prop 8 overturned

Major Tom · Joined: 09 Jul 2006 Posts: 7564

that 'm' would be entirely coincidental.

i consider it collateral damnage

mouse · Joined: 10 Jul 2006 Posts: 21165 Location: under the bed

ShadowCell · Joined: 02 Aug 2008 Posts: 7395 Location: California

pfeh

the 9th Circuit court has indefinitely banned same-sex marriages pending appeal, but they have agreed to start hearing arguments in December

Monkey Mcdermott · Joined: 09 Jul 2006 Posts: 3352

The reasoning behind it is solid. We know its going to go to appeal, its a lot better to just fight it out all the way and win rather than having people married, then not, then married, then not as the whole appeals process sorts itself out.

Social change in america is slow.
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mouse · Joined: 10 Jul 2006 Posts: 21165 Location: under the bed

not just 'agreed to hear' - specified an expedited hearing. and the first thing the pro-prop-8ers have to do to is demonstrate they have standing to even make the appeal.

which could. ultimately, be the 9th's way of being sure the whole thing is settled asap. the governor and attorney general have already stated that they have no intention of enforcing 8 and are happy with the ruling. if no one else is able to demonstrate that they have standing to appeal the case - it can't go on to the supreme court.

of course, one interest people had in seeing this go to the supremes was that if they ruled against prop 8, it would pretty much cut the legs out from under any law that made same-sex marriage illegal - which would make it legal throughout the country. i don't know if stopping with a california decision will do that. but of course, there is no guarantee that the supremes will uphold the decision.
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CTrees · Joined: 20 Jul 2006 Posts: 3772

The temporary stay on same-sex marriages imposed by the 9th Circuit Court is a very good thing. If they didn't grant it, the pro-8ers would've requested the same stay from the Supreme Court, who would have been nearly guaranteed to grant it until they could review everything, which is a significantly longer time frame. If we can cut months out of this step of the process, that's a very good thing.
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Willem · Joined: 09 Jul 2006 Posts: 6306 Location: wasteland style

Won't it go to supreme court anyway?
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mouse · Joined: 10 Jul 2006 Posts: 21165 Location: under the bed

i don't know that it can be. in this case, the supreme court would function as an appellate court - that is, it is reviewing a case that one or the other party feels was not judged appropriately, because the original judge made some error. note that it has to be one of the two parties involved that requests the appeal, or (in some cases) a third party that can demonstrate that they have standing - that is, that they are directly impacted by the decision. to put it bluntly - you have to prove you have a dog in the fight.

if the pro-8ers can't demonstrate they have standing, then they can't file an appeal - not to the 9th circuit, or any other appellate court. the nominal defendant (the governor of california) has already declared he is happy with the decision and will not appeal it. the anti-8ers, who won, are obviously not going to appeal it. so if the 9th circuit rules the pro-8ers don't have standing, there isn't anyone who has any interest in or legal basis for taking it to the supreme court. i don't think they can just hopscotch over the 9th circuit; i think things have to work their way up the ladder. if the 9th circuit rules that they do have standing, that's another issue - in that case, the 9th's decision could be appealed up to the supreme court.
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Willem · Joined: 09 Jul 2006 Posts: 6306 Location: wasteland style

So, if the 9th decide they don't have a standing, it's over? They can't take that decision to the Supreme Court?
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WheelsOfConfusion · Joined: 09 Jul 2006 Posts: 14325 Location: Unknown Kaddath

Major Tom · Joined: 09 Jul 2006 Posts: 7564

i think maybe they can appeal it to SCOTUS, but the conventional wisdom is that the supremes would likely find the same on no-standing.

Dogen · Joined: 10 Jul 2006 Posts: 11274 Location: PDX

Yeah... couldn't they appeal the decision that they don't have standing? I wish I knew more about the law. Sad

Back to college!
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nathan · Joined: 10 Jul 2006 Posts: 6316

No, I'm not sure that they can. If it's determined that they don't have standing to appeal, it may well mean they didn't have standing in Walker's trial either, so his original decision gets vacated and the case gets kicked back down for a different judgment (by walker still, I think). if arnold refuses to fight again, we get a default for the plaintiff. the downside is that it would mean the decision that goes on the books would only set precedent (and be enforceable) in california.
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Major Tom · Joined: 09 Jul 2006 Posts: 7564

they had been granted status as "intervenors" in the trial over which walker presided, whatever that means -- so they had standing there.

and that, apparently, is half the stepping stone they want to use to argue continued standing; the other half being the absence of appropriate representation of the people's will in light of the state's reticence to defend the ballot initiative.

seems to be a matter of some discussion.

http://www.law.com/jsp/article.jsp?id=1202466582074

regardless of the continuity of the "intervenors'" status, they were joined with Schwartzenegger in the Walker trial and were not the only defendants -- i haven't noticed talk of the possibility of outright vacating this verdict.

nathan · Joined: 10 Jul 2006 Posts: 6316

I know they were granted status in the walker trial, and I do not suspect they will be found not to have standing. BUT, if that does happen to be the decision, then the fact that they lacked standing to appeal will likely be taken to mean they lacked standing to intervene, so by granting them that standing in the initial, Walker invalidated the trial. So it's a do-over, with non-adverse parties.

And yeah, Arnold and the gov. were also defendants (perhaps the only legit defendants), but because they think Prop 8 is a load of shit, they chose to provide evidence but not refute the plaintiffs' legal theories. Basically saying, "ok, here's the evidence the law is based on... but we agree that's it's illegal."

For further discussion by people know what they're talking about, check: Mike Dorf, Vik Amar, volokh, scotusblog, etc etc Siam
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