Same-Sex Marriage Update

[AtLast]

It is amazing to me how many people in this country yell and scream about constitutional rights (thinking about gun rights, etc.), yet, have no understanding about the fact that the constitution within it's Bill of Rights is clear that voting has no effect upon our civil rights. It does not matter that a majority voted to make Prop 8 law in CA. We cannot vote to take away this right to any US citizen. Cornerstone of a democracy, here!!!

It looks like recent polls are picking-up on public opinion about same-sex marriage being OK with people across the US. There is a slight increase in these figures. That will serve us well in state to state legislation along the way, but even if most people in the US still were against it, it doesn't matter as a matter of inalienable rights under the US Constitution.

ARGH.. it makes me crazy that our own politicians don't get this! Our elected officials!!!

[MsTinkerbelly]

Prop 8: Scheduling order issued
(An important update from one of our resident legal analysts on the next steps regarding the Motion to Stay -Adam)

Cross-posted at Calitics

by Brian Devine

This is an update on the Emergency Motion to Stay that the Prop 8 supporters filed with the Ninth Circuit last night.

The Ninth Circuit just issued an Order stating that the Plaintiffs’ response to the Motion to Stay is due by 11:00 p.m. tonight. The Prop 8 supporters’ reply, not to exceed 15 pages, is due by 9:00 a.m. on Monday, August 16, 2010. This suggests that the Ninth Circuit is preparing to rule on the Motion to Stay before Judge Walker’s temporary stay expires on August 18th at 5:00 p.m.

It’s surprising that the Court only gave the Plaintiffs about 9 hours to file their brief, and gave the Appellants until Monday to Reply. But I wouldn’t read too much into this. They know that everyone anticipated the Motion and that everyone’s briefs are essentially written already

[AtLast]

Does anyone know that if the appeal is struck down by the 9th Circut and the opposition (Prop 8 proponents) then try to go to the SC and it just does not take (cert)..... will Judge Walker's (and a 9th Circut strike-down) ruling then stand?

I know that one of the motivations behind the case brought was to just get the constitutionality issue to the federal SC, but, the SC can refuse to hear cases. Obviously, this one might just be one it wants to take on, but if not (or until it does) and the 9th Circut upholds Walker's decision, then same-sex marriages could simple happen and continue in CA, correct? And the opinion be used as precident setting for other states, yes?

Trying to put together some analysis I heard parts of today and not certain if my line of thinking is correct. Thinking about how critical it is for these marriages to get going again in terms of strenghth of numbers, etc. and the case for there being some same-sex couples married in CA and others not being allowed to under an unconstitutional amendment (which Prop 8 is in CA).

[MsTinkerbelly]

Originally Posted by AtLastHome

Does anyone know that if the appeal is struck down by the 9th Circut and the opposition (Prop 8 proponents) then try to go to the SC and it just does not take (cert)..... will Judge Walker's (and a 9th Circut strike-down) ruling then stand?

I know that one of the motivations behind the case brought was to just get the constitutionality issue to the federal SC, but, the SC can refuse to hear cases. Obviously, this one might just be one it wants to take on, but if not (or until it does) and the 9th Circut upholds Walker's decision, then same-sex marriages could simple happen and continue in CA, correct? And the opinion be used as precident setting for other states, yes?

Trying to put together some analysis I heard parts of today and not certain if my line of thinking is correct. Thinking about how critical it is for these marriages to get going again in terms of strenghth of numbers, etc. and the case for there being some same-sex couples married in CA and others not being allowed to under an unconstitutional amendment (which Prop 8 is in CA).

I believe you are right. If the 9th Circut Court agrees with Judge Walker and the SCOTUS will not hear the case, then equal marriage in California stands and the opinion will be used as a precident in other states. If it is heard by SCOTUS and they agree with Walker, then it will be the law of the land. If they strike down Judge Walkers ruling, we will have to overturn Prop 8 by a ballot inititive.

[MsTinkerbelly]

If you go to the website joemygod, you can read Jerry Brown's answer to the request for a stay. It is only 4 pages and just reiterates his previous stance that he doesn't want the decision to be stayed, and he doesn't think the yes on hate people have any standing.

[UofMfan]

Prop 8: Gay-Marriage Opponents May Be Unable to Appeal
Time.com

By MICHAEL A. LINDENBERGER Michael A. Lindenberger – Fri Aug 13, 7:40 pm ET

If same-sex weddings resume in California next Thursday, the happy couples may have more names to add to their thank-you lists than that of U.S. District Judge Vaughn Walker, the San Francisco jurist who last week struck down the 2008 voter-approved constitutional amendment that made gay marriage illegal. They may have to address new cards to Governor Arnold Schwarzenegger and California attorney general Jerry Brown.

That's because Brown and Schwarzenegger's choosing not to appeal Walker's Aug. 4 ruling - and their contention that the state is ready to begin issuing same-sex wedding licenses immediately - may turn out to be almost as decisive a factor as the historic court ruling last week. That possibility emerged Thursday in an 11-page ruling Walker issued to deny a request by Proposition 8's proponents for him to delay implementing his own ruling allowing gay marriage until they can appeal the case to the Ninth Circuit and perhaps all the way to the Supreme Court. (See why Prop 8 was upended.)

But in a twist that caught some experts off guard, Walker not only denied the motion but did so in a way that raises serious questions whether Prop 8 proponents have any right to appeal the case at all. He ruled that they not only failed to show that the resumption of gay marriage would do them personal, irreparable harm, but that they likely lacked the legal standing to request to appeal. Instead, he suggested, their only remedy may be a political one - as unlikely as that may be. "In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction," he wrote. (See how an unlikely pair of allies are making a Supreme Court case for gay marriage.)

Walker's reasoning is this: the actual defendants in the lawsuit brought by two same-sex couples last year weren't the folks who brought Prop 8 to the ballot two years ago. Instead, the suit named Schwarzenegger and Brown. When those two officials declined to mount a defense - an unusual and controversial decision by Brown, whose job normally includes the defense of all state law - Walker allowed the group behind ProtectMarriage.com to step in and defend the case at trial. But, he said in Thursday's order, just because they were allowed to intervene to defend Prop 8 at trial doesn't mean that they would have independent standing to bring an appeal in the event that the named parties in the case chose not to do so. "When proponents moved to intervene in this action, the court did not address their standing independent of the existing parties," he wrote. "This court has jurisdiction over plaintiffs' claims against the state defendants pursuant to 28 USC S 1331. If, however, no state defendant appeals, proponents will need to show standing in the court of appeals." (Comment on this story.)

That could mean trouble for the proponents. Walker gave the proponents until 5 p.m. on Aug. 18 to take their motion for a stay to the Ninth Circuit, where three judges who serve on a monthly motions panel will likely hear it. If they uphold Walker's ruling denying the stay, the only recourse for the proponents will be to ask the Supreme Court to intervene. To do so means asking the justice assigned to the Ninth Circuit to hear the motion. Ironically, in this case, that would be Justice Anthony Kennedy, the court's frequent majority maker who Supreme Court oddsmakers have long said holds the decisive vote if the question of gay marriage is ever decided there.

But if the appellate judges agree with Walker that the proponents lack standing to appeal, the case may never reach the appellate courts at all, at least not on its merits. That would mean a win for gay marriage in California, as it rejoins the five other states (and D.C.) where gay marriage is legal. But it would also mean that the case would have much less national importance. The first federal decision - Walker's - ruling in favor of gay marriage would remain the only one, and would have no direct impact on marriage laws in any other state.

And to add another twist, at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet's nest he may have been better off leaving undisturbed. "If the proponents don't have standing to appeal, then it's entirely plausible that the courts will rule that they did not properly have standing to go to trial," Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. "This is an issue he glossed over when he allowed them to intervene in the trial."

Amar says that if the Ninth Circuit agrees with Walker that the proponents don't have standing to appeal, the judges may well decide they shouldn't have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene - but on the other hand, come November, voters will choose new candidates for both of those offices.

In that event, what happens next is anybody's guess. "We're in uncharted waters here," Amar told TIME.

[Jess]

We had the privilege of hearing this brilliant young man speak yesterday at the Big Commit Rally. He is the boy from Arkansas who refused to say the pledge of allegiance until ALL people can get married.