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The proponents of Proposition 8 in California, showing that there's no loser like a sore loser, are back in court today, trying to halt gay weddings in California via a number of technical arguments.  Leaving aside the utter mean-spiritedness of such efforts (which should be no surprise at this point, and indeed are self-evident),  Their arguments rely on technical issues of law that are most likely makeweight at best.  

I admit to not be familiar enough with these particular technicalities to pass authoritative judgment on them (not my field of law), but I invite anybody better versed in them to flesh out my own analysis.

As the Prop 8 proponents see it, the Supreme Court ruling that they lacked standing to challenge Judge Walker's decision throwing out Prop 8 (in San Francisco Federal Court) left only that ruling intact.  That ruling, they contend, is not an appellate one sufficient to have the power to require the state to issue same sex marriage licenses.  In addition, since the original suit only named the county clerks of Los Angeles and Alameda Counties, the injunction issued by Judge Walker can only bind those clerks (or, I would suppose, clerks of counties within the Northern District of California, which includes San Francisco and Alameda.  Prop 8, in other words, remains in effect for the rest of the state, according to this argument.  

Governor Brown ordered all California county clerks immediately to start issuing marriage licenses to same sex couples upon the Supreme Court's ruling, citing a legal opinion from Attorney General Kama Harris that the Walker injunctive ruling had power over all California counties.  

This gets into very technical issues of the reach of a District Court ruling, the power of persuasive authority, the respective roles of state and federal Courts (the Prop 8 proponents have appealed today to the California Supreme Court), and the authority of the state government over county clerks (who are independently elected local officials ,though obviously charged with acting in accordance with state law).  It's an interesting tack, but one I think is not going to work on a real world level.  Whether the bigots like it or not, the gay marriage ship has sailed in California.

As I said above, I invite anyone with deeper understanding of the ins and outs of this field of law to comment.  I don't claim to be an expert in this stuff (I slept through civil procedure!).  

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Comment Preferences

  •  Seems reference to DOMA case (4+ / 0-)

    with its use of the 14th Amendment would be the clue they should just give up and go home.

    --United Citizens defeated Citizens United...This time. --

    by chipoliwog on Fri Jul 12, 2013 at 01:51:06 PM PDT

  •  It is not that they're sore losers, but the fact (4+ / 0-)
    Recommended by:
    bythesea, hnichols, gustynpip, Aunt Pat

    that hate overpowers reason in almost every situation and circumstance.

    Support Small Business: Shop Kos Katalogue

    2== @E96C p4ED 2?5 %9:?8D H9:49 x?56A6?56?E $E2E6D >2J @7 C:89E 5@] p?5 7@C E96 DFAA@CE @7 E9:D s64=2C2E:@?[ H:E9 2 7:C> C6=:2?46 @? E96 AC@E64E:@? @7 5:G:?6 !C@G:56?46[ H6 >FEF2==J A=6586 E@ 6249 @E96C @FC {:G6D[ @FC u@CEF?6D 2?5 @FC D24C65 w@?@C]

    That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

    by enhydra lutris on Fri Jul 12, 2013 at 01:56:23 PM PDT

  •  Do not overestimate the Cal Supreme Court (1+ / 0-)
    Recommended by:

    The Cal Supreme Court LOVES the power of the "people" to pass Ballot Propositions.  They jump through hoops, bend over backwards, and twist themselves in knots upholding the most punitive ballot measures.

    The Cal. Supreme Court ruled that the backers DO have standing to defend the Proposition.  The Cal. Supreme Court ruled 6-1 that Prop 8 does NOT violate the Constitution.

    Although I am very supportive of the Right to Marry, I urge everyone:  Beware the Cal. Supreme Court

    "Speak out, judge fairly, and defend the rights of oppressed and needy people." Proverbs 31:9

    by zdefender on Fri Jul 12, 2013 at 02:51:38 PM PDT

    •  But the CA S Ct can't overrule a (2+ / 0-)
      Recommended by:
      zdefender, TLS66

      Federal court.  

      "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

      by gustynpip on Fri Jul 12, 2013 at 04:29:15 PM PDT

      [ Parent ]

    •  Re California Supreme Court (3+ / 0-)
      Recommended by:
      zdefender, Stwriley, Aunt Pat

      I'm not quite so cynical about the CA Supreme Court.  They also legalized gay marriage in the first place, remember.  Their ruling on Prop 8's validity was not a shocking one given the more limited scope of equal protection under state law (which is all they used in their ruling, as was proper), and their standing ruling was advisory only, and again based on state law, not the Federal standing doctrines that the US Supreme Court eventually used to make its findings.  Their deference to ballot propositions is because the state constitution mandates it, as do numerous precedents.  

      •  I am horribly cynical about the CA Supreme Ct (0+ / 0-)

        which is more conservative than the US Supreme Court and more political.  They will uphold almost any ballot proposition for fear that they will be targeted for removal by ballot, as happened in 1986, when 3 liberal justices were voted off the Court.
        They did barely (4-3) affirm a right to marry under the Cal. Constitution, but they backed down quickly (6-1) when the ballot amended the Constitution.
        They will be worried about the Governor and AG not enforcing a validly passed ballot initiative.
        I don't agree with the Ca. Supreme Court, but they may well uphold Prop 8 again, and they won't be happy that one federal judge gets to tell them what to do with a state initiative, when no one with federal standing argued the case in federal court.

        "Speak out, judge fairly, and defend the rights of oppressed and needy people." Proverbs 31:9

        by zdefender on Fri Jul 12, 2013 at 04:44:16 PM PDT

        [ Parent ]

        •  I understand your concerns (2+ / 0-)
          Recommended by:
          Aunt Pat, TLS66

          but I don't think they will amount to much.

          The California Supreme Court was essentially put in a box when Prop 8 passed, which of course was the entire point of Prop 8 in the first place. Essentially they were placed in the position of having to rule a portion of the state's own constitution unconstitutional, based entirely on that constitution, rather than on federal grounds. Prop 8 was intended to carve out an exception to the equal protection clause of the state constitution so they had nothing at their disposal. In truth I think they found the whole thing very distasteful; had it been otherwise they might well have gone so far as to invalidate all the marriages that had been contracted prior to Prop 8's passage.

          Things that end up in the courts are not open-and-shut sorts of things and it's tough to know for sure what the state Supreme Court's thinking was, above and beyond the written record. They did manage to strike down 1964's Prop 14, which sought to reinstate race-based discrimination in real estate transactions but that also involved a conflict between the state constitution and the US Constitution whereas the situation respecting Prop 8 was less than clear. They might have ruled that Prop 8 constituted a revision to the state constitution; such revisions do require a super-majority vote in the state legislature before such a change can be placed on the ballot, but it is understandable that they declined to do so. I think what really happened regarding Prop 8 is that they punted to the federal courts based on a supposition as to how the case would turn out. While I thought that their ruling regarding the ballot proponents' standing to defend the measure was reprehensible, once again I think they pretty well understood that state-level standing does not necessarily translate to Article III standing; once again they were content to let SCOTUS do the heavy lifting.

          In the present case I think they will be just as happy to wash their hands--and the hands of the public--of the disgrace of Prop 8. They will simply say that the US Supreme Court has spoken and that's the end of the matter.

          The bottom line is that Pugno and his clients don't have a leg to stand on. All they're trying to do is impress their base. In fact it may turn out very badly for them in the end. There is considerable debate as to the propriety of their latest move and the court may in fact not take kindly to being asked to rule on what is essentially a closed issue.

  •  The name (2+ / 0-)
    Recommended by:
    gustynpip, Aunt Pat

    is "Kamala Harris", not "Kama".

    The 'arguments' they are throwing out are stuff they pulled out of their asses.  They're just flailing in desperation.

    I am not religious, and did NOT say I enjoyed sects.

    by trumpeter on Fri Jul 12, 2013 at 03:24:39 PM PDT

  •  I can't claim to be an expert, but their (4+ / 0-)
    Recommended by:
    sfbob, exNYinTX, Aunt Pat, TLS66

    arguments would fall out of the tightest woven sieve ever made.

    Because a case names only certain counties does not mean the ruling is not binding on all counties, and such an argument will be laughed out of court immediately.  The decision is binding over the entire district, automatically.  Can you imagine if every department, municipality, etc. had to be sued separately for every unconstitutional law?  The court decided the LAW was not constitutional, not that the clerks were acting unconstitutionally.

    Dumb asses.

    "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

    by gustynpip on Fri Jul 12, 2013 at 04:33:32 PM PDT

    •  In their sick world (0+ / 0-)

      only Linda Brown was entitled to go to a "white" school and only her locality had to integrate, only the Lovings could be interacially married or the ruling applied only to Virginia.  Of course, if it was something like Dred Scott or Plessy, it would apply to all!

      "Valerie, why am I getting all these emails calling me a classless boor?"

      by TLS66 on Sat Jul 13, 2013 at 08:54:37 AM PDT

      [ Parent ]

  •  What I'd like to know is (0+ / 0-)

    when does the SCOTCAL rule on this motion or dismiss it?  It's cruel to the gay's peace of mind to keep it in legal limbo like this.  Unfortunately, I think that asshole Pugno wants that.  He's that cruel.

    "Valerie, why am I getting all these emails calling me a classless boor?"

    by TLS66 on Sat Jul 13, 2013 at 09:03:02 AM PDT

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