The State Supreme Court ruled on Wednesday that Governor Arnold Schwarzenegger and Attorney General Jerry Brown have the right not to seek appeal of a federal judge’s ruling that struck down the voter-approved measure.
The decision by the Governor and Attorney General not to argue in support of Proposition 8 has raised legal questions as to whether anyone has standing to appeal the decision from this summer by Federal Judge Vaughn Walker, which struck down the ban on gay marriage as a violation of both due process and equal protection under the law.
Attorney Brad Dacus from the Pacific Justice Institute was fighting the decision by the Governor and Attorney General not to defend the initiative. He told the press on Wednesday, “People on the left and right should both be mourning the fact that the attorney general and the governor are reneging on their oaths of office.”
From the start, AG Brown, has argued that he believes that the state’s proposition violates the federal constitution and therefore he is under no obligation to defend the initiative.
“Attorneys general are not potted plants in the litigation process,” his lawyers argued in court. “Although the attorney general is required to represent the state,” they said, “Brown also took an oath to support the U.S. Constitution and is not obliged to defend a law he considers unconstitutional.”
The question now is whether that is it for the controversial ballot measure.
“There is a decent chance that Prop. 8 will be wiped out and that same sex marriages will be declared legal in California,” said Royal Oakes, partner at the Los Angeles-based law firm Barger and Wolen, to the Christian Science Monitor.
“California’s top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not – and that should include the ban on same-sex marriage,” said an editorial in the Los Angeles Times.
The problem with the LA Times’ editorial is that it is apparently not based on the law, but rather on some sort of prescribed theory of governance. Supporters of Proposition 8 have tried several times to compel AG Brown to defend the initiative – both before and after the ruling – and not one court has ruled that he must defend the initiative.
That includes the State Supreme Court, which has been loaded with relatively conservative judges since the mid-1980s when three liberals were removed, and since that point there has only been a five-year period with a Democratic Governor.
According to the Christian Science Monitor, legal scholars believe that the court made the right decision.
“Both the Governor and the Attorney General were convinced by the merits of Judge Walker’s comprehensive factual findings and legal conclusions,” said Joan Hollinger, professor of law at the UC Berkeley School of Law. “And,” she added, “as is their prerogative under our state law, they have decided not to appeal his ruling to the Ninth Circuit Court of Appeal. They are both discharging their obligations under California law and do not want to waste public resources on defending a proposition they and their lawyers believe has been appropriately found to violate the federal Constitution.”
“The defense of Proposition 8 in the Ninth Circuit will [now] depend on whether the defenders of Proposition 8 are deemed to have standing to appeal,” says UC Irvine Law School Dean Erwin Chemerinsky. “The Supreme Court has said that standing to appeal is essential. Standing requires a direct, personal injury. I think it is doubtful that the defenders of Proposition 8 will meet that requirement.”
Mr. Chermerinsky told the Christian Science Monitor that he predicts the appeal will be dismissed for lack of legal standing and Walker’s ruling will stand.
On the other hand, the LA Times editorial argues that the state could fulfill its obligation by hiring an outside attorney to represent it on appeal.
The question that many have is what is the best course. Some conservatives have argued that they could allow Proposition 8 to die and sacrifice California in order to prevent the Supreme Court, potentially with Justice Anthony Kennedy as a swing in a 5-4 vote, to make same sex marriage the law of the land.
—David M. Greenwald reporting
The Supreme Court’s ruled that the Governor and AG had the legal authority to refuse to defend our CA constitution. They did not speak to the damage that has been inflicted to the principles of populist CA governance. Under these populist principles, the voters could RECALL the AG and governor for failure to fulfill their sworn duties. Interestingly, it should be noted that Governor Schwarzenegger, AG Brown and CA Chief Justice George are all vacating their public office in the very near future and therefore are insulated from any legitimate populist judgment by the CA voters. When Protectmarriage appears before the 9th, they will probably add the argument that if they do not have standing, then Judge Walker was wrong in giving them standing before his court and that his proceedings must also be vacated. For the 9th to sanction Protectmarriage’s appearance before Judge Walker and then deny them the ability to appeal because of lack of standing is, on its face, an unacceptable violation of due process.
Military Ban on Gays Struck Down by Federal Judge
[url]http://news.yahoo.com/s/yblog_upshot/20100910/pl_yblog_upshot/whats-next-for-the-militarys-ban-on-gays[/url]
dmg:”From the start, AG Brown, has argued that he believes that the state’s proposition violates the federal constitution and therefore he is under no obligation to defend the initiative.”
AG Brown won’t defend the initiative because it violates the constitution, but has no problem allowing medical marijuana laws to stand, which also violate the federal constitition. Hypocritical…
Davisite2: “The Supreme Court’s ruled that the Governor and AG had the legal authority to refuse to defend our CA constitution. They did not speak to the damage that has been inflicted to the principles of populist CA governance. ”
There are limits to populist California governance when the voters approve an amendment to the California Constitution that violates the United States Constitution. Proposition 8 has done just that by denying equal rights and equal protection under the law to our gay and lesbian citizens. That is what the legal challenge to Proposition 8 Perry v. Schwarzenegger is all about.
Davisite2: “ Under these populist principles, the voters could RECALL the AG and governor for failure to fulfill their sworn duties. ”
Davisite2, you are wrong. The attorney general and the governor have in fact fulfilled their sworn duties. A state appeals court and now the Supreme Court of California have affirmed that by dismissing a lawsuit that alleged what you have been stating for months. Here again (as you have done for many months commenting on this blog) you deliberately continue to omit the fact that all California Constitutional Officers including the attorney general and governor swear an oath of allegiance first and foremost to protect and defend the US Constitution and secondarily to honor the CA Constitution. Therefore by upholding firstly the US Constitution they are fulfilling their sworn duties, especially when the CA Constitution violates the US Constitution. This act of continuous omission on your part and your stubborn claim based upon it is frankly intellectually dishonest.
For the record I reprint the following for the Vanguard’s readers:
Davisite2 and others omit the fact that according to his Oath of Office AG Brown above all else has a higher duty, that being to “support and defend the Constitution of the United States.”
Jerry Brown and all other office holders in the State of California take an Oath of Office to uphold and adhere to the United States Constitution first and foremost before upholding the California Constitution.
The Oath of Office AG Brown took is found in the California Constitution:
[quote]Section 3 of article XX of the California Constitution provides:
“Members of the Legislature, and all public officers and employees,
executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:
“‘I,_________________________, do solemnly swear (or affirm) that
I will support and defend the Constitution of the United States and the
Constitution of the State of California against all enemies, foreign and
domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.”[/quote]
It is the duty of the oath taker to first and foremost “support and defend the Constitution of the United States and…bear true faith and allegiance to the Constitution of the United States…” It is secondarily the duty of the oath taker to support and defend the Constitution of the State of California. Jerry Brown is upholding his oath of office by upholding the United States Constitution first and the State of California Constitution second.
The US Constitution is the higher authority and the oath taker in this case the attorney general is doing his duty by not defending that which he knowingly believes per legal analysis and argument is unconstitutional as per the US Constitution. The whole purpose of the lawsuit filed in Federal Court against “Proposition 8” is to test whether the California Constitution as amended by a vote of the people is in violation of the US Constitution. Again, the Federal Courts are being asked to determine whether the California Constitutional amendment violates the US Constitution and they will decide who is correct on the law.
AG Brown believes he is correct pending a final decision by the Federal Courts. Some have called his decision arrogant not to defend this amendment to the California Constitution which he believes to be an unconstitutional to the United States Constitution. But I believe he has a duty to both offer a legal opinion and adhere to his Oath of Office to firstly support and defend the United States Constitution. If he is correct, the amendment is unconstitutional and accordingly null and void.
Constitutional scholars and US Supreme Court litigators led by David Boies and Ted Olson believe, as does Jerry Brown, that this voter imposed constitutional amendment violates the US Constitution. I will put my faith in their judgment.
Davisite2: “Interestingly, it should be noted that Governor Schwarzenegger, AG Brown and CA Chief Justice George are all vacating their public office in the very near future and therefore are insulated from any legitimate populist judgment by the CA voters.”
Attorney General Brown is less than two months away from a statewide election and a “legitimate populist judgment by the CA voters” in which the voters will decide on November 2 whether they want to return him to the governorship. I believe Jerry Brown will be elected governor and there will be no effort whatsoever to recall him from office due to his well known and long held position in opposition to Proposition 8, an amendment to the California Constitution which codified bigotry and inequality in our state. On the contrary Jerry Brown will be rewarded by the majority of voters for his stand on this issue.
[quote]dmg:”From the start, AG Brown, has argued that he believes that the state’s proposition violates the federal constitution and therefore he is under no obligation to defend the initiative.”
E. Roberts Musser: “AG Brown won’t defend the initiative because it violates the constitution, but has no problem allowing medical marijuana laws to stand, which also violate the federal constitition. Hypocritical…”[/quote]
Where has it been stated or ruled that California’s medical marijuana laws violate the US Constitution? I understand there are federal laws prohibiting medical marijuana, but I am unaware that California’s medical marijuana laws violate the US Constitution.
“…continue to omit the fact that all California Constitutional Officers including the attorney general and governor swear an oath of allegiance first and foremost to protect and defend the US Constitution and secondarily to honor the CA Constitution. “
Bill…Your continuing argument that the governor and AG have the right to decide for themselves,NOT what existing US constitutional law is since this is EXACTLY what is being brought before the Federal Courts TO BE decided, smacks of surreal Alice-In-Wonderland logic. The Supreme Court ruled that the governor and AG had the prerogative to not defend our CA constitution. That is all that they were considering and it had nothing to with AG Brown’s argument concerning the primacy of the US constitution Is violation of his sworn oath to defend the CA constitution,unless it ALREADY has been determined by law that a provision of the CA constitution violates the US constitution, an act of legal perjury that requires CA Supreme Court intervention? The majority evidently did not think so( what exactly was the vote of each Supreme Court judge?)
Davisite: your write: “The Supreme Court ruled that the governor and AG had the prerogative to not defend our CA constitution. “
You don’t know what they ruled because they issued no explanation other than to allow the Governor and AG to not defend the law as they chose.
David… you appear to have joined Bill’s Alice-In-Wonderland reality. Your challenging response and mine are essentially the same. My statement was that all that the CA Supreme Court ruled on was the prerogatives of the AG and governor. They made no ruling(statement or your term, “explanation”) on AG Brown’s position concerning his belief that he has the authority to determine what the existing US constitution should be and then to act upon that belief.
Bill Ritter: “Where has it been stated or ruled that California’s medical marijuana laws violate the US Constitution? I understand there are federal laws prohibiting medical marijuana, but I am unaware that California’s medical marijuana laws violate the US Constitution.”
THE SUPREMACY CLAUSE
Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
“California’s top public lawyer and its chief executive have an obligation to defend the laws of the state whether they like them or not – and that should include the ban on same-sex marriage,” said an editorial in the Los Angeles Times.”
When the LA Times describes AG Brown as failing in his obligation to defend the laws of the state whether he likes them or not, the former governor is… in trouble. Jerry Brown is the Democratic candidate, not because he had strong Democratic voter support but only because he was the “last man standing” in the Primaries. His support among CA Democrats is “paper-thin” and this issue has raised troubling considerations. At 72, the old adage could well apply that as we grow older into our senior years , we just become MORE of who we really are.. In this case, it looks like Jerry Brown’s lifelong egotistical arrogance may have finally blossomed into his political downfall.
Notwithstanding all of the back and forth above, on what possible grounds could the AG and Governor “defend” Proposition 8 that wasn’t already eviscerated by Judge Walker’s decision?
Elaine: Then why didn’t federal court strike down the California law and rule it unconstitutional?
Davisite: I think the problem here is that you have several courts that have ruled against you. They don’t have a duty to defend laws they consider unconstitutional, they have discretion as to which laws to challenge. What you are now posing is not a legal question, but a political one. Brown is locked in a razor-thin battle for the Governorship, and we’ll see how this impacts it.
[quote]Don Shor
09/10/10 – 02:16 PM
Notwithstanding all of the back and forth above, on what possible grounds could the AG and Governor “defend” Proposition 8 that wasn’t already eviscerated by Judge Walker’s decision?
David M. Greenwald
09/10/10 – 02:18 PM
Davisite: I think the problem here is that you have several courts that have ruled against you. They don’t have a duty to defend laws they consider unconstitutional, they have discretion as to which laws to challenge. What you are now posing is not a legal question, but a political one. Brown is locked in a razor-thin battle for the Governorship, and we’ll see how this impacts it.[/quote]
Gentlemen, well said.
[quote]E Roberts Musser
09/10/10 – 01:49 PM
Bill Ritter: “Where has it been stated or ruled that California’s medical marijuana laws violate the US Constitution? I understand there are federal laws prohibiting medical marijuana, but I am unaware that California’s medical marijuana laws violate the US Constitution.”
THE SUPREMACY CLAUSE
Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
David M. Greenwald
09/10/10 – 02:18 PM
Elaine: Then why didn’t federal court strike down the California law and rule it unconstitutional? [/quote]
David, thank you. You asked, more to the point, what I was trying to get at: “Where has it been stated or ruled [by a California Court or a Federal Court] that California’s medical marijuana laws violate the US Constitution?”
BTW: The United States Constitution’s THE SUPREMACY CLAUSE will definitely come into play once the Federal Courts and hopefully the US Supreme Court rule in favor of equal protection for all adult citizens regardless of sexual orientation to marry in America.
dmg: “Elaine: Then why didn’t federal court strike down the California law and rule it unconstitutional?”
Under “the Controlled Substances Act of 1970, marijuana is classified as a Schedule I drug” and is illegal under federal law. Under the Supremacy Clause of the US Consitituion, federal law trumps state law. Then you ask why don’t the feds do something about it? Why doesn’t the SEC regulate like it should so that the mortgage meltdown never happened? Why didn’t the MMC do its job, so there never would have been the BP oil spill in the Gulf? The feds are infamous for not enforcing its own laws.
“They don’t have a duty to defend laws they consider unconstitutional..”
Who are the “they” that you are referring to. Both AG Jerry Brown and governor Schwartzenegger took a sworn oath of office to defend the CA constitution, not only the parts that they personally believe are constitutional under their personal interpretation of current Federal law. The CA Supreme Court declared Prop 8 constitutional under State law and the Federal Courts HAVE YET to declare that Prop 8 is unconstitutional. At the present time, putting aside Judge Walker’s ruling as invalid since Protectmarriage never had legitimate standing in his Federal court, Prop 8 is still constitutional under Federal law. There is NO question that AG Brown has openly violated his oath of office by refusing to defend our CA constitution….and Don.. I am not a lawyer. I leave it to AG Brown’s learned legal staff(or more likely, the future AG staff of Governor Whitman, to take on the task of demanding legitimate due process and making the best possible argument, whatever the outcome. THAT is what lawyers do!
“the future AG staff of Governor Whitman…”
You do realize that the governor and the attorney general are separate constitutional officers, right?
Thanks Don… my mistake. I do believe that with Whitman in the governor’s seat, there will be a political “push” to reopen , IMO, this sad abuse of the legal process which has Judge Walker giving Protectmarriage standing in his Federal court and AG Brown refusing to carry out his sworn oath of office. Certainly, if Whitman is elected governor, the political “climate” for the new AG will make it quite difficult(and politically foolish) for him/her to follow the defeated Jerry Brown’s example.
Do you want Meg Whitman elected because of this issue?
Don… as I hope that you have surmised,IMO, the issue is AG Brown’s failure to carry out his sworn oath of office and what I perceive to be the potential political distortion of the Federal judicial process to further an agenda. I will be voting for the Green candidate for governor as I have lost trust and faith in the judgment of candidate Jerry Brown.
….from an NY Times article, Saturday…..”To begin with, the administration, compelled to defend existing laws, may well appeal the ruling by Judge Virginia A. Phillips of Federal District Court in California declaring the existing policy unconstitutional. (A similar dynamic occurred when the administration defended the Defense of Marriage Act, the 1996 statute that puts obstacles in front of legal recognition for same-sex marriages, despite Mr. Obama’s opposition to the act.) “
AG Jerry Brown needs to take note of how the judicial system is supposed to function and what his sworn duties entail.
davisite2… good plan… waste a vote for someone who can’t win… better than either Brown or Whitman as the ‘lesser of two evils’… you have the high ground… come what may in November, you can disavow that you voted for the sitting governor… nice…. but ineffective…
Green Party press release: [url]http://www.cagreens.org/press/pr100818.shtml[/url]
“Green Party press release: http://www.cagreens.org/press/pr100818.shtml“
The Green platform in support of same-sex marriage is not really relevant to my vote, Don. I vote Green soley to support their future strength as a significant third party when the two major party candidates are both unacceptable to me. I have no expectation that my Green vote for Governor will propel their candidate into the governor’s seat.
The system is structurally set up to preclude three strong parties, and if by some odd twist of history the democratic party were replaced by the green party, the green party would simply subsume the current characteristics of the current majority party and you’d end up with roughly the same party you have now. Observe Whigs versus Republicans. Voting Green instead of Brown is biting off your own nose on a host of far more important issues to spite your face. You utterly lack any logical reason to believe that Brown has any kind of duty to defend an initiative he disagrees with and believes is unconstitutional. The oath of office that you keep citing is generic, you take the same oath when you become a member of the democratic central committee member, are those members then duty bound to support Prop 8 as well?
Historically, ALL municipal employees also take the oath… remnant of the McCarthy era…
Good point, when I was a TA in grad school, I had to take the same oath.
“You utterly lack any logical reason to believe that Brown has any kind of duty to defend an initiative he disagrees with and believes is unconstitutional.”
AG Brown is the CA VOTERS’ lawyer just as the US Attorney General and his Department of Justice are the US VOTERS’ lawyers. They both are “hired” by the VOTERS to represent the laws that the VOTERS have put in place. This is the essence of populist democracy.
‘
That does not mean he has to be compelled to waste state resources in fighting for unconstitutional provisions to the constitution be defended. For example, is he compelled to fight for anti-sodomy and miscegenation laws?
dmg: “Voting Green instead of Brown is biting off your own nose on a host of far more important issues to spite your face. “
Remember the governor of Minnesota who ran as an Independent, what was his name? The former wrestler? Third party candidates can win on occasion. Voting one’s conscience is a person’s privilege, and should not be denigrated/dismissed as misguided. Voting lock step in favor of a party, without considering the candidate in question, is how we get the knuckleheads we have now.
Not a good outcome, but yes they do win occasionally (very occasionally) however rarely do they shape reform. Certainly the green party candidate this year in California is of no threat to win.
I see AG Brown’s position as extremely hypocritical. He will not defend the wishes of the people as expressed in Prop 8 on the basis that he believes Prop 8 is unconstitutional; yet has no problem allowing the medical marijuana proposition to flourish, even though it is clearly unconsitutional as a violation of federal law under the Supremacy Clause. To put it succinctly, AG Brown is substituting his own views in deciding what to oppose/support with respect to CA law, rather than what is constitutional as he claims. He has no credibility…
[quote]He will not defend the wishes of the people as expressed in Prop 8 on the basis that he believes Prop 8 is unconstitutional; yet has no problem allowing the medical marijuana proposition to flourish, even though it is clearly unconsitutional as a violation of federal law under the Supremacy Clause.[/quote]
Medical marijuana is neither unconstitutional nor against his morals or beliefs, so why would he have a problem with allowing it to flourish. A violation of federal law does not make it unconstitutional, otherwise the federal courts would have invalidated the law. They did not. In fact in 2001, the US Supreme Court ruled the opposite, they ruled that the federal and state law does not need to conform to each other. That put the onus of enforcing marijuana laws on the federal government rather than the state government. So you are incorrect on at least the current state of authorities on the supremacy clause.
Both you and Davisite are missing it based on the same point: discretion. What the courts are ruling is that the AG and Governor have discretion. What you and Davisite are arguing is that he does not have discretion.
dmg: “Medical marijuana is neither unconstitutional nor against his morals or beliefs, so why would he have a problem with allowing it to flourish. A violation of federal law does not make it unconstitutional, otherwise the federal courts would have invalidated the law. They did not. In fact in 2001, the US Supreme Court ruled the opposite, they ruled that the federal and state law does not need to conform to each other. That put the onus of enforcing marijuana laws on the federal government rather than the state government. So you are incorrect on at least the current state of authorities on the supremacy clause.”
From CNN Justice: “The U.S. Supreme Court on Monday ruled doctors can be blocked from prescribing marijuana for patients suffering from pain caused by cancer or other serious illnesses.
In a 6-3 vote, the justices ruled the Bush administration can block the backyard cultivation of pot for personal use, because such use has broader social and financial implications.
“Congress’ power to regulate purely activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce is firmly established,” Justice John Paul Stevens wrote for the majority.”
The case you are referring to has a different holding. From AmericansForSafeAccess “”It’s now settled that state law enforcement officers cannot arrest medical marijuana patients or seize their medicine simply because they prefer the contrary federal law,” said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), the medical marijuana advocacy organization that represented the defendant Felix Kha in a case that the City of Garden Grove appealed to the U.S. Supreme Court.”
dmg: “Both you and Davisite are missing it based on the same point: discretion. What the courts are ruling is that the AG and Governor have discretion. What you and Davisite are arguing is that he does not have discretion.”
I just find AG Brown’s position hypocritical and designed to appeal to his political base…
Elaine: What you’ve cited are federal law enforcement efforts, not state ones. The Supreme Court never nulified Prop 8, they simply have allowed the feds to enforce federal law, huge difference.
There is nothing hypocritical about Brown’s position, he has to the discretion as to which states laws to enforce and which ones to challenge.
davisite: the rules for determining standing are different at the appellate level. Would it be too much to ask for you to get your facts straight before spouting off?
“That does not mean he has to be compelled to waste state resources in fighting for unconstitutional provisions to the constitution be defended. For example, is he compelled to fight for anti-sodomy and miscegenation laws?”
David…. your non-response above to my “utter lack of logic” reasoning concerning AG Brown’s sworn duties to the CA voters reveals, as does the hyperbole of your anti-sodomy and miscegenation comparison, the weakness of your argument once the intellectual cloud of vigorous advocacy is penetrated… and yes, if the CA Supreme Court found an anti-sodomy law to be constitutional under CA law and it was then challenged in Federal Court (which presupposes that the Federal Courts had not already made a determination that it was unconstitutional) our AG is duty-bound to represent his “client”(the CA voters) when the CA constitution is challenged and make the best possible argument that his legal mind can muster.
…and David, I have been searching to find out who and how the individual Judges voted recently concerning AG Brown’s “discretion” to not defend the CA constitution. Interestingly, my googling has not turned up this information. Do you know how the individual Judges voted or if it was even a vote of the full Supreme Court panel?
peepstonejoe… The legal standing of Protectmarriage before Judge Walker has already been challenged by many legal scholars. More to the point, the standing before the 9th District on appeal,in the almost unanimous view of legal scholars, cannot be supported based upon the Federal Court rulings on standing. So.. Judge Walker allowed Protectmarriage to argue in his court and was fairly certain that they would not be able to appeal his ruling.This appears to be in sync with Judge Walker’s past “iconoclastic” judicial history dealing with gay issues and personal gay-rights advocacy.
“…personal gay-rights advocacy.”
Do you have a single example of Judge Walker’s “personal gay-rights advocacy?”
davisite2. Going back to your original statement “For the 9th to sanction Protectmarriage’s appearance before Judge Walker and then deny them the ability to appeal because of lack of standing is, on its face, an unacceptable violation of due process”. The key point is “on its face”. Yes, it does appear to you as unacceptable, but the facts regarding standing are very clear. Which legal scholars were you referring to? Cooper and his idiot client Pugno?
Don….Judge Walker made public side-comments at the time of the trial (that he tried to get televised but was refused since there are no televised proceedings in Federal Courts) to the effect that to deny same-sex couples the ability to be included in the definition of marriage makes society’s opinion of them( and here it gets unclear whether he is referring to society’s opinion, the self-esteem of the same-sex couples themselves,some other concept of relative societal value or all of the above) less than the traditional institution of marriage and is a violation of their civil rights.
Judge Walker ruled in an E. Bay case that the circulation of material in a workplace that lauded heterosexual marriage, while not mentioning same-sex unions, was discriminatory to gays because it implied that same-sex unions were not equally laudable. I cannot verify that this account is fully accurate since I found it in a search of Judge Walker which did not appear to be an inflamatory piece and referred to Judge Walker’s judicial history as “iconoclastic”, IMO, a euphemistic term. To my mind, it jives with his attempt to get the trial on TV, his giving Protectmarriage standing in his court while fully understanding that they would find it extremely difficult,if not impossible, to appeal his ruling and the public side-comments above attributed to him at or before the trial in question.
davisite2 – It is so pathetic reading this type of blather about whether or not Walker should granted Pugno standing. Would you rather that Walker dismissed the case before it started? Personally I’d like to see the case continue so the brilliant work of Boies isn’t wasted in a ruling at this level. However, we do have to deal with the facts – not our own personal wishes. Deal with it.
“…Would you rather that Walker dismissed the case before it started?”
While I am not knowledgeable in the legal nicities here, what I would have wanted Judge Walker to do was not accept this case without a legitimate defendant with full standing(the CA AG ) arguing the other side in his courtroom. Whether he has the authority to bring this about or not, he could have exerted major public/political pressure to force AG Brown into his courtroom to defend the CA constitution.
“… he could have exerted major public/political pressure to force AG Brown into his courtroom…”
You believe a federal judge should have taken a public position on this and tried to exert political pressure on an elected state official? How?
You oppose gay marriage, so you are going through unbelievable logical gymnastics to try to achieve a different outcome. You would even oppose a gubernatorial candidate solely, it seems, because of this issue, even though it has practically no significance to the governance of the state. On what basis should the AG or governor have supported Prop 8 on appeal, had they been somehow coerced into doing so?
“You would even oppose a gubernatorial candidate solely, it seems, because of this issue, even though it has practically no significance to the governance of the state…”
Don… It may SEEM that way to you but for me, Jerry Brown’s failure to carry out his sworn duties as our AG goes to his character and thinking which is something that I take into serious consideration when I cast my vote since THAT is all that one really can evaluate as to how our next governor will respond to the still unknown future situations that will be put before him.
Davisite: Again that’s your opinion, not the opinion of the court or anyone of authority. Brown has discretion as to which cases to defend, the court has upheld that discretion in their rulings.
“You believe a federal judge should have taken a public position on this and tried to exert political pressure on an elected state official? How?”
Judge Walker could have simply come out publicly and proclaimed that his trial requires a party with full legitimate standing on the other side of the argument to have credibility and AG Brown ,whose sworn duty is to defend the CA constitution, is clearly that party.
I don’t think that would be appropriate for a Judge to do. Brown does not have any different duty in that regard than any other elected official and it does not prescribe behavior, he has discretion.
“On what basis should the AG or governor have supported Prop 8 on appeal, had they been somehow coerced into doing so?”
As I indicated before, that is for the AG to come up with as the best possible argument,that’s what lawyers do. It could probably look a lot like the arguments that might be presented to the US Supreme Court in the future and which would likely be found valid by at least 4 and likely 5 Supreme Court Justices.
“…goes to his character and thinking which is something that I take into serious consideration when I cast my vote since THAT is all that one really can evaluate as to how our next governor will respond to the still unknown future situations that will be put before him.”
A good example is my recollection of an early political interview with what I thought was a profound revelation that made it stick in my mind to this day. In discussing German politics, under Hitler.he expressed his envy of Hitler’s personal political power to make and implement his autocratic decisions without the bothersome obstructions of others in government. IMO, we have seen him attempting to act on this thinking during the Governator’s failed tenure in office.
The above relates to a Schwartzenegger interview, not a Jerry Brown interview.
“….the court has upheld that discretion in their rulings.”
David…. Please, if you have it or access to it, post the names and how they voted on the recent ruling concerning Jerry Brown’s discretion. The silence that my request has generated makes me think that this ruling was NOT made by the full court and may have been the ruling of a single Supreme Court Judge(who?)
davisite: You said it all “…goes to his character and thinking which is something that I take into serious consideration when I cast my vote”
Which is exactly why I’d vote for someone with the pragmatism to not waste untold time and resources fighting to deprive citizens of their equal rights when we all have much more important things to worry about.
Seriously, how exactly does allowing 2 committed individuals to enter into a civil contract negatively affect you?
Eventually this will reach the US Supreme Court. If not appealed from CA, then from some other state.
There it will be decided by one judge’s vote, and none of us know which way it will go.
One thing that is clear though, is that what we are seeing is politics taking place in the judiciary branch. And that is troubling.
davisite2. I’m puzzled by your comment “there will be a political “push” to reopen”. Reopen? Asking a Federal Court to ‘reopen’ something? How exactly will Meg ask to ‘reopen’ this case? What on earth have you been smoking?
Your failure to grasp the basics of our government is astounding – yet you assume that you can deny basic rights to people just because you can get a bunch of other like-minded people to vote that way? Unbelievable. The founding fathers surely knew that we’d need legal protections from well-intentioned, but misguided zealots.
“The founding fathers surely knew that we’d need legal protections from well-intentioned, but misguided zealots.”
Yes, and in nearly every case that protection has come from the federal government.
[quote]One thing that is clear though, is that what we are seeing is politics taking place in the judiciary branch. And that is troubling. [/quote]
Are we? How so? BTW, since Marbury v. Madison we have always had politics taking place in the judiciary.
David… Your diligence in researching the subjects about which you write is usually thorough yet you offer no information concerning the judicial process that led to the decision to reject(what I remember is described as) an emergency petition to the CA Supreme Court. I am guessing, without the benefit of factual information as to who or how this decision was made, that it was one judge or perhaps two(which judges?), and not the full panel, that denied this emergency petition, without any in-depth presentation or legal discussion. To present this, as you have done here, as a powerful illustration of the CA Supreme Court’s ratification of what could be legally described as AG Brown’s ABUSE of discretion appears deliberately deceptive. This can easily be cleared up by offering your readers the number of judges who made the decision, who they were and a description of the judicial process that took place which resulted in the petition being denied.
I looked last night for a while then the baby started crying. I couldn’t find any article or anything on their website which showed the decision.
“Seriously, how exactly does allowing 2 committed individuals to enter into a civil contract negatively affect you?”
Peepstonejoe… My position has always been described,(ad nauseum to some readers) in previous threads on this subject to be that same-sex couples should have full and equal SUBSTANTIVE rights with those of marriage while leaving the society’s traditional definition of the term “marriage'” intact. This can be obtained legitimately, if necessary, through the courts in the same way that women have done and continue to do successfully arguing that the society’s traditional differentiating term “woman” makes them of less worth in society’s opinion and is therefore a violation of their civil rights.
CA Prop 8 constitutional amendment states that a “marriage” is valid in CA only between a man and a woman. This is essentially a legal definition of the term, “marriage” and nothing more. It does not, in any way, prohibit full and equal substantive rights for CA domestic partnerships.
correction to above:
…WITHOUT arguing that society’s traditional differentiating term, “woman” makes them of less worth in society’s opinion and is therefore a violation of their civil rights.
“I looked last night for a while then the baby started crying. I couldn’t find any article or anything on their website which showed the decision.”
That’s what I found when I did a search as well. My guess is that this was one Supreme Court judge dismissing this emergency petition with little in-depth legal opinion being offered. I would also guess that it was one of the judges(perhaps Supreme Court Justice George, who will be retiring from the court in the very near future) whose legal opinion was overruled by the people of CA with Prop 8…. if so, not a very compelling argument in support of AG Brown’s,IMO, abuse of discretion.
J.R.: “Eventually this will reach the US Supreme Court. If not appealed from CA, then from some other state.
There it will be decided by one judge’s vote, and none of us know which way it will go.
One thing that is clear though, is that what we are seeing is politics taking place in the judiciary branch. And that is troubling.”
I’m not so sure the Supreme Court will agree to hear this issue. To do so would mean they would have to make a ruling on the issue of how to define marriage, a very devisive and touchy subject nationwide. (CA is out of step with most of the nation on this issue.) I suspect they will want to leave it up to the individual states, so will pass on this issue.
I haven’t followed this issue that closely, but one thing has me really confused. How can Judge Walker give standing to proponents of Prop 8, yet the appellate court will not give them standing to argue the appeal? Doesn’t that undermine Judge Walker’s original ruling – and it can be argued that he improperly gave the proponents of Prop 8 standing to even argue the case?
“How can Judge Walker give standing to proponents of Prop 8, yet the appellate court will not give them standing to argue the appeal..”
ERM: Your observation is patently true. Due process includes the right to appeal a decision. To appear before Federal Judge Walker and then be denied the opportunity to appeal his ruling is obviously a violation of due process. Can anyone cite a case where the party appearing in the first instance in Federal Court was then denied the right of appeal based upon lack of standing?
On the other hand, to grant Protectmarriage standing and proceed with the appeal would bring every AG from the Western states that have same-sex “marriage” prohibition language either by law or in their constitution into the mix with CA being the lone player whose CA AG will not be arguing to defend its legal state constitution. It is a “can of worms” scenerio that the 9th will try and avoid,IMO, by denying Protectmarriage standing and vacating Walker’s decision.
“CA is out of step with most of the nation on this issue”
ERM: I think that you mean to say that CA AG Jerry Brown is “out of step”.
The majority of the CA electorate passed Prop 8 that defines marriage as between a man and a woman.
“How can Judge Walker give standing to proponents of Prop 8, yet the appellate court will not give them standing to argue the appeal..”
The focus of the problem exactly!! The way it stands now, the end result will be: “Minority rule, no majority rights!” As I have posted before, if the process is flawed, so shall the outcome be! Others have commented on this, as shown below:
The Lessons of History[1]
Intellect is a vital force of history, but it can also be a dissolvent and destructive power. Out of every hundred new ideas, ninety-nine or more will probably be inferior to the traditional responses which they propose to replace. No one man or woman, however brilliant or well informed, can come in one lifetime to such fullness of understanding as to safely judge and dismiss the customs or institutions of his or her society, for these are the wisdom of generations after centuries of experiment in the laboratory of history.
Therefore, the conservative who resists change is as valuable as the radical who proposes it-perhaps as much more valuable as roots are more vital than grafts. It is good that new ideas should be heard, for the sake of the few that can be used; but it is also good that new ideas should be compelled to go through the mill of objection and opposition. This is the trial heat that innovations must survive before being allowed to enter the human race. It is good that the old should resist the young, and that the young should prod the old. Out of this tension, as out of the strife of the sexes and the classes, comes a creative tensile strength, a stimulated development, a secret and basic unity and movement of the whole.
_______________
[1]Durant, W. and A. Durant. 1968. The Lessons of History, Simon and Schuster, New York, N.Y. 117p. (citation (pp.35-36) edited for continuity and inclusivism without altering content).
Ah! There’s nothing quite like simplistic utterances such as “Minority rule, no majority rights!” or “politics taking place in the judiciary branch.” to show that our schools have really done a poor job of preparing future citizens in the areas of critical thinking and Civics.
Neither Mr. Hayes, nor Davisite2 seem to have a clue about the rules of standing. Until you do some research, please stop going on about it. Mr. Musser seems to be living in a Pollyanna world without ANY knowledge of American History.
As for “No Majority Rights”. The system was set up intentionally so that a majority may not (permanently) trample the rights of a minority. However, there is still one last hope for all of you people whining “we got the most votes – how come we can’t take away their rights”. A constitutional amendment is the ultimate “Majority Rights” tool. Pretty difficult to pull off, but that was by design. It should be difficult fo you to deny basic rights to (fill in the blank) just because you (fill in the blank).
And please, take a few hours, spend some time learning about those things that you should have learned a long time ago.
To the “learned” Peepstonejoe…
Please cite a case where the party who was permitted to enter the first tier of the Federal Court system was then denied the right to appeal because of lack of standing.
well for starters, you could look at the case referred to by Judge Walker.
I’m sorry, I had assumed that you had actually read the decision by Judge Walker. Silly me.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=95-974
Like I wrote, please take a few hours and actually get some facts under your belt. Otherwise you have to survive on your wits alone – and that ain’t working for you.
No personal attacks, please.
peepstonejoe… are you actually suggesting that Judge Walker’s decision addressed the fact that he was fully aware that Protectmarriage would not be able to appeal his ruling when he gave them standing to appear before him? Without “wading” through Judge Walker’s lengthy legal opinions from the bench(# of words used has no correlation with the strength of an argument), I find this hard to believe.
I know this is difficult for you, but try to understand the laws. Yes, I’m pretty sure that Judge Walker understands them and how how they differ from the district level to the appellate level. He was aware that the appellate court would decide for itself. I’m sorry that you cannot find the time to read through the document that you spend so much time writing about. I’d really hate for some facts to interfere with you pontifications.
Don: You’re right and I’m sorry. It just really makes me angry that guys like Davisite2 and some of the others are spouting off without even the most basic understanding of the issues or how our laws work. And davisite2 has weighed in mightly heavily on the subject but can’t spend an hour or two actually reading the decision. They’re like armchair quartebacks that are experts on the game – but didn’t bother to actually watch it – or never bothered to learn the rules.
Unfortunately, we’re not talking about sports or something trivial and a plurality of them have convinced themselves that a discriminatory piece of legislation is not subject to judicial review. Real people are being harmed. Davisite2 probably wouldn’t understand, but there are well-established guidelines that Fed, State, or local Govts must use when denying equal rights to a group. Boies systematically went over every single one of these guidelines to show that gays were being treated unfairly by the majority – without legal justification.
The issue of standing keeps coming up in this thread. That’s very fitting. In order to have standing, Mr Cooper and his client Pugno will have to convince the 9th that Pugno will be personally harmed. That’s a pretty difficult task. When Walker first asked Cooper how SSM harmed ‘traditional’ marriage, Cooper said repeatedly that he did not know. After all the time to prepare, having virtually unlimited $$ and assistance, Cooper still could not explain how anyone would be harmed. Davisite2 would have understood that had he actually read the closing arguments instead of just spouting his comments without the benefit of any actual knowledge. I still have not heard a single valid argument about how anyone will be harmed by allowing these poor souls to marry.
Now Davisite2 is still puzzled that Walker could have allowed Cooper &Pugno to defend 8 even though the 9th may not allow them to proceed at the appellate level. Walker did not have to allow them into his courtroom. Walker does not know whether or not the 9th will allow them in either. Walker gave them an opportunity to state their case. Anyone who attended or read the transcripts realizes that Cooper & Pugno did a laughable job, but at least Walker gave them an opportunity.
So yes, I was not polite to Davisite2 and this should be a forum for the discussion of ideas. So the next time he (my assumption that davisite2 is a “he” based upon his hubris, and arrogance despite a complete failure to grasp the facts) writes, I promise to respond politely regardless of the amount of ignorance shown.
p: “Now Davisite2 is still puzzled that Walker could have allowed Cooper &Pugno to defend 8 even though the 9th may not allow them to proceed at the appellate level. Walker did not have to allow them into his courtroom. Walker does not know whether or not the 9th will allow them in either. Walker gave them an opportunity to state their case. Anyone who attended or read the transcripts realizes that Cooper & Pugno did a laughable job, but at least Walker gave them an opportunity.”
You can’t have it both ways – Walker gives standing to hear original case; appellate court refuses to give standing. Standing is a legal issue, and doesn’t change depending on the court it is argued in. Either ProtectMarriage had standing to argue the case or it didn’t…
p: “So yes, I was not polite to Davisite2 and this should be a forum for the discussion of ideas. So the next time he (my assumption that davisite2 is a “he” based upon his hubris, and arrogance despite a complete failure to grasp the facts) writes, I promise to respond politely regardless of the amount of ignorance shown.”
People should be able to agree to disagree, “ignorance” notwithstanding. It is called civility – you might want to try it… In point of fact, many of us view this blog as a learning tool, and should not feel afraid to advance a view even if we are ultimately proved wrong in some of our assumptions. Would you prefer people to remain in ignorance bc they are afraid to speak up for fear of being called ignorance?
davisite2: “”CA is out of step with most of the nation on this issue”
ERM: I think that you mean to say that CA AG Jerry Brown is “out of step”.
The majority of the CA electorate passed Prop 8 that defines marriage as between a man and a woman.”
Good catch davisite2. Thanks for the correction!
Yes, we should be able to agree or disagree – but not about facts.
Would somebody Puleeez take the time to learn about standing before writing things like “and doesn’t change depending on the court it is argued in” Of course it does. THAT IS THE ENTIRE POINT that Davisite2 has failed to grasp. I was pointing out that davisite2 was too lazy to actually read anything about the Arizona case referenced by Walker.
It is not ignorance to ask a question. It is ignorance to state something as a fact without any shred of knowledge backing that statement. Especially when Mr. Davisite2 has chosen to not ‘wade through’ any of the material upon which he purports to be an expert.
And you’re right, California is out of step with much of the country. I travel 180+ days per year to the other states for business and that is the reason I’ve chosen to live here. Here we are much more willing to think for ourselves than to subscribe to some dogma. Why do you think so many gays flee to California to get away their narrow-minded neighbors in so many other states? As a white, balding, middle-class, married, straight male, I’m automatically assumed to be part of “the club” when I travel so I hear just about everything. As a graduate of a Catholic university I get bombarded with their “protect marriage” stuff. Most of my neighbors are Mormon so I get to hear all of their rationale. So far I have not heard a single valid argument about how they would be affected by allowing SSM. Lots of the typical arguments about religious persecution and dis-enfranchisement, and all of the typical talk-radio blather, but nothing that would pass muster under oath. Yes, we’re out of step here, but I wouldn’t trade it for Oklahoma or Kansas, or Georgia or any other backwater that is so proud of its hostility towards gays.
“…my assumption that davisite2 is a “he” based upon his hubris, and arrogance despite a complete failure to grasp the facts)”
My final thoughts,Peeperstonejoe…. I am reluctant to respond in-kind to your comment above with the “observation”(we will see if Don offers me “equal time, here) that Peepstonejoe can assumed to be an angry lesbian with an agenda that goes far beyond any attempt to acquire for CA Domestic Partnerships full and equal rights (and responsibilities) as given by the State to “marriage” which is something that a fully support. These rights can be obtained in the CA courts by challenging any difference that the State makes in SUBSTANTIVE rights between what is offered to a contact of marriage and a contract of domestic partnership. The fact that this has not been the legal road taken strongly suggests that there is an additional agenda in play.
As to the current bizarre legal situation that we find ourselves in with our State Attorney General, the people’s chief lawyer, refusing to defend the people’s constitution(determined to be legal by our CA Supreme Court) and Judge Walker offering Protectmarriage the “opportunity” to make their case with the full understanding that, based upon iron-clad Federal Court rules on standing, they would not be able to appeal his ruling(which no one believed, given his judicial history, would be anything other than what was made. It is clear that this (and I hesitate to call it what it appears on the surface, a collusion) is an attempt to overturn a valid CA constitutional amendment in Federal Court with the foreknowledge that it would not be able to go beyond a local CA ruling since to have a party with legitimate standing arguing, would take this through the Federal District Court and most likely on to the US Supreme Court, a situation that would raise such an electoral political outcry at this time so as to bring defeat.
Once again you’re making claims that you know nothing about. Where on earth did you get the idea about “iron-clad Federal Court rules on standing”
Will you please take a few hours and try,try,try to understand this concept.
Walker suggested to Pugno, Cooper, and Boies that the 9th may not agree to hear their case. If you had read the decision you would have known that. Judges have a lot of discretion about whether or not they “MUST” take a case. Unless the law specifically states that they “MUST”, they can use discretion. I realize that this gray area is somewhat confusing to you, but try, try, try again to understand it. Walker did an honorable thing by giving Pugno & Cooper into his court. His suggestion was that the 9th might not take it – in light of the Arizona case (which you are unwilling to at least learn about). Walker has no knowledge what the 9th will or will not do. He knows that there is no absolute requirement that they “MUST” take the case, but like the rest of us, can only speculate as to whether or not they will.
For the record, it is not unusual for an AG or Gov to decline to appeal a case.
As far as the “separate, but equal” rights that you’re talking about, you’re once again showing your ignorance. History (had you been paying attention in grade school) has shown repeatedly that separate is not equal. I personally don’t care what you fully support or not. I just find it amazing that you cannot provide sufficient LEGAL justification to deny gays their equal rights.
While I doubt that your thoughts are indeed “final”, I’m looking at your conclusion and realize that I am having a battle of wits with an unarmed person.
Don: sorry about that. But Davisite2 just doesn’t understand that the legal system doesn’t fit nicely into his view of how things should be. And he keeps going on like that Monday morning quarterback, who keeps going on about how unfair the referees were in his game – even though he fails to understand the rules.
I’m done. You can pull the plug on this account. Guys like Davisite2 will never understand the complexities of this case. All they know is that they won the election and that they should be exempt from legal challenges because of it.
I guess I’ll have to add one more small comment:
No one is denying that CA AG Brown and Judge Walker have “discretion”.
HOWEVER, it is the “bread and butter” of judicial oversight to overrule a judge’s decision on the basis of ABUSE of discretion. So… to claim that because Brown and Walker have discretion, they hold a “get out of jail free” card is just not true.
Once you allow that they have discretion, then it becomes about your personal opinion about what they should do. It is my opinion that they are not obligated to defend a law that they believe to be unconstitutional. It is also my opinion that the conservative courts have drawn standing far too narrowly.
“Once you allow that they have discretion, then it becomes about your personal opinion about what they should do…”
David… that is a given and has always been the case. Abuse of discretion is a call that is ,in the last analysis, significantly a subjective one and takes into consideration multiple inputs, especially at the level of the District and US Supreme Courts, with political(generic definition) issues brought into the mix. We will see how the 9th District “reads” these factors.
You don’t have to tell me much about abuse of discretion, I had an entire one on the AG’s review of the Gutierrez.
But you started out this arguing that he had a duty embodied within his oath, now you admit that he doesn’t have a duty. It’s a political issue which will be solved in the political system. So now you have a choice as to whether Brown is better for your overall views than Whitman. Pretty simple but it sure took a long time to get there.
No… I believe that the AG has a duty to defend the CA constitution, just as the US Dept of Justice and the US Attorney General are “compelled”(the wording of an NY Times article a few days ago) with regard to Obama’s AG arguing in support of the Defense of Marriage Act law in spite of the fact that the Obama administration does not support this law. The result of Brown’s failure to fulfill his sworn duties is evident as the process of proper judicial governance with regard to the Federal Court system is being derailed. For this reason, I will not support him for Governor. As to the politics, this was(and is)in the hands of the CA Supreme Court and whether they cite Brown for abuse of discretion. The politics of the 9th and whether they cite Walker for abuse of discretion and vacate his ruling also includes scheduling the consideration of Protectmarriage’s standing in December, after the November election of our next governor.
The following answers my question to the issue of standing:
“What? you’re asking. How can a judge deny an appeal for a party to a lawsuit? Well, that’s just the thing. As Judge Walker reminds us in his opinion, the defendants in the case were not named by the plaintiffs in their complaint. That is, they weren’t actually sued. A different set of defendants, including the state of California, were named in the suit.
So, in order to enter the case, the defendants had to be granted special dispensation by Judge Walker in order to mount a defense of Prop. 8. Judge Walker, in this June 30 order, granted the defendants’ motion to intervene in the case.
But in his order issued on Thursday, Judge Walker wrote that the granting of a motion to intervene in a case does not automatically confer standing in a case. And standing is what you need in order to appeal a case.”
Judge Walker granted a motion to intervene in the lower courts, but did not confer actual standing. Very clever. This may wend its way to the U.S. Supreme Court, but I honestly don’t think they will grant cert to heare the case, bc they won’t want to take the chance of invalidating all the state laws that prohibit gay marriage, which decision will probably rest on one judge. But who knows…
p: “I’m done. You can pull the plug on this account. Guys like Davisite2 will never understand the complexities of this case. All they know is that they won the election and that they should be exempt from legal challenges because of it.”
Your snarky attitude tends to engender beligerence rather than thoughtful discourse. One usually gets farther with honey than with vinegar… Nevertheless, I cleared up the “standing” issue that at first blush appeared to be contradictory in my own mind. And I would say Judge Walker layed a pretty clever legal trap for the proponents of Prop 8 and they walked right into it – and they are seasoned lawyers who should know better 🙂
“And I would say Judge Walker layed a pretty clever legal trap for the proponents of Prop 8 and they walked right into it – and they are seasoned lawyers who should know better :-)”
Thank you for clearing this up, ERM. I cannot see how the 9th District will allow Judge Walker’s ruling to be valid under these circumstances. It is difficult to understand how Protectmarriage’s lawyer’s could agree to plead their case in Walker’s court and know that they, almost certainly, would be denied the ability to appeal Judge Walker’s ruling(whose decision on this case was a far-gone conclusion no matter what the arguments presented).The only explanation that I can see is that if NO ONE came forward to plead the other side of this case, Judge Walker would be able to rule as he did without a challenge and then with ABSOLUTELY no recourse to anyone making an appeal. Was that the situation? In any event, it clearly illustrates the flagrant distortion of the Federal Court legal process that resulted from AG Brown’s failure to fulfill his duty as our CA Attorney General.
Judge Walker’s conduct in this instance fits PERFECTLY with what is known about him. Namely that he is a Republican Reagan appointee, whose judicial record is conservative when it comes to ruling in favor of corporate power and the rich and powerful while with gay issues, Judge Walker, an “openly gay” individual according to a NY Times article, has a judicial record that is at the very margins( if not exceeding) what is considered acceptable legal thinking and behavior.
….and David. I agree that abuse of discretion is an opinion and that you and I differ here. While all of the above points to Brown’s abuse of discretion, the only argument that I have heard that supports his “discretion” in refusing to defend our CA constitution, is that he could because HE believed that Prop 8 was unconstitutional under US law, NOT that it WAS unconstitutional, but only that he personally BELIEVED that it was. Do you want to reconsider your position on whether Brown,the CA people’s chief lawyer, was abusing his discretion?
“Judge Walker, an “openly gay” individual according to a NY Times article, has a judicial record that is at the very margins( if not exceeding) what is considered acceptable legal thinking and behavior.”
“I hesitate to call it what it appears on the surface, a collusion….”
Davisite, I am getting concerned about the tenor of your comments on this issue. I am unaware of any article in the New York Times, or anywhere else, where Judge Walker is described as “openly gay.” You have gotten to the point where you are using innuendo and making veiled accusations that are bordering on bigotry. Please continue to focus on the content of the ruling and the merits of the case, and don’t make any further characterizations of the individuals involved. I also ask other participants to avoid personal characterizations in general.
I realize this is a hot issue, and I’m not trying to stifle debate. But there are some hot-button terms that don’t further the discussion. You all know what they are. If you don’t, contact me at donshor@gmail.com.
Don: Thanks for the reminder.
ERM did a credible job of explaining the rules of standing, but both he and davisite2 jumped to ‘interesting’ conclusions about Walker’s motives. A “trap” is not a fair characterization and it shows a relative lack of knowledge about our judicial system.
Let’s take that “trap” a little bit farther in the process. If the 9th agrees to hear the case, are they setting the same trap? After all, the loser at that level is not guaranteed to get their case before SCOTUS. Perhaps you never learned about the process of Certiorari whereby the justices determine whether they will review the case in the when there is no right of appeal. Just like Walker and the 9th, they determine who is going to be in their court. Just so you’re aware, the 9th may issue a finding that sticks because SCOTUS refuses to hear it.
So following your logic, if the 9th allows a party with dubious standing into the court in the same manner as Walker allowed them in, they’re setting a “trap”? However, I’m glad to see that you’re labeling some of your statements as opinions instead of passing them off as fact. Especially those that have just enough ‘truthiness’ to fool some of the less discerning readers.