Editore"s Note
Tilting at Windmills

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August 17, 2010

MARRIAGE EQUALITY PUT ON HOLD IN CALIFORNIA.... Two weeks ago, Federal Judge Vaughn Walker declared California's Proposition 8, banning marriage equality in the state, to be unconstitutional. Last week, he lifted a stay, clearing the way for same-sex couples to legally wed as of tomorrow afternoon.

There was always the possibility that the 9th Circuit of Appeals, due to hear the case, would extend a stay as the case proceeds. Late yesterday, the appeals bench did just that.

California's ban on same-sex marriages will remain in place until at least December, an appeals court ruled Monday, dashing the hopes of hundreds of couples who had hoped to wed as soon as Wednesday. [...]

Supporters of the law appealed Walker's finding to the 9th Circuit, and the appeals court ruled Monday that Proposition 8 could remain in effect while it considers the case. It indicated that it will act relatively swiftly on the appeal, setting a hearing for early December -- a schedule that pleased those challenging the measure. But it will not come soon enough for the gay and lesbian couples who were already making plans to exchange vows at city halls around the state this week.

This will, no doubt, be deeply disappointing to couples whose rights are being denied. That said, yesterday's move shouldn't be interpreted as a hint about the eventual outcome -- issuing a stay doesn't mean the appeals bench will reverse the lower court's ruling on the case.

Indeed, the three-judge panel that extended the stay yesterday won't even be the same three-judge panel that will hear the appeal.

One more thing to keep an eye on here. Ben Smith notes that in its order, the 9th Circuit warned that "it's considering dismissing the appeal on the grounds that the appellants -- who don't include the Governor or Attorney General -- lack standing."

Yesterday's order said, "In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing."

Stay tuned.

Steve Benen 8:00 AM Permalink | Trackbacks | Comments (18)

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Hallelujah! That means my wife and I can stay married!

When will this country grow up?

Posted by: chrenson on August 17, 2010 at 8:15 AM | PERMALINK

Are you ready for today's lesson?

Posted by: FRP on August 17, 2010 at 8:22 AM | PERMALINK

-and the chain of hatred of others remains unbroken. . .

(I guess Darwin was wrong about that "Evolution Thing".)

Posted by: DAY on August 17, 2010 at 8:32 AM | PERMALINK

with apologies:

I'm not getting married in the mornin'
Ding dong the bells are not going to chime
Put in that stopper
Forget the whopper
There's no need to get me to the church on time

if I am flyin'
don't shoot me down
If I am wooin'
Let 'er stay in town

For I'm not getting in the mornin'
ding dong the bells are not going to chime

Posted by: KurtRex1453 on August 17, 2010 at 9:06 AM | PERMALINK

Though, I disagree with the ban, I think it's motivation was to prevent a couples' rush to get married and find out a few months later they have no legal standing. Yes, that's wrong but consider how it screws up your domestic life to one day be married (with all the rights and legal responsibilities) and the next day not.

Loathe as I am to say it, but it's an issue that will have to go before the Supreme Court. And with this court, who knows.

Posted by: Darsan54 on August 17, 2010 at 9:06 AM | PERMALINK

I am I the only one that doesn't get the 3 jokes above ? Peter Pan, WTF ? Are we in Junior High again ?

Posted by: ScottW714 on August 17, 2010 at 9:18 AM | PERMALINK

I kind of hope it gets dismissed on lack of standing. The odd thing is that might be the best possible outcome for people opposed to same-sex marriage.

I know many supporters of same sex marriage afraid of the Supreme Court touching this, but the people who are opposed also need to worry that if the Supreme Court gets it and ends up deciding in favor, then there is a national precedent. The worst possible outcome for the right wing on this issue is that the Supreme Court takes it and decides that banning gay marriage violates equal protection.

You would think they would want to avoid that. By avoiding the deciding on the merits, this stays contained in California, and there would have to be more suits in other states.

Posted by: superking on August 17, 2010 at 9:25 AM | PERMALINK

The stay was totally expected. You can't have on-again-off-again gay marriage as it bounces from appeals court to appeals court. It may even be possible that instead of this issue going right up to the Supreme Court that the 9th Circuit may return it to the lower court for some reason. And any marriages approved in between would really be in legal limbo.

It sucks that it may take a few years, but this was expected while the appeals process goes on.

Posted by: Chris Boyd on August 17, 2010 at 9:41 AM | PERMALINK

Although they did grant the stay the appeals court actually gave a lot of cause for hope. The appeal schedule is I'm told extremely expedited and the stay decision didn't even attempt to offer reasoning for the stay, which doesn't seem to imply the court thought much of the intervenors claims of harm. And the stay decision (it was about a paragraph long) did spend about a third of its length actively raising question as to the intervenors standing. Other than the fact they got the short term thing they wanted yesterday, it really doesn't seem to put Yes On 8 in a good place.

Posted by: mcc on August 17, 2010 at 12:08 PM | PERMALINK

Darsan: Working out here in marriage equality organizing in California I keep running into people who can count off the *number of times* they've been married. They'll tick off that they got a domestic partnership, and then a Canadian marriage, and then a fake-Gavin-Newsom marriage, and then a real pre-prop-8 marriage, desperately hoping that eventually one of these would stick.

If there's a problem with granting a marriage you later have to revoke, I don't think it's a problem anyone actually seeking one of those marriages would mind. This is something people need like *air*. No one's going to find that off-again-on-again problem even noticeable next to the current status of just "off".

I almost suspect the court might be more worried about a scenario where a few thousand more marriages get granted, prop 8 gets upheld, and then the court actually has to *allow* the marriages performed in the gap to stand. Courts apparently are under severe limitations concerning when they're allowed to break a contract that was legal at the time it was made.

Posted by: mcc on August 17, 2010 at 12:19 PM | PERMALINK

Agree with superking that the best possible outcome at this time would be dismisal for lack of standing. SCOTUS would almost certainly refuse to hear an appeal of such a procedural decision, and we would be spared having this become a raging national issue, which it would no matter which side won. I totally understand the issue of not wanting to be told to 'wait your turn' when you believe you are being denied a basic right, but as a rational matter, I can't see five votes on the court to declare gay marriage a constitutional right (I believe Kagan has already state she does not believe it is one) and in the long run folks supporting same sex marriage would be a lot better off to continue to fight the issue state by state and establish the gound work, and not go to SCOTUS until the majority of states had approved gay marriage, which is likely to come as a matter of generational change over the next few years. When Loving v. Virginia (interacial marriage) was decided, only 11 states still prohibited interracial marriage. That is probably about the level of support that would be needed to get an affirmative SCOTUS ruling on this quesiton.

Posted by: dcsusie on August 17, 2010 at 12:21 PM | PERMALINK

Having clerked for both the federal district court and Ninth Circuit, the stay being lifted by Judge Vaughn was proper, because decisions of the district court are "final" as soon as the judgment was entered and until it is reversed (unlike state courts, when they are final only when the appeals process has ended). The stay by the Ninth Circuit is also appropriate, because they need to give the parties a chance to brief the issues. If the decision is "reversed" on legal grounds, then Prop 8 stands, and no one could have been "married" in the interim.

However, I strongly suspect that the reason for the stay and short briefing schedule is that the big issue for the Circuit is standing, and that they are likely to write an opinion on standing. Because that issue is not being separately briefed, they may also write a short opinion on the merits (ie, the appellants did not demonstrate that the court's findings were clearly erroneous).

Failure to grant the stay now would have resulted in an emergency application for stay to the Supreme Court. And there is no reason to have that court start "taking sides" on an early petition, without the benefit of the Ninth Circuit's opinion on whether the courts can even address an appeal of a law that the State of California is not even challenging. That's a big deal. And standing (like ripeness, mootness, venue, and justiciability) can never be waived, because its the touchstone for the court's jurisdiction.

IMHO, I expect the decision to come down against the appeal on standing issues. And if there is an appeal to the Supremes, it will be on both issues (standing and the equal protection/due process claim), but the Supremes will only reach the first. ..standing. . . .and will actually uphold the Ninth Circuit's opinion on that. [Does anyone know whether the defendant/appellants for Prop 8 included an actual California citizen that voted? That might be an interesting standing issue: whether a voter has standing to bring an action to compel the State to enforce its own statute, as sort of a private attorney general. . . ]

That will, in the long run, be to the benefit of the Prop 8/anti-tolerance movement. Because a decision by the Supremes on the merits, after a full trial, would mean that every state with such a law on the books could no longer enforce it, and gay marriage would be permissible everywhere. So though they gloat over the appeal to Robert's court they should be careful what they wish for.

Posted by: CalAtty on August 17, 2010 at 12:35 PM | PERMALINK

I am intrigued by the standing issue. Standing is the right to sue. To have standing, you must be able to prove you have been harmed by the policy. There is a famous (in legal circles) case many years ago based on the APA and using it to try to enforce environmental laws and regs. The plaintiffs, the Sierra Club lost on standing because they could not prove any of their actual living, breathing members had visited the national park in question to have been deprived of not seeing certain birds.

You have a similar situation here. With neither the governor nor CA AG defending the proposition (Hey Obama, you don't have to defend DOMA), the Appellees are going to have a hard time proving they are harmed.

Think about it. What is the discrete and provable harm to a heterosexual couple if gays are allowed to marry? Apart from a sick feeling in their stomachs from moral outrage, which is not compensable. A hetero only proponent is neither harmed by Prop 8's enforcement nor by overturning it. Unless Prop 8 propenents can prove A) that gay marriage damages heterosexual marriages in a compensable way (makes a heterosexual marriage invalid in some way), and B) can prove heterosexual marriages were thusly damaged, and C) can prove that the actual named defendants/plaintiffs suffered that harm, there is no standing.

The lower court decision thoroughly demolished the appellees attempts to prove (A) and therefore did not have to proceed to (B) or (C).

It would be like complaining that the blowing of kisses (from a distance too far to transmit germs) was harmful to you. Even if you could prove that a person blew a kiss at you, you couldn't prove you were harmed by it. Even if you could prove you were "harmed" by it, that harm would have to be recognized as a compensable harm. For instance, psychological harm for the loss of a pet is not compensable, no matter how traumatized you were.

Posted by: Coltergeist on August 17, 2010 at 1:44 PM | PERMALINK

On a tangential issue, have there been any cases involving recognition of "non-opposite marriages" by other states (e.g., a couple gets married in Iowa, moves to California and then one (or both) wants to assert rights of a spouse) ?

Posted by: H-Bob on August 17, 2010 at 2:33 PM | PERMALINK

Coltergeist has too broad a reading of standing. Its not the standing of the Prop 8 group to prove that they were harmed by gay marriage (that was the evidence adduced at trial). Its whether the Prop 8 group has an interest in the enforcement of the ban on gay marriage. When the district court held Prop 8 unconstitutional, it prohibited the State from enforcing the ban. . .from refusing to issue marriage permits. Since the Prop 8 members are not county recorders or registrars, nor the State AG charged with either issuing permits or bringing suit to prevent a county commissioner from issuing permits, THAT is why they don't have standing. They just have an ephemeral interest in the topic, but not an actual interest in enforcing the law.

The rest of the points made in Coltergeist's post were about the harm to hetero couples. But that is an argument over the decision on the merits, and has nothing to do with the standing issue.

Posted by: CalAtty on August 17, 2010 at 2:39 PM | PERMALINK

H-Bob asks whether gay persons married in another state (which permits it, like Iowa) that move to California are still married. Short answer: Yes, in Iowa; no, in California. That was the premise of the Defense of Marriage Act. Since the federal constitution requires states to give "full faith and credit" to judgments and orders from other states, every state would have had to recognize gay marriages performed elsewhere (at the time, Vermont and Hawaii, I think). DOMA held that no state was required to recognize such marriages; they could, but were not required to by the constitution.

An unconstitutional law, IMHO, for the same reason that Prop 8 was struck down (that, and the privileges and immunities clause, as well as the constitutional right to travel). But there it is. A federal district court in Massachusetts recently held DOMA unconstitutional as applied to federal benefits involving MA gay couples (rather than the provision on recognizing gay marriages performed in other states). Will go up on appeal, and I would be encouraged about its chances of being upheld.

DOMA wiki summary:

Posted by: CalAtty on August 17, 2010 at 2:47 PM | PERMALINK

Scott asks about the Peter Pan reference. (Which was clever, FPR). Its the first line to his song from the Disney movie "I Won't Grow Up". The lyrics are precious for this particular topic. And a reference that the appeal and the stay are both temporary, like childhood. That the childish insistence on not acknowledging that they had their day in court and lost, and that this issue has passed, are just like Peter Pan trying to convince the Lost Boys that if they just don't learn anything, or go to school, that their ignorance will also keep them young. Rather than merely becoming the ignorant adults that they battle anyway (as contrasted, in the story, to the educated and articulate parents. ..a judge, one parent!. . . that they all miss so much.)

Posted by: CalAtty on August 17, 2010 at 2:55 PM | PERMALINK

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