Proposition 8 Ruling Today

[Cecelia5578]

In 2004 San Francisco issued roughly 4000 marriage licenses to same-sex couples in a relatively short period of time. Is there any projection as to how many couples are waiting in the wings to get hitched? AFAIK, even if a gay-marriage ban is later upheld all marriages performed while it's "legal" to do so would continue to be valid- tl;dr: does lifting the stay and permitting same-sex marriages to go through strengthen the case as thousands of couples wed? It seems to me that if another 4k, 8k, or 20k couples get hitched after the stay is lifted that it would become increasingly difficult for a court to uphold prop 8.

It might be the case that, having already gone through one reversal of marriage equality in this state, people might be more cautious and wait for the final SCOTUS ruling; I'm not entirely convinced that the conservative members of the court are the kind of people who'd be persuaded by that sort of thing.

[The Yosemite Bear]

During that time period we had a double marriage at the Ahwannee involving two seperate same sex couples two years ago.

[Omega18]

AFAIK, even if a gay-marriage ban is later upheld all marriages performed while it's "legal" to do so would continue to be valid- tl;dr: does lifting the stay and permitting same-sex marriages to go through strengthen the case as thousands of couples wed? It seems to me that if another 4k, 8k, or 20k couples get hitched after the stay is lifted that it would become increasingly difficult for a court to uphold prop 8.

Actually its definitely questionable that any marriages held during the lifting of the stay would be upheld as valid if the ruling is overturned. The situation is very different than the period prior to Proposition 8 being passed, because there are general policies against laws being retroactive or retroactively invaliding something like a marriage already performed. A judge is likely to conclude the marriage was never legal in the first place if he concludes the judge was ultimately mistaken in his ruling in this case. While you are ordinarily safe from criminal liability if you do something during a "window" of a law like this, that doesn't usually apply to something like a marriage being continued to be held valid. This is due to the general principle of trying to avoid having "incorrect" court decisions by lower courts have permanent effects once overturned by a higher court.

The obvious comparison for this situation is in 2004 when San Francisco started allowing gay marriages on February 12, and this was not halted by the California Supreme Court until 4,000 had married on March 11th. In between the State Attorney General declined to intervene in the case in spite of Governor Schwarzenegger's request. The California Supreme Court still decided that all these marriages performed were invalid, and this remained the case even once the California Supreme Court ultimately overturned the state law banning gay marriage. (Those that wanted be married to had to go through all the marriage procedures again basically from scratch as far as the law was concerned.)

I would say that if no stay is put on the ruling until the Supreme Court hears the actual case you would likely be looking at a large number of additional marriages by then. I would question if this would really alter the Supreme Court Justices' ruling, although if the marriages had been actually viewed as legal for that long, concerns about the impact of suddenly invalidating them might have a slight effect. (Particularly given the additional legal complications of what happens if someone had a gay marriage in California, but moved to a state which flat out allows gay marriage prior to the Supreme Court overturning the earlier ruling.

[CmdrWilkens]

So couple things:

The decision to hold the stay until August 18th was designed specifically for the "Yes on 8" folks to be able to organize a coherent statement for allowing them to serve as the appellant in this case. Because they were not the Defendant at trial (the State of California, or specifically two specific County Clerks, the AG, and the Governor all in their official capacity, were the defendants). The Yes on 8 folks were instead the "Defendant-Intervenor." Walker pointed out that quite often the Supreme Court and other Circuit courts have held that Intervenor's do not have standing to appeal the case. the right to intervene and present either a single or concurrent defense in District Court does not automatically grant the right to appeal such decisions. In this particular case Walker noted, and its rather obvious, that the Yes on 8 folks will not, and cannot, suffer harm if the ruling stands. Since standing at court usually requires either that one be directly accused or that harm will come to you if you are not allowed redress the "Yes on 8" folks will have a rather tricky time mustering standing since the State will not appeal the ruling.

Now that the stay will only last until the 15th we still could have intervention by the 9th Circuit (whose Motions panel is 2 Clinton and 1 old Reagan appointee) and if they deny then the stay issue goes before Justice Kennedy (who can either rule for himself or refer to the whole court). The one downside to not issuing a stay pending appeal is one I hadn't considered but one which was raised elsewhere...if people start knocking on Kennedy's door for answers in this case before it even goes to appeals it might make him a bit testier about the whole issue if and when it finally lands in the Court for oral arguments.

On the issue of whether the marriages would be valid or not I'd say the '04 San Fran decision is likely the guide here. The counties would be justified in acting either way once the stay is lifted (barring a stay from the 9th or the USSC) but should Prop 8 ultimately be upheld then any marriage performed as such would likely be declared invalid.

[Pint0 Xtreme]

UPDATE: Proposition 8 stay GRANTED by 9th Circuit - Same-sex couples will NOT be able to obtain marriage licenses this Wednesday

Appeals court puts Proposition 8 ruling on hold, sets December hearing

A federal appeals court today put off any same-sex marriages in California until at least next year.
In a brief order, the 9th U.S. Circuit Court of Appeals agreed to stay Chief U.S. District Judge Vaughn Walker's order last week that would have barred the state from enforcing Proposition 8, a development that would have enabled same-sex couples to obtain marriage licenses across the state immediately. Walker on Aug. 4 declared Proposition 8 unconstitutional, and then found there is no longer legal justification to deny same-sex couples the right to marry while his ruling is reviewed on appeal.
The 9th Circuit gave the two sides in the case the next few months to file briefs on Walker's ruling, and set arguments for the week of Dec. 6, which would push a decision into next year. In the meantime, gay and lesbian couples will likely have to put off hopes of marrying for awhile, as plaintiffs lawyers' only option left would be to ask the U.S. Supreme Court to intervene -- a move most legal experts do not believe they would make because of the long odds of getting the justices to tamper with the case at this stage.
The three-judge 9th Circuit panel did not elaborate on either Walker's ruling invalidating Proposition 8 or the issue of allowing gay marriages to proceed right away. But the judges asked the ballot measure's lawyers to offer arguments on why they have the legal right to appeal when the state's top two officials, Gov. Arnold Schwarzenegger and Attorney General Brown, refuse to defend the law and say it is unconstitutional.
On Monday, backers of Proposition 8 made one final plea to the 9th Circuit to prevent same-sex couples from marrying in California until higher courts resolve their appeal of Walker's ruling. In court papers, Proposition 8 lawyers urged the 9th Circuit to reject Walker's findings, saying the voters in November 2008 had sound reasons to restrict marriage to heterosexual couples, such as to encourage procreation in society.
Proposition 8 lawyers insist the ballot measure is on firm constitutional ground, and argue that the case should be put on hold until either the 9th Circuit or U.S. Supreme Court has a final say.The defense team last week asked the 9th Circuit to issue an emergency order preventing same-sex marriages from taking place right away, and followed up Monday with a legal response to plaintiffs lawyers, who say Proposition 8 should be invalidated immediately.
Calling it "entirely reasonable" for Californians to "favor preserving the traditional definition of marriage," Proposition 8 defenders told the 9th Circuit that Walker's ruling was legally flawed.
Walker ruled that the ballot measure violated the equal rights of gay and lesbian couples and found that defenders of the law had failed to present any evidence to the contrary during January's unprecedented trial. In fact, in his 136-page Aug. 4 ruling, Walker expressly turned away the same arguments Proposition 8 defenders are trying again in the 9th Circuit.
Plaintiffs' lawyers and California Attorney General Jerry Brown have pressed the 9th Circuit to allow same-sex marriages to resume immediately. Gov. Arnold Schwarzenegger has not weighed in with the 9th Circuit, but did ask Walker to block enforcement of Proposition 8, agreeing that it is unconstitutional.
Plaintiffs' lawyers and San Francisco city officials maintain the Proposition 8 campaign no longer has a legal right to even pursue an appeal to defend a state law that California's top officials refuse to defend. In Monday's court papers, Proposition 8 lawyers say it is particularly important for them to be allowed to appeal Walker's ruling and defend the law when "elected officials refuse to do so."

[Alyeska]

Not entirely a surprise. The appeals process now begins.

[CmdrWilkens]

Not entirely unexpected though the specific requirement to prove standing within the order does suggest that the 9th (or at least this panel) might be inclined to dodge this hot potato all together by denying appeal based on standing.

[Crossroads Inc.]

I was surprised when he didn't put in a saty the first time around, so again this is expected. In truth its a smart legal move. If the stay is not put in place, there will be marriages starting up immediately across California. By the time the case is heard at the next level, the amount of marriages is going to be seizable. if Prop8 sis then upheld at that point, all of the marriages that went though up to that point are going to pose a seizable legal headache. So I don't really LIKE what happened, but I can see why ti went though,

[xt828]

So if the 9th does dodge it, where does that leave the issue? Would I be right to assume that if they deny standing to the pro-Prop-8 lot then the appeal is off, and the stay is lifted?

[Terralthra]

If they deny standing to the Yes-on-8 lot, they can appeal to the SCOTUS, but the SCOTUS can't necessarily put a stay on the ruling like the 9th Circuit can. If the 9th passes the buck, yes, the stay will most likely be lifted.

[CmdrWilkens]

So if the 9th does dodge it, where does that leave the issue? Would I be right to assume that if they deny standing to the pro-Prop-8 lot then the appeal is off, and the stay is lifted?

The actual Stay Order can be found on the 9th circuit's website. The order specifies "Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED." The critical part is that the stay is pending appeal which means that should appeal be denied that would be the end of the stay. Now the appellant's could then request a stay from the SCOTUS pending an appeal of the denial...but if the 9th circuit denies standing then I'd rather suspect that the Court would duck the issue as well and the stay will be lifted.

[Terralthra]

What happens then is unclear. If the SCOTUS don't grant cert, then the ruling would stand for the 9th's jurisdiction, and be used as reference, but not precedent, in other court's regions. Most likely, it will take a test case in a conservative enough state that the state executive actually wants to appeal. They would certainly have standing, and that could make it to the SCOTUS.

[Kanastrous]

This is some interesting background of which I'd not been aware...

How Jehovah's Witnesses helped kill Prop 8

By Joel P. Engardio

Mormons took a lot of abuse for helping pass Proposition 8 in California, where 52% of voters banned the right of gay couples to marry in 2008. But will anyone thank Jehovah's Witnesses for their role in getting the law declared unconstitutional?

One of the biggest outcries over Prop 8 was that the fundamental rights of a minority group could be taken away by popular vote — which isn't supposed to happen in America, land of the free.

Vaughn Walker, the federal judge who struck down Prop 8 this week, boldly said it "was premised on the belief that same-sex couples simply are not as good as opposite-sex couples." He also minced no words with the electorate: "That the majority of California voters supported Proposition 8 is irrelevant."

This is where Jehovah's Witnesses come in. On Page 116 of Judge Walker's ruling, he cites a 1943 Supreme Court case where the high court did a rare reversal of itself, acknowledging a mistake it made in a Jehovah's Witness case three years earlier. What happened between 1940 and 1943 to Jehovah's Witnesses gave Judge Walker in 2010 his most potent precedent to show that voter will does not trump the protection of minority rights.

In the 1940s, Jehovah's Witnesses weren't just unpopular and marginalized. They were seen as criminal and a threat to democracy. It was blasphemous enough that they preached there was no hell or trinity and went knocking on doors to say so. But they also refused to salute the flag or say the Pledge of Allegiance.

Lillian Gobitas was among thousands of Jehovah's Witness children expelled from public school for not saluting the flag. Her case (Minersville School District v. Gobitis) went to the Supreme Court and a fundamental question was asked: Should a free society force its citizens to engage in patriotic ritual? In 1940, the court said yes. National unity was at stake.

But Jehovah's Witnesses wouldn't comply, saying the flag salute is an idolatrous act of worship of a man-made symbol, which is forbidden by God. In response, mobs attacked Jehovah's Witnesses in 44 states, burned their houses of worship and beat them. First lady Eleanor Roosevelt spoke out against the violence. At the height of World War II, when the U.S. was fighting nationalism in Germany, where Jehovah's Witnesses were being sent to concentration camps for refusing to do the Nazi salute, the Supreme Court revisited the case (West Virginia State Board of Education v. Barnette). A stunning reversal was announced June 14, 1943 — Flag Day.

In 2010, the value Judge Walker saw in the Jehovah's Witness case was how Justice Robert Jackson in 1943 addressed the "tyranny of the majority," a problem that's been around since at least 1835 when Alexis de Tocqueville first wrote the phrase in his book, Democracy in America.

The 1940 Supreme Court used "national unity" to justify forcing kids to salute the flag. It also said the threat of being expelled from school was a good way to achieve compliance. If anyone felt put out, the court said, he could seek remedy at the ballot box by asking the majority to see it his way.

When Justice Jackson got the chance to reverse the 1940 ruling, he tackled the ballot box notion head-on. He wrote that the "very purpose" of the Bill of Rights was to protect some issues from the volatility of politics and "place them beyond the reach of majorities."

"One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly," Jackson said, "may not be submitted to vote."

Judge Walker used Jackson's line in striking down the 52% majority vote that had taken away the fundamental right of gay and lesbian couples to marry in California.

While we can thank Jehovah's Witnesses for this precedent that aims to prevent tyranny of the majority, it should be noted they don't like gay marriage. They consider it sin and aren't afraid to say so. But not one devoted Jehovah's Witness voted for or supported Prop 8. Jehovah's Witnesses are apolitical. Rather than forcing their beliefs through legislation, they prefer to find converts by sharing a message.

Justice Jackson saw how protecting the rights of an unpopular religion demonstrated the beauty and full potential of the Bill of Rights for every unpopular group to follow.

"Fundamental rights," Jackson wrote in 1943 and Judge Walker quoted in 2010, "depend on the outcome of no elections."

Joel P. Engardio directed KNOCKING, an award-winning PBS documentary about Jehovah's Witnesses. He is a 2011 MPA candidate at the Harvard Kennedy School of Government.

http://www.usatoday.com/news/opinion/fo ... 5_ST_N.htm

I expect this probably doesn't exactly have Jehovah's Witnesses dancing jigs, but what the heck...

[CmdrWilkens]

What happens then is unclear. If the SCOTUS don't grant cert, then the ruling would stand for the 9th's jurisdiction, and be used as reference, but not precedent, in other court's regions. Most likely, it will take a test case in a conservative enough state that the state executive actually wants to appeal. They would certainly have standing, and that could make it to the SCOTUS.

Small note, it would actually only be precedent in the Northern District of California (and thus California as a whole)...since the 9th (in refusing to grant standing) would not be affirming the decision or otherwise even touching. This means the rest of the jurisdictions in the circuit are not held under precedent from Walker's ruling. Only if the 9th grants standing and upholds the decision (and the SCOTUS denies cert) would it be precedent in Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington as well.