California Supreme Court Says Prop 8 Proponents Have Standing to Appeal

In a decision that I frankly see as more politically motivated by justices who are afraid to stand up to Christianist hate merchants, the California Supreme Court has ruled that the proponents of Proposition 8 have standing to bring a post-election appeal as part of the state's initiative process. The ruling allows the backers of discrimination to usurp the power of state elected officials to decide what laws are unconstitutional and should not be supported via litigation. I suspect that over time, many in California will rue the day that this opinion was handed down since it will allow vicious, vitriolic forces to take over defending discriminatory laws that ought to be struck down. In the shorter term, the decision will mean that the Ninth Circuit Court of Appeals will likely consider the merits of the District Court ruling that declared Proposition 8 unconstitutional. Metro Weekly looks at where this is all likely headed. Here are some highlights:

The Ninth Circuit will now take the appeal, Perry v. Brown, back under advisement and decide how it wishes to proceed on the question of whether the proponents have standing under federal law, although the scope of today's opinion makes it almost certain that the federal court will find standing.

The state court was asked by the Ninth Circuit whether the proponents have "particularized interests" in seeing the initiative upheld and whether California law itself allows the proponents to stand in the place of elected officials charged with defending the state constitution when those officials decline to do so.

Attorney Ted Olson, who is representing the plaintiffs who successfully challenged the constitutionality of Proposition 8 at trial, said of today's decision in a conference call this afternoon with reporters, "This frees up the Ninth Circuit to decide the constitutional issues ... on the merits."

The Ninth Circuit could now seek additional briefing and/or arguments or it could rule on both the standing question and the constitutionality of Proposition 8 with no additional steps. Once a ruling is issued from the Ninth Circuit, the losing party is almost certain to ask the U.S. Supreme Court to hear the case. As Olson indicated today, at that point both the standing and merits questions would be before the nation's highest court for final resolution.

Prop 8 Supporters Appeal Ruling on Walker Verdit

The anti-gay forces of hate and intolerance refuse to give up on their efforts to secure the reversal of Judge Walker's ruling in Perry v. Schwarzenegger. Now, they are appealing the decision of Judge James Ware which stated that Walker's 2010 ruling declaring Proposition 8 unconstitutional should not be thrown out because Walker didn't disclose he had a partner. Frankly, I think its time for severe sanctions to be imposed against both the Prop 8 supporters who are abusing the court system and their counsel personally for filing frivolous appeals. Until there are consequences arising from specious filings and appeals, the circus will go on as long as the Christianists can dream up any ridiculous basis for appeal. The Advocate has these highlights:
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Antigay groups are appealing the June 14 decision of Judge James Ware, which stated that Walker's 2010 ruling declaring Prop. 8 unconstitutional should not be thrown out because Walker didn't disclose he had a partner. Pro-Prop. 8 groups like ProtectMarriage say Walker was biased in his ruling because he would have personally benefited from California allowing same-sex marriage. Ware said there was no indication Walker intended to marry his partner — and he didn't during the brief time California allowed same-sex marriage in 2008.
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Groups such as Lambda Legal and the American Foundation for Equal Rights, which is bankrolling the case against Prop. 8, called the attempt to get Walker's ruling thrown out desperate and insulting.
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"The court decisively rejected an outrageous attack on the integrity of Judge Walker, not to mention judges in general." Peter Renn, an attorney for Lambda Legal, said in a statement following Ware's June 14 decision. "The motion was a sideshow designed to deflect attention from the fact that the proponents had every chance to prove that Prop. 8 was constitutional, but could not do so. Prop. 8 was declared unconstitutional because it is unconstitutional — not because the judge is gay."
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The bullshit filing can be found here. It is truly time to end the special deference given to those who hide their hate and bigotry under the cloak of religious belief.

Motion to Vacate Perry v. Schwarzenegger Decision Denied

Thankfully, the effort of the Christianists and Proposition 8 supporters to have Judge Walker's decision in Perry v. Schwarzenegger vacated was denied in a ruling handed down today. Faced with a likely finding that they lack standing to fight an appeal, this last ditch effort centered on the allegation that since Walker is gay and in a relationship, he was too biased to hear the District Court trial. The entire episode demonstrates that the Prop 8 supporters don't have a valid case - indeed, they never did. Should the Ninth Circuit Court of Appeals find that they lack standing, I hope the court assesses attorneys fees against them. One would also wish that their attorney would be sanctioned for filing frivolous motions as an added measure. The full ruling can be found here. Metro Weekly has coverage on the ruling. Here are some highlights:
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U.S. District Court Judge James Ware ruled today that the Aug. 4, 2010, decision by now-retired Judge Vaughn Walker striking down Proposition 8 as unconstitutional could not be vacated -- as the proponents of Proposition 8 argued on Monday, June 13 -- because Walker is gay and has a partner.
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In introducing the denial, Ware writes: After considering the Oppositions to the Motion and the governing law, as discussed below, the Court finds that neither recusal nor disqualification was required based on the asserted grounds. The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.
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The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits.
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Earlier in the day (before the ruling was handed down), a post at Huffington Post looked at the dangerous precedent a ruling in favor of the Prop 8 supporters would have established. Indeed, it would have opened many court rulings to frivolous challenges. Here are some high points:
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Yesterday a team of lawyers sought to undermine the U.S. legal system. I'm not speaking in hyperbole -- these members of the bar attempted to discredit every black, female, non-christian, or gay judge in the country.

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According to the logic of the Prop 8 counsel, no African-American judge could sit on a case that dealt with discrimination -- including cases where police officers are accused of racial profiling, where schools are accused of excluding students of color, where an individual was not given a promotion because of the color of his or her skin.
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According to this damaging logic, no woman could sit on a case where abortion, divorce rights, child support rights (for women), gender discrimination etc. are considered. The same goes for Jewish judges considering freedom of religion issues. And yes, any judges who are gay or have gay family members or friends would also be booted from cases that deal with gay rights issues.
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Make no mistake. The Christianists are a clear and present danger to the rule of law and equal rights for all citizens under the U. S. Constitution. It is far past time that their seditious agenda be called out and made obvious to even the worse dullards in the public.

USA Today: Prop 8 Judge is Gay. So Whay?

In it's main editorial USA Today slammed the effort by Christianists and Prop 8 supporters to have the District Court ruling in Perry v. Schwarzenegger overturned because Judge Walker has confirmed that he is gay after the fact. Unfortunately, the publication gave space for an opposing view authored by Klan loving Tony Perkins, head of the registered hate group Family Research Council. While I question USA Today's judgment in giving a platform to someone with Perkins' sleazy background - will the Imperial Wizard of the Klan be next to pen an op-ed? - I do applaud the main page editorial. Here are highlights:
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The last thing the legal battle over California's ban on same-sex marriage needs is another layer of controversy. But that's just what it got last month, when retired federal judge Vaughn Walker confirmed the rumor that he is gay and told reporters that he has been in a 10-year relationship with a man. Yes, that's the same Judge Walker who ruled last year that Proposition 8, the state's same-sex marriage ban, is unconstitutional.
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Predictably, opponents of same-sex marriage pounced on Walker's disclosure. ProtectMarriage, a group defending Prop 8 in federal court, is asserting that Walker should never have heard the case and that his decision should be thrown out. Walker should have announced he was gay and recused himself, the group says, because the ruling could benefit him if he wants to marry someday.
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[L]ook a bit closer at the superficiality of the argument for dumping him. What if the presiding judge in the case had been a devout member of a church that holds homosexuality is a sin? Under the reasoning of Prop 8 defenders, that judge would have to step down, too.
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What about judges in civil rights cases whose rulings might benefit a broad class of people? Should African-American judges be removed from cases involving affirmative action because they or their children might benefit? What about a white judge whose child might someday be disadvantaged by an affirmative action program at a college or workplace?
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Or a female judge ruling in a gender bias case? Or a Catholic judge ruling on an abortion case? Once you go down this road, it's hard to see where it ends.
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In California, opponents of gay marriage had a weak case to begin with, essentially arguing that allowing same-sex marriage threatens the institution of heterosexual marriage. Even their standing to defend Prop 8 is under legal assault. And regardless of the outcome on Walker, the case itself will eventually be decided by appeals courts.
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In the 1960s and '70s, when African-American and female judges were rare, they sometimes faced motions to force them off cases based on race or gender, as if they couldn't possibly be impartial. Such assumptions were as false then as they are today about a judge who happens to be gay and, not surprisingly, has a partner.
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The Christianist assault on Walker is just another assault on LGBT citizens in general. The number one goal is to keep us inferior and to always have our motivations and loyalties questioned. This challenge to Walker needs to be thrown out and the Prop 8 counsel should receive sanctions for the frivolous filing.

California AG Files Brief Against Prop. 8 Proponents; NYT Slams Attacks on Judge Walker

The litigation in Perry v. Schwarzenegger seems to go on and on with constant new twists and turns. Today, the New York Times printed a main page editorial that eviscerated the Proposition 8 supporters who have resorted to seeking to have Judge Vaughn Walker's ruling set aside because he is gay. Meanwhile, California Attorney General Kamala Harris has filed a brief with the California Supreme Court arguing that the Prop 8 proponents lack standing to appeal Judge Walker's district court ruling. I concur with both the Times editorial and AG Harris' legal analysis. First, these highlights from the New York Times editorial:
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Given ample chance during a 13-day trial to offer an argument apart from prejudice, proponents of Proposition 8, the prohibition against same-sex marriage in California, found no evidence. Now they are trying to disqualify Vaughn Walker, the now-retired Federal District Court judge who ruled that the measure was unconstitutional.
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After the trial, Judge Walker said he is gay and involved in a long-term relationship. Last week, Proposition 8’s lawyers argued that the ruling should be tossed out because he had had a duty to recuse himself, or at least disclose the relationship at the start of the case. The claim is bogus.
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It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their “impartiality might reasonably be questioned.”
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There is no basis to think Judge Walker’s personal relationship played a role in his ruling on the evidence and on whether a constitutional reason exists to limit anyone’s freedom to marry. The idea that a seasoned, Republican-appointed jurist was unfit to hear the case, and that his decision should be set aside on flimsy ethics grounds, is preposterous.
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The editorial gets to the heart of the matter. The Prop 8 supporters offered no evidence to support their position other than anti-gay animus and religious based discrimination, neither of which provide justification for discriminatory civil laws. Now, that the case is on appeal, the Christo-fascists have another problem: the issue of their standing to appeal the case when the State of California has refused to do so. As discussed before, past U. S. Supreme Court decisions indicate that they do not. The Ninth Circuit put the issue to the California Supreme Court as an issue of state law and now the state's Attorney General has filed a brief against a finding of standing. Here are highlights from the Washington Post:
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California’s attorney general has again come out against the state’s same-sex marriage ban, this time telling the state Supreme Court the proponents of successful ballot initiatives do not have the right to defend their measures in court.
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Kamala Harris, a Democrat who succeeded Gov. Jerry Brown in January as attorney general, submitted an amicus brief Monday in the ongoing legal dispute over the voter-approved ban known as Proposition 8.
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In it, she argued that only public officials exercising the executive power of government have authority to represent the state when laws passed by voters or the Legislature are challenged.
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“California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process,” Harris wrote.
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Proposition 8’s sponsors asked the 9th U.S. Circuit Court of Appeals to allow them to step in, but the court punted the question to the California Supreme Court earlier this year, saying it was a matter of state law. If the sponsors are not permitted to intervene, the lower court ruling overturning Proposition 8 will stand.
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Harris contended in her brief that rather than empowering citizens, granting the sponsors of initiatives the ability to overrule the governor and attorney general’s judgment “would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”

Federal Judge Invites Unvarnished Bigotry Into Prop * Case

UPDATED: Check out this Wikipedia article that reflects that Judge Ware has some considerable dirty linen of his own.
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People wonder at times why LGBT individuals - particularly teens - finally surrender to suicidal impulses as the only means to escape the daily assaults on ones dignity and humanity. Well, Judge James Ware (pictured at left), who succeeded Vaughn Walker as the Chief Judge of the U.S, District Court for the Northern District of California, today underscored precisely why some of us just take our own lives and say "no more." While no one would dare alleging in federal court that one's race, religion, ancestry or heterosexual marriage status would render one incapable of performing one's judicial duties, with LGBT individuals we are ALWAYS treated to a different and discriminatory standard. Rather than dismiss the latest ploy of the Prop 8 proponents out of hand, Judge Ware is apparently buying directly into their religious based bigotry and efforts to incessantly stigmatize LGBT Americans. What adds insult to injury, Ware is African American and ought to be opposed to buying into bigotry. Frankly, it makes me sick. and I hope that Ware is challenged on some of his own rulings because of his race. Here are highlights from Fire Dog Lake, one of many media outlets looking at Ware's apparent surrender to bigotry.
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Judge James Ware, . . . . Chief Judge of the U.S, District Court for the Northern District of California, has called for briefs and scheduled a hearing on the motion by Prop 8 Defendant-Intervenors to vacate Judge Walker’s ruling on the grounds that he is 1) a homosexual and 2) in a long-term relationship and therefore 3) his ruling that invalidated Proposition 8 could directly benefit himself.
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Now, for a moment, simply imagine a federal judge entertaining a motion from a defendant that an African-American judge couldn’t impartially decide a school desegregation case because he lives in the affected district. Imagine a federal judge entertaining a motion to disqualify a colleague from a case about the legality of selling birth control devices because the judge lived in the affected jurisdiction and is married to a fertile woman. Imagine a judge being asked to vacate the judgment of another judge who ruled on that state’s process for about distributing and evaluating marital assets because that judge happened to be in the midst of a divorce from her husband.
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This is rank bigotry on the part of Judge Ware, and can only be justified by the federal court system’s consideration of gay people as second-class citizens. It is shameless prejudice. No heterosexual judge would be held to any similar standard regarding her own long-term, committed relationship. No plaintiff would dare question the bona fides of a straight judge. Gays are second-class in federal court and in America; Judge James Ware just proved the entire point of Perry.
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And no chief judge would consider such a motion about a heterosexual judge, nor would he grant a hearing and request briefs on the topic. It is absurd on its face and should be rejected by the federal court system. Judge Ware should be sanctioned for allowing such rank bigotry a place in his courtroom.
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He should certainly remove himself from any further deliberations regarding the Perry case, as he’s shown himself to hold bigotry in high enough esteem to hear its arguments about a colleague. It’s shameful and it shouldn’t be tolerated.
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I cannot help but wonder how Ware would receive a motion filed by religious bigots who believe the Bible justifies the separation of the races who are unhappy with the ruling of a black judge. Would he schedule a hearing and request briefs? Somehow I think not. There truly is no difference between that situation and the Christianist attack on Judge Walker. Once again I find myself longing for a day when Christianity - at least as practiced by the Christianists - is a dead religion..

Prop 8 Defenders Attack Walker Ruling for "Bias"

In what is a dangerous precedent form of attack on the ruling of District Court judge Walker's ruling in Perry v. Schwarzenegger, the defenders of Proposition 8 attack Walker as having a conflict of interest since he is gay. Using this theory, no black judge could rule on a case that involved issues important to black Americans, no woman could rule on a case involving women's issues, no Hispanic judge could rule on a case involving Hispanics and no Catholic judge could rule on a case involving the Catholic Church. Turned around, it would also mean no anti-gay judge could hear a case involving gay rights since they could not be impartial so at the Supreme Court level, Scalia, Thomas and others might need to recuse themselves. On a personal level, it would mean I am entitled to a new divorce trial because my judge was a raving homophobe. The argument, were it to be successful would cause havoc and would allow disgruntled litigants to attack judges regularly. Here are highlights from the Advocate on this latest bullshit from the haters:
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Retired U.S. district judge Vaughn R. Walker’s recent acknowledgments that he is gay and in a long-term relationship are grounds for overturning his landmark decision in the federal Proposition 8 case. Or at least that’s what the ballot measure’s backers argued in a Monday court filing, described by one opponent as “desperate and absurd.”
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In the 26-page brief, filed in U.S. district court in San Francisco, Prop. 8 supporters argued that Walker should have been disqualified from deciding the case and that his opinion should be tossed, in part because of his “long-term committed relationship [and] his failure to disclose that relationship at the outset of the case.” Those alleged omissions “give rise to a genuine question concerning [his] impartiality,” attorney Charles J. Cooper wrote.
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Opponents of Prop. 8 were quick to condemn the Monday briefing as a stunt lacking in any merit. "This motion is yet another in a string of desperate and absurd motions by Prop. 8 proponents who refuse to accept the fact that the freedom to marry is a constitutional right," American Foundation for Equal Rights board president Chad Griffin said in a statement.
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"They're attempting to keep secret the video of the public trial and they're attacking the judge because they disagree with his decision,” Griffin continued. “Clearly, the proponents are grasping at straws because they have no legal case. All of this underscores the proponents’ animus and homophobia, which was the driving force behind Prop. 8 in the first place.”
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The legal team that successfully argued against Prop. 8 at trial last year will file a reply brief in the matter, Griffin said.

New York Times Calls for Lifting of Prop. 8 Ruling Stay

The list of major news outlets calling on the 9th Circuit Court of Appeals to lift the stay of Judge Walker's ruling in Perry v. Schwarzenegger striking down Proposition 8 as unconstitutional continues to grow. Now, the New York Times is calling for the stay to be lifted so that marriages. Indeed, the Times goes even further and states that the stay should never have been granted in the first place - a point that I agree with completely. Particularly since under existing federal court decisions the Prop 8 proponents appear to lack any standing to appeal. Here are highlights from the Times editorial:
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Seven months have passed since Proposition 8, California’s voter-approved ban on same-sex marriages, was ruled unconstitutional by a federal judge in San Francisco following a much-publicized trial that turned up no evidence to justify the measure’s denial of equal protection and due process.
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Yet the 2008 initiative continues to inflict serious harm on same-sex couples and their families thanks to a court order that prevents gay men and lesbians from marrying in California while the case is being appealed. That stay should be lifted now. *
The stay should never have been granted in the first place. Applying traditional legal criteria, the extraordinary relief of a stay is only warranted when the applicant makes a strong showing of likely success on the merits and of irreparable injury in the absence of a stay — two arguments that cannot be satisfied here.
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As the trial judge’s ruling affirmed, the denial of marriage equality furthers no legitimate governmental aim. And defenders of Proposition 8 can point to no real injury they would suffer if gay men and lesbians are permitted to wed.
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Every day same-sex couples are denied their right to marry is another day of injustice for them and their families. Couples who wish to wed knowing that the appellate court could decide to uphold Proposition 8’s ban should be allowed to take that chance.

LA Times: Allow Same-Sex Weddings, Now

The Los Angeles Times has a great main page editorial making the case for allowing same sex marriages now in support of the request of the plaintiffs in the Prop. 8 case to suspend the stay of the District Court ruling in Perry v. Schwarzenegger pending the 9th Circuit's decision on appeal. The editorial makes the case that each day that couples are denied the right to marry they are denied equal protection under the U. S. Constitution. As noted many times on this blog, the only reason that gays have been denied equality is because of the improper special rights and privileges given to anti-gay religious views. It is far past time that special privileges cease being given out to a particularly toxic and hate based set of religious beliefs. Here are highlights from the editorial:
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Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system.
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The state Supreme Court was asked by the U.S. 9th Circuit Court of Appeals to rule on whether supporters of Proposition 8 have the right — known as "standing" — to continue with their case. It indicated that it would hear arguments late this year, with a ruling likely to follow a few months later. Meanwhile, a stay pending the outcome of the appeal has kept gay weddings from going forward. Now, however, the lawyers challenging Proposition 8 have asked the 9th Circuit to lift the stay and allow the weddings to take place. We agree that it should.
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Every day that the case drags on, gay and lesbian couples who would like to marry are being deprived of their civil rights. That's not our wording; the federal trial judge decided that issue, at least for now. The denial of constitutional rights, even temporarily, is a deplorable situation that must meet high legal standards to be allowed to continue. In our view, those conditions have not been met.
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Those filing the appeal must show that they would be irreparably harmed if the stay were lifted; the courts also take into account where the public interest lies. During the trial, the supporters of Proposition 8 were unable to identify any harm that would befall them if same-sex weddings took place.
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Right now, same-sex couples are being deprived of their constitutional right to marry, and every indication is that unless the stay is lifted, they'll have to keep waiting for more than a year. That is real harm, and there is no valid reason to allow it to continue.
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Needless to say, I concur 100% with the LA Times' analysis.

Did Obama Set a Marriage Trap fro the GOP?

With the professional Christians in full cry for the GOP members of Congress to intervene in the DOMA litigation now that - according to the Christianist hate merchants - Obama has rejected his duties to defend DOMA, some are questioning what other motivations Obama and his DOJ might have been seeking to achieve. Some in the blogosphere have suggested that Obama may be trying to seek a narrow reversal of Sec. 3 of DOMA which cuts against the full faith and credit clause of the U.S. Constitution. As Bob Felton correctly notes, that provision reads as follows and is aimed at preventing chaos and a patch work of conflicting laws on basic issues:
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Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the US and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
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The clause means that if you are married in Idaho, you are married in Oklahoma, as well. That is, each state must recognize the civil arrangements of the other states. . . . The point of the Founders’ inclusion of that clause is obvious; without it, the country would be consumed by constant interstate chaos.
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Felton also aptly notes as follows as to the hystrionics of the Christianists:
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Fix this in your head and be ready when some jabbering moron gets to carrying on about the ruin of the Constitution: DOMA is a federal law that aims to void a portion of the Constitution for the purpose of upholding religion-based discrimination: It was never a part of the Constitution, and it was never Constitutional.
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Another possible goal of Obama is conjectured to be setting the stage for the Christianists and their political whores in the GOP to rush into court where the rules of evidence apply and mere posturing and slogans do not carry the day as was evident in the trial court in Perry v. Schwarzenegger. Linda R. Hirshman at Salon looks at this possibility. Here are some highlights:
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By all conventional analysis, this decision by the Obama administration represents a risky and courageous act. . . . Thus, the Republicans who run Congress may now be tempted to follow the administration's subtle suggestion in its Wednesday announcement that Congress should act to defend DOMA in court itself if it disagrees with this move.
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That would be a mistake. . . . . Defending the exclusionary law in court, however, is something very different from braying about it on talk radio. The defenders of California’s Proposition 8, who rushed in when that state's governor and attorney general refused the job, learned this lesson in a federal case last year, when their arguments and witnesses were utterly dismantled by the all-star legal team of David Boies and Ted Olson.
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If House Speaker John Boehner and his fellow Republicans elect to wage a fight for DOMA, they will undoubtedly phrase their announcement in the culture war language that plays so well with their party base.
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But then, the Republicans and their lawyers will have to step into federal court and prove -- subject to cross-examination -- how the republic would be damaged if same sex spouses can get, say, federal railroad retirement benefits. As Boies said after dismantling that disqualified expert in the Proposition 8 trial, "the witness stand is a very lonely place." Moreover, the gay marriage opponents during that Proposition 8 trial didn’t just look dumb -- they looked mean.
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As Republican House members contemplate stepping in to defend the Defense of Marriage Act, they might want to consider all of these negatives. Oh, and that poll showing how many Republicans oppose gay marriage? In the 2010 election, the issue polled at dead last among voters' concerns.

9th Circuit Directs Question to California Supreme Court in Prop 8 Case

As many LGBT blogs and news outlets are reporting, the Ninth Circuit Court of Appeals has deferred to the California Supreme Court on a question of standing in the appeal from Judge Vaughan's ruling in Perry v. Schwarzenegger. The issue is whether the proponents of Proposition 8 have standing to bring the appeal where the State of California - acting through the office of Governor and Attorney General - has refused to do so. In its partial decision, the 9th Circuit did rule that Imperial County lacks any standing to bring the appeal. As noted in prior posts, federal court rulings suggest that the Proposition 8 supporters likely do not have the standing to litigate the appeal. However, since Prop 8 is a California provision, the 9th Circuit referred the issue to the California Supreme Court. As some analysis has suggested, this move may be wise since if the California Supreme finds that the Prop 8 proponents lack standing, a potential issue for appeal should Judge Vaughan's ruling is upheld will have been taken away from the anti-gay marriage crowd. Candidly, a finding that the Prop 8 supporters have standing would open the door to all kinds of crackpots and crazies bring appeals. Thus, I hope the answer of the California Supreme Court is a resounding "No!" Here are some highlights from the San Francisco Chronicle:
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California's highest court, which has issued three rulings on same-sex marriage in less than seven years, was handed another crucial question Tuesday - whether sponsors of a voter-approved measure banning gay and lesbian weddings have the right to defend it in court.
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Then-Gov. Arnold Schwarzenegger and ex-Attorney General Jerry Brown refused to appeal a federal judge's ruling in August that the measure unconstitutionally discriminated based on sexual orientation and gender. So the future of the case depends on whether Prop. 8's sponsor, a conservative religious coalition called Protect Marriage, has legal standing - the right to represent the interests of the state and its voters.
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If not, the federal appeals court could uphold Chief U.S. District Judge Vaughn Walker's ruling and restore same-sex marriage in California - legalized briefly by a 2008 state Supreme Court ruling - without deciding whether Prop. 8 is constitutional.
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The California court has allowed initiative supporters to argue in favor of a measure's validity but has never said whether they could do so if the state did not join in. The U.S. Supreme Court, in a 1997 Arizona case, said it had "grave doubts" that a ballot measure's sponsors could stand in for state officials.
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In a separate order Tuesday, the federal court denied standing to Imperial County, which had sought to enter the Prop. 8 case and defend the ballot measure that 70 percent of its voters supported. The court said the county had no independent authority over marriage, apart from carrying out state law, and noted that the elected county clerk - whose duties might be affected by the case - had not joined the appeal.

Prop. 8 Has Its Day in Court—How Will the Court Rule?

The oral arguments before the Ninth Circuit Court of Appeals took place yesterday and some observers believe that the three judge panel asked questions that indicate the judges are skeptical of the standing of the Prop. 8 supporters to appeal the lower court ruling. In past posts, we've looked at this issue of standing and, based on past U. S. Supreme Court rulings, the easiest way for the Ninth Circuit to deal with the case would be to rule that the appellants have no standing to appeal. Thus, the larger issue of the constitutionality of bans on same sex marriage could be side stepped. That decision could, of course, be appealed to the U.S. Supreme Court. But again, by ruling that the appellants lacked standing to appeal - perhaps an attractive option for the Justices - the larger issue could be sidestepped until another day and a different lawsuit. Gay marriage would be legal in California, but the ruling would be limited to that state. Here are highlights from the Advocate on the oral arguments:
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Charles J. Cooper, lead attorney for the stakeholders who funded, organized, and eventually celebrated the passage of California’s Proposition 8, tried to strike a tone of civility — if not a little victimhood for his clients — directly following the historic oral arguments Monday in Perry v. Scharzenegger before the U.S. court of appeals for the ninth circuit.
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[I]t highlighted a growing chorus, however disingenuous, among those who oppose marriage equality: that decent citizens who can’t accept the notion of same-sex couples marrying are increasingly harassed and portrayed as bigots by an aggressive community seeking to overturn centuries of tradition. “We believe that people of good will can disagree in good faith on this question,” Cooper said. “Our opponents don’t agree. They believe that every one on the other side of them and this debate is behaving irrationally.”
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A three-judge panel of the ninth circuit didn’t indicate how it would rule in the multifaceted case. They did pose tough and incisive questions — about the legal standing of those who defended Prop. 8 to appeal, about how broad the appellate court may rule on the matter, about just how similar the ballot measure is to an antigay state amendment struck down by the U.S. Supreme Court more than 14 years ago, and, perhaps most comically, about the legitimacy of an attempt by one county official — backed by attorneys from a conservative legal group — to step into the case when outgoing governor Arnold Schwarzenegger and incoming governor Jerry Brown have stayed far away.
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The court could rule that Prop. 8 supporters simply don’t have standing to appeal in the case. It could rule that supporters do have standing but that the specific facts of the California ballot measure, which has created a “crazy quilt” of those who can marry and those who cannot, according to Olson and Boies, make it unconstitutional. The panel could even overturn U.S. district court judge Vaughn Walker's earlier decision that Prop. 8 is unconstitutional. Or, as Olson and Boies most likely hope, the court could rule more broadly and declare that marriage is a fundamental right, nationwide.

Oral Arguements Today in Perry v Schwarzenegger

A panel of the U. S. Ninth Circuit Court of Appeals will hear oral arguments in Perry v. Schwarzenegger today as the battle to overturn the Mormon/Catholic backed Proposition 8 continues. Those attempting to read the tea leaves based on the Judges assigned to the case speculate a 2:1 vote to uphold the lower court decision striking down Prop. 8 as unconstitutional under the U. S. Constitution. If there is indeed separation of church and state in the USA and equality means what the word stands for, the unconstitutionally of Prop. 8 should be upheld. One can only hope that the anti-gay discrimination which is the sole purpose of Prop. 8 will be recognized by the panel. Here are highlights from The Advocate on the scheduled oral arguments:
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Arguments before the U.S. court of appeals for the ninth circuit will begin Monday at 10 a.m. pacific time. Unlike the trial in the case, Perry v. Schwarzenegger,the appeal proceedings will be nationally televised (Advocate.com will carry a live feed via NBC).
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During the arguments, a three-judge panel will consider two main questions before the court: whether a federal judge erred in ruling the anti-gay marriage initiative unconstitutional, and whether a coalition of Prop. 8 supporters who defended the ballot measure at trial have standing to appeal the case.
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Representing two California gay couples who sued the state after they were denied marriage licenses, former U.S. solicitor general Ted Olson will argue that U.S. district judge Vaughn R. Walker was correct in striking down Prop. 8 in August.
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"The tragic time has long passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment — even imprisonment — because those in power deemed gay relationships deviant, immoral, or distasteful," Olson wrote in an October brief to the court, one that drew upon landmark gay rights cases before the U.S. Supreme Court as well as the high court's decision in the 1967 case Loving v. Virginia,which struck down laws banning interracial marriage.
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Last week Prop. 8 proponents attempted to disqualify ninth circuit judge Stephen Reinhardt from the panel because he is married to a former director of the American Civil Liberties Union's Southern California office. Reinhardt rejected the request.

Wingnuts File Tidal Wave of Amicus Briefs in Perry v. Schwarzenegger

The wingnutters have gone into a frenzy filing amicus briefs with the 9th Circuit Court of Appeals in Perry v. Schwarzenegger. Candidly, it's probably a good thing for our side since such briefs in the past have been filled with utter lunacy and may have helped tip justices to the pro-gay side. Karen Ocamb has a great overview at LGBT Pov that highlights some of the most interesting insanity. The brazenness of some of the groups filing is at times breath taking - like the brief filed by JONAH - the exgay "cure" program run by Arthur Goldberg who Wayne Besen and I and others exposed as a convicted Wall Street con artist who went to prison for fraudulent bond transactions. Oh, and did I mention that two of JONAH “clients” of have allege sexual misconduct by the so-called therapist. That pretty much reveals the caliber (or lack thereof) of some of the entities submitting briefs.

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Not surprisingly, once again the bogus "choice myth" has been trotted out as a justification for anti-gay discrimination and legal inequality. Never mind that none of the legitimate medical and mental health associations in the USA give the "choice/cure" myths an ounce of credibility. Karen says this on this point:
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The Western Center for Law & Policy filed an amicus brief on behalf of Parents and Friends of Ex-Gays and Desert Streams Ministries (which I went to undercover for a Genre story wherein I tried to get changed. Boy, was that an experience!). In the introduction to the 37-page brief, the center lawyers wrote: “the sole issue addressed in this brief is whether same-sex attraction is a fixed and immutable characteristic.” Timothy Kincaid at Box Turtle Bulletin looks at the PFOX amicus brief.

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For the who's who of wingnut organizations involved, check out Karen's post. Oh, and in terms of the PFOX brief, Timothy Kincaid said in part as follows:
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They [PFOX] argue instead that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition” and that it is a “mutable characteristic which can shift over time and does so for a significant number of people.” They assert that “both the evidence at trial and the evidence embodied in this brief clearly show that many people freely choose and change their sexual orientation.”
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Now, I dare say that it probably is easier at times to define a person’s sexual orientation than it is their race, especially in California. And if the number is so significant or the choosing so free, than why do they present the same handful of people over and over?
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Ah, but PFOX has evidence. To prove that there are thousands of men and women who have successfully left “unwanted homosexuality” behind them and who now “live happy heterosexual lives”, they present four . . . .
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All you need is Jesus. He’s a miracle worker.
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Funny how the Christianists never seem to be able to produce more than a handful of "success" cases and even then, most are on a ex-gay "ministry" payroll. As I have said time and time again, the ONLY thing that justifies the arguments of the proponents of Proposition 8 is religious belief. The rest of their blather is bullshit.

Ken Cuccinelli Files Amicus Brief Saying Gay Marriage Not A Fundamental Right

Virginia Attorney General Ken "Kookinelli" Cuccinelli has joined in an amicus brief filed in Perry v. Schwarzenegger yesterday, September 24, 2010, arguing that gay marriage is not a fundamental right under the U. S. Constitution. From his past actions, it's pretty clear that Cuccinelli would most prefer to apply his own version of a "Final Solution" to LGBT Virginians and simply drive gays from Virginia and exterminate those who fail to leave. The man is a religious extremist of the highest degree who ought to be working for a professional Christian organization such as FCR or holding office in Opus Dei as opposed to serving as the top legal official for a state with over 7 million residents. So far I haven't seen any Virginia newspaper report on the filing - not a surprise given the low quality of most of said newspapers - and learned of it via the Wyoming StarTribune which is reporting in part as follows:
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Wyoming and nine other states will file a legal brief today saying a federal court "exceeded its judicial authority" when it ruled that the U.S. Constitution requires legal marriage to include same-sex couples.
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In the amicus brief, which will be filed late this afternoon in the case of Perry vs. Schwarzenegger, the states disagree with the court's ruling that same-sex marriage is a fundamental right. The brief also asserts that individual states, not the federal court system, have final say in decisions about whether to allow same-sex marriages.
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The other states joining the brief are Alabama, Florida, Idaho, Indiana, Louisiana, Michigan, South Carolina, Utah and Virginia. The brief doesn't mean the states will join the lawsuit. Amicus briefs are often submitted in court cases by outside parties to volunteer their opinions on cases.
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The brief can be viewed here. Not surprisingly, the brief tries to basically ignore Loving v. Virginia where the U.S. Supreme Court stepped in to end illegal discrimination under the U. S. Constitution. Kookinelli and his fellow Christo-fascist attorneys general would limit Loving to ending laws that continued "an incident of slavery" and "measures designed to maintain White Supremacy." Mob majority rule is clearly the mantra of these individuals - a mantra that ought to terrify every minority group in their respective states. The brief states in part as follows:
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Federal intervention was justified in cases such as Loving to uphold the core guarantees of the Fourteenth Amendment. See, e.g., Loving, 388 U.S. at 6, 11 (describing anti-miscegenation laws as “an incident to slavery” and as “measures designed to maintain White Supremacy”); id. at 11 (observing that “[o]ver the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality’”).
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But the Supreme Court has never countenanced the use of federal judicial power to recast the basic parameters of marriage. The notion is at war with the federalist structure of our republic. That structure is designed to allow individual states to experiment with novel social or economic arrangements, without the attendant disruption of forcing the entire nation to do so.
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[V]oters and legislatures in forty-one states have affirmatively rejected the notion of same-sex marriage, either by constitutional amendment or legislation, and voters or legislatures in four other states have left in place statutes that plainly assume the opposite-sex definition of marriage. See supra n.1. Thus, as in Glucksburg, “[t]he history of the law’s treatment of [same-sex marriage] in this country has been and continues to be one of the rejection of nearly all efforts to permit it.” 521 U.S. at 728. “That being the case . . . the asserted ‘right’ . . . is not a fundamental liberty interest protected by the Due Process Clause.”
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The United States Supreme Court has never held that homosexuality constitutes a suspect class, and the law in this circuit is that homosexual persons do not constitute a suspect class. . . . Because Proposition 8 does not involve a fundamental right or a suspect class, it benefits from a “strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319 (1993). Proposition 8 must be upheld “‘if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’”
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Of course, given his religious fanaticism, Cuccinelli's personal religious beliefs are the only basis needed to uphold the religious based discrimination embodied in Proposition 8. Never mind that the proponents of Prop 8 failed to produce any facts to support it other than by default religious belief.

Prop 8 Wingnuts File "Standing" Brief with the 9th Circuit – Still Argue Procreation

The wingnut proponents of Proposition 8 have filed a brief on the issue of standing in Perry v. Schwarzenegger and, in addition to having a conniption fit over Judge Walker's alleged uncritical acceptance of the evidence submitted by Plaintiffs', the Christianists are continuing to whine about procreation being the lynch pin of marriage. Of course, they utterly ignore the fact that the marriage laws allow those past child bearing years to marry as well as the fact that there's no penalty for straights who marry with no intention of having children. Their rant also ignores two U.S. Supreme Court cases that I have mentioned before that cut their standing argument off at the knees. And again, the wingnuts ignore the fact that they had no legitimate evidence to refute the plaintiffs' evidence. If anyone utilized "unreliable" witnesses, it was the Prop 8 proponents. Here are some highlights of the wingnut's screed from Google News:
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Backers of California's same-sex marriage ban urged a federal appeals court to overturn the trial judge who struck down Proposition 8 by arguing late Friday that his consideration of evidence was "egregiously selective and one-sided."
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In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban's sponsors alleged that Chief U.S. Judge Vaughn Walker "quite willfully" disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians' civil rights.
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The appealing attorneys, who called two witnesses compared to 18 for the plaintiffs, asked the 9th Circuit to ignore the trial testimony on which Walker laboriously based his opinion, calling it "unreliable and ultimately irrelevant" to whether Proposition 8 passes constitutional muster.
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"The district court decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman," said Alliance Defense Fund attorney Brian Raum, who is part of the legal team fighting to uphold Proposition 8. "The Hollywood-funded opposition wants to impose — through a San Francisco court — an agenda that America has repeatedly rejected."
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The wingnuter's brief can be found here.

Christianists Continue to Conspire on Perry Appeal

It's instructive in a number of ways watching the gyrations and subterfuge that "godly Christians" will resort to in their hysteria to find a vehicle to force the state of California to appeal the ruling in Perry V. Schwarzenegger. The latest plot may involve an effort to push the state's anti-gay Lieutenant Governor, Abel Maldonado (pictured at right), to file an appeal while Governor Schwarzenegger is out of the state. The hatred of gays borne by these people truly knows no limit and their willingness to do whatever it takes to maintain religious based discrimination in the nation's laws is revolting. As I have said before, these individuals - and the parasites within the professional Christian organizations - have nothing but contempt for the civil rights of other citizens. It's all about them and their intolerant beliefs. Think Progress has details on this latest last ditch effort. Here are highlights:
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Today is the deadline for California to join the anti-gay groups appealing Judge Vaughn Walker’s opinion striking down Proposition 8, and both Governor Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) have indicated that the state will not do so. Prop 8’s supporters, however, think they have an ace in the hole — the state’s Lt. Governor: A group of conservative leaders led by former attorney general candidate John Eastman have asked to meet with Lieutenant Governor Abel Maldonado to discuss his support of an appeal in a federal court suit regarding Proposition 8.
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[T]here is some question whether the proponents of the measure have standing to argue the case before the court [the 9th Circuit]. The Attorney General and the Governor clearly have authority to file the appeal. But, both Jerry Brown and Arnold Schwarzenegger have refused to do so based on their personal opposition to Proposition 8.
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It’s difficult to imagine that Maldonado would actually do such a thing, however. For one thing, he presently has much more important matters to deal with. Not long after Schwarzenegger left for China, a massive gas explosion occurred in San Bruno, California. As the state’s acting governor, Maldonado has been quite busy dealing with this tragic development.
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Moreover, filing an appeal that Schwarzenegger has consistently and publicly opposed would be nothing less than a declaration of war against the highest ranking official in his state. If the governor had to fear that every time he left the state his decisions would be overruled by Maldonado, Schwarzenegger would be discouraged from traveling outside of the state even when it was in California’s interests for him to do so. Simply put, it makes no sense to have crucial policy decisions rest upon where Gov. Schwarzenegger happens to be sleeping tonight.
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Nevertheless, the anti-gay activists offer one entirely cynical reason for Maldonado to abuse his temporary powers as acting governor: the upcoming election. As one anti-gay activist puts it, “more than a few conservatives are still angry with the Lieutenant Governor for votes while he was in the California Legislature. The simple act of filing this appeal could wipe away many bad memories.”
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Should Maldonado file an appeal, it would seem that Schwarzenegger could void the filing upon his return. Obviously, we can only hope that Maldonado opts not to play ball with the Christianists.

DADT Ruling - Why the Government Lost

A guest post at Towleroad by Ari Ezra Waldman, a young attorney and law professor, looks at the ruling striking down DADT this past week. As was the case in Perry v. Schwarzenegger, whenever proponents of anti-gay policies are faced with having to produce concrete, objective evidence in court - as opposed to mere opinion based on religious belief and religious based prejudice - they crash and burn. It's the same thing that happened in the marriage ruling in Iowa last year. In a secular society religion does not hold water as a basis for discriminating against other citizens by the government. The guest post walks through this process and how the burden of proof plays out in these cases time and time again. Once the challenger makes the case that unlawful discrimination is occurring without a rational outward justification, the burden shifts to those who support the bigoted law or policy. This is why the courts are more effective in overturning anti-gay laws time and time again as compared to the political process. Political grandstanding, reciting slogans that lack supporting proof, biased fear mongering and demagoguery simply do not work when faced with rules of evidence and burdens of proof. And this is why the Christianists disingenuously scream so loudly about "activist judges" who force them to ultimately concede that only religious based discrimination justifies anti-gay policies. Here are highlights from the guest post:
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Plaintiffs argued first that DADT violated their substantive due process rights, identified in Lawrence v. Texas, associated with free expression, belief and "intimate conduct". Judge Phillips stood on the shoulders of Lawrence and Witt v. Department of the Air Force, the latter of which found that DADT implicates the liberty interest identified in Lawrence and thus "is subject to heightened scrutiny." (p49). So, in order to justify DADT's discrimination, the government had to show (1) an important government interest (2) furthered by the policy by (3) an intrusion on liberty necessary to further that interest. In other words, the government had to have a pretty good reason for DADT and that DADT actually achieved its goal.
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The government could not do that. The policy's justifications -- military readiness and unit cohesion -- may be important government interests (that was decided in Witt), but the policy did not advance those goals. . . She [Judge Phillips] also found testimony from current and former service members and military commanders who saw first hand how the discharge of needed personnel actually hindered military readiness.
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Next, the plaintiffs argued that DADT violated their First Amendment rights. That's a new one, right? Not so much. It is an argument that has been kicking around for a while, but the Log Cabin Republican legal team deserves credit for bringing such solid evidence to trial. Plaintiffs argued that DADT was a so-called "content-based" restriction on speech, i.e., it restricted speech merely because of the subject of that speech. That is, while straight service members can talk freely about their heterosexuality, gay service members cannot discuss their homosexuality simply because discussion of homosexuality, as grounds for dismissal, is off limits if you want to keep your job. That is a content-based restriction and, therefore, under the First Amendment, DADT would normally have to meet strict scrutiny.
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Therefore, the policy had to be "reasonably necessary to protect the substantial government interest" (p82). DADT could not even meet that lower standard, however. DADT represents a broad restriction on speech. It not only prevents service members from saying, "I am gay," but it also chills discussion of one's social life, prevents gay service members from spending social time with their comrades and makes it impossible to respond to mundane "What did you do this weekend?" questions without violating the honor code. The sweeping nature of DADT's restriction on speech made it unreasonable and unnecessar
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Declaratory judgments and injunctions based on facial challenges to a law can have national effect when issued by a single district court. There is some uncertainty here, but after consulting an expert in the field, I am persuaded that Judge Phillips decision could be implemented nationally. Normally, when a federal district court has jurisdiction over a particular person, an order deciding his case applies to that person wherever he is in the country. In other words, if a court enjoins me from watching Family Guy and has jurisdiction over me, that ruling would apply to me no matter where I hook up my television. Also, this case is a facial challenge to a statute, which means that the LCR was challenging DADT as unconstitutional no matter its application, no matter to whom it applies and no matter where it applies. Plaintiffs argued that the law was unconstitutional "on its face" not "as applied" to a particular person living in California. Therefore, the ruling could have national reach.
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For the First Amendment claim, greater deference to the military is playing a role. Civilian courts are not experts in the unique facets of military life and, therefore, military policies receive great deference. The values of obedience and order are not always salient values in the civilian world, but are essential for military success. But even under the lower reasonableness standard, DADT could not survive. In fact, the evidence offered at trial showed that the policy was hindering military readiness at every turn.

California Supreme Court Will Not Order California to Defend Prop 8

The opponents of civil marriage equality continue to grasp at straws as they seek ways to force the State of California - i.e., the governor and/or attorney general - to defend the unconstitutional Proposition 8. After filing a suit in the 3rd Circuit - which was promptly dismissed - the loonies at Pacific Justice Institute sought to get the California Supreme Court to force Schwarzenegger and/or Brown to appeal the ruling of Judge Walker in Perry v. Schwarzenegger. Like the 3rd Circuit, the California Supreme Court quickly dispatched the frivolous filing by Pacific Justice Institute, a Christianist "law firm" that in my view ought to be hit with sanctions for filing such garbage. Like most of the "Christian law firms," Pacific Justice Center thinks the law should be whatever it wants it to be and to Hell with the concept of the separation of powers between the branches of government, not to mention the freedom of religion for others besides Christian Taliban types. Here are highlights from the Houston Chronicle:
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California's highest court on Wednesday refused to order Gov. Arnold Schwarzenegger and the state's attorney general to appeal a federal ruling that overturned the state's gay marriage ban. The state Supreme Court denied a conservative legal group's request to force the state officials to defend the voter-approved ban.
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The court did not explain why it rejected the emergency petition filed by the Pacific Justice Institute. The institute had argued that the attorney general and governor were required to uphold all laws, including initiatives passed by voters.
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Earlier Wednesday, lawyers for Attorney General Jerry Brown and Schwarzenegger filed letters with the court maintaining state officers have authority to choose which laws they challenge or defend in court. "The governor, like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order," counsel Andrew Stroud wrote for Schwarzenegger. "Here, the governor exercised his discretion and decided not to file an appeal."
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Schwarzenegger, who has been under pressure from fellow Republicans to appeal Walker's decision, has said he supports the judge's verdict. Brown, who is the Democratic nominee to succeed Schwarzenegger as governor, has said he cannot defend Proposition 8 because he agrees it is unconstitutional. "Although it is not every day that the attorney general declines to defend a state law, the state Constitution or an initiative, he may do so because his oath requires him (to) support the United States Constitution as the supreme law of the law," Deputy Attorney General Tamar Pachter wrote on Brown's behalf Wednesday.
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If the federal [9th Circuit] appeals court dismisses the appeal because the ban's proponents lack legal standing, Walker's ruling would become final unless the U.S. Supreme Court agrees to take up the case. If the high court refuses to intervene, gay couples would be able to marry in California again.

Bullshit from Would Be California Governor Whitman

Following up on the previous post's look at Republican lying, GOP candidate of governor of California Meg Whitman, in an obvious move to pander to the most hateful elements of the GOP base, has told the Sacramento Bee that she would appeal the decision in Perry v. Schwarzenegger if she is elected governor. First, of course, she needs to be elected and second, by the time she's in office, if even elected, it could well be too late for the state to appeal since the matter is already at the 9th Circuit and the state of California has not appealed the lower District Court ruling. The federal rules of procedure are very clear in terms of deadline's for appeal and similar matters. If a party fails to meet the deadline for appeal, that party's right to attempt to appeal at a later stage of the case is in all likelihood dead. Add to that the fact that neither Governor Schwarzenegger nor Attorney General Jerry Brown opposed the plaintiffs' case at the District Court level, and any attempt by Whitman to appeal would seem a waste of time and money. Here are highlights on the Courage Campaign's response to Whitman's shameless pandering:
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The liberal advocacy group Courage Campaign played down Republican gubernatorial candidate Meg Whitman's announcement yesterday that she would defend Proposition 8, which prohibits same-sex marriage, if elected governor.
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Courage Campaign director Rick Jacobs noted that the 9th U.S. Circuit Court of Appeals has already scheduled a hearing for the week of Dec. 6 to determine whether the initiative's sponsor, the advocacy group Protect Marriage, has legal standing to defend the voter-passed measure.
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UC Hastings College of the Law professor Rory Little said Whitman's ability to defend the proposition would hinge on several factors - the biggest of which, of course, is whether she becomes governor. It would also depend on whether the 9th Circuit decides the standing issue before January 6 and how the court decides.
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Again, I find it difficult to believe that a party can fail to appeal and then somehow try to appeal at a later date after the deadline has passed. Filing a notice of appeal even a single day late is fatal to one's case. Even I as a non-litigator know this. Thus, I don't see how Whitman could get involved in the 9th Circuit case much less appeal to the U.S. Supreme Court if the 9th Circuit affirms Judge Walker's lower court ruling. I suspect that Whitman knows this too (if she doesn't, she ought not to be running for governor), but is only too willing to say whatever she thinks the wingnuts in the party base want to hear.