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 15th, 2010
Erwin Chemerinsky, constitutional scholar and dean of the UC Irvine School of Law, wrote an op-ed for the LA Times on why, if the court follows well-established law, they will need to dismiss the Prop 8 Proponents’ appeal of Judge Walker’s ruling in Perry v. Schwarzeneger on grounds that those who filed it have no standing:
The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge’s ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.
In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed “grave doubt” as to whether supporters of an initiative have standing to appeal to defend it.
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Tony P
August 15th, 2010
Actually I’d love to see the appeal moved forward so that it eventually moves to the USSC and we get equality for ALL like it says in the Constitution and its Amendments.
johnathan
August 15th, 2010
Tony, I wholeheartedly agree. I fear if the appeal does NOT move forward, there may not be a case with such strong merits as Perry v. Schwarzenegger in a long time.
As far I understand, if the stay is denied, this does not prohibit the “ProtectMarriage” side the right of appeal. So, at least they will have an opportunity to present their side to the District Court (should the Ninth Circuit so choose to take on the case). It would be great if this case is appealed all the way up to SCOTUS, but, then again, if Olson and Boies lose, that would be horrible for GLBT people everywhere.
David C.
August 15th, 2010
Tony and johnathan:
From the point of view of risk management, and were Prop 8 to meet its demise next week, the longer-term march to full LGBT rights in this country might be better and more rapidly advanced by having successfully defeated an anti-marriage equality plebiscite on constitutional grounds, even if (and perhaps especially so) if it is in a single but large state like California. No matter what, the ultimate goal is invalidation of DOMA, and victory over state-by-state gay exclusionary legislation is almost a forgone conclusion if DOMA is finally declared unconstitutional.
RWG
August 16th, 2010
I agree with David C. The ruling in Perry, if upheld, forms a very solid foundation with which to challenge similar discriminatory laws around the country, and builds wider understanding in the public of the fact that these laws are unconstitutional, including DOMA. We should be very happy indeed with what has been accomplished. Perry is truly a watershed event in the history of our struggle for equality under the law. After New York and New Jersey achieve marriage equality, almost a certainty now, a full one-quarter of the nation will be living with marriage equality. That will be the tipping point and the war will be very quickly won thereafter.
Désirée
August 16th, 2010
I would like to see this go to the 9th circuit not because I win there means equality for more states, but because it removes the ability of the other side to claim this just the ruling of one activist gay judge. Having 3 9th circuit judges (or 9 or however it works out) makes that a much harder claim to sustain. I don’t want the anti-equality crowd to be able to say they didn’t get their fair shot in court, which true or false, they will do if the appeal gets tossed on the question of standing. I’d rather the 9th circuit toss the appeal on the grounds that based on the evidence, they most likely wouldn’t win. That takes away their thunder and gives us a much more solid victory. Sure Judge Walker’s ruling is a masterpiece but it is still quite easy for any other judge to ignore it in the future. Ignoring the 9th circuit is a little harder.
customartist
August 16th, 2010
The NEXT logical step on the agenda should be an Olsen/Boies challenge to the Constitutionality of the Federal Government’s not acknowleging California Gay Marriages using the very same plaintiffs.
Mark F.
August 16th, 2010
If the Intervenors are denied standing to appeal, this means that the state can de facto nullify any law it doesn’t like by refusing to defend it in court. This seems wrong to me.
Désirée
August 16th, 2010
@Mark: not entirely true since there was a trial and had the Prop8 people had any evidence at all, they could have won the case, so the state can’t automatically nullify a law.
However, the idea that the state would have a law that the state doesn’t want to defend is fairly absurd anyway and occurs only because California is one of the states that allows ballot propositions to become law – a horrible system that promotes extremes and avoids the compromise that results from the legislature making law.
Publius
August 16th, 2010
I just learned that the Ninth Circuit has issued an indefinite stay on Walker’s decision of Aug 4, 2010. Furthermore, the hearing as to whether appellants have standing to appeal is scheduled for December, which of course will be moot if Republicans are elected as either Governor or Attorney General in November. Meanwhile, Schwarzenegger and Brown are being pressured by the religious reich to appeal Walker’s ruling. It seems like the federal Appeals Court is doing what it can to deep-six same-sex marriage.
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