Claudia Cowan, “CA’s Gay Marriage Yo-Yo”:
Lawyers fighting for the resumption of gay marriage in California are trying to make the best of the latest legal loss, after a 3-judge panel of the 9th Circuit Court issued an emergency stay on same-sex weddings pending an appeal. They say they’re gratified the higher court has recognized “the importance and pressing nature” of this case, and is moving to get the matter heard as soon as possible. The briefing schedule has been expedited, and oral arguments are set to begin the week of December 6th, which is pretty quick by legal standards. As Geoff Kors, executive director of Equality California points out, “the 9th Circuit Court normally takes up to a year and a half to decide an issue, but this one they’ve indicated they want done in months.”
But for scores of gay and lesbian couples who hoped to be able to tie the knot as soon as tomorrow afternoon, the new stay is a big disappointment. Many are having to cancel weddings. San Francisco Mayor Gavin Newsom says he fears some couples may not outlive the final ruling, either from the Circuit Court or -possibly- the U.S. Supreme Court. Attorney General Jerry Brown is also expressing concern, saying gay couples are continuing to have their civil rights violated each day Prop. 8 remains in effect.
On the other side, proponents of Prop. 8, who lost the last round in court, are pleased to win this one. They’d argued gay marriages would be happening under “a cloud of uncertainty,” and that the result could be legal chaos. The lawyers fighting on behalf of the voter-approved ban say the court acted responsibly, by preserving the status quo while the appeals move forward.
But the fact remains, the whole case could be “dead on arrival” if the appellate court rules those proponents don’t have legal standing to defend the ban moving forward. Federal Judge Vaughn Walker allowed the authors of Proposition 8 to defend the law at trial, but they’re not really the ‘defendants’ since they don’t enforce the law. The state is the defendant here.
In his ruling, Judge Walker said an appeal may hinge on getting Governor Arnold Schwarzenneger or Attorney General Jerry Brown to join the defense team. The chances of that happening are slim to none, since they’ve both filed motions calling for same-sex marriage to resume right away.
Imperial County near San Diego is hoping to intervene as a defendant, and the 9th Circuit is considering that request. But without a county, or some state entity on board, it’s possible the whole case could end on a technicality, because the proper defendants are unwilling to challenge the verdict.
Judge Walker’s astoundingly problematic legal reasoning — essentially, he ruled that an amendment process that comes to a conclusion he doesn’t agree with is unconstitutional on the basis that it, well, came to a conclusion he doesn’t agree with — has created a kind of procedural checkmate; and from a legal technicality that itself arises from activist judicial behavior, the will of millions of California voters has been thwarted by a judicial apparatus that seeks to anoint itself the final arbiter of (controversial) public policy.
As I’ve argued before, whether you agree or not with Judge Walker’s decision, what you shouldn’t agree with — and in fact should be outraged by — is the way he got there.
And because the same kind of disingenuous legal maneuvering can one day be turned on any of you, this is precisely the reason why what a judge thinks he’s doing when he claims to be interpreting is as important, in the final analysis, as what that procedure yields.
Judge Walker’s ruling was so bad that even the 9th couldn’t let it stand. That’s bad. It’s almost as if the judge had some kind of perverse death with for Prop 8, spike the lawsuit with an unreasonably poor decision that he knew would be overturned.
Beyond the specifics of this case, the “it matters how you get there” is important because it allows classical liberals with vastly different social stances to stay on the same page as far as how to proceed forward in all these regards.
This also highlights how the Gov and AG intentionally failed to uphold their duties. Apparently, CA can just choose to ignore things that the Gov and AG do not like.
Walker attempted to make this a Star Chamber case from the beginning. Extreme as the Ninth Circuit is, even they felt the need to limit Walker’s naked attempt to violate the First Amendment rights of the Prop 8 proponents
and then SCOTUS had to step in and shut down Walker’s attempt at intimidating pro-Prop 8 witnesses by broadcasting the proceedings — Let’s not forget that all the physical violence, harassment and intimidation associated with Prop 8 orginated with opponents to it.
Now, Walker wants to be the “last word” on the issue in CA, dismissing seven million voters as “irrational religious bigots” and declaring 220 years of United States legal history as “unconstitutional”.
Jerry Brown was derelict in his duty as CA AG when he refused to defend the duly passed Prop 8. Walker purposely tossed Imperial County out of the defendants box in order to set up this faux controversy about “standing.”
If Walker can do this, what will restrain another federal judge with an agenda?
Too bad judges can’t be impeached for claiming “divine right of kings”…
This also highlights how the Gov and AG intentionally failed to uphold their duties. Apparently, CA can just choose to ignore things that the Gov and AG do not like.
That, JD is the basis, I think, for a compelling argument that Moonbeam is unworthy of holding ANY office of public trust EVER again.
Unfortunately, that argument won’t get made for fear of folks what don’t like divisive social issues turning an argument about the feasance of office into a divisive social issue.
Jerry Brown was derelict in his duty as CA AG[.]
So was the governator Darleen. But I guess in CA you can do whatever the hell you want in public office, so long as you keep the lights on.
So was the governator Darleen
Agreed. Arnold has been a sore disappointment. But the Attorney General is supposedly the state’s top lawyer and it is part of the job description to defend the People of the state.
In a sane world, Attorney General Moonbeam’s clear dereliction of duty would doom any hope of being elected Governor, but the Media will surely portray this as a sign of “courage” on his part.
JimK – Is a “death with” a quotation of the gleeeeeeeens trying to say death wish?
Rush made a good funny. Something along the lines of “oh noes, now the gay people will have to wait months to get married so they can have sex”.
If they have no standing to appeal, how did they have standing to try? Judge Walker has his foot in a noose here. He allowed them to try because he wanted to grandstand (remember the “televised trial” horseshit?), and now he says there’s no standing to appeal?
Logic is not his long suit, it would seem.
Progressive activism trumps all, mojo.