Cali. AG: Prop 8 Backers Should Not Have Standing to Appeal

California attorney general Kamala Harris told the California Supreme Court this week that supporters of Proposition 8, the 2008 voter enacted gay marriage ban, do not and should not have standing to appeal federal judge Vaughn Walker’s ruling that the ban is unconstitutional.

Harris, who unsuccessfully asked the 9th Circuit Court of Appeals to allow same-sex marriages to resume while the case is being decided, submitted an amicus brief to the supreme court on Monday. The supreme court is currently trying to decide whether the defendant-intervenors in the case have a right to appeal under state law because it has been suggested they lack standing under federal law.

In the brief Harris argued that only the state’s executive branch should be able to defend state laws because to allow defendant intervenors such a right robs the electorate of its power “by taking the executive power from elected officials and placing it in the hands of a few highly motivated but politically unaccountable individuals.”

You can read the full brief over at The Advocate.

In his original ruling Judge Vaughn Walker raised doubts as to whether the defendant-intervenors have legal standing enough to defend Proposition 8 before the 9th Circuit Court of Appeals.

The state’s administration would usually defend the law in such cases, but the anit-gay group ProtectMarriage intervened when both the then governor Arnold Schwarzenegger and the then attorney general Jerry Brown declined because they believed the 2008 ballot measure was unconstitutional.

Although ProtectMarriage was allowed to intervene during the original court case, as defendant-intervenors the right to defend the law at appeal was not automatically granted them.

In accepting the case, the 9th Circuit Court of Appeals stated that the defendant-intervenors would have to prove their standing in order for the appeal to go ahead.

The three-judge panel heard arguments in December of last year on both the constitutionality of Proposition 8 and the standing of the defendant-intervenors.

In January, the 9th Circuit Court of Appeals asked the California Supreme Court to advise on whether defendant-intervenors in the case have standing to appeal under state law, a critical question in determining whether those defending the gay marriage ban can proceed.

In taking up this request, the California Supreme Court said that it will hear oral arguments in September. This will likely push back the 9th Circuit’s decision well into 2012.

Gay rights groups have accused the courts of dragging out the case unnecessarily while attorneys David Boies and Ted Olson filed a motion for the hearings to be moved forward to May. The California Supreme Court refused that motion to expedite, meaning that the question of standing will be taken up in September as originally scheduled .

Photo used under the Creative Commons Attribution License, with thanks to angela n.

Disclaimer: The views expressed above are solely those of the author and may not reflect those of
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Mac R.

9:23PM PDT on Aug 28, 2011

Sammy K..... STFU
I am so tired of homophobes trying to use moral equivalency objections to stories about gay rights issues! We are not simpletons who cannot focus on more than one thing at a time, and in real life that is impossible anyway. Idiots like you say this kind of crap on most gay stories, things like, With all the joblessness and wars going on why are you (Care2 or any news org) spending time and devoting space to telling us about these gay rights struggles?

Well, Sammy, YOU may not be able to consider or understand more than one issue at a time in your life, but the rest of us can, so quit showing your bigotry by whining about coverage of important issues because it just tells us that you are not capable of multi-tasking or dealing with more than one concept at a time.

send a green star

Terri E.

8:23PM PDT on May 6, 2011

Great post Sammy Katz!

Karen and Ed O.

12:06PM PDT on May 6, 2011

You go, Kamala! You are, and have always been, one of my heroes.

Ronald E.

11:41AM PDT on May 6, 2011

Marriage is a civil union. Religion has no authority in the matter.

William G.

11:33AM PDT on May 6, 2011

It is not Mormons or Catholics I have a problem with. It is the hierarchy of these religions and other conservative religions as well, that insist on over stepping their bounds trying to influence what are essentially political matters. Civil marriage is a civil matter, not a religious one. Individual religions can do or not do whatever they want regarding gay marriages, but attempting to influence state policy on this issue is promoting their religious views over the rest of us. That is not acceptable.

Gary A L.

10:16AM PDT on May 6, 2011

Patricia A not all mormons or Catholics are homophobes or bigots I am a Catholic and I don't hate anyone by using such a broad brush to paint people you use the same tactics that usually are used by bigots and haters

Patricia A.

9:05AM PDT on May 6, 2011

The Mormons, the Catholics, and all the homophobes need to stop their interference. Shame on CA for not standing up for the rights of "everyone".

Fred K.

8:42AM PDT on May 6, 2011

The state should act to limit the spread of illness by issuing a civil union license to any consensual adult group establishing a common household, contingent on a blood test establishing the members' communicable illness status (thus no STD surprises, etc.). The common household should get a small tax break and be a legal entity in all states.

The church or other faith establishment chosen by consenting adults seeking 'marriage' should define that marriage, not the state.

'Proposition Hate' (8) should be used for toilet paper. It is an unconstitutional and blatantly homophobic piece of treason.

Curtis B.

7:46AM PDT on May 6, 2011

There should be no controversy, if they are American then they have the right to marry. If not then no American should have the right.

Cheryl B.

7:38AM PDT on May 6, 2011

I too agree that this is just wasted money. All of us should be treated equally and it is time for this hatred and ignorance to stop. How about those individuals that currently do not have the rights like most of us, be allowed to stop paying taxes into our society. We tax them, but don't want them to have rights. Doesn't sound fair or equitable in any sense.