Is this Federal challenge to Prop 8 a Good Idea?

Well.. (0.00 / 0)

Who is the defendant in this case? The state? If the District Court rules that prop 8 is unconstitutional, who would appeal to SCOTUS? The anti-gay marriage groups? If prop 8 was found unconstitutional and the state declined to appeal to SCOTUS, I think that would kill the issue, unless I'm woefully misunderstanding this.

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by: mPowers @ Wed May 27, 2009 at 05:29:15 AM UTC

If it made it up to the SCOTUS (0.00 / 0)

And my Supreme Court practice is woefully inadequate, but go with me here.  If it made it up to SCOTUS, in the event Jerry Brown (or the then-current AG) declined to participate (which would be inappropriate, if you ask me), other states would probably be able to assert standing based on the fact that they face or will face similar issues - the general concept of reviewing moot issues that are "capable of repetition, but evading review."

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by: auron renouille @ Wed May 27, 2009 at 06:57:23 AM UTC

[ Parent ]

Interveners (5.00 / 1)

In cases where the nominal defendant does not really oppose the case and there is a person or organization with standing that does oppose the case, the Court will allow that organization to intervene in the litigation as if they were a defendant.  Here, the obvious interveners would be the official proponents of Prop 8.  The California Supreme Court allowed them to intervene in the Prop 8 cases, and the US District Court likely will do the same.

Once the official proponents of Prop 8 are granted intervener status, they have standing to appeal any unfavorable judgment from the District Court to the 9th Cir. and from the 9th Cir. to the Sup. Ct.

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by: Be_Devine @ Wed May 27, 2009 at 15:50:04 PM UTC

[ Parent ]

Ah, thank you for cleaning up after me :). (0.00 / 0)

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by: auron renouille @ Wed May 27, 2009 at 16:55:26 PM UTC

[ Parent ]

NOOOOOOOOOO!!! WHAT THE FUCK ARE THEY THINKING??!?!?!?!?!?!? (5.00 / 1)

God, I don't think we should trust anything that Ted Olson is involved in.

Fuck these people ... as if we weren't having a bad enough day already!!

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by: paulhogarth @ Wed May 27, 2009 at 06:33:34 AM UTC

I'm very curious (0.00 / 0)

What is Olson's motivation?    Is he a libertarian, Barr-type republican, and it just wasn't apparent before?  Or did I miss something?

I can't imagine that Boies would be oblivious to an ulterior motive, so I can't go there.  Doesn't make sense.  

I'm union staff, but not a spokesperson for my union - all posts represent my views solely.

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by: Beth Caskie @ Wed May 27, 2009 at 06:46:06 AM UTC

[ Parent ]

Under the current supreme court (0.00 / 0)

This has so little chance of getting through that I also wonder if the real goal here is to get a definitive ruling against equal marriage.  I find myself scratching my head here.  This court is simply not going to be receptive to this.  Maybe you can get the 9th Circuit to rule in favor (maybe!  They're not the reliable liberals they used to be), but then you have the Supreme Court putting a decision in writing against you.  That's not where we want to be.

Is there something I'm missing here?  I agree that this is an equal rights issue, but really, the law is about strategizing, and I am not aware of a discernible strategy here.  This may be a case where no recent ruling is better than a bad ruling, especially since momentum and napkin math indicates that a majority of the US population will live in states that recognize equal marriage within a decade.  Once you have that, there's no going back.

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by: auron renouille @ Wed May 27, 2009 at 07:03:29 AM UTC

I'm not *absolutely* sure it would fail, but (0.00 / 0)

that's how I'd bet.

Let's assume that the newly reordered Moderate-Liberal 4 will support the EP challenge.  The Caveman 4 will oppose.  That means it comes down to Kennedy.  Re-read Lawrence v. Texas; it looks like Kennedy could come to support a claim like this eventually.  But I think that that would require more states to have signed on to same-sex marriage than have done so, by the logic of Lawrence.

There's one saving possibility, though: you could get away with doing this in one circuit, because the SCOTUS usually grants cert only if there's a circuit split.  (In this case, both gangs of 4 would be dissuaded from doing so, as neither knows which way Kennedy would jump.)  So until there's a circuit split, we probably don't face the problem of the SCOTUS weighing in and mucking everything up.  And least maybe probably we don't.

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by: Seneca Doane @ Thu May 28, 2009 at 06:39:40 AM UTC

[ Parent ]

kinda hard to get a read on (0.00 / 0)

The organization's lead by Chad Griffin,  a consultant whose donations are on the cynical power brokerish side, but who came out hard against 8. They won't name their funding sources, which could be Soros, could be legal/funding/strategy types from both parties who don't want their clients or other affiliations taking heat, could be a bit of both.

Disclosure: I'm awesome.

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by: Teralloy @ Wed May 27, 2009 at 08:04:10 AM UTC

I am not sure this could be clearer (0.00 / 0)

It is a 14th amendment violation.  You now have two indistinguishable classes of people (same-sex couples) who have different rights based on when they filed for their marriage licences.  

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by: DK Green @ Wed May 27, 2009 at 08:11:54 AM UTC

And yet (0.00 / 0)

You clearly have at least 5 justices who are willing to author our generation's Plessy v. Ferguson.  Please, be realistic.

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by: auron renouille @ Wed May 27, 2009 at 08:33:02 AM UTC

[ Parent ]

Do you really think that they would overturn Brown?? (0.00 / 0)

Because that would be the consequence of basically declaring seperate but equal applies here.  

Even Robert Bork opposes this idea, written in reference to Brown.  

The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.

Brown is established precendent, and, I think, unassailable.  

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by: DK Green @ Wed May 27, 2009 at 13:32:35 PM UTC

[ Parent ]

This SCOTUS is hostile (0.00 / 0)

to equal protection claims generally (though in specific, nonprecedential cases involving Republican presidential candidates, they can be very friendly to them).

And if the Cal Supremes, a far more moderate group, can come up with a rationale for treating previously-married couples differently from not-yet-married couples, I guarantee that the current SCOTUS can and will.  This SCOTUS is very bad on issues of sex and gender.

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by: jsw @ Wed May 27, 2009 at 13:47:20 PM UTC

[ Parent ]

Is it so obvious the court would be against this? (0.00 / 0)

The landmark ruling in Lawrence v. Texas (2003), which had very strong language about equality under the law, was 6-3, with Stevens, Ginsburg, Breyer, Kennedy, Souter, and O'Connor in the majority.  We've lost Souter and O'Connor since then, but probably will be gaining Sotomayor, which means there would still be 5 votes to aim for.

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by: DavidT @ Wed May 27, 2009 at 15:03:21 PM UTC

[ Parent ]

These things are very different (8.00 / 1)

1)  I don't see the strong language about equality under the law in Lawrence.  It was decided primarily on a liberty / privacy basis.

2)  State punishment of consensual sex acts based on the sex of the parties involved is very different from state approval of civil marriage.  In the former case, the state is intruding into people's lives to punish them criminally, in the latter, the state is conferring a positive good on people who seek it out.  There are traditionally higher burdens placed on state actions in the criminal arena than in civil law.

3)  Anti-sodomy laws were in the minority at the time Lawrence was decided.  Pro-civil-marriage laws are in the minority today.

Romer probably presents a more fruitful line of inquiry, but:

1) We're talking about a specific positive good conferred by the state, rather than a broad attack on the ability of a specific class to seek protection from discrimination.

2) The constellation of justices in Romer is different from today.  While Rehnquist has been replaced by Roberts (neutral change), O'Connor has been replaced by Alito (far more right-wing).  I think you would see a 5-4 decision against the plaintiffs in this case, pretending to decide only the specific issue of civil marriage and distinguishing it from Romer, but in reality gutting Romer.  That's been the pattern of the Roberts court so far.

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by: jsw @ Wed May 27, 2009 at 15:27:00 PM UTC

[ Parent ]

Dylan Matthews has a good analysis (0.00 / 0)

He says that Kennedy would be the swing vote, and there's a good shot at the Court finding an equal protection violation.  

http://minipundit.typepad.com/...

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by: DavidT @ Wed May 27, 2009 at 15:30:50 PM UTC

[ Parent ]

See my note above (0.00 / 0)

about the constitution of the current court.  I think that the Dylan Matthews piece is more wishful thinking than analysis.

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by: jsw @ Wed May 27, 2009 at 15:36:28 PM UTC

[ Parent ]

Kennedy... (0.00 / 0)

...was the author of the majority opinion in both Romer v. Evans and Lawrence v. Texas. My guess is Olson and Boies are going to target Kennedy and Kennedy alone in their oral arguments, should this ever get that far.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Wed May 27, 2009 at 16:27:45 PM UTC

[ Parent ]

Yeah, except (0.00 / 0)

Kennedy is now the swing vote between 6-3 against marriage equality and 5-4 against, not the swing vote between 5-4 against marriage equality and 5-4 for marriage equality.

O'Connor gone.  Alito here.  Court different.

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by: jsw @ Wed May 27, 2009 at 16:29:49 PM UTC

[ Parent ]

I'm sorry but (0.00 / 0)

what 5 justices are you counting against marriage equality, not including Kennedy?

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by: DavidT @ Wed May 27, 2009 at 16:31:11 PM UTC

[ Parent ]

Never mind, can't count. (0.00 / 0)

Sort of realized that after posting.  Still don't think that Kennedy will swing the way the optimists think he will.  He's really susceptible to the far right -- see the recent opinion in Gonzales v. Carhart where he just adopted wholesale the "Women regret abortions so they should be heavily regulated" position that the anti-choice industry made up.

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by: jsw @ Wed May 27, 2009 at 16:34:01 PM UTC

[ Parent ]

Don't disagree (0.00 / 0)

My point is merely that Olson and Boies seem to believe Kennedy can be brought back to the positions he held in 1996 and 2003. It's a highly risky proposition and you're raising excellent points about the countervailing forces buffeting Kennedy and the differences in the composition of the court.

You can check out any time you like but you can never leave

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by: Robert Cruickshank @ Wed May 27, 2009 at 16:44:38 PM UTC

[ Parent ]

Lawrence was a privacy issue. (0.00 / 0)

This court has been at least tolerable on privacy issues, but has been openly hostile to equal protection claims.  They can't attack equal protection claims based on race or gender without a wholesale re-writing of precedent.  But for those who are not protected by higher levels of scrutiny (including sexual orientation), they are not going to expand rights.

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by: auron renouille @ Wed May 27, 2009 at 16:01:40 PM UTC

[ Parent ]

It looks like (0.00 / 0)

will we find out.  Who knows, by the time this case makes it to the Supreme Court, if it does, there may be a different constellation of justices in place.  And thinking in the legal community, as in the country, has shifted significantly even in the years since the Lawrence case.  I wouldn't expect that to sway the Gruesome Foursome, but Kennedy is a different story.

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by: DavidT @ Wed May 27, 2009 at 16:28:02 PM UTC

[ Parent ]

Except Kennedy (0.00 / 0)

seems to have actually gone further right since Lawrence and Romer, what with his Opus Dei coreligionists working on him.

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by: jsw @ Wed May 27, 2009 at 16:35:20 PM UTC

[ Parent ]

But the California court already granted that sexual orientation reaches protected status in California. (0.00 / 0)

That was the decision in In Re Marriage.  

I don't think the court would be able to get into what represents the protected classes in California, but only about whether those classes are being treated equally.  

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by: DK Green @ Wed May 27, 2009 at 22:02:20 PM UTC

[ Parent ]

No, I think you misunderstand (0.00 / 0)

Federal equal protection analysis is based on Federal substantive law, not state substantive law.  So whether or not the State of California thinks that sexual orientation is a suspect classification is not relevant for federal purposes.

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by: jsw @ Wed May 27, 2009 at 22:29:39 PM UTC

[ Parent ]

14th Amendment (0.00 / 0)

A group deemed to be a protected class that is entitled to a heightened review under the equal protection clause of the California Constitution is not necessarily entitled to the same status under the US Constitution.  The US Supreme Court has the final word on who is entitled to such status.  

Gays and lesbians are not currently entitled to heightened review under the 14th Amendment, and the decision in the Marriage Cases did not change that.

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by: Be_Devine @ Wed May 27, 2009 at 22:30:25 PM UTC

[ Parent ]

Homosexuals are not a protected group (0.00 / 0)

under federal law.  That's the problem.  If they were, you'd be right: the EP challenge would be a slam dunk.  And this would be an opportunity for the Court to declare them so, but that's not likely.

Your more general point involves the system of "grandfathering" a group into the prior interpretation of a new law.  This happens all the time, and you'd need more than the bare fact of it for there to be an EP violation.

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by: Seneca Doane @ Thu May 28, 2009 at 06:42:43 AM UTC

[ Parent ]

Not necessarily the best case (0.00 / 0)

A couple who got married in Iowa and then demands full faith and credit from California might be better. Clearly California's public policy doesn't forbid recognizing same-sex marriage, only performing them.

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by: knocienz @ Wed May 27, 2009 at 13:57:06 PM UTC

No, can't imagine a Supreme Court w/ Roberts,Alito,Scalia,Thomas going for (0.00 / 0)

.... any possible legal argument they could come up with.  Just not going to happen.   They may be looking forward to it, just to provide another smackdown to the "liberal" agenda.

But this ought to provide a fine money making opportunity for the lawyers!

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by: AmericanRiverCanyon @ Wed May 27, 2009 at 22:44:02 PM UTC

Hmm . . . (0.00 / 0)

I'll admit that I'm an eternal optimist, but consider for a what Justice Scalia said about equal protection in a right-to-die case:

Are there, then, no reasonable and humane limits that ought not to be exceeded in requiring an individual to preserve his own life? There obviously are, but they are not set forth in the Due Process Clause. What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection - what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. Cruzan v Director, Mo. Dep’t of Health (1990) 497 US 261, 300,111 L Ed 2d 224, 110 S Ct 2841 (Scalia, J., concurring)

I'm as wary about this lawsuit as anyone, but I've got to admit that if anyone's got a good read on the Supreme Court, it would be the collective opinion of Boies and Olson.

Oh, and as far as I can tell, Boies and Olson took this case pro bono. I'm not aware of any organization funding the lawsuit, and the plaintiffs sure as heck aren't paying their fees. So the only "money making opportunity" here is for the lawyers who represent the state who, last I checked, don't get to bill by the hour.

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by: Be_Devine @ Wed May 27, 2009 at 23:16:35 PM UTC

[ Parent ]

The law in its infinite majesty... (0.00 / 0)

forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.

I rather expect that's how Scalia would apply the equal protection clause in this case.

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by: jsw @ Wed May 27, 2009 at 23:26:37 PM UTC

[ Parent ]

Read Scalia's Lawrence dissent (0.00 / 0)

If we got his vote here, I'd eat his left leg.

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by: Seneca Doane @ Thu May 28, 2009 at 06:44:01 AM UTC

[ Parent ]

I stand corrected (0.00 / 0)

The NY Times reports that Boies and Olson took this case on a "partially pro-bono" basis. The suite is being funded by a "newly-formed advocacy non-profit" called the American Foundation for Equal Rights.

Incidentally, in the same NYT article, Pro-Prop 8 lawyer Andrew Pugno said:

This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding.

Maybe if Mr. Pugno had any experience whatsoever as a litigator (or even if he had a rudimentary sense of the obvious), he would know that Ted Olson, the former Solicitor General under George II, is hardly a "socially liberal lawyer."

Oh, and I certainly agree that we are not likely to have a friend in Scalia. Call me Pollyanna, I'm always trying to find any glimmer of hope that Scalia might have a heart. I know, I know . . .

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by: Be_Devine @ Thu May 28, 2009 at 16:39:02 PM UTC

[ Parent ]

vaughn walker (0.00 / 0)

is currently smacking down the government in the Al Haramain warrantless wiretapping case, and may move to invalidate retroactive immunity.

My only real sense of him is through that case, but if he applies the same principles, I can see him being very helpful here.  Of course, nothing will end there, the appeal will go all the way to SCOTUS.

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by: David Dayen @ Wed May 27, 2009 at 23:00:22 PM UTC

Walker is a wild card (0.00 / 0)

If anyone saw Rachel Maddow's extended metaphor of the Supreme Court as a Whiskey Sour, you know that conservatives are the sugar, liberals the lemon, and the moderates the whiskey.  Optimally, you want to keep these in balance so the drink tastes good.  Judge Walker would be the Pop Rocks that a creative barkeep throws in just for fun.

The wiretapping case you mention is a good example of where he's been a hero to the left.  But he also struck down San Francisco's voter-approved measure limiting ATM fees (but, hey, overturning the electorate is a good thing in our case). He also dismissed a lawsuit brough by environmentalists who had their eyes swabbed with liquid pepper spray when they were protesting a logging operation.

On the bright side, his record does not lend itself to moving up to the 9th Circuit. He's too conservative to be nominated by a Democrat, and a Republican would never nominate someone who's said that drugs should be legal. Without his eyes set on the 9th Circuit, he may be willing to make a decision that's right but unpopular among conservatives.

I'm getting my popcorn ready for the show headling Ted Olson, David Boies, Ken Starr, and Vaughn Walker that's coming soon to a courtroom near me.

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by: Be_Devine @ Wed May 27, 2009 at 23:30:15 PM UTC

[ Parent ]

question for the experts (5.00 / 1)

What would happen to a federal case if Proposition 8 were to be repealed on November 2, 2010?  

With no other states in such a bizarre situation with respect to equal protection (lucky lesbians & gays, heteros, and unlucky lesbians & gays), could it proceed?  

Just wondering if we can save ourselves from the risk of a bad precedent by repealing it before it works its way to the Supremes.  

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by: chiefscribe @ Fri May 29, 2009 at 05:36:51 AM UTC