Opponents of same-sex marriage ban urge California Supreme Court to reject federal appeals court request

An attorney for same-sex couples hoping to overturn Proposition 8 in federal court urged the California Supreme Court on Tuesday to reject a federal appeals court request to determine whether state law gives initiative sponsors legal authority to defend ballot measures.

The U.S. 9th Circuit Court of Appeals asked the state high court earlier this month whether California law gives initiative proponents the right to defend a ballot measure when state officials refuse to do so.

In federal court, the general rule is that only a party that is directly affected by a trial court ruling  has standing or authority to appeal it. State officials have refused to appeal the August ruling against Proposition 8.

In his letter to the state court, Theodore B. Olson, an attorney for two same-sex couples, said the question of standing in federal court is a federal constitutional issue, not a state one, and that the California Supreme Court would merely prolong the case by agreeing to answer the 9th Circuit’s question.

Olson also argued that “well-established” law in California denies initiative sponsors the right to represent the state in litigation.

“It is clear that California law vests the Attorney General -- not private litigants -- with the authority to represent the State’s interest in litigation,” Olson wrote.

Erwin Chemerinsky, a constitutional law professor and dean of UC Irvine’s law school, said he was not surprised by Olson’s argument. Lawyers generally want an issue to be decided by a forum where they expect to win, Chemerinsky said.

The California Supreme Court has never clearly stated whether initiative sponsors have legal authority to defend ballot measures, and how it would rule is difficult to predict, the professor said. In contrast, two of the three 9th Circuit judges hearing the case appeared likely to rule in some fashion in favor of Proposition 8’s challengers.

The state high court is still reviewing letters on the case and has not yet decided whether to agree to the 9th Circuit's request.

If the 9th Circuit determines that the backers of Proposition 8 lack standing to appeal, the court would not reach the constitutional questions, and the lower court ruling against the marriage ban would be limited to California, legal experts have said.

Theodore Boutrous Jr., another lawyer for the same-sex couples, said Tuesday that the legal team wants the case to “move forward as quickly as possible” because the couples who filed the lawsuit “are suffering irreparable injury to their constitutional rights.”

Proponents of Proposition 8 have argued that a single judge should not be permitted to throw out a ballot measure approved by a majority of voters. The proponents also contend that California law gives them the right to defend ballot measures when state officials refuse to do so.

-- Maura Dolan

Comments

[Seymour]

So the contention is that serial killers are entitled to be represented in court, but the majority of Californians who voted for Prop 8 are not entitled to be represented in court. And the Attorney General who refused to do his job was elected Governor.

Apparently California is bankrupt both financially and mentally.

[DugoutNut]

What doesn't a certain segment of our population understand about one judge "overturning" a law.

If a law is unconstitutional, a judge has no choice. He must follow the law and declare it unconstitutional. His job is protect the few from the will of the many when the many wish to infringe on rights.

According to this segment of our population if we pass an initiative banning Jews in California, they would have to move out of state. If we pass an initiative making it legal to own slaves, a court has no right to throw out the law.

I am concerned that I live among this segment of the population. People who were educated right next to me in school. People who do not understand the concept of our Democratic Republic, its three branches of government and the checks and balances system from which we all benefit.

[Jenn]

Just STOP. Love who you love. Let other people love who they love. I'm sick of the childishness. No, you can't control what other people feel. Yes, you can stop talking about it and live your own life. Complain about judges, complain about Biblical misinterpretations, complain about culture, but just STOP.

[misanthropicus]

[...] if we pass an initiative banning Jews in California, they would have to move out of state. If we pass an initiative making it legal to own slaves, a court has no right to throw out the law. [...]

Mental Giant, get a better argument - the fact that grammer allows you to make comparisons between any category doesn't mean necessarily that the comparisons are valid - which is what you appear to believe -

Slavery or exclusion of Jews are issues that are covered by constitutional rights , i.e. natural freedom or ethnic discrimination- yet marriage between homosexuals are not, for the simple reason that homosexuality is a chronic condition that society should not nurture or promote 'cause it damages the societal fabric -

Comprende?

[Get Planted]

Gay marriages hugely enrich many peoples' lives and hurt no one.

This issue is quite simple. Prop 8 blatantly violates State and Federal laws against discrimination on the basis of gender.

[Get Planted]

Hey misanthropicus, the Constitution as originally written bestowed all kinds of rights to white males, but very few rights to women and even fewer to black slaves. Things have changed, thank goodness, and now women, minority races, and yes, even gays, have the same Constitutional rights as white males.

[Get Planted]

Hey Seymore,

The main debate in court is an attempt to determine if and how anyone is personally injured or damaged by gay marriage. So far no damage from gay marriage has been alleged by anyone.

Do you have testimony that you can present to the court that demonstrates how you have been personally harmed by gay marriage? If so, the court would like to hear your story.

If not, shut up and quityerbichin.

[Susan Bowling]

I believe the headline should read "Proponents of same-sex marriage ban...".

[yinbin]

Ethically and logically, it is as untenable to exclude people on the basis of their sexual orientation as it is to exclude them on the basis of the shape of their noses or the color of their hair. If it is 'natural' to have snub proboscis as it is to have high ones, it is as 'natural' to be a heterosexual as it is to be a homosexual. There is no one model of the natural; nature is by definition various. Why should anyone be faulted simply for possessing certain traits - of gender, race, sexual orientation, or inherited disability, or even body type - over which they had no control? 'Blaming' someone for being homosexual is equivalent to faulting that person for simply existing.

-from Straits Times, a leading English daily in Asia.

[WrathofGod]

Now that is a funny headline!! I doubt seriously that the "opponents" would ask for this!! Who knew that the firing all but a handful of the copy editors in America would make us all laugh so hard!!

Prop 8 would never pass today. When the "proponents" of Prop 8 decided to lie to the electorate to get the desired result, they set up a situation in which the passing of the initiative did not represent the will of the people - it only reflected the delusion promoted in a pre-election advertising blitzkrieg by the religious right. The LGBT community failed to counter the ads, it is true, but that doesn't change the fact that the backers of Prop 8 lied to the public.

Since then, Californians have wised up. The religio-bigots still trying to compromise the rights of their fellow Californians form a small group whose ranks are no longer padded by those who were fooled into voting for Prop 8 by the lies of the Christianists. And given the lack of creditable witnesses for the "proponents" at trial, the wised-up Californias would seem to be elsewhere and not in that population of "proponents."

I see the new Dark Ages entered into joyfully by a few know-nothing fellow Americans who are afraid of educated people and want to bring us down to their level. That is the level of the Bible, a book that lauds slavery, genocide, vengence killing, father-daughter sex, and a host of other nasty practices.

For the know-nothings who think that the State must enforce bigotry in California, sorry, the State Attorney General has the right to refuse to sue when she thinks the case is unconstitutional, indefensible, or frivolous. I'd say this lawsuit hits all three marks.

[Anonygrl]

Seymour,

You seem not to understand how the court system works.

The Californians who voted for Prop 8 WERE represented in court by the defendant intervenors. And in that court case, Judge Walker ruled that Prop 8 is unconstitutional.

The rules of an appeal are that the appellants must show that they have suffered some ACTUAL HARM because of the lower court's ruling, not just that they don't like the ruling and want a different one. The Californians who voted for Prop 8 (as represented by the defendant intervenors) cannot show that marriage equality will cause them any harm at all, and THAT is why they should not be granted standing. Thus, they have HAD their day in court, the ruling went against them, and they are done.

Additionally, the Attorney General and the Governor agreed that Prop 8 is unconstitutional and by choosing not to appeal, they are saving the state (and all those Californian tax payers) quite a bit of money in not pursuing it.

[Anonygrl]

Susan Bowling and WrathofGod,

Actually, Ted Olson, the lawyer for the "opponents of the same-sex marriage ban", IS the one who wants the California State Supreme Court to not answer the 9th District's request for clarification on the standing issue.

His contention is twofold. First, the rules for FEDERAL appeals are not the same as those for state appeals, so the state court's ruling would not actually pertain there, and second that there exists a proponderance of case law already that clearly states that the Attorney General has the right to appeal, but initiative proponents do not. He also says, in his letter to the California State Supreme Court, that one of his concerns is that if the Supreme Court agrees to answer these questions, it will only add more time to the case, and that harms his clients as it adds to the length of time that marriage is unavailable to them.

So yes, the lawyer for the opponent of the ban wants the State Supreme Court to not answer the questions (which, by they way, they are not OBLIGATED to answer anyway) put to them by the Federal 9th District Court so that the case will be finished and done with and his clients can get married.

[Warren]

Lawyers for the plaintiffs involved in the case, known as Perry vs. Schwarzenegger , and for the city and county of San Francisco have argued that only the state officeholders can appeal the ruling, not the backers of the anti-gay law.
Walker wrote in his order that the Yes on 8 groups "may have difficulty demonstrating" they have standing in the case.
In order to be granted what is known as Article III standing, Walker notes that the ballot measure's proponents, known as Protectmarriage.com, must show "a concrete and particularized injury that is actual or imminent."
Walker concluded, "nothing in the record shows proponents face the kind of injury required for Article III standing."
On September 8, 2010, the California Supreme Court denied without explanation an emergency request by the Pacific Justice Institute, a conservative legal organization, to force Schwarzenegger and Brown to defend the case on appeal.

[Mykelb]

@misanthropicus:

I see you have your Catholic/Mormon/Baptist talking point all in order. You are one of the people who do not understand our Constitution and it's 9th Amendment. I, as a gay man, retain "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Those inalienable rights to life, liberty and the pursuit of happiness are MY CIVIL RIGHTS to civil equality according to Amendment 14. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Maybe you need to go back to school and learn some more about your own countries founding documents.