Blue Mass Group

Reality-based commentary on politics.

CA gay marriage decision stayed pending appeal

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Looks like Californians will have to wait a few more months to hop on board the gay marriage bandwagon.  Here is the text of the order, from the 9th Circuit Court of Appeals.

Before: LEAVY, HAWKINS and THOMAS, Circuit Judges.

Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.

Interesting that the Court, on its own initiative, ordered the issue of standing to be briefed – clearly, the Court is concerned about it.  Also, it’s good news that the briefing is expedited.  Still, it’s too bad that the stay was granted at all.

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  1. Where is the harm in someone bringing a case before the court who personally claims no direct harm?  The point of the doctrine is to prevent courts from inventing cases and ruling on the Constitutionality of laws even if no one has complained about the law, in order to ensure the separation of powers.  But that’s the opposite of what is happening here, isn’t it?  Here the court made a ruling, overturning the people’s legislative power, and now they’re saying that the plaintiffs challenging their ruling lack standing to do so, in effect increasing the Judicial power.  Using the safeguard of requiring standing in order to increase judicial power is obviously a corruption of the system.

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    p>Especially in a case like this, where the plaintiffs are arguing on behalf of posterity, about a future quality of life relative to how it would be without same-sex marriage, or what harms might come to people in the future.  Cases like that should have automatic standing, and the Judicial Branch should be obliged to rule on behalf of future people, even if no one steps forward with a complaint.

    • Isn’t ruling on an issue before someone brings a complaint an expansion of judicial power?  There’s a case and controversy requirement for a reason.  The framers considered automatic constitutional review and (wisely IMO) rejected it.  If there is no direct harm requirement the docket is going to burst at the seems.

      • that the court’s decision was wrong, so they shouldn’t be turned away because the court says they don’t have standing to challenge their ruling.

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        p>How often is someone with no direct harm going to bother to challenge a law in court on behalf of other people or posterity?  I don’t see it increasing caseload much at all.

        • this is pretty basic Article III stuff.  Federal courts don’t decide issues just because someone thinks they should be decided.  They only decide cases when the parties are personally affected in a legally cognizable way.  It’s not just ’cause they don’t feel like it – it’s in the Constitution.

        • The court didn’t just decide to overturn Prop 8. There were plaintiffs who sued to get married, and there were defendants (Swartzenegger and Brown et al) who were going to let the lawsuit default. The Prop 8 “Proponents” (neither plaintiff nor defendants) asked to be allowed to defend because the it was going to default otherwise, and the judge let them defend.

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          p>THEY LOST. IN FACT, THEY BLEW IT OUT THEIR COLLECTIVE ARSES. Unfortunately for the “proponents”, they did such a lousy, pathetic, laughably simplistic defense that they lost on every single finding of fact.

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          p>The judge ruled that Prop 8 is unconstitutional after 13 days of testimony from plaintiffs, “Proponents” and “so called” experts. The “Proponents” tried to appeal (making them “Appellants”, not “Plaintiffs” as you claimed), after severely screwing up the first case, and now they have until December to prove that they have standing to appeal under Article III of the US Constitution.

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          p>This isn’t a case of someone bringing a new lawsuit AFTER the judge ruled Prop 8 unconstitution. This is the bumbling idiots (i.e. Larry, Moe and Curly for the defense), who are appealing the judgement after doing such a pathetically bad job of the first case.

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          p>The fact that you don’t accept the terms of Article III of the US Constitution governing standing, simply because you did not get your way, does not surprise me in the least. I remember your pathetic defense of keeping petitions confidential, and you did not care about the constitution then either.

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          p>Seriously, read the decision before putting forward your pathetic propaganda, because you have been demonstratably wrong on each and every point, at least so far.

        • … if they can demonstrate, as you say, “harm”.  One can argue for posterity on their own time, not the courts.  The alternative is to open up posterity argument to every crackpot with nothing better to do.

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          p>More at Right Wing Watch:

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          p>

          …the issue standing is going to be an important question in moving the case forward in the appeals process:

          [A]dvocates of Prop 8, who are launching the appeal, may not have the necessary standing to carry it forward. The case is titled Perry v. Schwarzenegger, with Gov. Arnold Schwarzenegger and other officials in the position of defending the ballot initiative. But those officials, who are sympathetic toward gay marriage to varying degrees, are not inclined to appeal Walker’s ruling.

          Under Supreme Court precedent, it’s unclear that proponents of legislation would have standing to defend it if state officials are not themselves defending it, because they can’t show that they are suffering the necessary injury. In Arizonans for Official English v. Arizona, a 1997 case, the Court expressed “grave doubts” about the ability of such groups to challenge rulings that strike down ballot initiatives.

          “There is a very serious standing issue,” said George Washington University Law School associate dean Alan Morrison, a longtime expert on standing and civil procedure. The Arizona precedent, he said, “came right up to the edge” of saying there was no standing for groups like those that favor Proposition 8. Morrison also noted that since that ruling, new members like Chief Justice John Roberts Jr. and Samuel Alito Jr. have joined the Court and are “no friends of expanding standing.” Setting high standards for standing has been one of several gatekeeping procedural doctrines conservative justices have used to weed out what they view as excessive or frivolous litigation from the courts.

          The issue of standing is the very question the Ninth Circuit is going to be examining and why the court is explicitly telling Prop 8 supporters who are appealing Walker’s ruling “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

           

        • My other point was that you seemed to be complaining about an expansion of judicial power, then propose a new theory of judicial review which will expand judicial power.

    • Please read the 135 page decision, because you have no idea what you are talking about. You don’t even have the plaintiffs and the proponents right.

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      p>1) The plaintiffs are the gay couples who felt discrimated against under Article 14 of the US Constitution and want to get married.
      2) The defendants are Arnold Swartzinegger, Jerry Brown and various California executives.
      3) The proponents (the ones who may or may not have standing) are the supporters of Prop 8. They had nothing to do with the lawsuit originally and only asked to step in when the state of California was willing to let the case default. They specifically asked the Judge to let them defend, and the rules around this type of “jumping into the breach” does not automatically grant standing.

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      p>The proponents are neither plaintiffs (who want marriage equality) or defendants (who want marriage equality) in the case and do not automatically have standing.

      <

      p>But you asked, what is the harm?

      <

      p>Take a simpler example. A guy wants to build a religious center, and an immediate neighbor brings a lawsuit to prevent its construction. If, in the course of the lawsuit, he decides that it is not worth the legal cost and time to fight this, should someone who lives in the next town, or the next state, or in Europe, be able to step in continue the lawsuit? Even if the judge agrees to let this occur, it does not automatically grant standing. The lawsuits may never end if everybody on planet earth has standing.

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      p>Take a more emotional example. The husband of Terry Shievo (sp?) wants to remove the feeding tube of his brain dead wife. Should he have to fight every single extreme pro-life group in court, one by one, for a thousand years, simply because everybody has standing? Does being the next of kin mean anything?

      <

      p>The courts have ruled for years over the issue of standing, because once a decision is made, it cannot be litigated ad nauseum. AND, it cannot be overturned simply because you don’t like the decision. It can only be appealed if you can show that the Judge did something wrong, or misunderstood case law or failed in someway, and if you don’t have standing, then you out of luck.

      • I meant the people complaining about having the court nullifying the voters.  In general, the people complaining to the court demanding justice are “plaintiffs”.

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        p>In the first example, sure, another guy should be able to step in and continue the law suit.  Why should justice require someone being adversarial and rich enough, why can’t other people step in when the people being harmed are too meek to care, or haven’t been born yet?

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        p>In the second example, aren’t there already rules about having to retry the same thing over and over?  Like, what if 1000 people want to sue a guy for offending them with his green hair, doesn’t he just have to defend himself once?

        <

        p>Your final paragraph doesn’t explain the connection of litigation ad nauseum to standing.  If someone has standing, that doesn’t give them the right to litigation ad nauseum, so why is standing required at all?

        <

        p>It is supposed to reduce judicial power, not entrench it.  The idea is that courts aren’t supposed to take a proactive approach to invalidating laws, they are supposed to wait for someone to allege injustice.
         

    • The 14th amendment mandates equal laws.

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      p>Not letting homosexuals marry the consenting partner they want to comes from the law not being equal.

      <

      p>Plus, won’t delaying it create confusion about the TRUE marital status of some of these couples?

      <

      p>Marriage IS a clearly defined entity. You are either married or you are not. If it ends, it ends in the courts.

      <

      p>Boyfriend/girlfriend/sweetie/honey/lover or whatever are not clearly defined. If it ends, it is done informally by the couple, and they go on their merry way.

      <

      p>What about homophobic jerks for gay marriage? With my position, it would be possible to find homosexual persons and acts revolting, but still say they should have a right to marry because the laws must be equal.

      <

      p>As for the “sanctity of marriage”, each spouse sanctifies the marriage of the other. It is between them. It is not “sanctified” by the government, religions, folklore, or any other belief or entity.

  2. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

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    p>If you are interested in reading up on “Standing”, the following is a link to case referenced, “Arizonans For Official English v. Arizona”

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    p>http://www.law.cornell.edu/sup…

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    p>If you search for the word “Standing”, there are over 40 references, mostly about 30% into the text. The two most revelant paragraphs, in my opinion, are quoted below (with bold added by me):

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    p>

    Article III, §2, of the Constitution confines federal courts to the decision of “Cases” or “Controversies.” Standing to sue or defend is an aspect of the case or controversy requirement. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 663-664 (1993) (standing to sue); Diamond v. Charles, 476 U.S. 54, 56 (1986) (standing to defend on appeal). To qualify as a party with standing to litigate, a person must show, first and foremost, “an invasion of a legally protected interest” that is “concrete and particularized” and ” `actual or imminent.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of Wildlife, 504 U. S.,at 573-576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess “a direct stake in the outcome.” Diamond, 476 U. S., at 62 (quoting Sierra Club v. Morton, 405 U.S. 727, 740 (1972) (internal quotation marks omitted)).

    The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. Diamond, 476 U. S., at 62. The decision to seek review “is not to be placed in the hands of `concerned bystanders,’ ” persons who would seize it “as a `vehicle for the vindication of value interests.‘ ” Ibid. (citation omitted). An intervenor cannot step into the shoes of the original party unless the intervenor independently “fulfills the requirements of Article III.” Id., at 68.

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