you can’t get married in Wyoming, but you can get divorced.

It’s going to be a really quick episode this week, since we’re gearing up for the Prop 8 hearing on Monday.

That’s when lawyers will be presenting what The Atlantic called “the worst argument of the year,” in essence asking for a do-over because they didn’t like that the Federal District Court found Prop 8 to be unconstitutional.

The hearing comes just one day after the anniversary of Loving v. Virginia, the case that ended the nation’s ban on interracial marriage. Late last week, Ted Olson and David Boies released this video about how that case has echoes in the fight for marriage today. You should definitely see it if you haven’t already. And if you have, see it again.

Over on the other coast, we have just one week left to legalize marriage in New York. Republican Senator Greg Ball suggested that he would only support the measure if it carved out huge exceptions, in essence allowing anyone to treat married gay couples like they’re still single.

Even if we lose again in New York — and it’s looking like we very well may — the fight’s still far from over, with new allies joining us every day. Last week Gawker announced that they’ll hold a fundraiser for marriage on June 22, at which point we’ll either be celebrating an amazing success, or digging in to do it all again next year. I spoke to Gawker’s Brian Moylan about the fundraiser — you can click here to watch our full conversation.

In Illinois, Catholic Charities has sued the state in an attempt to preserve its discriminatory adoption practices. The organization wants the right to withhold foster children from gay parents, thereby preventing children from finding supportive adoptive families.

The city of Cambridge will begin reimbursing municipal employees who are forced to pay the federal “gay tax.” Even though those couples are legally married in Massachusetts, the IRS still taxes them like they’re single. Cambridge is believed to be the first municipality that will make up the difference.

Support for marriage is growing in Wisconsin, with a new poll showing us just four points shy of majority support. Five years ago, we lost a marriage referendum by 19 points.

Two surprising legal headlines this week: A judge in Wyoming ruled that you can’t get married in that state, but you can get divorced if you have a marriage from somewhere else. And a federal judge has ruled that a bankruptcy case involving a couple with a domestic partnership may be eligible for the same protections as marriage.

And Target has again expressed its indifference to LGBTs by refusing to stop funding anti-gay politicians. Target keeps claiming that they’re an inclusive company, but they’ve abandoned their responsibility to help the community as we fight anti-gay politicians that Target helped create.

In international news, the Scottish government has launched a study on the feasibility of granting marriage equality, and Human Rights Watch continues to push for civil union recognition in Lichtenstein. The country holds an election on the issue at the end of this week.

Those are the headlines on this week’s extra-fast version of Marriage News Watch. Click over here to subscribe to weekly updates, and visit us at MarriageNewsWatch.com for more info on all these stories and more.

See you next week.

8 Comments June 13, 2011

What to Expect From Today’s Hearing in the Perry Case

Please welcome Shannon Price Minter and Christopher F. Stoll from the National Center for Lesbian Rights for a guest post preview of what to expect today.

Shannon, who is Legal Director, served as lead attorney on In re marriage cases in 2008, in which the California Supreme Court ruled that limiting marriage to opposite-sex couples is unconstitutional. Christopher, Senior Staff Attorney with NCLR, served as co-counsel on that case and many other cases as part of NCLR’s “Marriage Team”. Previously, both took legal-oriented questions and provided answers live from the Prop8TrialTracker community on the Perry case and the appeals process, the transcripts of which can be found here and here -Adam

By Shannon Price Minter and Christopher F. Stoll, National Center for Lesbian Rights

Today, the U.S. District Court in San Francisco will hold a hearing in the Perry case to consider a motion filed by the supporters of Proposition 8.  The Prop 8 supporters are arguing that Judge Walker’s August 2010 decision invalidating Prop 8 should be set aside because he is gay and in a long-term relationship, and for that reason alone, should have declined to preside over the Perry trial.  The Prop 8 supporters’ motion raises a barely-updated version of an old, offensive, and discredited argument:  that a judge may be disqualified from hearing a case based on a personal characteristic such as race, sex, or sexual orientation.

As readers may recall, then-Chief Judge Vaughn R. Walker presided over a three week trial in January 2010.  That August, Judge Walker issued a thorough, detailed,  and carefully-reasoned 136-page opinion discussing the overwhelming evidence that the campaign to pass Prop 8 played on long-standing prejudice and stereotyping against gay and lesbian people.   Judge Walker ruled that Prop 8 is unconstitutional because it serves no legitimate purpose and marks same-sex relationships as unequal  and undeserving of recognition and protection.  The case is now on appeal before the Ninth Circuit Court of Appeals.

Judge Walker announced that he was retiring in September 2010.  After retiring, he gave an interview in which he discussed his relationship with another man.  This spring, the supporters of Prop 8 filed a motion in the district court to “vacate”—in other words, to invalidate—Judge Walker’s decision, arguing that that Judge Walker had a personal interest in the case because theoretically he could decide to marry his partner if Prop 8 is invalidated.  The new Chief Judge, James Ware, will hear and decide the motion.

It is important to place this motion in historical context.  The Prop 8 supporters’ argument is far from new: for as long as civil rights cases have been litigated in this country, opponents of equality have accused minority judges of bias — of somehow being less able than other judges to rule impartially on important constitutional issues that by definition affect not just minority groups, but everyone.

In a famous 1975 case, a law firm that had been sued for sex discrimination argued that Judge Constance Baker Motley should recuse herself, accusing her of “‘strongly identif[ying] with those who suffered discrimination in employment because of sex or race’” because she was a woman and had worked as a civil rights advocate prior to becoming a judge.  Judge Motley correctly explained, “If background or sex or race of each judge were, by definition, sufficient for removal, no judge on this court could hear this case[.]”   U.S. Supreme Court Justice Ruth Bader Ginsberg has memorably recounted the case and Judge Motley’s remarkable career here.

Similarly, in a 1984 case, the Tenth Circuit Court of Appeals rejected the argument that a Mormon judge in Utah should have recused himself from a case that challenged the religious power structure in Utah.

It is fortunate for our judicial system that this insidious argument has never gained traction.  Like all people, judges have personal characteristics like race, sex, religion — and sexual orientation.  The courts have recognized repeatedly that these common human characteristics provide no basis for challenging a judge’s ability to decide important questions of civil rights fairly and impartially. Our judicial process is founded on the principle that judges will put any personal or political bias aside and rule on every case based on the law and the facts before them—and that is exactly what Judge Walker did last year.

The Prop 8 supporters will likely focus on Judge Walker’s relationship, arguing that because Judge Walker might someday wish to marry his partner, he had a personal stake in the outcome of the Perry trial.  But any unmarried judge, partnered or not, might someday wish to marry.  The Prop 8 supporters’ argument is just a smokescreen for their real point: that no gay or lesbian judge could ever be trusted to rule fairly on a case seeking marriage equality for same-sex couples.

At today’s hearing, Judge Ware will hear arguments from counsel for the Prop 8 supporters, followed by arguments from Theodore Boutrous, who represents the couples who challenged Prop 8, and from the San Francisco City Attorney’s office, which is also a party in the case.  Judge Ware may issue an order from the bench immediately following the arguments, or he may issue a written opinion later. There is no set time within which Judge Ware must decide the motion, but it is likely that he will issue a decision within a few weeks after the hearing.

We hope and believe that after considering the long and shameful history of attempts to disqualify judges based on personal characteristics, Judge Ware will resoundingly reject this offensive and desperate tactic by the Prop 8 supporters.

40 Comments June 13, 2011

The Prop. 8 Trial a Year Later: The Education Continues

Stay tuned for an exciting new project we’ll be rolling out on this topic. -Adam

By Rick Jacobs

A year ago this weekend, my brilliant partner Shaun Kadlec joined me in San Francisco as we headed into the third week of the Prop. 8 Trial. Shaun and I had planned for months to be in Vienna to visit a college classmate of mine who’s now a senior diplomat there. I had always assumed that the Prop. 8 Trial would be on TV, meaning that everyone could see the proceedings. After that first day in the courtroom when it became clear that the trial would not be on TV, we canceled the trip and I stayed to live blog the rest of the trial (with lots of help from Brian Leubitz and Paul Hogarth, among others). That was one of the most important and best decisions of my life.

The full meaning and impact of that trial grow daily. A year later, in retrospect, the outcome seemed inevitable. The judge’s thorough and reasoned ruling followed the logic of the witnesses, the pleadings and the arguments. The defendant-intervenors put on no case and the ruling reflected that. But that’s hindsight. During those days of the trial, we could not know how the judge would rule. Would he rule that the state had no role in marriage? Would he decide that even though the evidence for marriage was overwhelming, the courts should stay out of this altogether? Would some other procedural delay intervene, holding the case at bay for months more than the eight it took?

We wait now to find out how –and whether–the California Supreme Court will reply to the appellate court on the issue of “standing,” that is, whether proponents (sponsors) of ballot measures have special rights to act. For a range of reasons unrelated to this trial, I hope that the Court decides they do not have those rights, but that’s a subject for another day. In time, this case or one like it will wind up at the Supreme Court. And that we hope will end what David Boies calls the last arena of legalized discrimination in America. With the fall of DADT and the ultimate legalization of marriage on constitutional grounds, the rest will follow quickly.

For the moment, let’s reflect on the courtroom drama I watched and so many here followed through this blog. That first day, Monday, January 11th 2010, was extraordinary in every way. After that vigil outside in cold San Francisco winter air, we’d heard that Justice Kennedy had put a “hold” on whether the trial could be on YouTube. I told my colleague, Andy Kelley, that I’d go upstairs into the courthouse just “to see what’s going on.” That was my first of dozens of trips through the magnetometer, depositing and collecting computer and keys on the beltway through the x-ray machine.

I tried to get into the main courtroom, but it was full. So I went upstairs and found the overflow room. The line to get in that day was not terribly long, but the room was pretty full. I found a seat in one of the pews, opened my laptop and waited. Once the proceedings began, I typed away, much to the chagrin of those sitting nearby. I guess I type loudly.

Courage had built this Prop 8 Trial Tracker site to keep track of what the right wing/NOM/Focus On the Family/ProtectMarriage.com had to say outside the courthouse because we thought the proceedings would be on YouTube. Instead, I emailed my typing to Julia Rosen who then put it up on this blog, added commentary sometimes and organized it so that it was readable.

At first, I did a pretty bad job. I was not sure about format or what to write. Should I actually try to transcribe or just describe? And of course, I had no clue whether anyone would ever read the blog. After all, we’d put it up in a hurry and did not promote it.

By the lunch break that first day, Julia and Eden James told me over the phone that we had about 20,000 hits, maybe more. I was stunned. Your comments also helped shape my coverage of the trial. You wanted more transcription and less description, which I tried to fulfill.

Monday morning began with the judge talking about the controversy over whether the trial should be televised. At the very outset, you were a key component of this trial.

Judge Walker said:

We have received a very substantial number of comments in response to that change (of rules that would allow the trial to be televised). As of — as of Friday, 5:00 p.m. Friday, we had received 138,574 responses or comments.

I think it’s fair to say that those that favored coverage of this particular case implicitly also favored the rule change, which would make an audiovisual transmission of this case possible.

And if these results are any indication of where sentiment lies on this issue, it’s overwhelmingly in favor of the rule change and the dissemination of this particular proceeding by some means through the Internet.

And the numbers frankly are 138,542 in favor, and 32 opposed.

(Laughter)

So I think the — at least the returns are clear in this case. …

I do think what we have gone through in this case in the last few days has been very helpful. Very helpful indeed.

The issue of the public’s right to access court proceedings is an important one. I think it’s highly unfortunate that the Judicial Conference and the courts have not dealt with this issue in the past, have not in a considered and thoughtful fashion worked through the issues.

He continued:

The briefs that you filed in the Court of Appeals and in the Supreme Court deal with those issues. And that’s true of both sides.

Certainly, the concerns that the proponents have raised here are concerns that should be considered, need to be considered, and in due course should be given thorough consideration.

But I think, in this day and age, with the technology that’s available and the importance of the public’s right to access judicial proceedings, it’s very important that we in the federal judiciary work to achieve that access consistent with the means that are presently available to do that.

And I would commend you for the efforts that you’ve made in bringing these issues forward, and I’m hopeful that this experience will have brought these issues to the fore. And maybe, finally, after some 20 years we will get some sensible movement forward.

Courage Campaign members provided nearly all of the public comments. When the judge asked for comment on Wednesday and gave 48 hours, until the Friday before the trial to provide them, you all jumped in with both feet. We collected over 140,000 comments, but by the cut off time of Friday afternoon when we had to deliver them, we brought in just over 138,000. The trial had become an object of considerable public interest, as well it should have been.

I excerpt the judge’s words above at such length because the very essence of this trial is public education. We have said it repeatedly. The trial testimony exposed the lies that have been used for generations to allow legalized discrimination against gays and lesbians. Those lies were at the very heart of the Prop. 8 campaign. The lies further alienated people from each other, led to more bullying, more suicides, more fundamental hurt.

You all here on this blog have been the heart and the bloodstream that have circulated the truth. Count on us at the Courage Campaign to continue to provide you with the tools and the platform to get the messages out. America’s social fabric has been rent apart by Prop. 8 and its spawn. This trial and your hard work can sew that fabric together into a quilt of justice, diversity and hope.

Even as I write, Arisha Michelle Hatch, Anthony Ash, Jackki Hirahara (from our Courageous staff) are with the folks at Granite State Progress (our sister organization) and the Cleve Jones Wellness Center in New Hampshire holding Camp Courage trainings to train folks on how to tell their own stories and how to use our brand new site–Testimony: Take a Stand (about which much more will be written later).

I’ll add further reflections in future posts, but we need your reflections as well. What have you learned? What messages need to penetrate society? How can we work together to assure that each of us, each of our friends and family members are part of the effort to disseminate the lessons of the trial, which means, really, to give our own testimony?

70 Comments January 23, 2011

LIVE on P8TT: You got Prop 8 questions, we got answers.

by Adam Bink

Please welcome Shannon Minter and Chris Stoll, who are joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community following today’s 9th Circuit ruling.

Shannon is the Legal Director at National Center for Lesbian Rights, and was the lead attorney on In re Marriage Cases, which was the original 2008 California Supreme Court case holding that the ban restricting marriage to opposite-sex couples is unconstitutional and that laws treating gays and lesbians differently because of their sexual orientation are subject to strict judicial scrutiny. He’s a respected voice in the legal community fighting for LGBT equality, and a friend of P8TT who we’re happy to have stop by. Chris also worked on the 2008 marriage case as a senior member of the legal team. You may remember Shannon and NCLR senior staff attorney Chris from our earlier Prop 8 Q&A chat a few months ago, which hit 300 comments and well over a hundred questions answered.

To set the  stage, today the 9th Circuit (a) decided  to submit a question relating to whether proponents of Prop 8 have standing under state law, and how that can be reconciled with federal law with respect to Arizonans  for Official English v. Arizona (b) Ruled that Imperial County has no standing in this case (c) did not make a decision on the constitutionality of Prop 8.

A couple logistical notes:

  • If you have a question, please leave it in the comments below. You can leave a comment with a question by clicking “Add your own” just above where the comments start. This comment thread may get long, so if you have a question, please preface your question with “Question:” or “Q:”  so Shannon and Chris can easily distinguish between general comments and questions so as to get to as many as possible.
  • Shannon and Chris are going to get to as many different questions from different people as possible. If you have a follow-up question to one of their responses, or a different take on something, whether as a response to your question or someone else’s, please leave a comment with the question/response, and time permitting he will go back through to get to as many follow-up questions/comments as possible.
  • They have agreed to stick around for at least 45 minutes, and longer if he has time (and if he’s having fun!).
  • For first-time commenters here, two things. One is that you don’t need an account to comment. Two is that to reply to a comment, make sure to hit “reply” between the comment you’re looking at and the next comment. You can also use “@username”. An example:  “@adambink: This is a response to your comment immediately below. I believe [substance of your comment]” or “@Shannon Minter: Thanks for the response.” Your response will then appear below the comment you wished to respond to, and it helps make things clearer for those reading along.

So please welcome Shannon and Chris, click “Add your own” below, make sure to preface with “Question: or “Q:”, and fire away!

485 Comments January 4, 2011

Analysis: 9th Circuit Appears Ready to Grant Proponents Standing to Appeal

by Robert Cruickshank

The 9th Circuit Court of Appeals today issued a “ruling” of sorts on the appeal of Judge Vaughn Walker’s ruling that found Prop 8 to be unconstitutional*. The “ruling” was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker’s decision. Here’s the question they want answered:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

We understand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision.

A further reading of the document suggests that the 9th Circuit is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here’s what the 9th Circuit said:

If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State….

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”…

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so….

Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government, with its own sovereign power. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say “yes, the proponents do have standing” or “no, the proponents do not have standing,” or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes’ longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.

In which case, the 9th Circuit would then rule on the issue of Prop 8’s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing. Still, that’s just my view, and we should prepare for any outcome.

The 9th Circuit also concurrently ruled that Imperial County does not have standing to appeal Judge Walker’s decision, a ruling that was widely expected in the wake of the farcical appearance before the 9th Circuit court by Imperial County officials.

The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule. Whatever the outcome of the Prop 8 case, it’s time to bring some sense and sanity to ballot initiatives here in California.

*Somehow I doubt that the 14th Amendment will be read out on the House floor this week by Republicans, who hate the 14th Amendment and want to pretend it doesn’t exist.

Robert Cruickshank worked at the Courage Campaign from November 2007 to November 2010, when he stepped down as Public Policy Director. His analysis represents his views alone.

156 Comments January 4, 2011

BREAKING: 9th Circuit rules on the Prop 8 case

By Adam Bink

Update 13: Olson said he would be submitting briefs et al to the CA Supreme Court if/when it is allowed.

Update 12: I’m on a press call with Ted Olson et al. I’ll update with any interesting info.

Update 11: Here’s a quick reaction that Shannon sent over e-mail. We’ll see you at 2:30 PM PST for Q&A.

This will delay the day that Proposition 8 is gone for good, but hopefully not for long.  The Ninth Circuit asked the California Supreme Court to decide whether initiative proponents can force the state to defend an initiative that has been struck down by a federal court.  There is nothing in California law that gives initiative proponents such an extraordinary power.  Both Kamala Harris and Jerry Brown were very clear when they ran for office as Attorney General and Governor that no more state money should be spent on appealing a federal court ruling that Proposition 8 violates the equal protection rights and the core fundamental rights of hundreds of thousands of its citizens.  Their opponents expressed the opposite view, and the voters spoke.  That should be the end of the matter.

I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives.  In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage.

Update 10: We have a special treat coming to help answer all of your questions. I asked Shannon Minter, the Legal Director at National Center for Lesbian Rights and the lead attorney on the original In re Marriage Cases ruling at the California Supreme Court, to stop by here at 2:30 PM PST and answer some questions. The format will be similar to the chat we hosted several months ago.

So, check back here at 2:30 PM PST/5:30 PM EST with your best questions in hand, and we’ll field ’em.

To read Shannon’s earlier chat on the case, you can find that here.

Update 9: On the question of how the CA Supreme Court could rule, they could rule that proponents have standing; do not have standing; or make no ruling at all. If they rule there is standing, then the 9th Circuit would make a ruling on the merits (constitutionality) of the case. If they rule there is no standing, the case could be thrown out without a ruling on the constitutionality, as Arizonans for Official English v. Arizona was by the US Supreme Court, where the Court specifically said it makes no ruling on the constitutionality while remanding a lower court decision. Robert will have more on what he sees as most likely to come out of the CA Supreme Court.

Update 8: Robert Cruickshank of Calitics, who often guests here, will have another analysis piece coming at 12:30 PM PST.

Update 7: After talking to a few con law experts in the field, some analysis. At issue is whether ballot initiative proponents (e.g. ProtectMarriage.com) are allowed to defend initiatives in a case when the State (e.g. the Attorney General and the Governor) decline to do so. That we’ve known all along. On the table is that the question of “standing” is a federal one. Our side argued that even if California law allows initiative proponents to defend a ballot initiative under state law, standing could still not be conferred in the federal courts. If the California Supreme Court decides that initiative proponents like ProtectMarriage.com cannot defend the initiative in state court, then it’s more doubtful it would be able to do so in federal court. And that is the reason the 9th Circuit is asking for clarification from the California Supreme Court re state law.

Update 6: With thanks to Kathleen, here’s a Scribd version to read through:

[scribd id=46274821 key=key-6tuvpgros6lw32yidpd mode=list]

Update 5: Folks are asking about the timeline. There’s nothing on the timeline of a CA Supreme Court decision. There is this:

The case is withdrawn from submission, and further proceedings in this
court are stayed pending final action by the Supreme Court of California. The
parties shall notify the Clerk of this Court within three days after the Court accepts
or rejects certification, and again within three days if the Court renders an opinion.
The panel retains jurisdiction over further proceedings.
IT IS SO ORDERED.

Update 4: Here’s the meat of the ruling. I bolded the key parts:

“Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text) The Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact / Conclusions of Law / Order (704 F. Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c). The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED. [7598921] (RP)”

On the issue of standing for Imperial Valley (h/t Karen Ocamb):

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT. [7598965] (RP)

Update 3: The filing can be found here.

Update 2: Reading through the documents, the 9th Circuit has issued a question to the CA Supreme Court asking if proponents have standing. No decision on the merits yet. More soon.

Update: According to the American Foundation for Equal Rights, the 9th Circuit ruled that Imperial County is denied standing in the process.

The breaking news is that the 9th Circuit will rule any minute on the Prop 8 case. The filings are being uploaded and I’m sorting through. I will update this post from the top.

163 Comments January 4, 2011

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