Calif. Court to hear the SSM case

[Zeta-Flux]

No, I don't understand your point.

To say that the people did not have their day in court is a gross overstatement.

It appears you are unable to understand a quite simple concept. Fortunately, I'm more hopeful that either the California Supreme Court will see what is at issue, or the appellate court will rule that judge Walker's ruling was too broad.

The term "activist judge" has become a pejorative rhetorical term, devoid of any real meaning.

I'm pretty sure I already addressed this, but I don't want to take this thread off track any farther. This thread is not about your penchant against conservatives.

[Zeta-Flux]

They lost the case at trial on the merits. I am sure they did their best.

Just so I understand: Are you saying that if the attorney general and governor had allowed Billy-Bo Bob to intervene for them, there would have been no inherent difference? So, implicitly, the governor has the power to veto constitutional amendments by choosing someone to intervene who does not have any standing, and further he can choose someone who has no particularized interest in the outcome of the trial.

[Jaybear]

It appears you are unable to understand a quite simple concept.

Your point seemed to be premised on the erroneous assumptions that since they were allowed to intervene, the either had or were imbued with standing. If the premise is faulty, then the point is lost on me.

Just so I understand: Are you saying that if the attorney general and governor had allowed Billy-Bo Bob to intervene for them, there would have been no inherent difference?

The factual and legal issue at trial would have been exactly the same, regardless of whether Billy Bob, the AG, or the proponents defended Prop 8.

The AG did not oppose intervention, and allowed the proponents to defend what the AG considered to be a blatantly discriminatory act. He could have opposed intervention, and managed the trial, and selected the evidence and witnesses, etc. In which case, I have no doubt that your side would have claimed he sabotaged the case.

Again, I note that no one complained that the proponents were running the show, until after trial and after the AG opted not to appeal the adverse ruling.

So, implicitly, the governor has the power to veto constitutional amendments by choosing someone to intervene who does not have any standing, and further he can choose someone who has no particularized interest in the outcome of the trial.

The executive branch is tasked with the responsibility of enforcing the laws. In this particular case, the AG abdicated his responsibility.

But thankfully the good people of CA were not without recourse. As luck would have it, the appeal occurred during an election, with one AG candidate telling voters he would pursue the appeal, the other telling voter she would not. The voters had the final say in whether the AG's office would participate in the appeal. The "will of the voters" was to let the Judge's ruling stand.

[Jason]

The executive branch is tasked with the responsibility of enforcing the laws. In this particular case, the AG abdicated his responsibility.

But thankfully the good people of CA were not without recourse. As luck would have it, the appeal occurred during an election, with one AG candidate telling voters he would pursue the appeal, the other telling voter she would not. The voters had the final say in whether the AG's office would participate in the appeal. The "will of the voters" was to let the Judge's ruling stand.

That would assume that the Judge's ruling was the sole factor determining the people's choice of Attorney General.

[Zeta-Flux]

Your point seemed to be premised on the erroneous assumptions that since they were allowed to intervene, the either had or were imbued with standing. If the premise is faulty, then the point is lost on me.

You are right. That premise is faulty, and my point is lost of you. Hopefully the point will become more clear as I address the rest of what you wrote and as you answer the questions I pose to you.

The factual and legal issue at trial would have been exactly the same, regardless of whether Billy Bob, the AG, or the proponents defended Prop 8.

Thank you for admitting you believe this. It appears you believe that the people's will as embodied in the constitutional amendment would have been defended just as well (in the legal sense) by any of the above named parties. In your view, the defending party did not need to have any particularized interest in the case-is that correct?

The AG did not oppose intervention, and allowed the proponents to defend what the AG considered to be a blatantly discriminatory act. He could have opposed intervention, and managed the trial, and selected the evidence and witnesses, etc. In which case, I have no doubt that your side would have claimed he sabotaged the case.

Now you are getting closer to the point. If I did make such a claim, given the AG's stand on the issue, would I have been incorrect in that claim?

Again, I note that no one complained that the proponents were running the show, until after trial and after the AG opted not to appeal the adverse ruling.

I think part of the reason is that wasn't an issue until after the trial. LOL. You expect the complainers to be psychic?

The executive branch is tasked with the responsibility of enforcing the laws.

And defending them.

In this particular case, the AG abdicated his responsibility.

We agree.

But thankfully the good people of CA were not without recourse.

That seems to be the question, doesn't it?

As luck would have it, the appeal occurred during an election, with one AG candidate telling voters he would pursue the appeal, the other telling voter she would not. The voters had the final say in whether the AG's office would participate in the appeal. The "will of the voters" was to let the Judge's ruling stand.

You seem to be confused. The election of the AG was not an election on Prop. 8.

[Mark Beesley]

How can a State court decide Federal standing?

I see a big problem in allowing a State court to make a Federal Standing decision.

Federal courts defer to state law on procedural issues where there is no controlling federal law. Standing is a procedural issue and there is no controlling federal law on standing with regard to challenges or defense of state propositions. Law school was 26 years ago, but I think I got that right . . .

[Jaybear]

Thank you for admitting you believe this. It appears you believe that the people's will as embodied in the constitutional amendment would have been defended just as well (in the legal sense) by any of the above named parties. In your view, the defending party did not need to have any particularized interest in the case-is that correct?

Correct.

Now you are getting closer to the point. If I did make such a claim, given the AG's stand on the issue, would I have been incorrect in that claim?

Perhaps. The AGs office is a big office, and attorneys do like to lose. I am sure they could staffed it with competent aggressive counsel.

I think part of the reason is that wasn't an issue until after the trial. LOL. You expect the complainers to be psychic?

Lawyers are supposed to think ahead. Technically, while the case was pending, the proponents could have sue the AGs office, ask a judge to compell the AG's office to defend prop 8. Had they done that, they would have lost their chair in the courtroom.

You seem to be confused. The election of the AG was not an election on Prop. 8.

I am not the one that brought the "will of the voters" into the discussion.

The bottom line is that the AG is elected official. As AG, Brown abdicated his responsibility and the voters elected him Governor.

The people also voted for an AG candidate knowing that if elected she would not appeal prop 8.

If she appealed in deference to the "will of the people" who passed Prop 8, she would be going back on an express promise that she made to the voters who elected her. Which voters are more important? Those who voted in 2008 or 2010?

[Jason]

I am not the one that brought the "will of the voters" into the discussion.

The bottom line is that the AG is elected official. As AG, Brown abdicated his responsibility and the voters elected him Governor.

The people also voted for an AG candidate knowing that if elected she would not appeal prop 8.

If she appealed in deference to the "will of the people" who passed Prop 8, she would be going back on an express promise that she made to the voters who elected her. Which voters are more important? Those who voted in 2008 or 2010?

Again, this assumes that the election was decided only on the issue of whether the candidate for AG would defend or not defend prop 8, which seems unlikely.

It's like saying the will of the people was that those making above $250,000 be taxed more, since President Obama was voted into office. It treats an election of a candidate with a multi-plank platform as a referendum on a single issue.

[frankenstein]

By PETE YOST The Associated Press

Wednesday, February 23, 2011; 12:29 PM

WASHINGTON -- The Obama administration says it will no longer defend the constitutionality of a federal law that bans recognition of same-sex marriage.

In a statement Wednesday, Attorney General Eric Holder says President Barack Obama has concluded that the administration can no longer defend the federal law that defines marriage as only between a man and a woman.

The Justice Department had defended the Defense of Marriage Act in court until now.

-------------------------

Does this mean someone could file suit that DOMA is unconstitutional, and get a default judgment that DOMA is unconstitutional? And if DOMA is unconstitutional would under Supremacy Clause, Prop 8 be unconstitutional? OR if DOMA is unconstitutional, does the 10th Amendment come into play? Though it would seem that a default judgment that "a man and a woman" was unconstitutional would seem to state that state definitions of "a man and a woman" (and with word given their common usage, "a" being singular is no different than saying "one man and one woman".) are also unconstitutional.

Do members of Congress have standing to defend DOMA?

[frankenstein]

found the answer to my question:

Holder said that despite the decision, his department will "remain parties to the cases and continue to represent the interests of the United States throughout the litigation."

He added that members of Congress can still elect to defend the statute and that Justice will "work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation."

...

Mr. Holder said the administration legal team had decided that gay people merited the protection of the

[Mordecai]

Mr. Holder said the administration legal team had decided that gay people merited the protection of the

[Jaybear]

Again, this assumes that the election was decided only on the issue of whether the candidate for AG would defend or not defend prop 8, which seems unlikely.

That is my precisely my point.

Likewise, the fact that a majority of voters supported Prop 8 in 2008 does mean that in 2010, after the proponent's sham arguments were exposed in court, it is still the "will of the people" that the AGs office defend Prop 8.

Thank you for exposing the fallacy of the "will of the people" assertion.

Franks, that for the info on DOMA. I think, based on your question you assume the entire act is uncostitutional. The only part Obama won't defend is the part where it requires the fed to refuse to honor legal gay marriages.

[frankenstein]

Franks, that for the info on DOMA. I think, based on your question you assume the entire act is uncostitutional. The only part Obama won't defend is the part where it requires the fed to refuse to honor legal gay marriages.

well here is how I see,

File a lawsuit claiming section 3 of DOMA is unconstitutional

verdict is that DOMA section 3 is unconstitutional

Wouldn't a judgment against section 3 mean that the definition is unconstitutional? So it a federal definition is unconstitutional, couldn't a plaintiff claim at the State level Supremacy Clause ie. federal law definition judgment binding on State law?

--------------

zeta and jaybear, as for prop 8 standing in Federal Court. Zeta indicated that if California finds standing, then the 9th will base their standing question on whether standing at state level is "strong" enough at the Federal Level.

At the Federal level, would the plaintiffs have to show some kind of harm or loss of right? That is some kind of harm in the definition of marriage being again, to allow ssm?

Do either of you foresee a issue for the plaintiffs in addressing a harm or right (in definition of marriage) since California recognizes ssm performed prior to prop 8?

[Jason]

That is my precisely my point.

Likewise, the fact that a majority of voters supported Prop 8 in 2008 does mean that in 2010, after the proponent's sham arguments were exposed in court, it is still the "will of the people" that the AGs office defend Prop 8.

Thank you for exposing the fallacy of the "will of the people" assertion.

But Proposition 8 was in fact a single-issue referendum posed directly to the voters. It follows that it would be a much better determinant of the "will of the people" on this specific issue than the election of an Attorney General would be.

[LDS Guy 1986]

So the California Supreme Court has apparently agreed to hear arguments whether or not the sponsors have standing. Maybe next year we'll have a decision on that issue.

http://www.reuters.c...E71F7UY20110216

This will not be decided by the CSC, wither way it will make it's way to the USCS. I feel that they Justices will side with traditional marriage. Like most controversial cases this one will be a 5-4 with the conservatives holding the majority I believe.

In other related news the Obama administration announced today that it will no longer defend DOMA against any lawsuits filed against it in Federal Court.

http://www.foxnews.com/politics/2011/02/23/obama-administration-drops-defense-anti-gay-marriage-law/

[LDS Guy 1986]

Do members of Congress have standing to defend DOMA?

Not really, the Executive has the power to regulate the Government agencies, if he tells the Attorney General to stop defending certain legislation or to stop prosecuting certain offenses (like he did with marijuana dispensaries in California) there is nothing that Congress can do besides attempt to impeach the President.

Any resolution or bill they pass can only become law with a Presidential signature, or with a congressional override, currently the Republicans can't override a veto, and no President would willingly sign a bill into law that restricts there ability to control the Attorney General. Also any such legislation that demands the President to do something, could be ruled as a violation of the checks and balance system, and thrown out in court.

[Jaybear]

But Proposition 8 was in fact a single-issue referendum posed directly to the voters. It follows that it would be a much better determinant of the "will of the people" on this specific issue than the election of an Attorney General would be.

The passage of prop 8 represents the will of the majority of voters in 2008. That's it.

[Jason]

The passage of prop 8 represents the will of the majority of voters in 2008. That's it.

And the election of an Attorney General in 2010 only means the people liked him better than the other candidates in 2010. That's it.

Personally, I think the clear will of the majority of voters just two years ago is not something to lightly dismiss.

[Jaybear]

And the election of an Attorney General in 2010 only means the people liked him better than the other candidates in 2010. That's it.

I wouldn't say that. The AG is a political position. Her and here opponents position on Prop 8 was an important part of the campaign.

Personally, I think the clear will of the majority of voters just two years ago is not something to lightly dismiss.

Times change. From April of last year, before Judge Walker's ruling:

Less than two years after Californians approved a ban on gay marriage, a new poll found that more residents support same-sex unions than oppose them.

A poll from the Public Policy Institute of California released in March found respondents backing gay marriage 50% to 45%. And a Times/USC poll last November found a 51%-to-43% division on the issue.

The poll shows Democrats and liberals supporting same-sex marriage by large margins and Republicans and conservatives opposing it by equally lopsided margins. There is also a huge variation by age, with registered voters younger than 30 supporting same-sex marriage by roughly 3 to 1, while a majority of those 64 and older were opposed.

[Mordecai]

Must we remind you that the Protect Marriage folks gave the accurate poll last time around, predicting victory in California? The liberals kept feeding us slanted statistics, predicting that prop. 8 would fail. Furthermore, last time, prior to our campaign against your homodogma being adopted by the gov't, you guys were winning in the polls. I think history will repeat itself.

[Jaybear]

Must we remind you that the Protect Marriage folks gave the accurate poll last time around, predicting victory in California? The liberals kept feeding us slanted statistics, predicting that prop. 8 would fail. Furthermore, last time, prior to our campaign against your homodogma being adopted by the gov't, you guys were winning in the polls. I think history will repeat itself.

Are you actually denying that gay marriage is gaining broader public support?

BTW, terms like "your homodogma" are pejorative and have no place in a civil discussion.

[Zeta-Flux]

Thank you for admitting you believe this. It appears you believe that the people's will as embodied in the constitutional amendment would have been defended just as well (in the legal sense) by any of the above named parties. In your view, the defending party did not need to have any particularized interest in the case-is that correct?

Correct.

Okay, let's go to the next step. Judge Walker allowed the proponents to intervene, but did not allow some others to intervene (like that assistant clerk). By what basis does Judge Walker allow one party to intervene and not another when the party doesn't matter?

Would it have been legal for Judge Walker to have allowed no parties to intervene, and then ruled in favor of the plaintiffs when no opposition showed up?

[Jason]

I wouldn't say that. The AG is a political position. Her and here opponents position on Prop 8 was an important part of the campaign.

While it's possible that the AG's election is because of a shift in public opinion on Proposition 8, there is no way to know if it actually was because of a shift in opinion on that particular issue, or whether other factors were more significant. Again, it would be like claiming the American people really do want the taxes raised on everyone who makes over $250,000 because Obama was elected president. It is too simplistic a view of politics.

Governing by polls is generally bad practice. Making judgements of the law based on polls is even worse.

[Jaybear]

Governing by polls is generally bad practice. Making judgements of the law based on polls is even worse.

You are the newly appointed AG. You campaigned expressly promising not to appeal the Prop 8 ruling. The polls reflect that support for Prop8 has waned considerably, and majority in your state now support gay marriage. The Prop 8 proponents who were accused of misleading the public in their campaign. At trial, when required to back up their claims, either backed away from, or failed to offer evidence to support any of the reasons they advanced to the public as justification for voting for Prop 8. A federal court judge ruled, after a trial on the merits that Prop 8, violated the due process and equal protection rights of the gay citizens of California. You are a skilled attorney and you personally agree that the Federal Judge was dead on in his ruling.

Yet, despite all that, you think the new AG should appeal the ruling, because ..... why?

I thought you were taking the position that she should appeal, because that is what the voters of California would want her to do, as manifested by passing Prop 8 by a narrow margin two years prior? Now I am not so sure what your position is.

If you think she should appeal the ruling striking down prop 8, why?

[Jaybear]

Okay, let's go to the next step. Judge Walker allowed the proponents to intervene, but did not allow some others to intervene (like that assistant clerk). By what basis does Judge Walker allow one party to intervene and not another when the party doesn't matter?

Would it have been legal for Judge Walker to have allowed no parties to intervene, and then ruled in favor of the plaintiffs when no opposition showed up?

Intervention governed by Rule 24 of the Federal Rules of Civil Procedure. I am not familiar with any of the briefings or rulings on intervention to address your question.