Box Turtle Bulletin

Tea Leaves: Prop 8 Proponents will not have standing

I am now going to gaze into my crystal ball, read the tea leaves, check in with Sybill Trelawney, and make a prognostication: the Proponents of Proposition 8 in Perry v. Schwarzenegger will be denied standing at either the Ninth Circuit or the US Supreme Court level.

There are four reasons why I think it likely that the Proponents will not be found to have standing.

The first is case law. I’m not an attorney, I don’t have extensive knowledge of the patterns of judicial rulings which would apply to the case. But I have read the filings of both sides in this case and it appears to me that the arguments for denying standing are straight-forward and based on clear rules while those of the Proponents are based on exceptions and possibilities and “gosh darnit but we paid for it.”

Second, it appears that the Ninth Circuit is not seeing standing at present. The Ninth issued its order sua sponte, or without request: “The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2.”

However, there were filings for both appeal and for expediting the case. To my limited understanding of the law, either the Ninth erred in its language or it isn’t recognizing the filings of one of the parties as being official at present. A pretty obvious guess would be that the Proponents are not considered to have standing at present, and if there were any question about that presumption, it is cleared up by this sentence: “In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

Third, the Ninth references Arizonans For Official English v. Arizona as the case to which they are looking to see if there is standing. The case went something like this:

In 1988, Arizona voters narrowly passed Proposition 106, a constitutional amendment to require all official acts of the state to be conducted in English. Maria Yniguez, a state employee, sued claiming that she used both English and Spanish in her work and that the proposition violated her First Amendment rights. The Governor was the official defendant.

A Federal District Court judge found that the amendment was overly broad and unconstitutional and the Governor decided not to appeal. The Federal judge denied that the Attorney General could be given standing and also denied standing to Arizonans for Official English (AOE), the committee that wrote, funded, and campaigned for Proposition 106.

On appeal, the Ninth Circuit countermanded the judge and found that AOE, and its chairman Bob Park, had standing to appeal the judge’s decision.

Meanwhile, Yniguez had quit her state job to go work for the private sector, which meant that there was no Plaintiff in the case. But the Ninth decided that because Yniguez had sued for damages, the case was not moot and could continue. They upheld the judge’s ruling that the proposition was unconstitutional and awarded Yniguez damages.

However, the Supreme Court unanimously ruled that because Yniguez no longer was an employee then the entire case was moot and they tossed it out. So, the primary ruling of AOE v. Arizona was not about the standing of intervenors at all.

However, and this is the important part, in addition to ruling the case moot, Judge Ginsburg wrote the following:

(a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62 . Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82 . Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez’s departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363 , 364, n. Pp. 18-21.

This is fairly clear that while the SCOTUS did not “definitively resolve the standing” of the supporters of the proposition, it stated its “grave doubts”, found their argument “dubious”, called their assertion of associational standing “problematic”, found no language in the proposition itself that gave them standing, and pretty much tossed them out on their ear.

This appears to be a fairly close parallel. And by the court referencing this case – and by implication eliminating or de-emphasizing all other possible arguments (Strauss v. Horton, etc.) – it gives the Proponents a significantly difficult challenge to overcome

Fourth and finally, it is my impression that the SCOTUS does not like to address controversial issues before it is ready to do so. And standing is one of their favorite ways of saying “go away, we don’t want to talk about that now.”

One case that comes to my mind is Elk Grove Unified School District v. Newdow. Michael Newdow, a prominent atheist, sued the Elk Grove Unified School District for requiring his daughter to say the Pledge of Allegiance, including the words “one nation under God.”

A federal judge found the Pledge violated the Establishment Clause and the Ninth Circuit agreed. But the SCOTUS had an out. While three were ready to find that the Pledge is not unconstitutional (and Scalia recused himself), the four liberal judges and Kennedy all found that because Newdow’s ex-wife had full custody of their child, and because she was a Christian, then Newdow had no standing to sue over her education, religious or otherwise. (Subsequently the Ninth reversed itself on another case and the SCOTUS did not hear an appeal.)

I’m thinking that if “Hey, that’s my kid” isn’t enough to have standing, then “Hey, that’s my initiative” isn’t going to fare much better if the court is not yet ready to hear a case on the constitutionality of same-sex marriage. Surely the father of a child has more standing than the father of a proposition.

Now obviously, this is all guesswork. And some of our fine legal scholar readers may poke enough holes in my logic to let is serve as a sieve. But this is what my crystal ball is telling me today.

Ten Dumbest Things Maggie Gallagher Said

Matt Stopera collected these over at BuzzFeed. Another personal favorite is number 10:

Democratic forms of government are vulnerable to mass prejudice, the so-called tyranny of the majority.

But, of course, #1 is a real doozy.

[Hat tip: Chris Bodenner]

Sua Sponte And Prop 8 Standing

I love BTB readers. One sharp-eyed commenter explains the importance of this line in yesterday’s order from the Ninth Circuit Court of Appeals:

The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.

Our commenter writes:

Sua sponte! The court wrote it was taking this case “sua sponte” – on its own initiative – since, as it states, Prop8 backers clearly have no standing to make this appeal.

More specifically it seems to me, the court decided to expedite the case on its own initiative. But this may hint at the extent to which the court is suspicious about the Alliance Defense Fund’s standing to continue to defend Prop 8. The court also  specifically  order them “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

The court went on to demand that ADF address Arizonans For Official English v. Arizona, the 1997 case in which the U.S. Supreme Court unanimously slapped down the Ninth Circuit Court for violating Article III of the U.S. Constitution after an Arizona PAC stepped in to defend a constitutional amendment that had been passed as part of a ballot initiative but declared unconstitutional in Federal District Court.

Ninth Circuit stays Perry ruling

The Ninth Circuit Court of Appeals has just ruled:

Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
IT IS SO ORDERED.

This is a partial victory. Ted Olson had requested that if the stay was granted, that the case be expedited and gave suggested dates. These dates are very close to those requested by Olson.

If the appeal is to begin in the first week of December, it will be over before the new governor and state attorney general are sworn in, whomever they may be.

Jim’s Update: Another key point is that the Court orders the Alliance Defense Fund to show why their appeal should not be dismissed for lack of standing. This is more great news, since it’s still not even clear that the court will actually hear an appeal.

In the meantime, this will probably push the possible resumption of same-sex marriages until sometime in 2011, since it can take anywhere from several weeks to several months following oral arguments for the court to issue its decision.

Appeal fears

Some of those who were closely watching Perry v. Schwarzenegger are now concerned about the prospect of going to the Supreme Court and possibly losing big. And that fear is not coming only from our community; anti-gays also have some who advise to quit now.

Right Wing Watch has transcript of a conversation between the WallBuilders’ David Barton, and the AFA’s Tim Wildmon and Marvin Sanders:

Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

So there’s an effort underway to say “California, please don’t appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don’t cause the rest of us to have to go down your path.”

Wildom: So you think the better situation here would be California not to appeal …

Barton: Well, I’m telling you that that’s what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said “on no, you left too many arguments on the table, you stayed technical.” And now, knowing what Kennedy has already done in two similar cases to this and knowing that he’s the deciding vote, the odds are 999 out of 1000 that they’ll uphold the California decision.

If they do, there’s not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won’t happen if California doesn’t appeal this decision. It’s just California that loses its amendment.

This appeal really is a high stakes game.

The Trib spins their own poll in an odd way

Rex Huppke, writing in the Chicago Tribune, has an article today about a Chicago area poll they conducted on same sex marriage. I can’t find the poll results themselves, but the way they report it is downright peculiar.

They start and end with how immoral some find same-sex relationships, but their numbers – when they show them – don’t back that up. But even the numbers seem to be elusive.

Look at paragraph two:

Young, of Oak Lawn, says his opinions on homosexuality are grounded in his Christian faith, but his willingness to support gay marriage puts him in the minority among Chicago-area suburbanites. In a recent Tribune/WGN poll, 46 percent of suburban residents said they oppose legalizing same-sex marriage, while 40 percent approve and 14 percent have no opinion.

OK. Now look at paragraph six:

The overall opinion on legalizing same-sex marriage, when city respondents are factored in, is split: 42 percent oppose it, 42 percent support it and 15 percent have no opinion. The Market Shares Corp. telephone poll of 800 male and female heads of household from the six-county Chicago area has a margin of error of plus or minus 3.5 percentage points.

They tell us that suburbanites don’t like gay marriage so much, but that when city residents are included, the response is split. But look what’s missing.

Clearly – though the Trib doesn’t tell us so – the math requires that city residents split the other way; more city residents have to approve of marriage equality than disapprove. But since the Trib decided not to share that fact, we don’t know by what extent.

You would think that “Chicago residents support gay marriage” would be an interesting headline. Or at least worthy of making the story.

And the three examples that the Trib ran with to share the residents’ perspective: One supports civil unions but not marriage (but only as a live and let live idea), one opposes both marriage and civil unions, and the sole supporter of marriage thinks that same-sex relationships are immoral. Not a single example was given of those who think that same-sex relationships are a good thing.

If 42% of the area’s residents support marriage, you’d think that maybe the author could find one of them to interview. It’s odd, Huppke has written a number of articles that address gay issues and he doesn’t seem to have a history of animosity towards the gay community.

Proponents reply to Olson’s rebuttal

Charles Cooper, for the Proponents, has filed his response to Ted Olson’s filing opposing a stay. And, as has been noted in the past, he appears to be using the spaghetti theory: throw enough against the wall and maybe something will stick.

This response seems to me to be taking an approach that has, up til now, not been given much emphasis: the “we’re just not ready yet” argument.

It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favor preserving the traditional definition of marriage, as they continue to study the results of experiments with same-sex marriage that are now unfolding in a handful of states and foreign countries.

I think, however, that he may have difficulty in convincing a court that it truly was the Proponents intentions to study the results of those states and nations which do have marriage equality.

Most of this filing is just a repeat of what has already been said. But Cooper made one statement that – to my thinking – may not be to his advantage.

Baker v. Nelson, 409 U.S. 810 (1972), mandates reversal of the district court’s decision, see Stay Mtn. 25-26, and Plaintiffs’ attempts to evade that decision all lack merit. First, Plaintiffs claim this case is different because Proposition 8 “stripped” homosexuals of a right recognized by the California Supreme Court in the Marriage Cases decision. But if it was rational for California to adopt and maintain the traditional opposite-sex definition of marriage throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8.
…
After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of marriage was no more final than was the earlier California Court of Appeal decision upholding it. It was
reviewed and overturned by a higher tribunal—the People themselves.

Except that for the entire history of the state, the constitution was being violated by the state’s definition. That this violation was not recognized until 2008, did not make it less true. And the People did not overrule the Court’s opinion as to whether the constitution was violated, but rather changed that constitution so as to put in language that would give validation to the otherwise illegal definition.

And it was on notions similar to those advanced in In Re Marriages – but in the Federal Constitution rather than the state – that Judge Walker found similar violation. Using Cooper’s logic, if the People wish to be a higher tribunal, then they would need to do as they did in California and change the US Constitution.

Mexican Supreme Court Backs Adoption Rights

A little bird tweeted that the Mexican Supreme Court has approved adoption rights for same-sex couples moments ago. This marks the court’s third major decision affecting LGBT couples in Mexico. Two weeks ago, the Mexican Supreme Court upheld Mexico City’s same-sex marriage law as constitutional. Last week, the court ruled that those marriages registered in Mexico City are valid nationwide.

Those ruling’s coupled with today’s development means that Mexico has joined several other nations in zooming ahead of the United States in enshrining equal rights under the law.

Heterosexual Agenda: Passing Traditions Down Through The Generations

From Springfield, Ohio:

Richard Stephson, 55, is in jail and facing multiple charges after what investigators describe as years of abuse. Authorities said the incident started in the mid 80s when Stephson began sexually assaulting a 14-year-old girl who was staying with him at his Springfield home. Soon, police learned that the teen was pregnant with his child. Now, 10 years after his daughter was born, authorities said Stephson offered her money to have sex with him and molested her during family visits.

NOM’S Sodomy-Obsessed Supporters and “Piggybacking”

This NOM supporter in Harrisburg sums it all up.

Remember, they really don’t hate us.[

NOM’s Tour of Mostly-Empty City Plaza rolls to a stop

Today the National Organization for Marriage held the final rally of their Summer for Marriage Tour, a 19 state, 23 city tour to rally opposition to marriage equality that can best be summed up as disastrous. Only a few cities drew crowds over 100, and in several stops less than two dozen locals turned up to support NOM’s efforts.

But for their big finale, NOM chose Washington D.C., a locality that only this year enacted marriage equality. In a divergence from the usual, all of the speakers at today’s rally – other than Brian Brown – were African-Americans. And as one speaker, Bishop Neaville Coles of the local Church of God in Christ, brought his congregation, the audience had a sizable African-American presence as well. Although polls and public presumption assume that blacks and Hispanics are strongly opposed to same-sex marriage, until today NOM’s rallies have been mostly absent of anyone other than mostly-elderly Caucasians.

NOM also drew a larger crowd than usual for their final stop. Although neither NOM nor the Trial Tracker provide a complete estimate, there were at least 60 and maybe up to 100 supporters [ed: reader Karen says more, maybe 200]. About 50 protesters stayed across the street while another 250 met at a pro-marriage equality rally a few blocks away.

From all accounts NOM’s rally did not present any original thought. Mostly cliches and astonishingly lacking in historical perspective – though there did seem to be a fair amount of unintended irony.

The old standby of “Adam and Eve, not Adam and Steve” drew applause. (Some day I’m going to show up with a sign that says “Adam and Yves”).

Bishop Coles thundered, “What God has joined let no man put asunder!” Ummm, Bishop? You may want to think through the logical conclusion of that one before you try to reverse the marriages of the United Church of Christ.

Dr. Fauntroy seemed both defeatist and delusional. I’m not sure why the fellow thinks it may cost him his friends and his life, but like a true NOMartyr, he lamented:

I am determined to go all the way through. If it costs my life, I am determined, because I’ve got heaven in my view. If it means I have got to stand alone, if it means my friends be few, I am not worried about what people say. I’ve got heaven on my mind.

But, then again, he also said that our founding fathers promised healthcare so I’ll just give the elder statesman the privilege of age and its encumbrances.

But no one seemed to be less aware of his own words than Bishop Harry Jackson who spent his time railing against minority rights.

What is happening is a minority — just like we’re hearing now — is attempting to impose its will on the majority… I believe where we are today is the same situation [as the African-American civil rights struggle]. A minority is imposing its will.

Now I’ve heard language like that before, and it too was in context of racial tensions. But those screaming about “minorities imposing their will” were not on the side of civil rights or equality. But come to think of it, neither is Bishop Jackson.

Chemerinsky on standing

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.

“Gender no longer forms an essential part of marriage.” OH MY!

Oh, the “traditional” marriage people are upset. So upset. And this sentence from Judge Walker’s ruling on Prop 8 has them especially upset:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Here are some upset reactions from those upset people:

I believe gender matters, and I believe that gender plays a role in what makes marriage different from relationships. But Judge Walker has decided that his interpretation of the Constitution trumps all that.

If gender is no longer “an essential part of marriage,” then marriage has been essentially redefined right before our eyes.

Can you believe you are reading these words, not merely as the private opinion of a moral reprobate, a cultural revolutionary, but as the conclusions of a “judge” in the United States of America? … This kind of homosexual propaganda has no place in the legal system of a moral culture, but there it is.

Apparently they think Walker is advancing some radical theory and that his opinion introduces a new concept of marriage into our legal system.

They’re talking nonsense.

Walker is merely noting an indisputable truth: traditional gender roles in marriage used to be mandated by law — the man was legally put in charge of his wife, and his wife’s rights were severely limited by the law — but this is no longer the case. Marriage today, in the eyes of the law, is a union of equals.

Who can claim that this change hasn’t happened? Apparently, it’s invisible to those who believe marriage has been constant and unchanging since Adam and Eve. They need a little history lesson, so here goes.

William Blackstone was an 18th Century English judge who shaped British common law and was a tremendous influence in early American law. The Prop 8 lawyers love him. In their emergency request to stay (i.e., delay) enforcement of Walker’s verdict, they write:

This understanding of the central purposes of marriage is well expressed by William Blackstone, who, speaking of the “great relations in private life,” describes the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”

Yep, Blackstone’s their man. Of course, Blackstone also wrote this:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything.

Guess what? That’s not true in 2010 America. Wives won the right to own property in 1848 (in New York, at least). Men can now be prosecuted for beating their wives. Women can refuse to have sex with their husbands, and those husbands can no longer rape them them at their pleasure. So look again at that upsetting Walker quote:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

It’s simply true. Granted, a married couple can choose to live as if “the very being or legal existence of the woman is suspended during the marriage,” but the law will no longer enforce it. Marriage under law is now a union of equals. That leads to Walker’s point: If we no longer see the need for men to have one legally-defined set of marital rights while women have another, much smaller set, then the law sees no distinction between men and women in marriage, and therefore should see no distinction between opposite- and same-sex couples.

Let’s boil this down to one sentence (one question, actually): If someone’s outraged over Walker’s statement, simply ask, Oh, so you think wives can’t own property, and that men are still allowed to beat and rape their wives? Unless they answer you bet!, they’re admitting the truth in Walker’s verdict.

H/T to Brad Parr for pointing out Blackstone in the pro-Prop 8 brief, and to Ms. Magazine for the history lesson.

Neil Patrick Harris and David Burtka expecting twins

Neil Patrick Harris is on TV. And, by that, I mean that almost literally every time I turn it on, there’s Neil. Singing the opening number on the Oscars, judging Top Chef, guest roll in Glee, in the audience for the finale of So You Think You Can Dance, Hosting the Tonys, and, of course, starring in his own sitcom How I Met Your Mother.

But somehow he charms us enough that his ubiquitous presence doesn’t annoy. Maybe it’s because 20 years ago we loved Doogie Howser. Or maybe it’s just that Harris is one of the few child stars that didn’t eventually end up driving drunk the wrong way down the freeway.

Whatever it is, Neil Patrick Harris is my generation’s feel-good gay. And it doesn’t hurt that he’s in a long-term relationship with a handsome young man with perfect hollywood-spouse credentials: a part-time actor who doesn’t steal the limelight.

Now E! Online is announcing that after six years together NPH and David Burtka are adding to their family.

Neil Patrick Harris is going to have his hands full come fall.

E! News has exclusively learned that the ubiquitous actor and his longtime partner, David Burtka, are going to become the parents of twins, via a beautiful surrogate, this October.

Since coming out publicly in 2006, NPH has been measured in his political advocacy. While he’s consistently on the side of equality, he’s not taken the most public role.

Now, I’m not one of those guys who thinks that Harris has some obligation to represent our community. His life is his life and it’s pressure enough being in the fishbowl without having to be “the gay role model.” But like it or not, for many people Harris may be the only gay guy they “know.”

And while it’s crazy that the world works this way, Harris and Burtka’s decision to have kids has undoubtedly given more than a few mid-West housewives the assurance they needed that gay people are just like them. Because look at that nice Doogie Howser, he’ll make a good dad.

Perhaps just living his life with dignity and decency is the best form of advocacy that we could ever hope for.

Fox poll on marriage equality

Fox News has conducted a poll about same-sex couple recognition

Do you believe gays and lesbians should be:
1. Allowed to get legally married,
2. Allowed a legal partnership similar to but not called marriage, or
3. Should there be no legal recognition given to gay and lesbian relationships?
4. (Don’t know)

37% – married
29% – partnership
28% – no recognition
6% – don’t know

This poll shows improvement over past polls. For the first time in Fox’s polling, marriage was the favored option.