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MsTinkerbelly · 02-15-2010, 01:42 PM

Mooting Perry?
by Brian Leubitz

A while back, one of our trial trackers here at the site asked an important question. My apologies to the original commenter, I wasn’t able to find the link back to the question, but here’s the gist:

“IF the attempt to get the “Restore Marriage 2010″ proposal onto this years ballot succeeds, & IF it gets passed, what effect would that have on Prop 8’s journey through the Federal Courts?

For example, if Judge Walker invalidates Prop 8 & if the 9th Circuit hasn’t yet ruled on the likely appeal, would the passage of the proposal repealing Prop 8 eliminate the possibility that Prop 8 would at some point be declared unconstitutional, &/or LGBTs to be declared a Suspect Class? (Hope this question makes sense.)

If that is a real possibility, it seems like it would be better to wait until after the final ruling on Prop 8, even though that might be risking a loss somewhere along the line. Otherwise, if the “Restore Marriage 2010″ passes, it seems like we only get marriage rights at the CA state level, vs a very real possibility of getting a whole lot more at the Federal level.

This is, generally, question about the legal doctrine of “mootness.” In a general sense, a case is moot if the decision wouldn’t have any legal consequense. Courts have declined to hear such cases because the parties wouldn’t have the vested interested, and wouldn’t be be the best advocates for the arguments. Despite the fact that frequently litigants would like to have a legal decision stemming from a case that has been mooted, courts generally dismiss such cases. This could happen with Prop 8, but let’s pick this apart and try to answer all of the various possibilities of what could happen.

1) The “Restore Equality 2010″ folks are able to get the measure on the ballot, and they succeed in overturning Prop 8.

The federal court would likely dismiss the case. Just being brutally honest here, but the last news I’ve heard from the campaign indicates that they are far behind where they need to be in order to get on the ballot. While a last month miracle could happen, it seems a long shot. That being said, in November 2010, the court will probably have made its decision and the case will be in the hands of the 9th Circuit, probably with a stay pending appeal if Prop 8 is overturned. The electoral defeat of Prop 8 would mean that a legal decision would have no impact on the litigants, in this case Perry and the other plaintiffs.

We need to remember here that the court case is only about Prop 8, and marriage in California, not federal law. While this case does present good facts, and I’ll go into that angle in a later post, there is no facial challenge of DOMA or any other federal law. This case could provide important precedent for a challenge to DOMA, but it is not itself such a challenge.

2) Prop 8 is repealed in 2012.

This seems to be the more likely scenario, with the majority of the funders of a prop 8 repeal pushing for a November 2012 campaign. The question here is speed of the case. It wouldn’t be unheard of either way for the case to have gone all the way to the Supreme Court in the three years since filing, but nor would it be unheard of for the case to be delayed past that date. In this case, the Court would seem to have a vested interest in waiting for a resolution via the ballot box. They have ways of delaying such things, and if they see that at ballot fight is likely, they are likely to use every delay tactic they have to avoid this case until it’s settled at the ballot box.

My take on this is that despite the tremendous value of a legal win, a win at the ballot box would be far more valuable. You would end up giving some good facts to make some good law, however, once California strikes the domino, we would likely set the nation on a path towards equality. We will need a legal victory. As the Court showed in Loving v. Virginia, on the big social issues of the day, the Court likes to have somebody else blaze the trail. In that instance, it was the California Supreme Court in Perez v. Sharp and other state supreme courts that struck down anti-miscegenation laws.

In this case, Perry v Schwarzenegger just might be the case that sets the legal process really moving federally. Even with that as a possible outcome, I think I’d take the electoral win and a mooted case every day. (And twice on Sundays.)

02-15-2010, 01:42 PM	#79
MsTinkerbelly Timed Out - TOS Drama How Do You Identify?: ... Preferred Pronoun?: ... Join Date: Nov 2009 Location: ... Posts: 6,573 My Photo Gallery Thanks: 30,737 Thanked 22,958 Times in 5,020 Posts Rep Power: 0	From the Prop 8 trial tracker blog..... Mooting Perry? by Brian Leubitz A while back, one of our trial trackers here at the site asked an important question. My apologies to the original commenter, I wasn’t able to find the link back to the question, but here’s the gist: “IF the attempt to get the “Restore Marriage 2010″ proposal onto this years ballot succeeds, & IF it gets passed, what effect would that have on Prop 8’s journey through the Federal Courts? For example, if Judge Walker invalidates Prop 8 & if the 9th Circuit hasn’t yet ruled on the likely appeal, would the passage of the proposal repealing Prop 8 eliminate the possibility that Prop 8 would at some point be declared unconstitutional, &/or LGBTs to be declared a Suspect Class? (Hope this question makes sense.) If that is a real possibility, it seems like it would be better to wait until after the final ruling on Prop 8, even though that might be risking a loss somewhere along the line. Otherwise, if the “Restore Marriage 2010″ passes, it seems like we only get marriage rights at the CA state level, vs a very real possibility of getting a whole lot more at the Federal level. This is, generally, question about the legal doctrine of “mootness.” In a general sense, a case is moot if the decision wouldn’t have any legal consequense. Courts have declined to hear such cases because the parties wouldn’t have the vested interested, and wouldn’t be be the best advocates for the arguments. Despite the fact that frequently litigants would like to have a legal decision stemming from a case that has been mooted, courts generally dismiss such cases. This could happen with Prop 8, but let’s pick this apart and try to answer all of the various possibilities of what could happen. 1) The “Restore Equality 2010″ folks are able to get the measure on the ballot, and they succeed in overturning Prop 8. The federal court would likely dismiss the case. Just being brutally honest here, but the last news I’ve heard from the campaign indicates that they are far behind where they need to be in order to get on the ballot. While a last month miracle could happen, it seems a long shot. That being said, in November 2010, the court will probably have made its decision and the case will be in the hands of the 9th Circuit, probably with a stay pending appeal if Prop 8 is overturned. The electoral defeat of Prop 8 would mean that a legal decision would have no impact on the litigants, in this case Perry and the other plaintiffs. We need to remember here that the court case is only about Prop 8, and marriage in California, not federal law. While this case does present good facts, and I’ll go into that angle in a later post, there is no facial challenge of DOMA or any other federal law. This case could provide important precedent for a challenge to DOMA, but it is not itself such a challenge. 2) Prop 8 is repealed in 2012. This seems to be the more likely scenario, with the majority of the funders of a prop 8 repeal pushing for a November 2012 campaign. The question here is speed of the case. It wouldn’t be unheard of either way for the case to have gone all the way to the Supreme Court in the three years since filing, but nor would it be unheard of for the case to be delayed past that date. In this case, the Court would seem to have a vested interest in waiting for a resolution via the ballot box. They have ways of delaying such things, and if they see that at ballot fight is likely, they are likely to use every delay tactic they have to avoid this case until it’s settled at the ballot box. My take on this is that despite the tremendous value of a legal win, a win at the ballot box would be far more valuable. You would end up giving some good facts to make some good law, however, once California strikes the domino, we would likely set the nation on a path towards equality. We will need a legal victory. As the Court showed in Loving v. Virginia, on the big social issues of the day, the Court likes to have somebody else blaze the trail. In that instance, it was the California Supreme Court in Perez v. Sharp and other state supreme courts that struck down anti-miscegenation laws. In this case, Perry v Schwarzenegger just might be the case that sets the legal process really moving federally. Even with that as a possible outcome, I think I’d take the electoral win and a mooted case every day. (And twice on Sundays.)