Wednesday, March 20, 2013

Are Proposition 8 Proponents Trying to Avoid a Direct SCOTUS Ruling?

The last brief has been filed in the case of Hollingsworth v. Perry (12-144)by the proponents of Proposition 8 and bizarrely they seem to be asking the U.S. Supreme Court ("SCOTUS") to remand the case back down to California Supreme Court for further consideration of whether the proponents have "standing" to litigate the case before the Court.  Previously, the Court independently engaged Harvard Law professor Vicki C. Jackson to brief the issue of standing in both the Proposition 8 appeal and in the DOMA appeal.  Professor Jackson found a lack of standing in both cases.  This last minute filing suggests one of two things in my view.  Either (i) the Proposition 8 proponents fear that if the Court rules that they lack standing, the 9th Circuit Court of Appeals will stand and Proposition 8 is dead, or (ii) they fear an broader ruling in favor of gay marriage.  A remand to the California Supreme Court would delay either eventuality.  The Proposition 8 proponents' goal is to keep LGBT citizens inferior under the law as long as possible even if they now believe that they may lose the larger battle.  A post on SCOTUS Blog looks at the development.  Here are excerpts:
Lawyers for the sponsors of California’s Proposition 8 ban on same-sex marriage suggested in a new Supreme Court filing on Tuesday that their case might be sent back to the state supreme court to further analyze their right to defend that measure’s constitutionality. The suggestion came in the reply brief, the final document in the case of Hollingsworth v. Perry (12-144) before the oral argument next Tuesday.

The Court, in granting review of the case, told lawyers to address whether a ballot measure’s backers have “standing” under the Constitution’s Article III to be pursuing an appeal of a lower court decision nullifying their measure. The challengers to Proposition 8 have argued that the sponsors cannot meet that constitutional test because they cannot show that they have suffered any legal injury from that decision.

The sponsors, citing the California Supreme Court ruling finding that they are allowed to stand in for the state in defending a ballot measure that state officials won’t defend, argued that their role is actually to represent both the people of the state and the state itself in this court battle.

Under California law, the brief went on, the backers “do have a unique, personal stake in the validity of Proposition 8 that is ‘directly affected’ by this litigation.” At that point in the brief, the proponents inserted a footnote commenting that neither the Ninth Circuit Court nor the California Supreme Court, in finding “standing,” had dealt with the issue of personal injury.

Thus, it said, “it may be appropriate” to send the case back to the state court “if this Court concludes that petitioners [the sponsors]. despite their establishing authority to represent the State’s interest, must also demonstrate personal injury to satisfy Article III.”

The reply brief also defends the constitutionality of Proposition 8 on the merits, relying again heavily on the history of marriage as between a man and a woman, and on the argument that the fundamental purpose of marriage is to foster childbirth.

Acknowledging that the political argument for same-sex marriage “has resonated with growing numbers of Americans in recent years,” the brief said that this trend runs counter to the view in most states, but that if marriage is to be redefined, it should be “for the People to decide.”

Note that the last gasp defense of Proposition 8 comes down to majority mob rule where in theory the rights of every minority is at risk.  One can only hope for the day when Christians become a majority in America at which time it will be nice conceptually to threaten to apply their mob majority rule standard against them themselves.  These people are horrible.  Meanwhile, of course, the public support for gay marriage is accelerating. 

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