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Perry appeal: what now?

Timothy Kincaid

January 4th, 2011

It appears to me that the Ninth Circuit has found no standing – at least under federal law – and is covering its butt by allowing the state Supreme Court to weigh in:

Having considered the parties’ briefs and arguments, we are now convinced that Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court.

As I see it, here is the likely process by which Perry v. Schwarzenegger will proceed:

The California Supreme Court will rule on whether California state law allows the proponents to defend Proposition 8. Regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in relying on the state supremes.

If the SCOTUS agrees that the CA Supremes were the appropriate determinants of the issue of standing, then either the appeal is dead and marriage equality returns (assuming that CA Supremes find no standing) or the case moves on to the second question as to the merits of the ruling.

If the SCOTUS disagrees and finds that the Ninth erred in relying on the state, then the Ninth will have to rule on standing. The Ninth seems unlikely to find standing, but regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in finding or not finding standing.

Should the SCOTUS determine that there is no standing, then the appeal is dead and marriage equality returns. Should they find standing, then the case moves on to the second question as to the merits of the ruling.

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Lost Choi
January 4th, 2011 | LINK

I almost need to draw out a Decision Tree to follow this. :-)

TomTallis
January 4th, 2011 | LINK

For a different point of view:

http://www.calitics.com/diary/13001/prop-8-9th-circuit-appears-ready-to-grant-proponents-standing-to-appeal

Theo
January 4th, 2011 | LINK

I respectfully disagree with Kincaid. The decision of the CA Supreme Court will be largely determinative of the federal outcome on the standing question.

But of greater interest are the political implications of today’s development.

- The certification process will delay any ruling by the 9th Circuit by more than a year and possibly as much as 2 years. Meanwhile, Prop 8 remains in effect. Do we go ahead with a repeal initiative in 2012? There was a big fight just to prevent an ill-advised repeal effort in 2010. How will people react when they are told that there will be no repeal effort in 2012 or even 2014 or 2016?

- That same delay is, IMO, a positive development with respect to SCOTUS. The longer it takes to get there, the better. It is an opportunity for public opinion to continue its slow shift and possibly for Obama to get another appointment.

- Incidentally, the big item to look for at SCOTUS is this month’s ruling on Rev. Harry Jackson’s petition for cert in the DC marriage case. This petition has been almost completely ignored by the gay blogs (including BTB) and the MSM. While any petition for cert faces long odds, it should be of great concern. Jackson’s position has some merit, and we only won in the lower court by 1 vote. Scalia and Thomas are likely salivating to take it, so they could accept the case if only Roberts and Alito agree. If they do take it and if Jackson wins, DC would become the mother of all Prop 8-type battles, with the added noxious element of race thrown in.

Nate W.
January 4th, 2011 | LINK

It appears to me that the Ninth Circuit has found no standing – at least under federal law

It was settled law that legislative standing is a question of state (not federal) law. Olsen had argued during oral argument that there might be an independent federal bar to standing based on Article III of the Constitution, but that didn’t seem to go anywhere. The question before the court during oral argument was whether there had already been a clear expression of the law by the CA Supreme Court.

Rob San Diego
January 4th, 2011 | LINK

My head just inflated and exploded. Did anyone elses? My head is just spinning trying to figure out these spineless justices.

MIhangel apYrs
January 5th, 2011 | LINK

and all the time, quiet, desperate LG people will be dying before they can marry….

EZam
January 5th, 2011 | LINK

Hopefully Scalia and/or Thomas will die or at least retire before the SCOTUS gets its hands on the case.

fannie
January 5th, 2011 | LINK

“It appears to me that the Ninth Circuit has found no standing – at least under federal law – and is covering its butt by allowing the state Supreme Court to weigh in:”

I’d agree with the other commenters here who note that that’s not accurate, Tim. The 9th Circuit sent the case back to the CA Supreme Court because (a) there is no clear precedent on this particular standing issue, and (b) the issue of standing is a matter of state law and the CA Supreme Court, rather than a federal court, is final authority on state law matters.

Indeed, the tone of the 9th Circuit order suggests that they believe the Prop 8 backers do have standing, as the initiative process is a “fundamental right” in CA, but that they just need the CA Supreme Court to weigh in and say so.

Timothy Kincaid
January 5th, 2011 | LINK

Theo,

It’s only speculation, but I suspect there will be a 2012 repeal effort. And thanks for shining attention on the DC matter.

gunshowsigns
January 5th, 2011 | LINK

Russia/ China?? Republic of California

There is a mandate uphold the law. Russia and China might welcome an independent California because of silicon valley. Certainly Mexico and the Mex Mafia would because of the border and drug trade. And think of all the jobs if all the funny boys were in jail for the tech and government sectors.

EZam
January 5th, 2011 | LINK

@gunshowsigns

And your point is…

Em
January 6th, 2011 | LINK

Hmm. As far as I understand, there is one loop too much in the original blog post. Federal court cannot (and did not) give CASC right to decide about standing in a federal case. What they did is they asked about unclear state law to advice their decision. It’s just a question. The first decision about federal standing will be a 9th circuit decision about federal standing and will not be done by CASC (the answer from CASC about whether proponents would have standing to appeal in a state case will be taken by judges of the 9th circuit as one of factors but nothing automatic).

Thus if decision about federal standing is appealed to SCOTUS, they may revert 9th circuit decision, but as far as I understand not on basis that “CA Supremes were not the appropriate determinants of the issue of standing” (because they would never have!) and there is no danger of the issue of standing to go to SCOTUS for the second time.

Em
January 6th, 2011 | LINK

Well, I was wrong in what the question was about. Indeed, it is about whether in CASC opinion CA law gives basis for federal standing. There might be many different basis for standing, and the question is whether CASC thinks that CA law gives such basis. Independent of the CASC answer 9th circuit decision can go either way.

So the decision about standing would be made by 9th circuit and not by CASC: SCOTUS can revert it, but not on the basis that a wrong body made the decision… And I would still not expect this issue of standing to be addressed by SCOTUS twice.

Michael Ejercito
January 8th, 2011 | LINK

In his concurring opinion, Reinhardt suggested that the ruling might be limited to two counties. Specifically, he wrote that without standing, the case might “finally decided by a trial court, or by default, in only two counties, or in none

He had a good reason for bringing up this possibility. As a general rule, trial courts’ subject matter jurisdiction is limited to the legal rights and duties of the litigants. And there is in fact a Ninth Circuit precedent which narrowed an injunction because it enjoined the defendants’ acts regarding persons other than the plaintiffs. (Meinhold v. Department of Defense, 34 F.3d 1469, 1480 (9th Cir.)(vacating permanent injunction prohibiting the
Defense Department from discharging any person from the service based on sexual
orientation where action was not brought as a class action “except to the extent it
enjoins DOD from discharging Meinhold”) And as the Supreme Court reiterated in Arizonans for Official English v. Arizona “[E]very federal appellate court has a special obligation to `satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it.” 520 U.S. 43 at 73.

Non-defendants (such as Imperial County) are not bound by the district court order. And I would add that non-plaintiffs can not assert a right to a marriage license under this order, since they were not litigants in this case. Indeed, that was the reason for the Ninth Circuit decision in Meinhold. This again has to do with standing. For plaintiffs certainly did not show they had a protectable interests in the due process rights and equal protection guarantees of other same-sex couples.

Without standing to appeal by proponents, the ruling will have to be limited to the litigants.

Michael Ejercito
January 8th, 2011 | LINK

I should add there are other cases on this issue that are winding its way up the courts. (Bishop v. Oklahoma, Gill v. Office of Personnel Management, In Re Marriage of J.B. and H.B. ) Both Gill and Marriage of J.B. are pending appellate review in lower appellate courts, and we may see a trial court decision in Bishop by the summer.

Timothy Kincaid
January 9th, 2011 | LINK

Michael Ejercito,

You apparently did not view the entire Ninth Circuit appeal; you misunderstand Reinhardt’s point. While technically the ruling was only against two counties (those in which the plaintiffs reside), the remedy would be broadened by the Attorney General who would simply request that the court make the ruling state-wide.

If anti-gay discrimination is illegal in Alameda and Los Angeles, then the same constitutional standards which find it so would also apply in the other counties. However, a single page ruling may be required.

It’s a matter of legal process, not a matter of legal determination.

The Proponents of Proposition 8 made exactly the same argument (limited to the four plaintiffs) that you make here. The Ninth Circuit justices looked at them as though they were wearing those gag Groucho Marx glasses with a fake nose.

Michael Ejercito
January 11th, 2011 | LINK

You apparently did not view the entire Ninth Circuit appeal; you misunderstand Reinhardt’s point. While technically the ruling was only against two counties (those in which the plaintiffs reside), the remedy would be broadened by the Attorney General who would simply request that the court make the ruling state-wide.
And similarly other persons can initiate their own litigation against county clerks in federal court for an injunction to issue them a marriage license.

But that would be separate litigation from the case before the Ninth Circuit.
It’s a matter of legal process, not a matter of legal determination.
It is indeed a matter of legal process.

When Meinhold went before appeal, the Ninth Circuit properly limited the injunction to the named plaintiff, because plaintiff had only standing to sue for his reinstatement.

Plaintiffs in the Perry case similarly have no standing to assert the rights of non-litigants.
If anti-gay discrimination is illegal in Alameda and Los Angeles, then the same constitutional standards which find it so would also apply in the other counties. However, a single page ruling may be required.
Then people in the other counties can initiate their own litigation.

Michael Ejercito
January 11th, 2011 | LINK

More to the point.

I am not a lawyer, so I will let a lawyer explain it .

“[In] Roe v. Wade, e.g. “Jane Roe” was an anonymous Texas woman who sued Henry Wade, who was I believe the D.A. down in Dallas, in the U.S. District Court in Texas, challenging a Texas state law.

The district judge in Texas could hear that case. A district judge in California could NOT. The district judge couldn’t issue an injunction affecting the United States as a whole. If such an injunction were violated, the judge wouldn’t be able to bring in officials outside of Texas, or hear complaints from residents of states outside of Texas.

Judges do not sit as arbiters of public policy in the abstract, is what I meant to say. They’re forced to wait on specific cases, involving specific parties, and their decisions in the final analysis only apply to those individuals. They’re enforceable only when similarly situated individuals walk into their court and say, “I want the same rights you gave Jane Roe in that other case.”

Since a district court judge in the central district of California can’t hear a complaint from a New York soldier discharged under DADT, e.g. (or a soldier from anywhere OTHER than the central district of California)[in reference to the suit in California against DADT], she’s powerless to issue an injunction like this. Sure, they have significant “public policy effect”, but they decide cases. They don’t issue blanket statements on public policy outside the scope of specific parties and litigants.”

In is worthy to note that the Supreme Court, in issuing orders in decisions declaring statutes unconstitutional, do not necessarily order that the statute not be enforced by anyone. In Citizens United v. FEC, for example, they simply ordered the case be remanded to the district court for “judgment consistent with the opinion”, instead of ordering the district court to issue an injunction. Similarly, in Loving v. Virginia, the Court merely ordered the conviction be reversed, instead of ordering the trial court to issue an injunction forbidding Virginia from enforcing its anti-miscegenation law with respect to anyone.

The Court’s refusals, in those cases, to issue injunctions affecting persons other than the litigants are understandable. Citizens United did not have a protectable legal interest in the freedom of speech of other political advocacy groups, and the Lovings did not have a protectable legal interest in the marriage rights of other interracial couples.

Thus, if a persons’ rights are infringed by a law similar to McCain-Feingold, or Virginia’s anti-miscegenation law, said person must walk into court and say, “I want the same rights the Supreme Court gave to Citizens United/the Lovings, in order for Citizens United /Loving to apply, respectively.

(Indeed, Timothy Kincaid mentioned the California attorney general could go to court to ask for the rights of same-sex couples. This would, as I mentioned, be considered a separate case from the Perry case.)

Theo
January 11th, 2011 | LINK

Sorry to post on such an old thread, but it still seems to be alive and it also seems to be the best place to post this. There are 2 updates of which BTB should be aware:

- On Prop 8, there is a rather surprising video on Youtube from Stop8.org, which claims that the new head of EQCA has said that an immediate repeal of Prop 8 “is not even on his radar screen.”

http://www.youtube.com/watch?v=PEYAvGT2lac&feature=player_embedded

I happen to agree with that decision, but if the report is true, this is a god-awful way to make such a major decision. As far as I know, there has been no announcement of such a decision and certainly there has been no discussion or debate. In fact EQCA’s website still touts its position that 2012 is the time to go back to the ballot. If you recall how contentious the 2010 v. 2012 debate was, imagine how people will feel when word gets out that EQCA killed 2012 without bothering to tell anyone.

- On DC, the press has finally picked up the story of Rev. Jackson’s case. SCOTUS is conferencing on the petition for certiorari on Friday, and a decision is expected next Tuesday.

Timothy Kincaid
January 12th, 2011 | LINK

Theo,

I think that EQCA will come to a rude awakening if 2012 rolls around and Perry is still uncertain. The leaders of Gay Inc still haven’t figured out that we are in an immediate-communication age or that gay individuals no longer raptly listen to the pronouncements of self-appointed leaders.

We’ll keep our eye on Jackson. Thanks for the heads up.

Timothy Kincaid
January 12th, 2011 | LINK

Ejercito,

In your cut and paste, you missed the opening salvo:

I’m a lawyer, trust me.

I’ll simply respond with: I know lawyers, trust me… having a law degree and a license does not make one an expert on Constitutional Law (or really anything).

As can readily be demonstrated by the fact that no one actually did have to go into court and say “I want the same rights that the Lovings have.”

And really what you are doing here is arguing process. Interesting, perhaps, but not relevant to whether Perry will apply statewide or only in Los Angeles and Alameda Counties.

Michael Ejercito
January 12th, 2011 | LINK

As can readily be demonstrated by the fact that no one actually did have to go into court and say “I want the same rights that the Lovings have.”
Regarding Loving, there was one recent case where a justice of a peace in Louisiana refused to marry an interracial couple back in 2009. story here . Interestingly enough, the justice of the peace’s resignation did not immediately moot the lawsuit. (I would be surprised if the suit had not already been decided by a one-page summary judgment.)

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