Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyAugust 12th, 2010
From the LA Times
A federal judge Thursday refused to permanently stay his ruling overturning Proposition 8’s ban of gay marriage but extended a temporary hold to give supporters time to appeal the historic ruling.
U.S. District Court Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. No new marriages can take place until then.
This is perhaps the most appropriate response. When we get the order we will know the language, but it appears that the Judge has ruled that the defendants have no likelihood of winning at the Ninth Circuit Court of Appeals, and therefore no stay on his ruling should be held, but he also is allowing time for the Ninth Circuit to weigh in and not create a situation in which marriages occur that may be ruled invalid within days or weeks.
Should the Ninth Circuit refuse to grant a stay, then they are unlikely to consider any intermediate marriages to be invalid regardless of their ruling.
There is not yet any word as to whether the defendant-intervenors has standing to appeal the judge’s ruling.
UPDATE:
The order reads (PDF: 40 KB/11 pages)
Judge Walker also suggests that the supporters of Proposition 8 may not have standing to request a stay:
To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing.
The state defendants have chosen not to appeal.
The Judge’s logic is that only the state is involved with the implementation of marriage licenses. And to prove his point he relies on the decision made in 2004 to stop the City of San Francisco from issuing marriage licenses.
In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages.
And if the ruling does not impact them in any way – they don’t have to issue licenses or register them or do anything they don’t want to do – then they haven’t experienced harm. And not having not “suffered an injury in fact”, they have no standing to appeal.
It appears that the earlier decision to allow the Prop 8 Supporters to intervene was based on the recognition that they had an interest in Proposition 8. But that interest may not extend to marriage law, per se. For the case to go forward, the State must appeal, or the interveners “need to show standing in the court of appeals.”
In short, being allowed to bring in your lawyers to argue the state’s case (because you think they will not do a good job) does not magically make this your case.
And this is not without precedent
The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.
Basically the judge said: you have no standing, if you are allowed to appeal you likely won’t win, you can’t argue on the behalf of the state any more – you aren’t the state and both the Governor and AG disagree with you, you aren’t harmed in any way but staying the decision would harm both gay people and the state as a whole. But I’ll give you a week to convince the Ninth Circuit otherwise.
Latest Posts
Featured Reports
In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.
When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.
In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.
On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.
Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
At last, the truth can now be told.
Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!
And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.
Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.
Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.
Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.
The FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.
“Google” is a trademark of Google Inc.
© Box Turtle Bulletin. All Rights Reserved.
Posts 
Posts via daily email:
Matt
August 12th, 2010
In a way that almost feels like a win for the proponents, who had asked for such a temporary stay in their motion as an alternative to a full stay.
TBH, I’d tell the Courage Campaigners et al to hold off on those press releases for a little while longer.
Jason D
August 12th, 2010
thought the same thing!
L. Junius Brutus
August 12th, 2010
This may not be over yet:
http://latimesblogs.latimes.com/lanow/2010/08/imperial-county-appeals-judges-ruling-overturning-gay-marriage-ban-prop-8.html
Timothy Kincaid
August 12th, 2010
Brutus,
Imperial County has no more standing than did San Francisco City/County in 2004
Jason D
August 12th, 2010
exactly. If the supremes of CA say that marriage is the domain of the state, than imperial COUNTY doesn’t have standing.
Matt
August 12th, 2010
Re: Imperial County (and, presumably, any other county), they can try to appeal but the judge made it pretty clear in this order that they don’t have legal standing to appeal this either.
Ryan
August 12th, 2010
What about religious state officials who would be forced to issue same sex marriage licenses? It does affect them directly. Might they conceivably have standing?
Scott
August 12th, 2010
No Ryan,
They have a job to do. A “religious” person who didn’t want to marry a Jew and a Christian wouldn’t have any more standing than a clerk who opposed same sex marriage. It’s their job, they need to do it or move on to another career.
Jason D
August 12th, 2010
Ryan, with Schwarzenegger and the CA Attorney General both declining to defend (or appoint a defender) a lower level employee wouldn’t be eligible either.
Ryan
August 12th, 2010
Yes Scott, but you’re not getting what I’m saying. In the article, BTB wrote that the Protect Marriage people can’t demonstrate harm because they’re not forced to issue licenses, participate, etc. A state employee •would• be forced to do so, under penalty of losing his job. It’s dumb, I’m not arguing that, but conceivably this employee could claim direct harm from the ruling. I’m probably way off, but just wondering. I’d like to see this appealed all the way. Why settle for just CA when we can go all the way?
Scott
August 12th, 2010
They’d have to show harm by performing the marriage. Harm by not doing your job is a different story.
The clerk can’t show harm by simply signing a marriage certificate (other than possible carpel tunnel).
John in the Bay Area
August 12th, 2010
If there is no appeal, this case will be limited to California. The Supreme Court does have an option to pull a case directly from a court to address an issue that may have larger implications. I know of a case out of Guam that was handled that way without ever going through the appeals process.
Timothy Kincaid
August 12th, 2010
MY TEA LEAVES
Pure guesswork, but here’s what I predict.
The 9th and the SCOTUS will find that Prop 8 folk have no standing. And therefore this case is limited to California.
This will do two things: 1) it will provide precedent (without SCOTUS actually having to come right out and deal with the matter); 2) it will send a psychological message that this issue is now decided and is only a matter of time and formality. Marriage equality will become, in the minds of the populace, the new norm, the new usual.
And just as most people across the country assumed that gay sex was perfectly legal – even when it wasn’t in a handful of states – I think folks will soon be surprised that their state doesn’t recognize marriage. “Oh, but I thought that judge in California…” It will probably be another decade or so before marriage equality is everywhere (by law or by court), but if this does not go to SCOTUS then we win.
Bruno
August 12th, 2010
I’d look forward to 2 rulings from the the 9th Circuit. The 1st will probably come next Wednesday with 1-3 members of the Motions panel, and it’ll probably grant an emergency temporary stay until the subject of appeal comes up. Not sure when that will come up; at that point is when a different 3-person panel may decide whether or not the defendant-intervenors can appeal. It would seem maybe in a few months we could see marriages in this scenario if an appeal is denied, but I hope sooner.
cd
August 12th, 2010
3) Everywhere where a state government decides not to defend its mini-DOMA in federal court, the courts can overturn it and the anti-marriage people might not be able to appeal the overturn.
The state government could then just wait until the statutory amount of time passes that the appeal won’t be accepted. So long as the USSC decides to not hear any appeal the anti side is screwed.
That’s the danger for Ms. Outofwedlock Srinavastav: a bunch more states in the relatively liberal Federal Circuits might just do their own reruns of Perry v Schwarzenegger.
Stephen
August 13th, 2010
This is the easiest way out for them. It has no meaning nationally and without a federal ruling any same-sex marriage ruling in CA is, essentially, meaningless. We are legally married in Canada (7 years ago), our marriage is recognized and valid in NY state, but practically speaking that means nothing. What legal protections we have come from our own efforts. I suppose it helps with hospitals, etc, but only here in NY. I just drove up from Miami. Had I been involved in a wreck in, God forbid, Virginia or the Carolinas, my husband’s rights (and mine) would still be at the mercy of the locals.
Unless this is appealed and moves forward the CA decision means nothing to the rest of us and precious little to Californians.
iDavid
August 13th, 2010
I agree with you Timothy.
Would it not possibly follow that a flurry of state based lawsuits, particularly in states that ban gay marriage, would ensue post haste based on the precedent set by your Tea Leaf analogy?
I can’t get it out of my head why the religiots get caught up in any legal proceedings, ever.
Historical data proves that rubbing their faces in rational thought is very very bad for their health.
When the butter clarifies on Prop 8 as it seems to be doing as we speak, it seems the ‘I don’t want to share the marriage sand box because you’re an icky-poo-poo’ defense, in the end, is the only “standing” they’ve ever had.
Hall
August 13th, 2010
If you look back to same-sex marriage in Canada, a similar situation happened. Restricting marriage to opposite-sex couples was deemed unconstitutional according to the Court of Appeal for Ontario and the federal government did not appeal. Then similar cases occurred in other provinces and territories legalizing same-sex marriage, and eventually it came to the point where the federal government just modified the law to codify it for the few remaining states and territories without marriage equality.
While marriage in America is a state issue rather than a federal one, it could be that we end up following a similar path. The arguments involving the 14th amendment are often much stronger and compelling than many of the arguments used with state constitutions and if enough states follow this path, it could be difficult for the Supreme Court to rule against same-sex marriage considering the growing public support and the fact that ruling against it would forcibly divorce hundreds or thousands of couples.
cowboy
August 13th, 2010
iDavid typed:
“…you’re an icky-poo-poo’ defense, in the end,…”
Could we have phrased that in a better way?
Stephen
August 13th, 2010
I don’t understand this ‘marriage is a states’ rights issue’. Maybe I misunderstand but surely marriage is a federal law. Otherwise foreign marriages need not be recognized. Interracial marriage was recognized federally first, then states made their own laws, no? Sort of the opposite to our situation where DOMA has made our marriage illegal on the federal level.
As to seeing it happen in the Canadian manner: It is not in the interests of the Republicans to resolve this issue. Just as it’s not in their interest to resolve immigration. They raise huge amounts of money from both and they’re not about to let those sources dry up when they can keep them going.
Timothy Kincaid
August 13th, 2010
Stephen,
prior to DOMA, marriage was not a federal law. The qualifications for marriage (age, relationship, etc.) are different in each state.
Interracial marriage was recognized in many states first and, in fact, is not federal law. Eventually the US Supreme Court told the remaining states that in defining their qualifications for marriage they could not consider race, but the laws still were state laws.
Think of it like, say, a company who is sued for racial discrimination. That company can still do the hiring and firing, they just can’t do it based on race.
iDavid
August 13th, 2010
@Cowboy
I didn’t see that, how asstute of you.
However now that you bring it up, let us not ignore the elephant in the room.
Since the underlying fire in the Prop 8’s proponents underpants is all about the ick factor of Levitical non Biblical butt sex, maybe ‘the butt stops here’ defense may sound a bit more tidy.
SCOTUS took care of that to our favor in Lawrence vs Texas.
Nonetheless, it’s the unspoken bottom line (woops) to the entire proponents defense in this gay marriage debacle. All else built on that foundation has purportedly fortunately proven frivolous. Yay to that.
cd
August 13th, 2010
The states all have state constitutional provisions that guarantee equal protection, due process, and immunities and privileges. You can’t pretend to have a functional justice system without those. (The federal and Confederate Constitutions are essentially distinguished by the 14th Amendment.) But there’s substantial nationwide variation in the strength of language and interpretations and resulting state level jurisprudence, tradition, and expectations. This permitted by the 10th Amendment, and that’s the basis for the ‘states’ rights’ sloganeering- whose meaning is that states have a limited right to operate less justly than others.
Several states have much stronger ones than the federal Constitution, where the duty of the state to maximize and provide these protections is set higher and is realized more extensively than is the case for the federal 14th Amendment. Massachusetts probably has the strongest- which is why the Goodridge lawsuit was brought there and succeeded. California also is substantially above the mean. As is Iowa.
But most states have EP/DP/I&P clauses written to be weak or difficult to enforce, local ‘tradition’ of non-enforcement, muddled and dubious precedents for the state courts to work with, and low or dismal expectations within the local legal and justice establishments. In those states civil rights plaintiffs tend to have to resort to federal court because its standards are higher.
Jon
August 13th, 2010
It’s important to note that the question here is whether the proponents have standing to appeal the denial of the stay. You only get a stay of a trial court judgment pending appeal if you can show some harm to yourself if the judgment is not stayed. The proponents can’t show that.
But any person that was a property party to the trial court case has standing to appeal that case if they lose. So there’s no doubt that the proponents can appeal the underlying decision — if they can’t appeal now, they never should have been in as defendants in the first place.
Thus, I think it’s likely that the proponents will lose their appeal of the denial of the stay, and marriages will go forward. I won’t predict whether the proponents will ultimately win their appeal on the entire case, but if they do, the marriages entered into will likely be treated the same as the existing 18,000 same-sex marriages in California.
Stephen
August 13th, 2010
Thanks, Timothy. Though I’ve lived in the States for a long time I’m not American and still find the ‘States’ rights’ idea bewildering.
Leave A Comment