Tuesday, August 17, 2010

Is There A Contradiction Here?

Will the Prop 8 Case End on a Technicality?

The flurry of filings from California in the past couple of days suggests the issue that may determine the immediate and perhaps ultimate fate of that state's invalidated law banning gay marriage will have nothing to do with who can stand at the altar but rather who can stand in a courtroom and defend the measure.

Next week, the Ninth Circuit U.S. Court of Appeals is expected to rule on whether a temporary stay of Judge Vaughn Walker's ruling overturning California's ban on gay marriage should be extended. The court's decision will either temporarily re-open the marriage process for California's gays or leave the prohibition in place until the Ninth Circuit can more fully hear arguments on the merits of the case, which would not take place until next year.

A major factor that could ultimately upend the litigation is whether the supporters of the law, known as Prop 8, have the legal right or standing to appeal Judge Walker's decision.
In short, it's possible the judges of the Ninth Circuit may affirm Walker's ruling without ever reviewing the trial court record.


Now think about the lawsuits against Arizona over the illegal immigration law. In that case we have everyone and their country suing Arizona.

There are multiple civil rights groups, government agencies, even other governments.

So which is it? Do you have to show direct harm or not?


Mustang said...

In English common law, one must demonstrate a sufficient connection to a legal matter before the court will acknowledge they have “standing.” It follows the idea that if there is “no harm, then there has been no foul. Before homosexual centered organizations could bring their lawsuit against proponents of the ban on homosexual marriage, they first had to demonstrate standing. Apparently, the court believed they did have standing: emotional and remunerative. Standing on behalf of the citizens of California had already been demonstrated when Proposition 8 was passed by 61% of the voting population, and I believe is protected by California’s constitution, which allows citizens to make law outside the legislative process.

Thus, once a lawsuit goes as far as an appellate process, I don’t think the issue of standing continues to be a concern. Both parties, having demonstrated standing sufficiently to arrive at this point in the lawsuit, remain parties to litigation as the issue moves forward.

In the matter of Arizona’s lawsuit, the judge must determine the issue of standing —but it would seem to me that the federal government does not need MALDEF or LULAC to join in its lawsuit; we assume the federal government’s decisions are supreme in this case; not even the state of Arizona refutes that. It merely suggests that if the federal government abrogates its self-imposed responsibility, then the states (as sovereign) can step in as a matter of public safety and security within the state of Arizona. Similarly, I do not think Arizona needs for Sheriff Babeu to join the suit since he is subordinate to the state, whose constitution he has sworn to uphold. I also do not think Mexico can sue Arizona, as Mexico has “no standing” in matters of US sovereignty, unless or until President Hussein gives it to them.

Of course, I am not an attorney —but I did stay at a Holiday Inn Express last night. I also think Sheriff Babeu should change his name.

Always On Watch said...

I note that any decision allowing gay marriages in CA is being postponed. Waiting for the November elections?

MK said...

Interesting, i guess we'll have to wait and see.

Chuck said...

Mustang, huh?

I'm a nurse dammit, not a lawyer.

Sorry, had to channel Scotty from Star Trek.

-I think the voters that opposed to prop 8 have standing because their vote, in a democracy, was invalidated. I believe they have a right to defend their vote and it's outcome.

-I am stunned Mexico was allowed to tag along. How can they possibly show standing or damage?

-It is a little hard to take a sheriff with the name Babeu seriously.

AOW, I wonder if even the 9th circuit is realizing this was a poor decision. This judge clearly had a horse in this race.

MK, what else is there really?

LASunsett said...

Bottom Line:

1. The judge not only struck down the law, but also the Democratic process.

2. Other states will be making laws like AZ when their legislatures reconvene after the first of the year. Most states are not in session year round.

Chuck said...

LA, it's going to interesting to see what the Justice Department does if:

-several states pass Arizona type immigration laws


-the GOP retakes one or both chambers of Congress and Eric Holder has to begin answering for the way he has used the Justice Department.

cube said...

I don't know why more pundits don't bring up the fact that we aren't preventing gays from getting married. The problem arises when they bring up the notion of a ceremony that
changes the definition of marriage. Imagine the legal can of worms that would open.

Chuck said...

Cube, correct. They can get married, just not to each other