Prop 8 Proponents’ new strategies

Timothy Kincaid

September 20th, 2010

When Governor Schwarzenegger and Attorney General Brown opted not to appeal Judge Walker’s decision in Perry v. Schwarzenegger, it was unclear whether the Proponents of Proposition 8, who had been allowed intervenor status to argue on its behalf in trial, had standing to appeal the decision. Case law seemed fairly clear that they did not.

When the Ninth Circuit Court of Appeals laid out the timeline for filing, they instructed the appellants to clarify under what legal theory they had standing in their opening brief, due last Friday. The Proponents have now filed their brief.

Oddly, it appears that they are now conceding that the Proponents do not have standing to appeal. They do lay out extensive arguments as to why they should have standing, but they advise the court that it need not agree with them and seems to direct the court to not even consider their arguments.

Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.

Their entire appeal hinges on the legal argument that Deputy County Clerk Isabel Vargas of Imperial County has standing to appeal and it is her appeal that should be heard.

On December 15, 2009, the Imperial County Board of Supervisors sought intervenor status in the case. They argued that because Deputy Clerk Vargas issues marriage licenses, she (and they) ought to be able to intervene in the case. However, their real intent was stated from the onset:

Proposed Intervenors respectfully request an order allowing them to intervene in this case to guard a significant protectable interest in the subject matter of this lawsuit and to ensure the possibility of appellate review of this Court’s ultimate decision.

Imperial County and Deputy Clerk Vargas made no pretense that they were there to conduct discover or introduce evidence. Rather, their sole purpose was to provide standing should the governmental interests choose not to appeal.

This request was problematic; the deadline for intervention was July 24, 2009, and the court was already well into discovery. Their motion was not even submitted until January 6, 2010, just a few days before opening statements.

Judge Walker did not release his decision on their intervenor status until the Perry decision was released. He denied their intervenor request, but not due to the date or to their lack of interest in arguing the case. Rather, he denied their interest as a party to the case.

Vargas’s duties as a county clerk are purely ministerial and do not create a significant protectible interest that bears a relationship to the plaintiffs’ claims in this litigation.

Imperial County has no legally-recognized government role in the interpreting the marital statutory scheme, much less one capable of establishing the significant protectible interest required for intervention as of right.

And it is this decision that the Proponents are challenging with the Ninth Circuit. This is a rather risky legal strategy in that it requires that the Ninth Circuit make two distinct decisions, first that Vargas has an interest in the case and was falsely denied her standing as an intervenor in the trial of fact, and secondly that she is harmed by the decision and has standing as an appellate.

Naturally, the Proponents also argue against the merits of the decision. It’s all old hat and not particularly impressive. They go on a bit about the rather elderly and pre-Lawrence Baker v. Nelson and all of the rest that they presented in court.

But there was another item that caught my attention, a legal argument that is so contrary to my layman’s understanding of constitutional challenge that I laughed out loud. They argue that the unconstitutionality of Proposition 8 should be viewed as only relating to the four plaintiffs.

If this Court concludes that Proponents and the Imperial Intervenors lack standing to appeal, the judgment below must nevertheless be vacated. At a bare minimum, the district court exceeded its jurisdiction to the extent its judgment extends beyond the four Plaintiffs who were before the court. Because no class has been certified in this case, this Court “must vacate and remand,” for “the injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs.”

I think it rather likely that the Ninth Circuit will not be overly receptive to the idea that the US Constitution protects the fundamental right to marry of the four plaintiffs, but no one else.

There are times when I wonder whether they are trying to lose.

odinnite

September 20th, 2010

Could someone give me a brief explanation as to why San Francisco is permitted to be a party in the case but not Imperial County? They do not seem to be claiming that the fact that SF has standing means that IC does, so I assume there is some simple reason…

Timothy Kincaid

September 20th, 2010

odinnite,

San Francisco was arguing that they were a party harmed by Proposition 8. They provided evidence of the cost of the proposition on their local economy. Their standing had nothing to do with administering licenses.

odinnite

September 20th, 2010

got it thanks so much for your quick reply!

Rick in Kansas

September 20th, 2010

The city of San Francisco was granted only a limited right to intervene as a plaintiff, solely to present the issue of an alleged effect on governmental interests, in being required to enforce the amendment and nothing more. If the plaintiffs had lost, they’d be facing the same problem that Imperial County is now facing, not having standing.

In Walker’s ruling rejecting Imperial County’s motion to intervene, he said basically, that the role of local governments in enforcing marriage law in California is to essentially shut up and do what the state tells you. The basis for this finding, quite ironically, was the Lockyer case against the Newsom marriages. San Francisco offered to cite harm in having to live with this, but Imperial County had nothing to offer.

Kelly

September 20th, 2010

When you have absolutely no legitimate arguments whatsoever, all you’re left with is saying really deeply stupid stuff.

ebohlman

September 20th, 2010

I don’t think they’re trying to lose so much as that they’re less interested in winning than in dragging the case out as long as possible so they can keep fundraising.

gar

September 20th, 2010

Perhaps they feel that the battle is lost in CA and they want to limit the damage to CA rather than risk losing at the Sup. Ct.

Michael Ejercito

September 21st, 2010

If Walker’s reasoning on Imperial County’s standing is correct, then county clerks have no standing to be defendants in petitions for an injunction to issue a marriage license.

Contrast this with the 10th Circuit decision in Bishop v. Oklahoma . In Bishop , plaintiffs filed a constitutional challenge against DOMA and Oklahoma’s Question 711. In an appeal on a motion to dismiss, the Tenth Circuit dismissed the governor and attorney general as defendants because “these claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.” Indeed, after the state defendants were dismissed, the plaintiffs amended their claim to include Tulsa County Clerk Sally Howe-Smith as a defendant. Ruling on another motion to dismiss, Judge Terence Kern dismissed the state of Oklahoma itself as a defendant, leaving only Sally Howe-Smith as a defendant in the Question 711 claim. (The United States, the President of the United States, and the Attorney General of the United States are defendants in the DOMA claims.)

And in Richardson v. Ramirez , Viola Richardson, clerk of Mendocino County, appealed a California Supreme Court decision to the U.S. Supreme Court, without either the Secretary of State, the Attorney General, or the original trial defendants appealing. (Richardson had been added as a defendant by the California Supreme Court.) The U.S. Supreme Court did not dismiss for lack of standing on the basis that county clerks have no standing independent of the state, but instead proceeded to decide on the merits.

beachewtoy75

September 21st, 2010

So, in other words, they’re just flinging everything they can think of and hope something sticks…

Weren’t these also the same people that wanted to strike down Dr. Tam’s testimony because English was his second language, despite the fact that everyone could understand him perfectly well?

T.J.

September 21st, 2010

GAR – my thoughts exactly. I’ve wondered myself if they are trying to deliberately self-destruct to keep this from the Appellate Court and ultimately the Supreme Court for fear that they’ll lose the whole thing in one fell swoop. Don’t doubt for a moment the craftiness of these people. They’d rather cut their losses by giving up California and keeping this from becoming a national decisions. It gives them more of a chance at winning over all.

customartist

September 21st, 2010

As far as the “US Constitution protect(ing) the fundamental right to marry of the four plaintiffs, but no one else.”

It does apply directly to 4 Plaintifs, and subsequently the precedent is set for the rest of California (and hopefully for all other states).

I wonder how this will be interpreted as it applies to all States, if won, or thrown out at he appeals level? I’m guessing that the other States will balk at accepting this ruling. It will eventually HAVE to be challenged in the Supreme Court.

Jon

September 21st, 2010

I haven’t read the original complaint, but I’m confident in predicting that the plaintiffs sought not only an injunction against the enforcement of Prop 8 as to themselves, but also a declaratory judgment that it is unconstitutional. And once a law is declared unconstitutional, the state is no longer permitted to rely on it or enforce it. (Sometimes a declaratory judgment is issued “as applied to” — meaning that the law is unconstitutional in this particular instance, but may be permissible in other instances. But that’s not what Judge Walker’s opinion says.)

Rob San Diego

September 21st, 2010

So we are no longer a class of people anymore according to them, just one more right that has been afforded to us that they think they can take away.

Michael Ejercito

January 8th, 2011

The problem is then how do the platiniffs have standing to assert the rights of persons other than themselves.

Surely they have no particularized, protectable legal interest in other people’s rights.

Timothy Kincaid

January 9th, 2011

Michael Ejercito,

They are not asserting rights to persons other then themselves.

However, in civil rights cases, if it is unconstitutional to deprive the plaintiffs of their specific rights based on an attribute (race, gender, orientation, etc.) then it is equally unconstitutional to deprive those who share that attribute their rights.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

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.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

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.

Paul Cameron’s World

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.

From the Inside: Focus on the Family’s “Love Won Out”

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"

The Heterosexual Agenda: Exposing The Myths

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.

Testing The Premise: Are Gays A Threat To Our Children?

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.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

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.

The FRC’s Briefs Are Showing

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.

Daniel Fetty Doesn’t Count

Daniel FettyThe 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.