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Prop. 8 supporters argue that appeals court exceeded jurisdiction

If last month’s ruling overturning Proposition 8 survives, same-sex marriage should be available only to the two homosexual couples who challenged the ballot measure and should remain barred for the rest of the state’s gay and lesbian population, sponsors of the measure told a federal appeals court.

In written arguments filed Friday night, ProtectMarriage.com, the group that sponsored Proposition 8, urged the U.S. 9th Circuit Court of Appeals to overturn U.S. District Chief Judge Vaughn R. Walker’s ruling against the 2008 ballot measure.

Failing that, the group argued, the court should rule that the Aug. 4 decision affects only the couples named in the suit because it was not filed as a class action on behalf of all gays and lesbians, ProtectMarriage argued.

“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,” lawyers for ProtectMarriage said.

The group suggested such a resolution in the event that the appeals’ court determines that none of the opponents of gay marriage has standing to appeal.

To have standing, a party must show that it has suffered an actual injury. Walker has said there's no evidence to suggest ProtectMarriage  would meet that test.

The group told the 9th Circuit that it need not rule on that question because  Imperial County, which has been trying to intervene in the case, clearly has standing to defend Proposition 8.  Imperial County also filed arguments shortly before midnight Friday asking for standing to appeal.

UC Davis Law Professor Vikram Amar, a constitutional law professor, said he believed  ProtectMarriage was legally correct in contending that  Walker’s ruling would have to be limited to the four people who filed the lawsuit against Proposition 8.

The lawsuit was brought by a Southern California gay couple and a Berkeley lesbian couple. They are being represented by Theodore Olson and David Boies, legal powerhouses from opposite ends of the political spectrum.

“Under Supreme Court precedent, there's no way a judge can protect plaintiffs other than the named plaintiffs absent a class action,” said Amar, who voted against Proposition 8. He said “Boies and Olson foolishly failed to certify” a class in the case.

In its filing, Imperial County argued that the case should be decided based on the U.S. Constitution, not on a technical question of standing. The county argued that it was entitled to appeal Walker’s order because counties issue marriage licenses.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, the named state defendants in the suit, clearly have standing to appeal but have decided not to.

“This case presents the truly extraordinary situation of a constitutional provision without a single governmental defender,” lawyers for Imperial County told the court.

Opponents of Proposition 8 dismissed their adversaries’ arguments.

“The fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial,  said Chad Griffin, a Los Angeles political strategist who launched the case.

The case is scheduled to be heard by a panel of three 9th Circuit judges in December. The court has put Walker’s ruling on hold pending a decision on the appeal.

-- Maura Dolan

Comments () | Archives (20)

So what about every other law that has been challenged and overturned because it was unconstitutional? Loving v Virginia wasn't a class action lawsuit.

"How are you harmed by gay marriage?" ...that's the question that the Circuit Ct of Appeals has asked all potential appellants to answer.

The answer, of course, is that no one is harmed by gay marriage. That was clearly established in the federal trial in SF. It's a finding of fact.

Conversely, non-heterosexuals -are- harmed by not being able to be married. Several states do not extend hospital visitation rights, estate rights, power of attorney rights, etc to domestic partners or 'civil union' partners. These are also findings of fact.

Are the Prop 8 supporters just going to argue this issue into the ground by calling out technicalities? Maybe that's part of their plan; to delay this process as much as they can to buy time.
Why can't we just let people be?

If the intervenors want Walker's ruling limited to just the two couples, doesn't that argue against Imperial County trying to join the appeal, as neither couple is from Imperial County nor is likely to move there?

I'm not a fan of Prof Amar's reasoning. Class actions are for collective commercial harm. In contrast, Constitutional claims are as broad or narrow as the final ruling. The highest court decides who is in the implied class.

Wow! UC Davis Law Professor Vikram Amar must be an idiot if he really believes such foolishness.

The Prop 8 defense is arguing that Judge Walker exceeded his jurisdiction by issuing an injunction that affects people other than the four plaintiffs. Basically, they argue that in deciding Loving v. Virginia, which was a class that was never certified, the court did not have the authority to broadly strike down laws prohibiting interracial marriage, but only had jurisdiction to allow Richard Loving to marry Mildred Jeter. They are also arguing that in the case of Brown v. Education, which was also never certified, the court did not have the authority to strike down all laws that segregated schools based on race.

Ever since the Supreme Court started making rulings in the early 19th century, courts have been able to declare that a statute violates the Constitution, almost always without certifying a class.

Prop 8 supporters also rely entirely on one case, a case that the Ninth Circuit court has already said doesn’t apply to this situation. They rely on Zepeda v. INS, a case in which the Ninth Circuit held that when issuing a preliminary injunction that applies to parties not before the Court, it must certify a class first. However, Judge Walker did not issue a preliminary injunction, but he issued a permanent injunction.

Prop 8 will be struck down and Prop 8 supporters know it, so they are making desperate and pathetic legal arguments.

So this entire article is about complete BUNK!

My question is this:

If it is found that only the Governor and A.G. have standing to defend the proposition, do we still have to wait until December rolls around to hear oral arguments or would the case simply be dismissed and marriages allowed to procede?

Sounds like it is better not to buy California produce, especially Imperial Valley, for the time being...

Too bad there is not a thumbs up. Anthony is correct, and wrote what I was thinking as well. The class action nonsense is ridiculous. Let me guess, Professor Amar is also one of these cranks who believes that Brown v. Board was a bad decision on technical grounds. I have run into this type of reasoning a few times, which is a few times too many.

Way to go Imperial County!!!! Defending the rights of the voters is commendable!!Hope the Judges can discern the differnce between right and wrong.

The problem is that in the complaint, the relief requested was for an injunction barring enforcement of prop 8 against the plaintiffs.

This means that the lawsuit was an "as-applied" constitutional challenge versus a "facial" constitutional challenge.

A statute is unconstitutional as applied when its application to the litigant deprives him/her of a constitutional right.

A facial constitutional challenge requires a showing that a statute is always
unconstitutional in every application.

Here, the plaintiffs did not attempt to show that prop 8 is unconstitutional in every application.

So the relief available is limited to the plaintiffs.

The anti-marriage contingent re-iterates the same failed arguments, over and over again. Evidently little new was presented in this latest brief. The fact remains, they have nothing, and can't prevail in a fair fight against arguments in favor of same-sex marriage.

The crux of the matter is expanding marriage to include same-sex couples in no way infringes on the rights of already-married or to-be-married opposite-sex couples, whose relationships are unaffected, and that the "science" quoted to allegedly prove harm is from shady sources with little or no scientific credibility.

Yes, higher court decisions may go either way in the short term, but in a fair fight in the realm of ideas, there's no question the anti-marriage position will lose, and same sex marriage will eventually be legal pretty much everywhere in the civilized world.

The prop 8 backers are really cry babies. At every turn they come up with a new Whaaa. Their justification is weak and flawed they need to just admit defeat already !!!

The people support prop 8 but the cali governor doesn't why did he get voted in?

They argue to "protect marriage." Child molesters are allowed to marry their vicitms, so long as they are of the opposite sex. http://www.kidsolo.com/child-molester-marries-victim/2435/
Murderers are allowed to marry, even in prison, so long as they marry to the opposite sex. http://www.digitaljournal.com/article/134365
This is how they would protect marriage. Protect marriage for child molesters and serial killers. yeah, but at least it's traditional. Loving, consenusal adults of the same sex cannot marry because it will injure the fabric of society. Yet let the most vile of criminals marry, buecause, hey that is the way it's always been.

.....nor was Brown v Board of Education a class action. If a law is found to deny equal protection to a member of a group (gay and lesbian), it is also unconstitutional as to all members of the group. Man, these prop 8 people are bozo's

Sue, I agree. I think the Prop 8 supporters lack the humility to admit that. There afraid their whole world changing without them in control at the helm.

Should we remind the ProtectMarriage people that recently a heterosexual woman killed her 8 year old daughter? What about the other heterosexual man who, a year or two ago, was distraught over a break-up with a heterosexual woman, that he went to her family's Christmas party and shot everyone there, pretty much killing most of her family? How about that heterosexual couple who are divorcing now, who own the Dodgers? Is ProtectMarriage doing anything to help them save their marriage? Or, even better, is ProtectMarriage doing anything about those heterosexual teenagers who are having babies in their mid-teens? I would imagine they have some impact on the image of marriage and should be told a thing or two. What a shame they're letting all these things fall by the wayside just so that two men or two women aren't allowed to kill their children, shoot up an entire family, or divorce, like any other heterosexual couple.

in the constitution it says that all men are created equal so why can't guys act like girls guys. men and woman should have the right to marry their own sex

This entire mess about Prop. 8 should have been settled when voters acted on it. The constitution was framed at a time long before society started slipping - in many respects - to the level it is on a path of decension to. It makes perfect sense to hear and abide by the will of the people when an act like legalizing Gay Marriage will have such a wide reaching and significant impact on the society into which it intrudes. Again, we have government deciding what's best for society when we have the ability to choose for ourselves. Take a poll and see how many people really want to see men marrying men and the same for women. Then throw in the adoption option and it really starts getting sick. If we can legalize Gay Marraige, why can't we legalize pot? More people like pot than homosexuals. Where's the problem?


Citizen's United case was not filed as class action either, but the ruling was carried out as if it were. Only the movie "Hillary" should have been affected by the ruling, but now we're all stuck with unlimited corporate contributions to political ads - which primarily (unfairly) benefit the conservative candidates.
If you like Prop 8 - hitherto know as Prop (Hate), then move to Utah - California is for free thinkers, not puritanists. Go find witches to burn elsewhere!


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