November 17, 2011

Big Lizards Mini-Scoop: Major Court Ruling on Same-Sex Marriage Case

Hatched by Dafydd

Big Lizards is the first -- among the teeny, tiny circle of blogs we read, I mean -- to break this major story. (Or rather, we would have been the first, if we hadn't bothered to edit this post; as it happened, while editing, another blogger in my tiny circle beat me to the punch, the dirty vole. I was momentarily tempted to just change the timestamp; but I'm pathologically honest, so my hands are tied.)

Background: Back in early 2000, during a primary election, California voters enacted Proposition 22 by a whopping 61% to 39%; the law defined marriage in the Golden State to be between one man and one woman, both for purposes of getting married here and also for recognizing marriages contracted in other states or countries. The wording basically mimicked that of the federal Defense of Marriage Act (DOMA).

But eight years later, the California State Supreme Court ruled, by the narrowest of margins (4 to 3), that Prop. 22 was unconstitutional under the state constitution. Then, in a fit of partisanship and pique, the court even refused to stay their ruling -- despite the fact that a new citizen initiative constitutional amendment, Prop. 8, was on the ballot for November of that year and seemed likely to pass.

Between that decision and the November vote, thousands of same-sex couples legally married in California; those marriages were never invalidated.

Despite the attempt to ram same-sex marriage down our throats, the citizens of this state fought back; even in the midst of the Obama landslide in California (he carried the state by more than 24%) -- and despite the state Attorney General (former and now current Gov. Jerry Brown), in a blatant attempt to bias voters, changing the title of the initiative to read, "Eliminates Rights of Same-Sex Couples to Marry" -- Californios nevertheless enacted Proposition 8, effectively writing Prop. 22 word for word into the state constitution... and neatly overturning the state Supreme Court's decision to spit in the voters' faces.

The vote this time was a narrower 52.24% to 47.76%... but that probably does not represent a drop in statewide support for traditional marriage; rather, it reflects the difference between a primary and a general election (more Democrats vote in the latter), and the Obamic surge that brought more liberals and Progressivists to the ballot box.

I'm sure you can guess the next step: Same-sex marriage fans filed lawsuits in both state and federal court, seeking to overturn the new constitutional amendment. The state Supreme Court upheld the amendment (what else could they do?); but U.S. District Chief Judge Vaughn R. Walker, who heard the federal case, Perry v. Schwarzenegger, ruled the constitutional amendment unconstitutional on August 4th, 2010 -- on the grounds that the United States Constitution mandates same-sex marriage throughout the entire country. Who knew?

(We knew during the trial that Walker was gay; but what we did not know until after his ruling was that he was in a long-term, committed relationship with his same-sex partner, thus in exactly the same class as the plaintiffs in the suit. If his ruling is upheld, he will have cleared the decks for his own same-sex marriage. Quite frankly, Judge Walker sat in judgment on his own case; but the current Chief Judge of that district court shrugs off the obvious conflict of interest. Nothing to see here, folks, just move along!)

Walker tried the same trick the state Supreme Court had used: He announced that he was going to lift the stay of execution on his ruling almost immediately, despite the fact that the ruling had been appealed to the Ninth Circuit Court of Appeals. The plan -- as in 2008 -- was to allow a huge surge of same-sex partners to marry in California, hoping that a future court would simply roll over and find a new ground to hold the marriage amendment unconstitutional: Because we would now be in a situation where many tens of thousands of people were in valid same-sex marriages, but the remaining tens of thousands were barred from marrying.

That is, first the state Supreme Court and then Judge Walker wanted to (a) set up a clearly unequal situation for same-sex couples, where many were married but the rest were prohibited from marrying, and then (b) use the very situation they themselves had concocted to argue that the law violated equal protection under the law! So it goes on the great Progressivist merry-go-round.

Fortunately, the Ninth Circuit itself stayed the ruling indefinitely, until the case could be finally decided, thus thwarting Walker's end run.

The case now sits at the Ninth Circus -- but a new wrinkle has arisen... and that is the subject of this post. (Yes, the preceding 500,000 words were just preamble and prolog.)

By law, the state Attorney General is required to defend citizen initiatives against lawsuits; but since he was Jerry Brown, a huge fan of same-sex marriage, he refused to perform his constitutional duty.

By law, if the Attorney General cannot or will not defend a law, then the governor is required to do it; but since the governor at the time was RINO Arnold Schwarzenegger, and since he too is a big supporter of same-sex marriage, he likewise refused to defend the law.

Whereupon, Judge Walker declared that nobody else had standing to defend the amendment; only the plaintiffs' side would be heard by the Ninth, and proponents of same-sex marriage would get to win their case by default.

(Again we return to the traditional Progressivist playbook: Rather than allow both sides to present their cases -- or, God forbid, allow the citizens of the state to decide what shall constitute marriage -- the Left always wants to stack the deck by banning all argument but its own. Don't look now, but Progressivists seem to be allergic to democracy and freedom of speech.)

The "defendant intervenors" -- that is, the original sponsors of Proposition 8, who undertook to defend their initiative themselves when Brown and Schwarzenegger gave voters the finger -- filed an appeal with the Ninth Circuit panel; but the Ninth punted, kicking the vital question of standing back to the state Supreme Court (which still supports same-sex marriage). And we have been waiting with bated breath their decision.

Until today. The ruling was just issued... and in an astonishing act of (heavens) following precedent, the State Supreme Court held that the defendant intervenors do have standing to defend the amendment!

Even more remarkably, the vote was unanimous, 7 to zip:

In a unanimous ruling, the justices sided with Proposition 8 sponsors, who've argued they should be able to appeal a federal judge's decision last year striking down the same-sex marriage ban because the governor and attorney general have refused to defend the voter-approved law. The state Supreme Court overwhelmingly agreed that Proposition 8 backers can go it alone in trying to preserve the gay marriage ban.

Here is the court's reasoning:

The Supreme Court was emphatic that it would "undermine" the California ballot initiative process if the governor and attorney general can trump the voters by declining to defend such laws in the courts.

"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the court.

So now we finally get to a decision on the actual merits: Does the U.S. Constituition mandate that every state must allow same-sex marriage? If so, then how about polygamy, group marriage, line marriage? Does the Constitution demand that every conceivable relationship between two or more persons must be considered a marriage, on the well-accepted legal argument that "love is all you need?"

Or do the people themselves -- even those who aren't lawyers! -- get to speak on this seemingly important societal issue? I know at least one famous blogger who supports same-sex marriage and voted against Prop 8 and Prop 22, but who vigorously opposes any and all attempts to legally overturn the voters' decision in court.

The Ninth-Circuit panel comprises ultra-liberal Judge Stephen Reinhardt (appointed by Jimmy Carter), Michael Daly Hawkins (Bill Clinton), and N. Randy Smith (George W. Bush); so my cynical guess is that they uphold Walker's ruling by 2-1. But no matter how the Ninth Circus decides, the case will surely be appealed to the U.S. Supreme Court -- where I believe the people will prevail by a 5-4 decision. And that should finally give closure to the issue of same-sex marriage: Each state will be allowed to decide for itself whether it will allow same-sex couples to marry and whether it will recognize such unions when licensed by other states.

So in the end, the people, as they should, will have the last word.

Hatched by Dafydd on this day, November 17, 2011, at the time of 12:59 PM


The following hissed in response by: Geoffreybryan

I think you meant Attorney General, not Secretary of State, in referring to Jerry Brown's earlier position.

My understanding is that the Prop 8 proponents were allowed to participate as parties in the District Court (before Judge Walker). It certainly seemed that way. It was at the Ninth Circuit level that David Boies and Ted Olson were arguing that the proponents had no standing. In this view, the proponents could litigate in a trial court, but were excluded from any right to appeal. This seemed like a proposition that even Stephen Reinhardt would have a problem with. I would have been very surprised if the California Supreme Court had decided any other way -- it really seemed like a no-brainer.

Now the question is, where will the Ninth Circuit go next? The underlying appeal has already been briefed and argued. The Ninth Circuit threw a wrench in the works by asking the California Supreme Court for an advisory opinion under state law which in no way is dispositive under federal law. But now that diversion is over, and it's time for the Ninth Circuit judges to rule.

At present, the Ninth Circuit also has before it a separate appeal (which I assume is being assigned to the same three-judge panel) on the question of whether Judge Walker should have been disqualified. One possible Ninth Circuit outcome would be to vacate the 2010 District Court ruling on conflict-of-interest grounds, and force the Perry plaintiffs to start over again in front of a new judge. In this manner, the Ninth Circuit would not have to reach the merits of whether Prop 8 is invalid under the federal constitution.

If the Ninth Circuit reaches the merits, obviously it can either uphold or reverse the trial court judgment that invalidated Prop 8. In my opinion, if it upholds trial court judgment, the case has a fair shot of being accepted by the U.S. Supreme Court. On the other hand, if the Ninth Circuit reverses the trial court, stating that Prop 8 does not violate the federal constitution, then I believe U.S. Supreme Court review is highly unlikely. It will, therefore, return the issue of same-sex marriage to California voters.

The above hissed in response by: Geoffreybryan [TypeKey Profile Page] at November 17, 2011 2:30 PM

The following hissed in response by: Dafydd ab Hugh


I think you meant Attorney General, not Secretary of State, in referring to Jerry Brown's earlier position.

Oops, good catch; I have made the correction.

I wrote that background mostly from memory, having been involved in both initiative campaigns. And you know what they say: Memory is the second thing to go (I forget what goes first).


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at November 17, 2011 3:37 PM

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