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Law, Unwrapped: Prop 8 Standing Is A Done Deal, What About The Merits?

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Today, in a decision that surprised precisely no one (especially no one who’d listened to the oral argument), the California Supreme Court unanimously held that the official proponents of Proposition 8 had standing to appeal the decision that the measure violates the U.S. Constitution.

How did we get here? A quick review: When passed by voter initiative in 2008, Prop 8 defined marriage under the California constitution as limited to the union of one man and one woman. It thereby undid what the California Supreme Court had done earlier that same year when it had held that the denial of marriage licenses to same-sex couples violated the state’s constitutional guarantee of equal protection under the law.

In 2009, several same-sex couples took to federal court to challenge Prop 8 as a violation of the U.S. Constitution’s right to equal protection. (The California constitution is of course subordinate to the U.S. Constitution.) But who would defend Prop 8? The state, represented by the governor and the Attorney General, appeared in the case but did not defend the measure, as they agreed with the plaintiffs that the law was unconstitutional. The court then granted the motion of the proponents of Prop 8 (the anti-gay marriage folks) to intervene (non-legal translation: participate) in the case. Thus, it was the intervenors who put on the defense of the measure.

And a spectacularly unsuccessful defense it was. Only a few witnesses were ultimately called for the proponents, and their testimony will long be remembered as an “own goal” — helpful to the plaintiffs in admitting that allowing same-sex couples to marry would bring us closer to a just society, and thoroughly disastrous to the proponents and to the oppositionists more generally in failing to identify any purpose of marriage that would be furthered by the continued exclusion of same-sex couples. The plaintiffs (the pro-marriage equality folks) of course won.

Declining to throw good money after bad, the state declined to appeal. So the proponents decided they’d take up the mantle of defense.

But could they? Did they have standing to appeal when the state stayed out of it? The federal court of appeals (the Ninth Circuit) thought that the question might be one of state law, so they asked the California Supreme Court to get involved again, deciding whether to grant the proponents standing to appeal. Although the court could have declined the invitation, it did not; oral argument on the matter was held in September.

Today, the court issued its decision finding that there was in fact standing to appeal. This doesn’t need to bind the appellate court, but as a practical matter, it will. The Ninth Circuit wouldn’t have wasted everyone’s time getting an opinion from the state court if it was going to then ignore it.  Yes, the appellate court still has to formally rule on standing, and then the plaintiffs could appeal that ruling to the U.S. Supreme Court. It’s likely, though, the court is finally going to get to the merits of the appeal and that, because of the way the California court decided the case, we’re done with the standing issue.

OK, that’s where we are. Why did the court find that the proponents have standing? And, um, what is “standing,” anyway?

For understandable reasons, not just anyone can sue, defend, or appeal. The courts are not a broad debating forum — there needs to be some concrete stake in litigation for a party to be able to participate. It’s also thought that those with such a stake will have the best incentive to put on the most throrough case, allowing the issues to be sharpened in a particular context.

In this case, the California Supremes identified two possible bases for standing: (1) the proponents might be said to represent the state’s interest in defending the measure; or (2) they might be able to claim, in their own right, a particularized injury from the declaration that Prop 8 is unconstitutional.

The second is problematic, and in its way speaks to the whole problem with the opposition to marriage equality. It’s hard to see how the proponents are harmed by allowing same-sex couples to marry — just as it’s hard (perhaps impossible, after this trial) to see how marriage equality harms anyone. Moreover, this idea of particular harm is one of federal constitutional dimension, so that if the California Supreme Court had decided on this basis, its decision could have been scrutinized under federal case law interpreting the requirement of particularized harm. In that case, the standing issue might have been kicked around for awhile.

The court shied away from this approach, instead basing standing on its view that state law gives Prop 8 proponents the right to assert the state’s own interest in the proposition.  Because under California law, the court declared, the people, as they express themselves through the initiative process, are the state. The court discussed the origin of the process, created to give the people a stake in governance that the expansion of special interests was threatening. Although this sounds like a very modern concern, in fact the current initiative process is almost one hundred years old…in this sense, there’s nothing new under the sun.

And the court feared that if the state’s law executive branch doesn’t want to enforce the measure, then elected officials could effectively veto the people’s initiative by not defending it against constitutional attack.

This concern is of course overblown. First, most initiatives aren’t challenged in this way. Second, even if they are, the state’s unwillingness to defend a measure doesn’t mean that the court will find it unconstitutional. But the court is onto something when it says that there would be some compromise to the initiative process if no one will defend measures that voters pass. Whether that means there should also be a right to appeal is a slightly different question; the court disposed of this in a single footnote(!), noting that “[o]rdinarily…public officials…can be expected to appeal an adverse trial court judgment…The inability of the official proponents of an initiative measure to appeal an [adverse] trial court judgment…, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.”

So there we are. On balance, the court is right even though the result is that Prop 8 will be in effect a bit longer. We should take the broader view here; whether or not we like the California initiative process (and I don’t), someone should be able to defend (and perhaps even appeal, although the argument isn’t as strong) what the people duly passed. In many other cases, we wouldn’t like the results if such standing were denied.

And there would be something limited about winning on what amounts to a technicality; better to win on the merits, as we deserve to. And the process will continue to educate the public about the benefits to all of society in recognizing committed, loving relationships between two adults. While it does so, it will continue to expose the fear and lies about our lives that drive people like the proponents — one of whom, by the way, dropped out rather than face scrutiny for his extreme views.

Bring it.

Related to today’s Prop 8 decision:

Prop 8: Anti-Gay Marriage Supporters Do Have Standing – What Today’s Decision Really Means

Prop 8: Read Today’s California Supreme Court Decision (Full Text)

Prop 8: LGBT And Anti-Gay Groups Respond To Today’s Supreme Court Decision

Prop 8: Watch What AFER – The Folks Fighting Prop 8 – Have To Say

Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.

He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.

John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.

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OPINION

SCOTUS Justices Appear to Want to Toss Obstruction Charges Against Some J6 Defendants: Experts

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April 16, 2024

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Republican justices on the U.S. Supreme Court appeared skeptical of a law used to prosecute over 300 January 6 defendants, and Donald Trump, as they heard oral arguments Tuesday.

“A decision rejecting the government’s interpretation of the law could not only disrupt those prosecutions but also eliminate two of the federal charges against former President Donald J. Trump in the case accusing him of plotting to subvert the 2020 election,” The New York Times reports.

“January 6 insurrectionists had a great day in the Supreme Court today,” Vox‘s Ian Millhiser reported. “Most of the justices seem to want to make it harder to prosecute January 6 rioters.”

Millhiser on social media put it this way: “On Monday, the Supreme Court effectively eliminated the right to hold a Black Lives Matter protest in three US states. On Tuesday, the same justices were very, very afraid that January 6 insurrectionists are being treated unfairly.”

READ MORE: ‘Scared to Death’: GOP Ex-Congressman Brings Hammer Down on ‘Weak’ Trump

Right-wing justices on the Supreme Court suggested the law, which makes it a crime to obstruct an official proceeding, could be used too broadly.

“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Neil Gorsuch asked, as NBC News reported. “Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote, qualify for 20 years in federal prison?”

Some legal experts appeared stunned and disappointed by the right-wing justices’ remarks.

“In oral argument today, Justice [Clarence] Thomas is minimizing the severity of the 1/6 insurrection at the Capitol. Perhaps that’s because his wife was part of the conspiracy. What a disgrace that he’s sitting on this case,” attorney and frequent CNN guest Jeffrey Toobin commented.

READ MORE: ‘I Have a Bucket of Water’: Dems to Save Johnson’s Job Over GOPer Who Wants ‘World to Burn

“The text of the obstruction law the Supreme Court is considering today pretty clearly applies to January 6 defendants. Will the purportedly textualist conservative majority, as in Trump v. Anderson, once again bypass text to avoid accountability for Trump and his supporters?” asked former federal corruption prosecutor Noah Bookbinder, who is now president of the government watchdog Citizens for Responsibility and Ethics in Washington (CREW).

“Supreme Court expressed concern that Jan 6 prosecutions could chill violent insurrections against democracy,” wrote Scott Shapiro, a Yale Law School professor of law and professor of philosophy.

Elie Mystal, The Nation’s justice correspondent, did not hold back.

“The six conservative justices are absolutely trying to figure out how to throw out the obstruction charges against their cousins and wives and pledge brothers who attacked the Capitol on January 6,” he wrote.

Similar to Millhiser’s comparison, Mystal remarked, “If you think that trash you just heard from the Supreme Court about protecting J6 rioters will *ever* be applied to peaceful Black protesters, think again.”

READ MORE: ‘Something’s Fishy Here’: Trump’s Latest $175 Million Bond Filings Questioned by Experts

 

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‘I Have a Bucket of Water’: Dems to Save Johnson’s Job Over GOPer Who Wants ‘World to Burn’

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4 hours ago

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April 16, 2024

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Mike Johnson can count on at least some Democrats to save his job after a second Republican announced he supports U.S. Rep. Marjorie Taylor Greene‘s efforts to remove the embattled GOP Speaker of the House. Weeks ago Greene filed a motion to “vacate the chair,” which she can call up at any time to force a vote that could lead to Johnson losing his gavel.

“I just told Mike Johnson in conference that I’m cosponsoring the Motion to Vacate,” U.S. Rep. Thomas Massie (R-KY) declared late Tuesday morning. “He should pre-announce his resignation (as Boehner did), so we can pick a new Speaker without ever being without a GOP Speaker.”

“You’re not going to be the speaker much longer,” Massie directly told Speaker Johnson, Politico reports, citing two lawmakers in the room.

Asked by a social media user, “What was the straw that broke the Camel’s Back? FISA? Foreign War Funding? Spending more than Nancy Pelosi? All of the above?” Massie replied: “All of the above. This camel has a pallet of bricks.”

Like many far-right House Republicans, Massie is furious Speaker Johnson plans to put on the floor foreign aid and national security legislation to support Ukraine, Israel, and Taiwan this week, only after Iran’s attack on Israel over the weekend forced his hand.

“Friday, we have one less Republican in the majority as Rep Gallagher leaves instead of finishing his term,” Massie wrote earlier Tuesday morning, referring to exiting U.S. Rep. Mike Gallagher (R-WI). “As a going away gift, Speaker Johnson plans to force the senate to take up Gallagher’s bill to ban tiktok and give Presidential power to ban websites.”

READ MORE: ‘Something’s Fishy Here’: Trump’s Latest $175 Million Bond Filings Questioned by Experts

“But still no border,” Massie lamented, referring to Republicans’ top priority after Donald Trump made clear he will campaign on an anti-immigrant platform and urged Republicans to block bipartisan legislation to fund additional border security.

(President Joe Biden and Senate Democratic Majority Leader Chuck Schumer supported the Senate’s bipartisan bill, which would have provided aid to Ukraine, Israel, Taiwan, humanitarian assistance to Gaza, and a massive increase in border security. It was killed in the Senate after Republican Minority Leader Mitch McConnell pulled his support in response to Trump’s remarks.)

Congresswoman Greene, who was accused by U.S. Rep. Jared Moskowitz last week of not having enough votes to “rename a post office,” much less unseat Speaker Johnson, responded to Massie’s remarks:

“Johnson is the Deep State Speaker of the House funding the Democrat’s agenda in an omnibus, blocking warrant requirements for FISA, this week ramming through billions for Ukraine, and now this after allowing Gallagher to leave his district without representation. Can’t continue.”

She also posted Massie’s signature signing onto her Motion to Vacate.

In a show of support for Johnson, last week Donald Trump held a joint press conference with the embattled Speaker, during which both attacked immigrants and Johnson vowed legislation to ban non-citizens from voting. It is already a federal felony for non-citizens to vote.

CNN’s Manu Raju reports, “after Gallagher resigns — Johnson would almost certainly need Democrats to save his job if the motion to oust him comes up for a vote. Democratic Rep. Jared Moskowitz says he would save Mike Johnson’s job if MTG [Marjorie Taylor Greene] brings motion to oust him.  Others like Democratic Rep. Tom Suozzi also said they would vote to save Johnson  ‘Democrats don’t even let her rename post offices, I’m not gonna let her make a motion to vacate,’ Moskowitz told me.”

Moskowitz responded, saying: “My position hasn’t changed. Massie wants the world to burn, I won’t stand by and watch. I have a bucket of water.”

READ MORE: ‘Scared to Death’: GOP Ex-Congressman Brings Hammer Down on ‘Weak’ Trump
 

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‘Something’s Fishy Here’: Trump’s Latest $175 Million Bond Filings Questioned by Experts

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6 hours ago

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April 16, 2024

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Attorneys for Donald Trump waited until less than two hours before midnight Monday to file revisions to the ex-president’s $175 million bond for the judgment in his civil fraud case after New York State Attorney General Letitia James questioned the validity of his first bond. Legal experts are now questioning details of the new bond filings. Some suggest a portion of the $175 million might also currently be in use to secure other debts or obligations.

After Trump was found liable for manipulation of his net worth in the civil business fraud case and ordered to pay a $354.9 million penalty plus interest, he was required to post bond to ensure the people of the State of New York would receive $454.2 million if his appeal is unsuccessful.

“The judge said that the former president’s ‘complete lack of contrition’ bordered on pathological,” The New York Times reported two months ago.

Trump’s attorneys later declared it impossible for him to come up with a bond of that amount, and an appeals court drastically reduced the required bond amount to $175 million.

READ MORE: ‘Your Client Is a Criminal Defendant’: Judge Denies Trump Request to Skip Trial for SCOTUS

After 10 PM Monday night, ahead of the midnight deadline, attorneys for Donald Trump in court filings said the $175 million bond is secured, and is tied to a Trump account at Charles Schwab that has over $175 million in cash, CNN reports. The filing states the California company securing the bond, Knight Specialty Insurance Company (KSIC),  has administrative access to it and can pay out the $175 million if needed.

Trump’s attorneys “asked the judge to set aside the attorney general’s challenge to the bond and award him costs and fees.”

Professor of law Andrew Weissmann, a frequent MSNBC legal analyst and former Dept. of Justice official, is raising questions.

“Something’s fishy here,” he wrote late Monday night. “If Trump has $175M free and clear, why not just directly post it and not pay a fee for a surety bond? And the agreement does not give Knight a lien on the account as collateral and seems to afford Trump a two-day window to dissipate the account.”

A screenshot of a portion of the filing, posted by MSNBC’s Lisa Rubin, states, “Schwab, as custodian of the account, has acknowledged KSIC’s right to exercise control over the account within two business days of receiving notice from KSIC of KSIC’s intent to activate the control.”

Attorney and journalist Seth Abramson in a series of posts on social media claimed, “so this is looking very bad for Donald Trump. He says in his Monday night filing that the Schwab account has $175.3 million *in total*, so *if* Axos Bank is depending on that same account for a (semi-)liquid $100M in collateral on another loan, this bond filing is DOA.”

After asking, “Is Trump double-dipping?” Abramson posted more details.

NCRM has not verified those claims.

Attorney Lupe B. Luppen adds, “it took about ten seconds from opening the account security agreement to find a significant drafting error, which makes the signature page look like it belongs to a different agreement (DJT Jr’s attestation identifies the wrong secured party—a Chubb co.).”

READ MORE: ‘Scared to Death’: GOP Ex-Congressman Brings Hammer Down on ‘Weak’ Trump

Late Monday night on MSNBC Weissmann “expressed incredulity,” as Mediaite reported, saying of Trump and his bond: “It is just so remarkable. This is somebody who has been found by two juries to have defamed somebody, who has been found to have sexually assaulted somebody – the company of which has been found criminally liable for a decade-long tax conspiracy, criminally, and has been found to have committed fraud, has to post a bond of $175 million, is on trial starting today for a criminal case involving 34 felonies.”

“And he can’t find a frigging company that is registered in New York? Meaning, that they are licensed to do business here, which it appears they are not, and that has the wherewithal to pay the money because remember, the whole point is that you either have to put up the money now or you have to find a bond company that is sufficiently liquid that the plaintiff can look to that bond company if at the end of the day the judgment is affirmed.”

Attorney General Letitia James earlier had alleged KSIC, the company that secured the bond, was not registered to do so in New York. Experts questioned the language of that filing, claiming it did not require the company that secured the bond to actually pay out $175 million should Trump lose his appeal and be ordered to pay the full amount.

Calling it a “bizarre contract,” earlier this month The Daily Beast reported, “the legal document from Knight Specialty Insurance Company doesn’t actually promise it will pay the money if the former president loses his $464 million bank fraud case on appeal. Instead, it says Trump will pay, negating the whole point of an insurance company guarantee.”

READ MORE: ‘Not a Good Start’: Judge Slams Trump’s ‘Offensive’ Recusal Claims as a ‘Loose End’

 

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