Same-Sex Marriage Update

Corkey · 08-08-2010, 03:06 PM

Got to love those two Olsen and Boies!

Jess · 08-09-2010, 06:57 AM

Quote:

Originally Posted by Corkey

Got to love those two Olsen and Boies!

Yeah! Kinda restores faith that not EVERY white male conservative is equated to biggot supremist asshole as is too often painted.

MsTinkerbelly · 08-09-2010, 12:37 PM

Does anyone know when the ruling on whether or not the stay remains in place is going to be published?

I am watching this closely, even though we were already married!

MsTinkerbelly · 08-09-2010, 02:49 PM

On the Prop 8 Stay and Standing
by Brian Devine

I predict we’ll have Judge Walker’s ruling on the Motion to Stay either today or tomorrow. And I predict he’ll deny the stay, allowing same-sex couples full marriage equality for the first time since that bittersweet night in November 2008.

While we wait, let’s take a look the issue of “standing” and what it means to the stay and the appeal of Judge Walker’s opinion.

What’s “Standing”

Article III of the US Constitution gives Federal Courts the limited jurisdiction to decide actual cases or controversies. This is referred to as “Article III standing.” To have standing to bring a lawsuit or to pursue an appeal, a party must show that he or she has suffered an: “injury in fact —— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”

To appeal a decision, the Prop 8 supporters must show that allowing same-sex couples the right to get married somehow invades their rights and causes them harm. Remember, though, that Judge Walker already ruled that “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” In other words, if Prop 8 did not exist, the rights of those people who support Prop 8 would not be affected. Consistent with this holding, Judge Walker should find that the Prop 8 supporters do not have standing because they will not suffer any “concrete and particularized” harm if Prop 8 is not enforced.

The best argument that Prop 8 supporters can make is that they would be injured by the simple fact that California is not enforcing a law passed by the People. But the Supreme Court has held that “[an] asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” (Allen v. Wright, 468 U.S. 737, 754 (1984))

I think there’s a good chance Judge Walker will find that the Prop 8 supporters lack standing. The only parties in the case who do have standing (the Plaintiffs and the State) have not appealed and have affirmatively said that they do not want a stay. This means that if Judge Walker finds that the Prop 8 supporters do not have standing, he also will deny the motion to stay.

There is more, but I didn't have enough time.....sorry!

MsTinkerbelly · 08-09-2010, 03:51 PM

Brian Devine....

There is more…

Didn’t Judge Walker Already Rule That The Prop 8 Supporters Have Standing?

No. Judge Walker decided that the Prop 8 Backers could intervene, not that they have Article III standing. To intervene in a case, a party does not need to show that they have standing. That’s because a “case or controversy” already exists. (The Plaintiffs had standing to bring the case because they were being denied their constitutional right to get married.) Since both the Plaintiffs and the Defendants already had standing, the Court had jurisdication over the “case.” From there, deciding that the Prop 8 supporters could intervene in the case was an easy call. The law of the Ninth Circuit holds that a “public interest group may have a protectable interest in defending the legality of a measure it had supported.”

But this does not mean that it has standing. To the contrary, on several occasions the Supreme Court has recognized that a party who was allowed to intervene in litigation does not necessarily have standing. For example, the Supreme Court said:

[I]f the original party on whose side a party intervened drops out of the litigation, the intervenor will then have to establish its own standing to continue pursuing litigation. (Diamond v. Charles, 476 U.S. 54, 64, (1986))

Could This End Here And Now?

Maybe at the Ninth Circuit. While the popular spin is that this case “is certain to be resolved at the Supreme Court,” that’s not entirely clear. If Judge Walker rules that the Prop 8 supporters do not have standing, that does not necessarily mean they can’t appeal. The Ninth Circuit will independently decide the issue of standing. But if the Ninth Circuit decides that the supporters of Prop 8 do not have standing, it will reach only the issue of standing, not the much harder question of deciding whether Prop 8 is constitutional.

If A Stay Is Granted, Can The State Still Issue Marriage Licenses?

Yes. All a stay does is prevent the Court Clerk from entering judgment. It does not erase Judge Walker’s decision, and it does not prohibit the defendant (the State) from voluntarily complying with the decision by issuing marriage licenses to all couples, regardless of gender. A Federal District Judge has declared that Prop 8 is unconstitutional. Even if judgment in the case is stayed pending appeal, it would be perfectly reasonable for the State to decide that it will stop enforcing Prop 8 until and unless Judge Walker’s decision is reversed by another Court.

If the State began enforcing Judge Walker’s opinion on its own, I would expect the Prop 8 supporters to file a new lawsuit (in State Court) seeking an injunction requiring the State to enforce Prop 8. This might bring back memories of 2004 when the Supreme Court held that the City and County of San Francisco did not have the authority to issue marriage licenses to same-sex couples. However, that case (Lockyer v. City and County of San Francisco) was based on California Constitution Article III, section 3.5 which prohibits administrative agencies from deciding on their own to not enforce laws based on their belief that the law is unconstitutional. However, if the Governor or the Attorney General made that decision, section 3.5 does not apply. I haven’t researched it, but I don’t know that anything would prohibit the Governor or the Attorney General from deciding to enforce a District Court’s order declaring Prop 8 invalid, even if that judgment were stayed pending appeal.

So with that, we now wait for Judge Walker order on the Motion to Stay. . . Stay tuned . . .

iamkeri1 · 08-09-2010, 11:38 PM

Ms Tinkerbelly,
Since this decision has been made in a federal court, does it generalize to other (all?) states. Will this be used (or could it be used) to strike down all laws banning gay marriage?... and other restriction of gay folks civil rights? How about it's impact on tg/ts folk?

When I first heard about the ruling I was very excited. When I heard news commentators discuss the widespread impact of this ruling, I got even more excited. What is your opinion regarding the universality of this judgement?

I thank you for the time you have put in to making this understandable for all of us.
Smooches,
Keri

MsTinkerbelly · 08-10-2010, 08:01 AM

Quote:

Originally Posted by iamkeri1

Ms Tinkerbelly,
Since this decision has been made in a federal court, does it generalize to other (all?) states. Will this be used (or could it be used) to strike down all laws banning gay marriage?... and other restriction of gay folks civil rights? How about it's impact on tg/ts folk?

When I first heard about the ruling I was very excited. When I heard news commentators discuss the widespread impact of this ruling, I got even more excited. What is your opinion regarding the universality of this judgement?

I thank you for the time you have put in to making this understandable for all of us.
Smooches,
Keri

I have had a great deal of time to think about this since the beginning of the Federal trial, and I will share my non-legal minded thoughts.

The smartest thing that the Prop 8 supporters could do is to let it all drop with Judge Walkers ruling. Now, being the hateful bigots that they are, they will find that impossible....but just suppose they did? The matter would end in California until another State went to Federal court and had the issue decided for THEM. They might win they might lose, BUT the matter would still be at the State level and would take years/decades/forever to be country wide going to court State by State.

If our case goes to the 9th circut court of appeals, then it will most likely go to the Supreme Court. Now that doesn't mean they will take up the matter, but if they do then Equal Marriage in the United States might happen within my lifetime. That is something I never thought possible...it makes me get all teary eyed just thinking about it.

As far as Transgender rights, I suppose that equal would mean for everybody....but I've been wrong before!

I hope I've been clear!

Blessings

MsTinkerbelly · 08-10-2010, 01:03 PM

Quote:

Originally Posted by iamkeri1

Ms Tinkerbelly,
Since this decision has been made in a federal court, does it generalize to other (all?) states. Will this be used (or could it be used) to strike down all laws banning gay marriage?... and other restriction of gay folks civil rights? How about it's impact on tg/ts folk?

When I first heard about the ruling I was very excited. When I heard news commentators discuss the widespread impact of this ruling, I got even more excited. What is your opinion regarding the universality of this judgement?

I thank you for the time you have put in to making this understandable for all of us.
Smooches,
Keri

I just read my first thing in the morning not much coffee answer and realized I wanted to be clear on one of the questions you asked.

snip{Since this decision has been made in a federal court, does it generalize to other (all?) states. }

Since the case in California is based on the 14th amedment to the Constitution of the United States, the answer is Yes it will affect all 50 States. It would be the same as the rulings ending the ban on interracial marriage....consistant across the country, whether the bigots liked it or not.

08-08-2010, 03:06 PM	#1
Corkey Infamous Member How Do You Identify?: Human Preferred Pronoun?: He Relationship Status: Very Married Join Date: Dec 2009 Location: Where I want to be Posts: 8,155 My Photo Gallery Thanks: 47,491 Thanked 29,269 Times in 6,637 Posts Rep Power: 21474860	Got to love those two Olsen and Boies! __________________ "Many proposals have been made to us to adopt your laws, your religion, your manners and your customs. We would be better pleased with beholding the good effects of these doctrines in your own practices, than with hearing you talk about them". ~Old Tassel, Chief of the Tsalagi (Cherokee)

08-09-2010, 02:49 PM	#4
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 22,895 Times in 5,017 Posts Rep Power: 0	Prop 8 trial tracker On the Prop 8 Stay and Standing by Brian Devine I predict we’ll have Judge Walker’s ruling on the Motion to Stay either today or tomorrow. And I predict he’ll deny the stay, allowing same-sex couples full marriage equality for the first time since that bittersweet night in November 2008. While we wait, let’s take a look the issue of “standing” and what it means to the stay and the appeal of Judge Walker’s opinion. What’s “Standing” Article III of the US Constitution gives Federal Courts the limited jurisdiction to decide actual cases or controversies. This is referred to as “Article III standing.” To have standing to bring a lawsuit or to pursue an appeal, a party must show that he or she has suffered an: “injury in fact —— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” To appeal a decision, the Prop 8 supporters must show that allowing same-sex couples the right to get married somehow invades their rights and causes them harm. Remember, though, that Judge Walker already ruled that “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” In other words, if Prop 8 did not exist, the rights of those people who support Prop 8 would not be affected. Consistent with this holding, Judge Walker should find that the Prop 8 supporters do not have standing because they will not suffer any “concrete and particularized” harm if Prop 8 is not enforced. The best argument that Prop 8 supporters can make is that they would be injured by the simple fact that California is not enforcing a law passed by the People. But the Supreme Court has held that “[an] asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” (Allen v. Wright, 468 U.S. 737, 754 (1984)) I think there’s a good chance Judge Walker will find that the Prop 8 supporters lack standing. The only parties in the case who do have standing (the Plaintiffs and the State) have not appealed and have affirmatively said that they do not want a stay. This means that if Judge Walker finds that the Prop 8 supporters do not have standing, he also will deny the motion to stay. There is more, but I didn't have enough time.....sorry!

08-09-2010, 03:51 PM	#5
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 22,895 Times in 5,017 Posts Rep Power: 0	The rest.... Brian Devine.... There is more… Didn’t Judge Walker Already Rule That The Prop 8 Supporters Have Standing? No. Judge Walker decided that the Prop 8 Backers could intervene, not that they have Article III standing. To intervene in a case, a party does not need to show that they have standing. That’s because a “case or controversy” already exists. (The Plaintiffs had standing to bring the case because they were being denied their constitutional right to get married.) Since both the Plaintiffs and the Defendants already had standing, the Court had jurisdication over the “case.” From there, deciding that the Prop 8 supporters could intervene in the case was an easy call. The law of the Ninth Circuit holds that a “public interest group may have a protectable interest in defending the legality of a measure it had supported.” But this does not mean that it has standing. To the contrary, on several occasions the Supreme Court has recognized that a party who was allowed to intervene in litigation does not necessarily have standing. For example, the Supreme Court said: [I]f the original party on whose side a party intervened drops out of the litigation, the intervenor will then have to establish its own standing to continue pursuing litigation. (Diamond v. Charles, 476 U.S. 54, 64, (1986)) Could This End Here And Now? Maybe at the Ninth Circuit. While the popular spin is that this case “is certain to be resolved at the Supreme Court,” that’s not entirely clear. If Judge Walker rules that the Prop 8 supporters do not have standing, that does not necessarily mean they can’t appeal. The Ninth Circuit will independently decide the issue of standing. But if the Ninth Circuit decides that the supporters of Prop 8 do not have standing, it will reach only the issue of standing, not the much harder question of deciding whether Prop 8 is constitutional. If A Stay Is Granted, Can The State Still Issue Marriage Licenses? Yes. All a stay does is prevent the Court Clerk from entering judgment. It does not erase Judge Walker’s decision, and it does not prohibit the defendant (the State) from voluntarily complying with the decision by issuing marriage licenses to all couples, regardless of gender. A Federal District Judge has declared that Prop 8 is unconstitutional. Even if judgment in the case is stayed pending appeal, it would be perfectly reasonable for the State to decide that it will stop enforcing Prop 8 until and unless Judge Walker’s decision is reversed by another Court. If the State began enforcing Judge Walker’s opinion on its own, I would expect the Prop 8 supporters to file a new lawsuit (in State Court) seeking an injunction requiring the State to enforce Prop 8. This might bring back memories of 2004 when the Supreme Court held that the City and County of San Francisco did not have the authority to issue marriage licenses to same-sex couples. However, that case (Lockyer v. City and County of San Francisco) was based on California Constitution Article III, section 3.5 which prohibits administrative agencies from deciding on their own to not enforce laws based on their belief that the law is unconstitutional. However, if the Governor or the Attorney General made that decision, section 3.5 does not apply. I haven’t researched it, but I don’t know that anything would prohibit the Governor or the Attorney General from deciding to enforce a District Court’s order declaring Prop 8 invalid, even if that judgment were stayed pending appeal. So with that, we now wait for Judge Walker order on the Motion to Stay. . . Stay tuned . . .

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08-09-2010, 12:37 PM	#3
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 22,895 Times in 5,017 Posts Rep Power: 0	Does anyone know when the ruling on whether or not the stay remains in place is going to be published? I am watching this closely, even though we were already married!

08-09-2010, 11:38 PM	#6
iamkeri1 Member How Do You Identify?: femme woman Preferred Pronoun?: she Relationship Status: solo Join Date: Nov 2009 Location: Central Florida Posts: 905 My Photo Gallery Thanks: 302 Thanked 2,155 Times in 659 Posts Rep Power: 16642921	Ms Tinkerbelly, Since this decision has been made in a federal court, does it generalize to other (all?) states. Will this be used (or could it be used) to strike down all laws banning gay marriage?... and other restriction of gay folks civil rights? How about it's impact on tg/ts folk? When I first heard about the ruling I was very excited. When I heard news commentators discuss the widespread impact of this ruling, I got even more excited. What is your opinion regarding the universality of this judgement? I thank you for the time you have put in to making this understandable for all of us. Smooches, Keri