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Lawyers for the gay couples who successfully challenged California's Proposition 8 have raised a question about whether the other side in the battle -- the proponents of Prop 8 -- have the legal right to appeal. If this point turns out to get traction, some experts say, it could prevent the case from getting to the US Supreme Court, or even to the court of appeals.
The issue arises as Judge Vaughan Walker considers whether or not to keep in place the temporary hold he placed on his own ruling. Though he struck the law down, he stayed the effect of his ruling for a few days while considering whether to keep that hold in place while the case is on appeal.
On Friday, both Governor Arnold Schwarzenegger and Attorney General Jerry Brown urged the judge to lift the stay and let same-sex marriages resume. Lawyers for the gay couples made the same plea, but they added an additional argument. It's unlikely, they said, that the Prop 8 proponents can successfully carry out an appeal.
They note that the federal courts generally require that before someone can appeal a court decision, there must be some demonstration that a ruling causes that person some actual, concrete harm. For judges who take this issue, known as legal standing, seriously, it's not enough to say "I'm an aggrieved taxpayer."
Lawyers for the gay couples put it this way: "Ballot proposition proponents are not materially different from citizens dissatisfied with a government's failure to enforce a generally applicable law; they lack the concrete injury particularized to themselves and not shared generally by the public necessary to invoke the jurisdiction of the federal court."
Though some legal scholars consider this a plausible argument, one expert says the judges on the 9th Circuit who are most likely to be most sympathetic to Judge Walker's ruling also tend to be the least restrictive on the standing issue -- more inclined to let the appeal proceed.
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Well, isn't that an interesting point of law? That should upset the neanderthals.
Although I have no opinion on whether gay's should marry or not it is somewhat troubling when you see one judge allowed to overturn what the majority of citizens voted for, that could lead to problems.
When you consider that this system was never set up for the majority to vote away rights from the minority, what the judge did makes perfect sense.
I don't believe any minority rights were voted away were they? When were gays granted the right to wed? And who granted them that right? Marriage is some sort of a religious union anyway that has morphed into some sort of binding legal contract so property can be divided up when it fails and attorneys can make money, I have to wonder why gays would even be interested in such a thing, symbolic I suppose, my point was if the majority doesn't rule who does? And why do they think they should?
In the Equal Protection Clause. You cannot create two tiers of citizens. There are specific benefits that marriage confers, having to do with taxes, health insurance, determining the care of an ill partner and the like. If you say that one group of tax paying citizens may not access those benefits, then they are relegated to second class status. Churches will still be able to make the rules of using their facilities for marriage, and if their priests or ministers can perform marriages for gays. But civil law must allow it. It bothers me greatly that my home state of CA voted for this. They were the first state to allow blacks and whites to marry in about 1948, I believe. This is shameful for a state who has been forward thinking on social issues.
One of the lawyers was on "Face the Nation" yesterday and it was fun watching him smack down Tony Perkins.
Watch a video of CBS's Face the Nation with David Boise and Tony Perkins. Boise called Perkins on the many falsehoods Perkins said. Very interesting:
Scroll down to the video at the following link:
Prop. 8 lawyer: Family Research Council appeals to ‘fear and prejudice
http://rawstory.com/rs/2010/0808/david-boies-tony-perkins-appeals-fear-prejudice-gays-videode/
I really want the appeal to go forward so the case can get to the Supreme Court. Otherwse, the issue will not be sufficiently settled, and we'll have to keep going through the same thing, over and over, without a permanent resolution.
Fascinating interpretation, but I think I agree with Independant Woman. This matter should be settled once and for all.
While I would most wholeheartedly agree with you'lls sentiments I would say that even a Supreme Court decision is not going to decide this issue for all time. How long has Roe been settled law in these United States? yet the issue continues to come up. Civil Rights are still contested. S.S. is still contested. As much as I hate to say it if old Moses wandered down off the Mount with the decision Written in fire on the Tablets some Yahoo is going to take a poll and swear he was hallucinating and it didn't happen that way at all.
Yes, this needs to be settled so it will no longer be a campaign issue - which is all it has been for years. I don't care who anyone else marries (never had to worry about a gay person interfeering with my 32 year marriage), if you work and pay taxes you should have the same rights and responsibilities I have. Marriage stopped being a religious institution when the government started charging for marriage license.
I so agree. What someone else does has no effect on my marriage. Now having a spouse have an affair causes difficulty in a marriage! Besides, don't they deserve to enjoy the same types of fun that married couples have?
Good on both Governor Arnold Schwarzenegger and Attorney General Jerry Brown; but like both Ron and Independant Woman say it should go all the way up so the trouble makers can go somewhere and sit down and mind their own business.
I also hope that there is no stay of the decision now that the Gov and AG have supported it.
I think this is headed to the Supreme's, they think corporations are people....?
I see 4 vote to overturn this decision, and it comes down to Kennedy again.... stay tuned.
It would be nice if this was settled once and for all. I have absolutely no interest whatsoever in sticking my nose into who marries who and neither should the government. To end it once and for all would mean a Supreme Court ruling against Proposition 8 and relief of the ban nationwide.
We don't get a vote on what the judge or appeals court rules. I think plaintiffs failed to demonstrate any standing to bring the suit. That barrier is set fairly high. I also think the plaintiffs may decide to let this ruling stand and attack it again in what they consider a friendlier venue than the 9th Circuit.
Their difficulty is not just the lack of standing, but that standing is impossible in an abstract case. Bush violated the constitution? Demonstrate how you, one person, were damaged fiscally, physically. Bring upset with unconstitutional government does not count. It's impossible to prove that any plaintiff is damaged by gay marriage.
They also did not present any valid evidence of any kind to demonstrate harm in the abstract to society. Their case was handled so ineptly that it is now an almost perfect case for proponents of gay marriage: Does the government have any legitimate interest in preventing gays from getting married? Had they been competent, they would not have brought a BS case like this. If there is a case in this, they didn't find it.
The anti-gay mob will raise hell for a while, then go away, lick their wounds and look for a new attack tactic. It would cost them a small fortune to appeal it to the 9th Circuit Court of Appeals. That court with its relatively liberal judges might allow them standing, then smack them down even harder.
The difference then is that laws, amendments etc. banning gay marriage would thence forward be illegal in all nine states that make up that Circuit. District judges in the circuit would have to adhere to the precedent. It could then become precedent in the other circuits.
The smartest strategy for these people is to find a friendlier circuit and hope to get a favorable ruling and have it taken to John Roberts and hope he votes their way. What we have to deal with is that these people don't really want it settled once and for all because the odds are now stacking against them.
If the supporters of Prop 8 had brains, they'd have to wonder why the inner circle of the Prop 8 opposition took such a high risk strategy. What's in it for Mormons, or do they have a big problem with their members clamoring for gay marriage for themselves? Same with other groups.
I have to agree with Independent Redneck, VA on this one. There will continue to be fights and political grandstanding on this issue in much the same way Roe v Wade has been politicized since the decision was handed down. No, the opposers of gay marriage will not let this die, any more than Roe, social security or civil rights. Geez, who ever thought that in 2010 we would have candidates for the senate declaring the 1964 Civil Rights amendment and mandatory desegrigation unfair?? It's mind boggling to me what these folks will oppose just for the sake of opposing and imposing their will on others.
Well I am sure the appeal will proceed. Homosexuality cannot be merged with the traditionally recognized institution of marriage between one man and one woman. Same sex relationships could be called whatever they want. Then let both have equal benefits. Minimal discrimination to either side!
To communicate or debate, one has to decide what their issue is with prop 8, gay marriage or judicial activism?. My issue has nothing to do whether or not I am in favor or against gay marriage.
According to judge walker the current "credible" motivation for banning gays and lesbians from marrying is a desire to mark them as second-class citizens. Well I say, then why be married? Why try to change the ancient traditional foundation that exists? Do they really think a piece of paper will change anything? Well from experience I found that kind of ownership of another person just makes life more complicated. Well as a divorced agnostic, its easy for me to feel that way emotionally! Also as a single dad back in the 1990s with custody of my kids I was discriminated across the board compared to single moms, so I have some personal experience with discrimination.
Shouldn't we all be up in arms working together over something sooooo much more important? Like decades of sloppy capitalism, and all its trickle down effects that has our country in such a terrible economic mess? We need to wake up collectively and look what's happening to our country?...look where we are at? Shouldn't there be hundreds of other more relevant issues to get this country up in arms? Yeah, I know I am changing the subject……Hello!
Now if the issue for you is solely gay marriage, weather for or against it, then you are talking about your own life/emotions, and regardless if this decision is in your favor or not, that blinds you. That's what the populous does! Again, wake up and look what's happening to our country….look where we are!
I disagree with the power abuse used to implement amendment of prop 8, because of the extort tactics employed, not because of gay marriage in itself. If they want to be as miserable hetero couples its fine with me! Just as Obama, I do not endorse gay marriage, but have no problem with benefits. There is an issue here bigger than, beliefs, religion, homophobia, sin, or gay marriage, all of that is just the stage!! My interest here is what is going on behind this gay smokescreen? The constitution is not supposed to manipulated to fit a judicial agenda for the people in the populous like themselves.
Why is Obama against gay marriage? How can a president sit back and concur with Judicial inability to recognize its limitations as a political entity undermining democratic favor?.
If this is discrimination, which side or who defines morality? because each side has a different definition? To communicate or debate our words need to have the same meaning or were not speaking the same language and we get nowhere, for example look at the abortion debate. Will the Supreme court decide which side is correct or moral? If so, are we still a constitutional democracy? If not, and we are to "evolve" into something more modern, meaning we are beyond those old age parameters, should that be up to the Supreme court to decide?
I would say every time judicial supremacy replaces constitutional supremacy It goes against our best ideals constitutionally, that is regarding the intended understanding of the values outlined in our founding documents.
Judge Walker says:
"the ruling struck down Proposition 8 as a violation of federal constitutional guarantees of equal protection and due process"
So if it's unconstitutional to prohibit same sex marriage…. Using that same ideology is it even more unconstitutional to force this on all of society? Now, if "moral disapproval" violates constitutional rights as Judge walker stated, then is he contradicting himself? Constitutional politics is known to, and accepted to use, persuasion to initiate change. This Judge has just used political coercion. He has personally, through the court, used the morality of rights from a minority, to displace the morality of consent with all of California. Will the supreme court follow suit?
Every time we allow judicial review to impose judicial supremacy, to replace constitutional supremacy, It goes against our best ideals constitutionally, and we alter the constitution without public acceptance and or awareness. This supremacy is a slippery slope, presently the subject matter is insignificant compared to what it will become down the line, leading to more problems that are significant, to the point where someday we may end up a dictatorship. California has already voted twice that marriage is the union of a man and a woman and approved Prop 8. 30 states have voted the same, over 60 million Americans. Are we still a constitutional democracy? If not, and we no longer accept the current benchmark of our citizens individual voting preferences, It goes against our best ideals constitutionally. If I remember correctly the Constitution belongs to the people! I project that if the supreme court through a narrow victory forces this down society's throat, the complete disgust for homosexuality by heterosexual majority in this country will not only persist, but increase…… as it is a natural response for many, and that could end up worse for the same-sex marriage movement , which could lead to a constitutional amendment that would eliminate same-sex marriage in all states. I wonder if the Supreme Court will avoid making a decision and leave it to states?
Lets see what happens!
Using the morality argument when it comes to to the rights of citizens is nonsense. Is is moral to kill of course not - then why do certain states have the death penalty. Same sex marriages are a matter of civil rights for a group of tax paying Americans - fair enough if the religious right and crazy republicans/conservatives want to take away the rights of Gay American - then very well - LGBT Americans should only have to pay 50% in taxes on both the state and federal level. I think thats completely fair -
You know what I don't like people in the Tea Party - so I want the right to vote to take away their right to congregate and speak the nonsense that they speak - but all F'in conservatives will jump to their side and talk about taking away their civil rights - ENOUGH ALREADY -
An angry Gay American that wants 100% of my rights and if you don't like ....
@!$%#ing fagg
Here we go again with the government hijacking the democracy we are supposed to live in! How can a judge overturn what the majority of the people voted into law!?!?! THis isn't just stupid, it's down right scary! The last country that was run like this eventually caved in on its own weight. It was called the USSR! If the majority can't rule due one man's opinion or the opinion of a minority, we are living in a suppressed society at the mercy of those few who can just claim control due to their position! NOT THE OTHER WAY AROUND! But then again, California is one of the few remaining communist states in the world.
Actually, the US is a Republic nation (rule by law), not a democratic one. Total Democracy is like the Wild West: It's basically a small step away from anarchy.
One person asks "I don't believe any minority rights were voted away were they? When were gays granted the right to wed? And who granted them that right? Marriage is some sort of a religious union anyway that has morphed into some sort of binding legal contract so property can be divided up when it fails and attorneys can make money,..." My right to marry in Ca. was taken away but I have to go across country to marry & I did not get married to get divorced! How specious to claim that marriage morphed so property can be divided.
What was Prop 8 about anyway??? It specifies ONLY those who can marry and those who CAN'T.
When did America change the Pledge of Allegiance? Did you forget the last part? "... with liberty and justice for all."?
Hetrosexual , black, white, Buddhists, Atheists, Jews, etc. are all included. But homosexuals were specifically EXCLUDED. America has morphed thru certain religious hysteria into a place to deny freedoms.
"...Land of the free" is a sad claims after Prop 8 in California and props and constitutional amendments to DENY marriage rights in other states.
The more religious people claim to be, the more bigoted they seem to be.
No marriage in the USA is recognized UNLESS a state issued marriage license is obtained. My marriage was performed by a Justice of the Peace in Connecticut. No religion was involved!
I am denied the right to over 1100+ federal and state benefits because my Connecticut marriage license isn't recognized in Ca.. or at the Federal level.
The judge did the right thing. The Constitutional protection is for all of us.
People are just people. We are all the same. It's the labels on us -- gay, straight, woman, man, black, white, et cetra -- that consistently divide us. Unless we are doing something that causes direct harm to another individual (murder, theft, etc.), no one should have more of a right to experience life than another.
Keep the government (and law) out of a persons right to live. After all, aren't we 'all men, created equal?'
cool
cool
i think they should not allow prop 8 for the reasons that it is possible that children can be influenced by their actions
but if they allow prop 8 people like the homosexuals will be allowed a happy life but i still stand on what i have said before THEY SHOULD NOT ALLOW PROP 8
u guy are @!$%#en faggetss ahaha
suckk mah blackk cock
Knock knock: moderators....where are you? Do you have any problem with these posts?
Let's take the temperature of the gay marriage debate in Mass and Iowa. It feels as cold as Tony Perkin's soul. After six months of marriage equality, no one in the jurisdiction cares, because nothing changes. That's how boring every marriage is to those outside the marriage. For that reason alone, the ProtectMarriage people are losers.