Posts Tagged: gay marriage


"Tradition is not a justification for taking away a right."

- The 9th Circuit Court of Appeals, upholding the District Court’s ruling that Proposition 8, amending the California Constitution to define marriage as between a man and a woman, is unconstitutional.


“The California Supreme Court decided Thursday that the sponsors of Proposition 8 and other ballot measures are entitled to defend them in court when the state refuses to do so, a ruling likely to spur federal courts to decide the constitutionality of same-sex marriage bans.”

Le sigh.

I actually don’t think is really a setback for the gay rights groups, and I think it added advantage of being both fair and legal! Stick with me - I promise this won’t be too dry. And it’s important/interesting.

First off, a clarification of what has actually happened thus far:

Prop 8 was a voter referendum that banned gay marriage in California by amending their state constitution. After it passed, some same-sex couples that tried to get married and couldn’t filed suit against the state. It’s important to understand here that you can’t walk into a court and say, “Hey! I think this law is unconstitutional and you, court, should strike it down!” The court only hears cases and controversies, which means you have to have been actually injured in order to file suit. You have to walk into a court and say, “Hey! I was injured, and you, court, have the power to fix this for me, and you should by doing X.” In this case that plays out like this: “Hey! I tried to get married, and couldn’t! Thus I was injured! And I was injured because of this state law, but you know what, federal court that is above the stupid state court, this state statute is inconsistent with the U.S. Constitution. Therefore, this statute is unconstitutional, and you, federal court, should (among other things) declare it as such.” 

That’s what happened here. These gay couples (plaintiffs) sued the state. Now, usually the governor and attorney general would defend the state. In the case of Prop 8, however, the governor and attorney general have declined to do so. They have said that, for policy reasons, they will not defend Prop 8 in court. That raises the question, then: who can defend the state?

The folks who sponsored the amendment stepped forward to defend it. These are anti-same-sex marriage advocacy groups. So we have the plaintiffs (same-sex couples) vs. California, as represented by not the state, but by advocacy groups. That is unusual, though not unheard of. With the parties set up like that, the case went to trial. The trial court (called the District Court) found for the plaintiffs, holding that the amendment is indeed unconstitutional. Unsurprisingly, the defendant (advocacy-groups-as-California) appealed. 

When the case got to the appellate court (called the Circuit Court), the judges looked at the case and the first thing they said was: “Okay, well, before we even consider the merits of this case, we need to know if these advocacy groups can even represent California. If they can’t, then we’re going to have to rule for the plaintiffs, because no one is sticking up for the defendant, so there’s no disagreement, and courts only rule when there’s a disagreement.”

Now, for a bunch of complicated reasons that have something to do with this chart, the Circuit Court is supposed to decide whether these advocacy groups can represent California the same way a California court would do it, unless the California court is really totally out in left field. So the Circuit Court asked (it’s called a certification) the California Supreme Court: “Hey California Supreme Court Judges - quick question for you. In California courts, do you allow advocacy groups to represent the state if the state declines to defend itself, when the advocacy groups where the ones pushing for the law in question?”

Today, the California Supreme Court told the Circuit Court that yeah, in California courts, it thinks the advocacy groups ought to be able to defend a law they pushed for if the state declines to do so. That’s what the story today is.

Now, the Circuit Court is not bound by this answer. If they think the California court is completely insane, as I mentioned above, they can say, “Well, it’s nice you think that, California Supreme Court, but you’re batshit insane. No way can they defend the state.” Thing is, though, it’s extremely unlikely the Circuit Court would do that, because the ruling isn’t crazy at all - reasonable people may disagree, but generally, as long as its relatively reasonable, the federal courts will defer to the state courts on this.

A quick summary, then: All that happened today was that, in response to a federal appellate court (Circuit Court) asking the California Supreme Court whether advocacy groups should be allowed to defend the state if the state declines to do so, the California Supreme Court said yes, they should.

Now, why I think (1) Why this won’t hurt the gay marriage cause at all,  (2) Why I think it’s right legally, and (3) a good thing for liberals/progressives/whatever.

1. Why it won’t hurt gay marriage cause:

This decision has absolutely nothing to do with the merits of the case. Sure, if the California Court had answered differently the Circuit Court may have ruled for the plaintiffs for lack of standing, but gay marriage advocates, think about how that would look. Do you really want to win your case because of a procedural quirk? You think that’s going to bring more people to your cause? Don’t you want to win on the merits instead? Because you have a got a stellar, rock-solid case. You can win this thing. If you win on procedure, you’re going to piss off a lot of people. Basically, 1) it’s bad optics to win on procedural technicalities and 2) you can win on the merits anyway. 

2. Why this is legally right the call:

Okay, so there’s no statute here, which means we’re on common law (i.e. judge-made law, or the stuff that’s written in court decisions). No way am I taking the time to look up and cite cases supporting this, but here’s the basic deal: it is just unfair that a law passed by referendum shouldn’t be able to be defended by the people who voted for it. They clearly have a significantly protectable interest at stake here. They voted for this law. Technically, since we live in a democracy/republic-ish state, the residents of California are the state. Why shouldn’t they be able to stick up for their state if their governors don’t want to?

3. Why this is a good thing:

Realize that this means - in California, at least - advocacy groups can sue and defend the state if the state declines to do so. Usually cases like this come up when liberal groups are suing to to get federal regulatory enforcement agencies to do their damn jobs. Generally, it’s conservative judges that are limiting standing, because they don’t want advocacy groups trying to enforce regulation if the federal government doesn’t want to do it. This has come into context with fraud suits running into SEC litigation after the global financial clusterfuck. It’s enormously helpful for advocacy groups to have standing to help enforce government regulation, and generally speaking, it’s something about which liberals should be happy.

There you go. Hope you stuck with me through that, gay marriage advocates, and that you don’t feel disheartened now. 

Source: diadoumenos