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



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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‘I’m Broke’: One Day Before Shutdown and With No Plan McCarthy Says He Has ‘Nothing’ in His ‘Back Pocket’



Just 30 hours before his own Republican conference likely will have succeeded in shutting down the federal government of the United States, Speaker of the House Kevin McCarthy candidly admitted to reporters he’s run out of ideas.

Earlier Friday in an “embarrassing failure,” 21 House Republicans killed legislation from their own party, a short-term continuing resolution, that would have kept the federal government open.

Later on Friday afternoon, swarmed by reporters, McCarthy was asked if he was going to tell them what his plans are. He sarcastically replied, “No, I’m going to keep it all a secret.”

When pressed, he said he would “keep working, and make sure we solve this problem.”

“What’s in your back pocket, Speaker?” another reporter asked, pressing him for an answer.

“Nothing right now. I’m broke,” he admitted, apparently referring to options and ideas to avoid a shutdown.

READ MORE: ‘Bad News’ for Sidney Powell as First Trump Co-Defendant in Georgia RICO Case Takes Plea Deal: Legal Expert

But another reporter asked Speaker McCarthy the main question: Would he partner with House Democratic Minority Leader Hakeem Jeffries to put the Senate’s bill before the House.

He refused to answer.

Just before 5 PM CNN’s Manu Raju reported on the ongoing House Republicans’ closed-door meeting with the Speaker, a meeting where the 21 Republicans who will likely be effectively responsible for the shutdown reportedly did not attend.

“McCarthy is telling [Republicans] now there aren’t many options to avoid a shutdown, according to sources in room. He says they can approve GOP’s stop-gap plan that failed, accept Senate plan, put a ‘clean’ stop-gap on floor to dare Democrats to block it — or shut down the government.”

READ MORE: Will McConnell and Senate Republicans Use Feinstein’s Passing to Grind Biden’s Judicial Confirmations to a Halt?

He adds, U.S. Rep. Matt Gaetz (R-FL) largely responsible for the impending likely shutdown and the impending possible ouster of McCarthy said: “We will not pass a continuing resolution on terms that continue America’s decline.”

At midnight Saturday Republicans will likely have succeeded in furloughing 3.5 million million federal workers – two million of them service members in the U.S. Armed Forces – and countless contractors, while financially harming untold thousands of businesses that rely on income from all those workers to keep running – unless Speaker McCarthy puts a bipartisan continuing resolution approved by at least 75 U.S. Senators on the floor, legislation every House Democrat is likely to vote for.

Should he do so, many believe he will have also signed his own pink slip.

But whether or not the government shuts down, and whether or not McCarthy puts the Senate’s CR on the floor, according to The Washington Post the far right extremists in his party are already moving to oust him “as early as next week.”

The Biden campaign is making certain Americans realize the blame for the impending shutdown sits at McCarthy’s feet.

At 6:23 PM Friday evening, Punchbowl News’ Jake Sherman wrote on social media: “HOUSE REPUBLICANS HAVE NO PLAN TO KEEP GOVERNMENT OPEN.”

Watch the videos above or at this link.

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‘Bad News’ for Sidney Powell as First Trump Co-Defendant in Georgia RICO Case Takes Plea Deal: Legal Expert



The first of 19 co-defendants in Fulton County District Attorney Fani Willis’ RICO and election interference case against Donald Trump has pleaded guilty in what is being described as a “plea deal.”

“Under the terms of an agreement with Fulton County District Attorney Fani Willis’s office, Hall pleaded guilty to two counts of conspiracy to commit election fraud, conspiracy to commit computer theft, conspiracy to commit computer trespass, conspiracy to commit computer invasion of privacy, and conspiracy to defraud the state,” NBC News reports. “Under the terms of the deal, he’s being sentenced to five years probation.”

CNN previously reported “Hall, a bail bondsman and pro-Trump poll-watcher in Atlanta, spent hours inside a restricted area of the Coffee County elections office when voting systems were breached in January 2021. The breach was connected to efforts by pro-Trump conspiracy theorists to find voter fraud. Hall was captured on surveillance video at the office, on the day of the breach. He testified before the grand jury in Fulton County case and acknowledged that he gained access to a voting machine.”

READ MORE: Will McConnell and Senate Republicans Use Feinstein’s Passing to Grind Biden’s Judicial Confirmations to a Halt?

Former U.S. Attorney Joyce Vance, a professor of law and frequent MSNBC contributor, says Hall “was in the thick of things with Sidney Powell on Jan 7 for the Coffee County scheme involving voting machines. If he’s cooperating, it’s a bad sign for her.”

Hall’s plea deal “spells bad news for, among others, Sidney Powell,” says former Dept. of Defense Special Counsel Ryan Goodman, an NYU Law professor of law. Goodman posted a graphic showing the overlap in charges against Hall and Powell, which he called “alleged joint actions.”

See the graphic above or at this link.


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Far-Right Republicans Kill GOP Bill to Keep Government Running in ‘Embarrassing Failure’ for McCarthy: Report



With a shutdown less than 36 hours away, far-right Republicans in the House of Representatives Friday afternoon voted against their party’s own legislation to kept the federal government running. Democrats opposed the content of the bill and voted against it. Just 21 far-right members of the GOP conference were able to effectively force what appears to be an all but inevitable shutdown at midnight on Saturday.

“HARDLINE HOUSE RS take down stopgap funding bill. 21 GOP no votes. 232-198,” reported Punchbowl News’ Jake Sherman just before 2 PM Friday.

NBC News reported that a “band of conservative rebels on Friday revolted and blocked House Republicans’ short-term funding bill to keep the government open, delivering a political blow to Speaker Kevin McCarthy and likely cementing the chances of a painful government shutdown that is less than 48 hours away.”

READ MORE: Will McConnell and Senate Republicans Use Feinstein’s Passing to Grind Biden’s Judicial Confirmations to a Halt?

“Twenty-one rebels, led by Rep. Matt Gaetz, R-Fla., a conservative bomb-thrower and a top Donald Trump ally, voted Friday afternoon to scuttle the 30-day funding bill, known as a continuing resolution or CR, leaving Republicans without a game plan to avert a shutdown. The vote failed,” NBC added. “The embarrassing failure of the GOP measure once again highlights the dilemma for McCarthy as his hard-liners strongly oppose a short-term bill even if it includes conservative priorities. It leaves Congress on a path to a shutdown, with no apparent offramp to avoiding it — or to quickly reopen the government.”

A bipartisan group of at least 75 U.S. Senators has passed two bills this week that would keep the government running. Speaker of the House Kevin McCarthy has refused to allow it to come to the floor for a vote.




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