If hard-won court victory against Prop 8 is tossed out because of “standing” defect, you can thank Jerry Brown

August 23, 2010

OPINION BY PETER SCHEER — If I were Ted Olson, the former US solicitor general who is leading the legal battle against Prop 8, I would be unhappy with Jerry Brown right now.

Olson’s hard-won victory before federal district court judge Vaughn Walker was meant to be the first stage of a legal strategy culminating in a US Supreme Court decision establishing–for the entire country–a constitutional right of gay marriage. But Judge Walker’s decision striking down Prop 8 may never be considered by the federal court of appeals, much less the Supreme Court. Worse, the obstacle to appellate review could result in the voiding of Judge Walker’s decision altogether, thus restoring the gay marriage ban in California.

How does this scenario involve Jerry Brown? As California’s Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state’s legal position is correct. This is so not only because the state deserves a defense, but also because our judicial system, in order to function, requires legal advocacy on behalf of both sides to a dispute. When a judge hears from one side only (the favored approach in countries that tend also to have only one political party), the judge is likely to make lots of mistakes.

With an eye on higher political office, Brown declined to defend Prop 8 in Judge Walker’s courtroom. Instead, the defense of Prop 8 was left to a group of citizen activists involved in the Prop 8 electoral campaign. Brown’s absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8’s supporters.

Although the defenders of Prop 8 were ably represented in Judge Walker’s courtroom by conservative litigator Charles Cooper, they may lack legal “standing”–a constitutional requirement in federal suits–to appeal Judge Walker’s decision to the federal court of appeals and, ultimately, to the US Supreme Court. Judge Walker highlighted this issue in a recent order, and the defendants, in their brief to the court of appeals, focused on it.

Without digging too deeply into the intricacies of the federal constitutional doctrine of standing, suffice it to say that the standing issue in the Prop 8 case is not trivial. Suffice it also to say that, if Jerry Brown had participated in the case and presented even a weak, half-hearted defense of Prop 8 at trial, standing would, at this juncture, pose no obstacle to appeal to the court of appeals and the Supreme Court.

But it gets worse. The problem is not limited to obtaining appellate review of Judge Walker’s decision. If it turns out that the Prop 8 supporters lack standing to appeal, it may also be the case that they lacked standing to represent the state’s interests in their defense of Prop 8 in the District Court. So says UC Davis Law School professor law Vikram Amar, who is no friend of Prop 8, in an interview with Time magazine.

While I disagree with Amar on this point (because I think states should not have the power, through their absence, to veto federal constitutional challenges to state laws), these are, at best, unchartered legal waters. If it turns out that none of the parties before Judge Walker was a constitutionally adequate defendant, the judge’s entire decision may fall—which is to say, gay marriages in California would once again be illegal.

Although Jerry Brown is no doubt sincere in his view that Prop 8 violates the Constitution, his role as Attorney General is not to advocate his own personal views or to take positions that please his political base. Rather, his job is to defend California in all cases except where the state’s actions are patently indefensible. (And while it may be terrible public policy, Prop 8 is unquestionably defensible under existing constitutional doctrine). This aspect of the attorney general job description is not spelled out in any law. Nonetheless, it is necessary for the functioning of the judicial system.

Ted Olson’s legal strategy is gay Californians’ last best hope for judicial affirmation of their right to marry. Ironically, Jerry Brown’s pursuit of short-term political advantage jeopardizes that strategy.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. http://www.firstamendmentcoalition.org


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25 Comments

  1. choprzrul says:

    As long as the state provides a path by which same sex couples can enter into a civil union with the same privileges and immunities as traditional marriage, nothing has been deprived. This is a simple matter of SEPARATION OF CHURCH AND STATE.

    Civil unions completely and wholly mute your entire Equal Protection Clause argument. Hence, any argument that same sex couples should be allowed to marry is, at its core, founded in an attempt to erode traditional marriage. If the genuine purpose of the same sex crowd was to enjoy all of the priveledges and immunities, they would be working on a civil unions constitutional amendment to go along side of Prop 8. But, that is not what we are seeing, is it? The root of all of this is a hatred for the church and traditional marriage. I really think that anyone attempting to violate my freedom of religion (up to and including 8,000 years of marriage history within the church) is guilty of violating my civil rights and most likely is engaging in hate speech. That means you Bob.

    For the record, I am 100% in favor of same sex couples having the same privileges and immunities through civil unions. Anything less is un-American. Trying to change 8,000 years of church tradition is also un-American.

    (0) 10 Total Votes - 5 up - 5 down
    • bobfromsanluis says:

      I don’t think you get it “still”, why it is that denying TRUE marriage equality is D I S C R I M I N A T I O N, period. My point about “separate but equal” is exactly what you are pushing for when you claim that civil unions = marriage without a church. Currently, opposite sex couples who have a civil ceremony performed by a government official are as married as anyone else, but if a same sex couple has the same ceremony performed by that same government official for a “civil union” they are NOT married. In states where they have laws about end of life decisions concerning a married couple when one of them is not able to make any decisions, the spouse has the legal right to make those decisions, which is not the same for some same sex cilvil union situations. Federal tax laws are starting to recognize the fine distinction between civil unions and marriage in that they are now starting to allow for joint tax return filings, BUT, there are still many areas where a civil union does not have all of the same standing as a marriage, hence, a civil union ≠ marriage, so that is discrimination, period. If you want to go through every single government document and change the wording from marriage or married to civil union or whatever the preferred term would be, knock yourself out. Marriage is not “just” a church tradition though; marriage is at this time, a legally defined relationship that has certain rights and legal standings. Perhaps it might be easier for you to have all the religions of the world to re-define or describe the tradition that they carry on as a “church wedding” versus trying to change all of the legal documents in the United States, but truly the most simple, most elegant solution is to simply allow any two, unrelated, consenting adults the RIGHT to marry, regardless of their gender. As for your 8,0000 years of tradition as an argument, many many religions have changed, matured, evolved if you will, to allow for changes in how they do certain things and how they recognize the changes in society. Women Rabbis, women priests, officiating at a wedding of a mixed race couple are all things that were not done in times past, but as society has changed, so have a large number of world religions as well. You are welcome to your religion, to practice it in any way that does not violate the laws of the land, and you are free to not participate in any modern practice that your religion does not want to participate in (such as performing a same sex marriage) without any harassment or worrying about violating the law. And I do find it amusing when someone intolerant like yourself attempts “projection” in accusing someone they disagree with in doing exactly what they are doing (such as your feebly attempting to charge me with hate speech, pathetic, so say the least).

      (2) 4 Total Votes - 3 up - 1 down
  2. bobfromsanluis says:

    To all of you that either think this is a simple “will of the people/majority rule” issue, and to those who have their religious beliefs informing their view, please, try to remember that in matters of law and court rulings, judicial revues are supposed to be concerned with the very finite matters of legal minutia only, not to consider how a religious view would inform such a matter, and judicial revue also examines the constitutionality of how this ballot measure was written. The writer of the article, Peter Scheer, makes a couple of very important points about how Attorney General Jerry Brown’s decision to not get involved may lead to this matter being bounced out of the court on a legal technicality, which should make most of you very happy since that would put the matter either to rest for good, or result in opponents of Prop 8 going back to the voters to ask them to vote on the matter again with the hope of a different outcome, which will lead to a lot of energy and money being spent on this issue all over again.

    (0) 4 Total Votes - 2 up - 2 down
    • choprzrul says:

      Again, since you were not paying attention the first time:

      Perhaps a little background will help, this time not going back 5,000 years. Our laws have a foundation in English Common Law. Looking there will help you understand this issue more clearly:

      “In the English common law tradition, from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Marriage was viewed as the basis of the family unit and vital to the preservation of morals and civilization. Traditionally, the husband had a duty to provide a safe house, pay for necessities such as food and clothing, and live in the house. The wife’s obligations were maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple’s children. Today the underlying concept that marriage is a legal contract still remains but due to changes in society the legal obligations are not the same.”

      This is from Cornell University Law School’s website. I personally can safely assume that they know more about the foundation of law that I do. The question is, is Bob able to admit that they do???

      Perhaps an even more recent Federal Law signed by none other than Bill Clinton will help:

      “In 1996, President Clinton signed into law the Defense of Marriage Act (DOMA), which, for federal purposes, defined marraige as “only a legal union between one man and one woman as husband and wife” (1 U.S.C. § 7). DOMA further provided that “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship” (28 U.S.C. § 1738C). (See Conflict of laws, Constitutional law)”

      (-4) 8 Total Votes - 2 up - 6 down
      • bobfromsanluis says:

        By denying marriage to same sex couples, any and all legislation that has been written or voted for and passed by any legislative body SEEMS to be in violation of the EQUAL PROTECTION CLAUSE of the Fourteenth Amendment: ” ….. , No State shall MAKE or enforce any law which shall abridge the PRIVILEGES or immunities of citizens of the United States; nor shall any State DEPRIVE any person of life, liberty, or property, without due process of law; nor DENY to any person within its jurisdiction the EQUAL protection of the laws.” In case you didn’t notice, i capitalized five of the words in the cut ‘n paste of the Fourteenth Amendment; PRIVILEGES, MAKE, DEPRIVE, DENY, and EQUAL. In you apparent legal mindset, do you see any possibility that the Equal Protection Clause MIGHT have a bearing on how laws designed to take away rights from a certain class of US Citizens (those demanding a same sex marriage) could be struck down? And what about the specter of “Separate but Equal”, does that not give you reason to pause in a legal sense?

        (-2) 2 Total Votes - 0 up - 2 down
        • choprzrul says:

          As long as the state provides a path by which same sex couples can enter into a civil union with the same privileges and immunities as traditional marriage, nothing has been deprived. This is a simple matter of SEPARATION OF CHURCH AND STATE.

          Civil unions completely and wholly mute your entire Equal Protection Clause argument. Hence, any argument that same sex couples should be allowed to marry is, at its core, founded in an attempt to erode traditional marriage. If the genuine purpose of the same sex crowd was to enjoy all of the priveledges and immunities, they would be working on a civil unions constitutional amendment to go along side of Prop 8. But, that is not what we are seeing, is it? The root of all of this is a hatred for the church and traditional marriage. I really think that anyone attempting to violate my freedom of religion (up to and including 8,000 years of marriage history within the church) is guilty of violating my civil rights and most likely is engaging in hate speech. That means you Bob.

          For the record, I am 100% in favor of same sex couples having the same privileges and immunities through civil unions. Anything less is un-American. Trying to change 8,000 years of church tradition is also un-American.

          (-6) 6 Total Votes - 0 up - 6 down
  3. choprzrul says:

    Prop 8 is the will of the people. Using the court system is nothing but an avenue by which to circumvent the will of the people. Why not lobby for state recognized civil unions that have the same privileges and immunities as the institution of marriage? Why are so many people against the desire of the people to maintain what is fundamentally understood as a contract between a man, a woman, and God? Oops, there is that “G” word. People have been married in the eyes of God for 8,000 years; and now in the last 10 years or so, a segment of the population thinks we should change that tradition to accommodate their lifestyle. Sounds a lot like a bully that bursts onto a playground threatening everyone, calling them names, and shouting loudly. Sorry, go make your own institution and leave mine alone.

    (-6) 10 Total Votes - 2 up - 8 down
  4. erik_soto says:

    People of California voted for Proposition 8 which created a simple legal definition in the state constitution. Opponents have challeged Proposition 8 in the federal court successfully. Now, there is a question about the legal standing of the Proposition 8 Proponents. The Proposition 8 Opponents cheered when there was a benefit (unable to appeal their winning decision) but angered when there is jeopardy (throws out their winning decision) to their cause (prevents the implementation of Proposition 8). This case is providing a wonderful education in the judical system. The California Attorny General should have done his job which is defending the state and the laws of the state in court instead of making his political decision of doing nothing. Now, all the “clever” Proposition 8 opposition manuevering has resulted in the potential of Proposition 8 being implemented in California without any opportunity of being applead.

    (-4) 10 Total Votes - 3 up - 7 down
  5. andjusticeforall says:

    You said Jerry Brown’s job as attorney general is to defend California in all cases “except where the state’s actions are patently indefensible.” I think discrimination qualifies as indefensible, don’t you?

    (16) 26 Total Votes - 21 up - 5 down
  6. Crusader says:

    Government took took the institution of marriage from faith/religion and applied laws to it (mostly for taxation purposes) not the reverse. Gov’t does not have the authority to redefine what is not theirs to redefine.

    If you want to get gov’t out of the marriage business then that’s just fine — another mechanism can take the place of marriage for the sake of legal matters for everyone. But for gov’t to be arrogant enough to attempt to debase the sanctity of marriage in the name of “equality” is simply unacceptable and won’t be tolerated.

    (-13) 53 Total Votes - 20 up - 33 down
    • bobfromsanluis says:

      Crusader: Wow, you could not be more wrong; in many many past governments, they were run by religious leaders, who instilled religious dogma as part of that countries laws. Government did not “take” marriage from religion; religious leaders in past governments made “marriage” a legal entity. That structure has remained in place as the time has passed, and now marriage is purely a legal arrangement; if you want to argue that point, answer this: When a couple wants to end their marriage, where do they go? To the person who performed the marriage ceremony, or do they go to a “court of law”? Obviously, you would have to act in accordance within the structure of the law, THEN if your particular religion has a ceremony or requirement for you to adhere to to remain in good standing within the structure of that religion, you would then do so, AFTER you have had the legal situation resolved. Since marriage is a legal institution then, if you limit the gender of those who want to get married to each other, that is discrimination, period.

      (0) 18 Total Votes - 9 up - 9 down
      • choprzrul says:

        Romans 1: 21-31

        21 For although they knew God, they neither glorified him as God nor gave thanks to him, but their thinking became futile and their foolish hearts were darkened. 22 Although they claimed to be wise, they became fools 23 and exchanged the glory of the immortal God for images made to look like mortal man and birds and animals and reptiles.

        24 Therefore God gave them over in the sinful desires of their hearts to sexual impurity for the degrading of their bodies with one another. 25 They exchanged the truth of God for a lie, and worshiped and served created things rather than the Creator—who is forever praised. Amen.

        26 Because of this, God gave them over to shameful lusts. Even their women exchanged natural relations for unnatural ones. 27 In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.

        28 Furthermore, since they did not think it worthwhile to retain the knowledge of God, he gave them over to a depraved mind, to do what ought not to be done. 29 They have become filled with every kind of wickedness, evil, greed and depravity. They are full of envy, murder, strife, deceit and malice. They are gossips, 30 slanderers, God-haters, insolent, arrogant and boastful; they invent ways of doing evil; they disobey their parents; 31 they are senseless, faithless, heartless, ruthless. 32 Although they know God’s righteous decree that those who do such things deserve death, they not only continue to do these very things but also approve of those who practice them.

        (-12) 20 Total Votes - 4 up - 16 down
        • bobfromsanluis says:

          What is your point? The discussion is about the LAW, not your religious interpretation or belief; I gave an argument based on logic and the law so if you want to put forth an argument against my position, try using something other than religious dogma or scripture quotes which if that is all you have, then you have a really weak position.

          (7) 17 Total Votes - 12 up - 5 down
          • Crusader says:

            You’re wrong again, Bob.

            This discussion is about faith/religion and the gov’t trying to overstep its bounds. Go take a look at your “argument.” There is no substance to it — it merely attempts to obfuscate. You’re not fooling anyone, Bob.

            (-1) 11 Total Votes - 5 up - 6 down
      • Crusader says:

        Sorry Bob, no sale.

        The institution/sacrament of marriage goes back ~2,000 years in Christendom and far longer in Judaism. Government simply has no business changing what’s not theirs to change.

        Because gov’t applied laws to marriage for things like taxation and control of property of course people have to deal with the gov’t when a marriage comes to an end but so what? What does that prove? Not a darned thing, Bob.

        (-4) 10 Total Votes - 3 up - 7 down
        • bobfromsanluis says:

          Crusader: Funny, I thought this discussion was about Prop 8, which is a “law” (amendment to the state constitution, actually) not a matter of faith or religion, correct? I understand that people who think like you want to put their worldview on to other people, no matter what they wish and that you truly feel that you are doing God’s work by pursuing the matter of denying marriage equality to same sex couples, and that it will not matter one little bit what logic or reasoning someone uses to further an argument due to your belief that you are correct, period. You believe you are correct, nothing I say will change your mind, period; okay, I get it. There is nothing you can say that will change my mind either, ever. To me, Prop 8 is an abomination due to the fact that you have people voting to take away a right from a group of people who if they get that right back will not harm anyone, will not diminish that same right for anyone else. I tried to engage you in a discussion on the merits of Prop 8 based on logic and/or reasoning, but all you can do is to respond with more religious dogma and the belief that religion has superior position to government and the rights of all people to be free from discrimination is secondary is a position that I cannot tolerate, so our discussion is at an end. Good luck with your intolerant, inflexible reactive responses to anything or anyone that doesn’t fit your narrow parameters for what is “acceptable”. Hopefully, if any close family member ever “comes out” as gay, you will be able to handle it.

          (1) 5 Total Votes - 3 up - 2 down
          • choprzrul says:

            Bob,

            Perhaps a little background will help, this time not going back 5,000 years. Our laws have a foundation in English Common Law. Looking there will help you understand this issue more clearly:

            “In the English common law tradition, from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. Marriage was viewed as the basis of the family unit and vital to the preservation of morals and civilization. Traditionally, the husband had a duty to provide a safe house, pay for necessities such as food and clothing, and live in the house. The wife’s obligations were maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple’s children. Today the underlying concept that marriage is a legal contract still remains but due to changes in society the legal obligations are not the same.”

            This is from Cornell University Law School’s website. I personally can safely assume that they know more about the foundation of law that I do. The question is, is Bob able to admit that they do???

            Perhaps an even more recent Federal Law signed by none other than Bill Clinton will help:

            “In 1996, President Clinton signed into law the Defense of Marriage Act (DOMA), which, for federal purposes, defined marraige as “only a legal union between one man and one woman as husband and wife” (1 U.S.C. § 7). DOMA further provided that “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship” (28 U.S.C. § 1738C). (See Conflict of laws, Constitutional law)”

            (0) 4 Total Votes - 2 up - 2 down
    • choprzrul says:

      Crusader is 110% correct. The anti8’s can kick, scream, and roll around on the floor throwing a tantrum; but it is not going to change the fundamental facts. Marriage is a covenant between a man, woman, and God; and it has thousands of years of history to back it up.

      Clearly a case where there needs to be separation of church and state:

      Church == Marriage

      State == Legal Unions

      Both should share the same privileges and immunities in the eyes of the law.

      (-1) 5 Total Votes - 2 up - 3 down
      • zaphod says:

        Every hear of the Loving case?

        (-1) 5 Total Votes - 2 up - 3 down
        • choprzrul says:

          Confused by your posting….

          The Loving decision was based upon race, which is a protected class. The discussion here revolves around a non-protected class. How does Loving apply?

          (-3) 5 Total Votes - 1 up - 4 down
          • zaphod says:

            Pursuit of happiness, equal protection under the law just basic garden variety HUMAN rights regardless of label/class
            everyone

            has the right to marry, even queer folk.

            (0) 6 Total Votes - 3 up - 3 down
            • zaphod says:

              Bush-Cheney campaign manager, ex-chairman of Republican Party comes out as gay, is going to support marriage rights.

              (0) 4 Total Votes - 2 up - 2 down
            • choprzrul says:

              I think that you are missing the thrust of the discussion here. Marriage is an institution of the church dating back thousands of years. Separation of church and state should dictate that the hijacking of marriage by the state is in violation of that separation. As such, when the people vote for a constitutional amendment to define marriage as between a man and a woman, it is congruent with thousands of years of president.

              In no way should anyone misconstrue this to mean that all couples should not be able to enjoy the same priveleges and immunities. It is simply a matter of:

              Church == Marriage

              State == Legal Unions

              This provides exactly the same “Pursuit of happiness, equal protection under the law just basic garden variety HUMAN rights regardless of label/class…” and is equal under the operation of the law.

              Still confused why so many want to delve into church business???

              (-4) 6 Total Votes - 1 up - 5 down
              • zaphod says:

                We have experienced “separate but equal” before haven’t we? 1957-1964
                and always some blow dry jerk on the bench or media pulpit pretending to know what God wants for “those people”
                I know discrimination when I smell it, I was weaned during a JBS meeting in 1958 and raised LDS.

                (4) 6 Total Votes - 5 up - 1 down
              • bobfromsanluis says:

                Church == Marriage, State == Legal Unions ; um in a word, no. A couple married by a Justice of the Peace or a County official is just as “married” as any couple having a church wedding. A couple who both happen to be Atheists are just as married as anyone else, so your premise is completely without foundation. Besides, if a married couple decides to get a divorce, do they go to the church, or to a court of law?

                (1) 5 Total Votes - 3 up - 2 down

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