Same-Sex Marriage Update

[iamkeri1]

Ms Tinkerbelly,

Do you know how long "they" plan to keep same sex marriage on hold in CA while waiting for further appeals? Also, am I mistaken, or wasn't the purpose of the last hearing to decide if any one/group had standing to file such an appeal? And wasn't it decided that no group existed with standing to file an appeal?

Thanks so much for being such a great ongoing source of information.

Hugs and smooches,
Keri

[Corkey]

http://nomexposed.org/2011/01/03/bre...night-tonight/

Keeping an eye out for this tonight.

[Soon]

Debate Watch: 100% Of RNC Chair Candidates Denounce Same-Sex Marriage

RNC Chairman Michael Steele is fighting for his job at today's debate, where every single candidate responded to NOM's question on marriage equality by invoking Jeebus, traditional values, and the sanctity of one man-one woman.

[MsTinkerbelly]

Originally Posted by iamkeri1

Ms Tinkerbelly,

Do you know how long "they" plan to keep same sex marriage on hold in CA while waiting for further appeals? Also, am I mistaken, or wasn't the purpose of the last hearing to decide if any one/group had standing to file such an appeal? And wasn't it decided that no group existed with standing to file an appeal?

Thanks so much for being such a great ongoing source of information.

Hugs and smooches,
Keri

I believe we will have a decision from The 9th Circut this week, but for the life of me I can't find where I posted that before, or where I found it in the first place!

If the decision comes down that Prop 8 is out and we can marry in California again, I am not sure if the Federal Appeals Court or the SCOTUS will grant a stay until the case can be heard or passed on by the SCOTUS.

Sorry, clear as mud!

[MsTinkerbelly]

BREAKING: 9th Circuit rules on the Prop 8 case
By Adam Bink

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The case is withdrawn from submission, and further proceedings in this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.

[MsTinkerbelly]

BREAKING: 9th Circuit Court Punts Prop 8 To State Supreme Court On "Standing"

Analysis and reactions shortly.

[MsTinkerbelly]

My Opinion....

This is the moment...If the appllants (US) do not have standing, then the case will probably be thrown out and we will have to live with Prop 8 until the next election in 2012.

It is up to the California Supreme Court (which once ruled in our favor and allowed equal marriage) to decide the standing issue.

I am a "the glass is half full" kind of person, but I have a really bad feeling about all of this.....

[weatherboi]

http://www.advocate.com/News/Daily_N...Antigay_Group/

[MsTinkerbelly]

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.