Judge overturns Calif. gay marriage ban

[LittleFuzzy]

What does "lack of Article III standing" mean in layman's English?

Standing is basically the legal right to initiate a lawsuit. The appellants here are not directly involved in the conflict that was raised, the issue was between the plaintiffs and the State of California. A reasonably understandable definition can be found here. The appellants have to convince the 9th Circuit that they be allowed to intervene in the face of the State's inaction, either as public advocates for an act of direct democracy *which would probably be granted if no government authority wanted to intervene* or as organs of government in the State who have responsibility for administering the law *county clerks' offices, some municipal governments, etc.* A number of counties petitioned to intervene when the case was first being heard by Judge Walker and he pretty much ignored them, and they're making petitions again now to the 9th Circuit who probably won't ignore them since the State itself has bowed out. The decision to not grant/recognize standing can itself be appealed as well.

[RandBlade]

I would have thought that since the people of California in a referendum rather than the government of California by statute implemented this, any Californian would have standing? If the government of California were to take the case then surely they'd have first rights to argue it, but if they refuse I'd have thought any Californian should be able to.

[Hazir]

I would have thought that since the people of California in a referendum rather than the government of California by statute implemented this, any Californian would have standing? If the government of California were to take the case then surely they'd have first rights to argue it, but if they refuse I'd have thought any Californian should be able to.

From what I've read that's not a generally accepted opinion on any level of the US legal system. There are some exceptions of course but in general you would have to prove that you (the body you represent) has a material interest in the outcome of the procedure. It is not sufficient that you disagree with a law or ruling.

[LittleFuzzy]

I would have thought that since the people of California in a referendum rather than the government of California by statute implemented this, any Californian would have standing? If the government of California were to take the case then surely they'd have first rights to argue it, but if they refuse I'd have thought any Californian should be able to.

Except "the people of California" were not named in the plaintiff's complaint *nor would it be legally acceptable to name them in any complaint* the State was. Anyone but the plaintiff and the named defendant(s) would have to petition the courts for permission to intervene.

[Angel_Mapper]

The Ninth Circuit was smacked down by SCOTUS in Arizonans for Official English v. Arizona over the same issue, so I don't see how they can grant them standing.

[LittleFuzzy]

The Ninth Circuit was smacked down by SCOTUS in Arizonans for Official English v. Arizona over the same issue, so I don't see how they can grant them standing.

SCOTUS didn't do as you allege. It overturned the Ninth's *and District Court's* decision on the grounds that the case was moot, there was no longer a justiciable issue before the court. It warned that it had doubts about their standing but was going to go along for the sake of argument since the whole point was moot anyway. Not that it matters since a number of California counties have also petitioned to intervene.

[Hazir]

It's questionable though if those counties do have standing either and/or will be allowed to intervene at such a late stage in the procedings. Overhere (holland) it would be very difficult for a third party to obtain standing in a case where was ruled in the favour of the appellant if that third party didn't intervene before the ruling. At least it is my understanding that this case was not on the initiative of the state of California.

From my own practise; if an employee objects to a decision his employer can intervene (have standing) at any moment up till when I finalise it with a ruling. That ruling typically consists of an (implicit or explicit) decision on who has standing and on whether or not the objection is sufficiently grounded or not. If needed I will then uphold the decision or replace it with a new decision. If the employer didn't intervene and I rule in favour of the employee technically the employer still has the right to appeal (you can't take that away) but the court will dissmiss the appeal on the basis of the employer not having standing. REGARDLESS of material interests the employer may have in the new decision I took after my ruling in favour of the employee.

[LittleFuzzy]

It's questionable though if those counties do have standing either and/or will be allowed to intervene at such a late stage in the procedings. Overhere (holland) it would be very difficult for a third party to obtain standing in a case where was ruled in the favour of the appellant if that third party didn't intervene before the ruling. At least it is my understanding that this case was not on the initiative of the state of California.

It's not in the least questionable that they have standing Hazir. They're the ones actually administering the law. They actually have more direct standing on the merits than the State did. And it's not that unusual to intervene on the appeal, though it usually travels up the chain of authority, not down it. There is also the possible impropriety on Walker's part in not hearing their petitions before he made his initial ruling. If it's determined they don't have standing, they'll just appeal that determination. I don't know whether SCOTUS will agree to hear the main case, but one way or another this is going to end up in front of the Ninth Circuit.

[Hazir]

I would suggest that it is questionable since the court of appeal demanded of them to address the question of them having standing. If the court wouldn't have serious doubt about that it wouldn't have instructed as it did. Quite literally there; the question has been asked.

Besides which we have that not insignificant question if the county has any role at all when it comes to the regulation of marriage. To me it seems they are merely agents of the state.

[RandBlade]

The fact the question has been asked does not mean its been answered.

Though again, I don't see how Arnie has sole rights over this and why any Californian lacks standing. This was not Arnie's law, AFAIK this was a law (or constitutional amendment) passed by Proposition by Direct Democracy. The people of California passed this, not the government of California. Therefore the people of California should surely all have standing?

If only the government of California are the sole representatives with standing then that could surely be abused by the government to abolish any Propositions they dislike. Get someone else to appeal, refuse to take up the case and the appeal wins by default. If the people of California lack standing then the idea of Direct Democracy becomes moot. Maybe no bad thing, but surely this isn't the way to kill it?

I hope this goes all the way to SCOTUS and SCOTUS legalise gay marriage for all Americans not just Californians.

[Hazir]

You are right that asking the question isn't answering the question. However, if there isn't serious doubt about the standing, then the question isn't asked explicitly (if it's not in question, it's implicit and thus not addressed). Fuzzy however claims that the question is answered and that their standing is not questionable. Which is patently untrue, since as I have read since that claim, their right to intervene has already been rejected so that standing up till now has been denied. The first hurdle for Imperial County would be to prove that it has standing in a situation where the lower court has decided that it hasn't.

You bring up an interesting point by the way; you'd have to aks why Walker accepted the intervention of the proponents of proposition 8 where he could also have opted for ruling in favour of the claimants since the defendants were not defending their side of the case. Maybe he considered that such a ruling could be overturned on the basis of some due process consideration alone. A risk he may not have wanted to take.

As for why a voter in California has no standing just because he voted for the proposition; to have standing you have to prove that a ruling that re-establishes the right to marry for a same-sex couple has real material effects on you personally. I doubt anybody (at all) has proven this at all. Just being upset about your opinion being rejected is not enough for you to claim to suffer any consequences.

[LittleFuzzy]

I would suggest that it is questionable since the court of appeal demanded of them to address the question of them having standing.

Uh, you're mixing up parties Hazir. The Ninth directed that the defendant-intervenors and plaintiffs to be ready to argue why the appeal should not be denied due to lack of standing in responding to their request to appeal. It did not make such a request to Imperial County's separate request, which is also challenging Walker's refusal to let them intervene.

Besides which we have that not insignificant question if the county has any role at all when it comes to the regulation of marriage. To me it seems they are merely agents of the state.

Marriage licenses are handled at the county and city levels. The records are made and kept by the county, and their designated officials are the ones acting as formal witness. They administer the law. You may recall that Prop 8 came out of the successful legal challenge to an earlier ban on same-sex marriage, *also arising from the initiative process* which the State Supreme Court struck down as going against the state constitution. That case arose when San Francisco declared that it would start granting marriage licenses in defiance of that earlier law. Any official involved in enforcement of the state laws regarding marriage has Article III standing. As long as it is law *which it provisionally is when on appeal* then there is still a "case or controversy" while offices or officials involved in administering that law are opposing the plaintiffs.

edit: Note, that intervention and standing are two different things. Walker denied intervention, which is independent of Article III standing. When he allowed citizen Prop 8 proponents to defend it in the initial hearing, he allowed them to intervene, which did not indicate anything one way or another about their Article III standing. Also, as near as I can tell, when Walker denied Imperial County, it was before/during his initial ruling, not on the matter of appealing, so back when the State was still an active party. He DID allow City of San Francisco to intervene

edit 2: In denying Imperial's request to intervene, Walker said what you've said above, that counties are mere agents of the state and have no protectible interest *so no conflict or controversy* independent of the state. There's a serious problem there, though, because plaintiffs named two county clerks in their suit, and Walker did not dismiss them from the suit.

[LittleFuzzy]

If only the government of California are the sole representatives with standing then that could surely be abused by the government to abolish any Propositions they dislike. Get someone else to appeal, refuse to take up the case and the appeal wins by default. If the people of California lack standing then the idea of Direct Democracy becomes moot. Maybe no bad thing, but surely this isn't the way to kill it?

That thought occurred to me a few days ago. so I consulted several practicing members of the California Bar *i.e. my relatives* Apparently that technically can happen thought it probably never would. The only real remedy if all valid authority refused to defend or enforce a law *and it doesn't just apply to measures passed by the initiative process, its actually much more likely to come up with old, outdated statutes that no one cares about anymore, say a regulation on the height of swinging doors in saloons* would be impeachment or recall.

[RandBlade]

Just browsing randomly on wiki, ended up on SCOTUS case history and it mentions on Christian Legal Society (CLS) v Martinez was used as precedent for this appeal.

http://en.wikipedia.org/wiki/Christi...ty_v._Martinez

I could picture this appeal being upheld 5-4

[Hazir]

Just browsing randomly on wiki, ended up on SCOTUS case history and it mentions on Christian Legal Society (CLS) v Martinez was used as precedent for this appeal.

http://en.wikipedia.org/wiki/Christi...ty_v._Martinez

I could picture this appeal being upheld 5-4

How would you come to that conclusion.

[RandBlade]

How would you come to that conclusion.

Just as that case came down 5-4 I think the case could be the same with the judges (or their replacements) coming down the same way.

EDIT: AFAIK it is essentially 4 "conservatives", 4 "liberals" on the bench with situations like this with Kennedy being the swing voter. From what I've read in similar judgements Kennedy has come down on the 'liberal' side so this would win 5-4.

[LittleFuzzy]

Just as that case came down 5-4 I think the case could be the same with the judges (or their replacements) coming down the same way.

EDIT: AFAIK it is essentially 4 "conservatives", 4 "liberals" on the bench with situations like this with Kennedy being the swing voter. From what I've read in similar judgements Kennedy has come down on the 'liberal' side so this would win 5-4.

Kennedy tends to go along with the states rights jurisprudence Rehnquist managed to get the Court to start following.

[Hazir]

Kennedy tends to go along with the states rights jurisprudence Rehnquist managed to get the Court to start following.

On the other hand, recently they re-affirmed the supremacy of the Constitution in that arms-case.

[Hazir]

And what's going to happen to Imperial Counties appeal against the decision not to accept them as intervenors? If that's not resolved before the appeal itself is dealt with aren't they simply left out in the cold just like in the treatment they got by Walker?

[LittleFuzzy]

And what's going to happen to Imperial Counties appeal against the decision not to accept them as intervenors? If that's not resolved before the appeal itself is dealt with aren't they simply left out in the cold just like in the treatment they got by Walker?

My understanding *and it could be wrong* is that Imperial is making a separate appeal along with the petition to intervene. If the Ninth allows both groups to go forward, they'll consolidate the two petitions into one case with multiple parties.

[Hazir]

My understanding *and it could be wrong* is that Imperial is making a separate appeal along with the petition to intervene. If the Ninth allows both groups to go forward, they'll consolidate the two petitions into one case with multiple parties.

It would still be very interesting to see they get the right to appeal a case to which they weren't even a party to start with.

P.S. I just read that an attempt to force the state to appeal the Warner ruling has failed.

[Hazir]

My understanding *and it could be wrong* is that Imperial is making a separate appeal along with the petition to intervene. If the Ninth allows both groups to go forward, they'll consolidate the two petitions into one case with multiple parties.

In the court papers I see nothing to indicate that. It even seems they are not going to rule on the ability to intervene in this case untill they have ruled on the matter of proposition 8.

[Hazir]

Just thinking about this in general terms I think the District Court would do well do kill this case on the basis of the appellants not having standing; government in California is messed up enough already as it is with the proposition system. Granting standing would effectively do away with the executive in California. It would create a situation in which not acts of government are checked by the judiciary but where actual policy decisions would be subject to judicial oversight.

Also wondering who wrote that brief; it seems like it was written by a legal assistant who didn't really take the time to sit down for it. Also smart to attempt to make Warren's alleged homosexuality contentious. The judges really must like that argument.

[GGT]

Montana GOP policy: Make homosexuality illegal

http://www.msnbc.msn.com/id/39246126/ns/us_news/

Donkeys.

[Nessus]

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

[Hazir]

Nice, a Supreme Court judge who is clearing the way to roll back 40 years of jurisprudence. How's that for activism.

[Nessus]

But he's an activist on the side of the Founding Fathers*!

*Largely mythological creatures made out of bowdlerized, cherry-picked segments of the lives and times of some of the actual 'founding fathers', mainly utilized to justify the McCarthyist-Reaganist Christo-fascism of the GOP

[Hazir]

Not really he's on the side of the guys who questioned the Founding Fathers.

[Angel_Mapper]

Olson and Boies must be laughing their friggin asses off at the piss poor brief the proponents filed with the Ninth Circuit.

http://www.calitics.com/diary/12536/...brief-part-one
http://www.calitics.com/diary/12539/...past-the-trial

[Hazir]

And we are a step closer to the point that the US courts say a final word on whether or not it is constitutional for majorities to strip minorities of their equality.

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