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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South Dakota Republican Governor Kristi Noem‘s bragging about dragging her 14-month old puppy into a gravel pit and shooting her to death because she “hated” the dog is likely the end of her political career, right-wing pundits are now saying.
On Friday when The Guardian broke the news in a preview of Noem’s upcoming book, outrage on the left was immediate, but outrage on the right trickled in, then increased. Even with Noem doubling down, declaring her killing of the puppy (and a goat that same day, same way) happened 20 years ago, people on the right are expressing anger.
A Democratic pollster says 81% of Americans oppose Noem killing her puppy, The Guardian later reported.
“After learning about Gov. Noem’s actions, only 14% consider her to be a good choice for vice president on the Republican ticket. By a 2:1 margin, even Republicans say the governor would not be a good choice (42% vs. 21%),” the pollster, New River Strategies, stated.
READ MORE: Hunter Biden Plans Lawsuit Against Fox News Amid ‘Conspiracy of Disinformation’
Noem’s book, “No Going Back,” to be released May 7, has a number one ranking at Amazon. Publisher Center Street, a Hachette Book Group imprint, also publishes other right-wing politicians including Ben Carson, Newt Gingrich, and Vivek Ramaswamy. Endorsing the book are other right-wingers, including Donald Trump, Fox News’ Rachel Campos-Duffy, athlete and anti-trans activist Riley Gaines, and anti-LGBTQ extremist group creator Chaya Raichik of Libs of TikTok.
On Monday, as Mediaite reported, two Fox News pundits had had it.
Jason Chaffetz, a former GOP Congressman, said, “she just destroyed her political career. I don’t think there’s anybody on any side of the aisle, any human being that thinks it’s acceptable to go to a gravel pit and shoot a dog in the face and kill it when it’s 14 months old. That’s. I mean, that’s just hideous. So she’s done politically, and I’m a friend of hers. I served with her, but politically, there’s no recovering from this.”
Fox News media analyst Joe Concha said, “as a dog owner my whole life,” the story of Noem shooting her dog “absolutely makes my blood boil.”
RELATED: Noem Defends Shooting Her 14-Month Old Puppy to Death, Brags She Has Media ‘Gasping’
“How utterly heartless do you have to be to shoot a 14-month-old dog in the face? Because look, if it wasn’t doing its job on the farm, or is attacking chicken or people, okay, you’re a public figure, or at least you have a platform in some way, shape, or form. Even if you’re a private citizen, you very easily could have posted somewhere, ‘I’m putting my dog up for adoption because maybe it’s not working out here on the ranch,’ and I can guarantee you many people would have raised their hand to take that dog in,” Concha said, adding, “she just destroyed any chance she had of being Donald Trump’s vice president, if she had any chance at all. There’s no going back from this.”
Right wing talk show host Megyn Kelly said Trump is “too smart” to “pick somebody who’s managed to do the impossible and unite Democrats and Republicans alike in their anger for this woman who shot her puppy in the face.”
At the right wing National Review, Jeffrey Blehar writes: “Let’s Get a Warrant for Kristi Noem’s Backyard.”
“I guess I just don’t like people who boast about shooting puppies,” Blehar adds on social media. “And goats. And horses. And who knows what else, until cops have done an aerial scan of the property and gotten a backhoe out to excavate the suspicious piles of dirt.”
A far-right pro-Trump streaming media outlet has retracted what it now states was a “false” story alleging former Trump personal attorney Michael Cohen and adult film star Stormy Daniels had a sexual relationship for years and engaged in an “extortion” conspiracy plot against the ex-president.
The statement and apology from One America News Network (OAN) comes just one day before the New York criminal trial of Donald Trump is set to begin its third week. Cohen is one of Manhattan District Attorney Alvin Bragg’s top witnesses in the case. Defense attorneys are expected to try to attack Cohen’s credibility.
“OAN today has retracted its March 27 article entitled ‘Whistleblower: Avenatti Alleged Cohen Daniels Affair Since 2006, Pre-2016 Trump Extortion Plan,’ and is taking it down from all sites and removing it from all social media. This retraction is part of a settlement reached with Michael Cohen. Mr. Avenatti has denied making the allegations. OAN apologizes to Mr. Cohen for any harm the publication may have caused him,” a statement on OAN’s website reads.
It then states in all-caps: “NO PERSON SHOULD RELY ON THE MARCH 27 ARTICLE OR THE ALLEGATIONS CONTAINED THEREIN.”
READ MORE: Hunter Biden Plans Lawsuit Against Fox News Amid ‘Conspiracy of Disinformation’
“The article, quoting a source, falsely claimed that Mr. Cohen and Ms. Daniels ‘were having an affair since 2006’ and that, according to a source, ‘the whole hush money scheme was cooked up by [Mr. Cohen] to extort the Trump Organization before the 2016 election.’ These statements were false. OAN regrets their publication.”
The New York Times reports there are “no monetary damages,” and adds one of Cohen’s attorneys, “Justin Nelson, had represented Dominion Voting Systems in a suit against Fox News that cost that network $787.5 million to settle. Mr. Nelson worked with Mr. Cohen’s longtime lawyer, Danya Perry, in what was a remarkably quick about-face by OAN.”
Danya Perry, also one of Cohen’s attorneys in this case, declared the settlement was “a total vindication for Mr. Cohen — and a warning: Mr. Cohen is telling the truth, and there will be legal consequences for those who lie about him.”
“Mr. Trump has repeatedly attacked Mr. Cohen,” The Times adds, “despite a gag order issued by the judge overseeing the case, Juan M. Merchan, barring him from attacking witnesses and others. Justice Merchan is currently weighing whether Mr. Trump is in contempt of the gag order as a result of that invective.”
READ MORE: Noem Doubles Down With ‘Legal Cover’ For Shooting Her Puppy to Death
“In particular, Mr. Trump has attacked Mr. Cohen’s credibility, which will also be how Mr. Trump’s lawyers approach his former fixer during trial. The story by OAN, which has been a consistent booster of Mr. Trump’s political agenda, bolstered that strategy.”
Cohen called it, “The first apology in a long line of lies about me by media outlets.”
Professor of law, MSNBC legal analyst, and former FBI General Counsel Andrew Weissmann called the settlement a “big win” for the attorneys and Cohen.
Attorneys for Hunter Biden have notified Fox News he plans to sue the right-wing cable TV network and its digital entities, after lawyers for the President’s son spent more than a year investigating. Among other issues the letter reportedly mentions Fox News citing a now-indicted former FBI informant, and points to “revenge porn” laws.
The letter, NBC News reports, is dated last week and specifically points to alleged bribery allegations as well as “Fox’s airing of ‘intimate images’ belonging to Hunter Biden that his lawyers claim were ‘hacked, stolen, and/or manipulated’,” that they say violate “Biden’s civil rights as well as copyright law.”
CNN, focusing in the intimate images, reports that “Hunter Biden is demanding that Fox News remove from its platforms sexually explicit images that President Joe Biden’s son says are private, according to a letter obtained by CNN, as part of his strategy to publicly fight back against conservative media.”
“The media outlet aired a mock trial of Hunter Biden on the streaming platform Fox Nation in 2022,” CNN also reports, “focused on the unproven bribery allegations, and published ‘intimate images of Mr. Biden depicting him in the nude as well as engaged in sex acts,’ according to the letter, which demands that Fox immediately remove the series from all streaming platforms.”
READ MORE: Noem Doubles Down With ‘Legal Cover’ For Shooting Her Puppy to Death
“’FOX knows that these private and confidential images were hacked, stolen, and/or manipulated digital material,’ Hunter Biden’s attorneys wrote in the letter, which contained several of the explicit images, some of which were blurred,” CNN adds. “Publishing these images, the attorneys said, violated ‘the majority of states’ laws against the nonconsensual disclosure of sexually explicit images and videos, sometimes referred to as ‘revenge porn’ laws.’ ”
In a statement Hunter Biden’s attorney, Mark Geragos, expanded on the apparently pending lawsuit.
“For the last five years, Fox News has relentlessly attacked Hunter Biden and made him a caricature in order to boost ratings and for its financial gain,” Geragos stated. “The recent indictment of FBI informant Smirnov has exposed the conspiracy of disinformation that has been fueled by Fox, enabled by their paid agents and monetized by the Fox enterprise. We plan on holding them accountable.”
Media Matters last week reported, “Fox News has mentioned Hunter Biden at least 13,440 times since January 3, 2023, when Republicans took control of the House of Representatives after promising to use their power to investigate the business interests of President Joe Biden’s son, according to a Media Matters review.”
“Fox’s on-air coverage of Hunter Biden has … plummeted in recent months,” Media Matters added. “Mentions of the president’s son on the network peaked at 2,356 in July, when his federal plea deal on two misdemeanor counts of failing to pay taxes fell apart, and mentions exceeded 1,300 in four other months, most recently in December.”
READ MORE: Peter Navarro’s Latest Attempt to Get Out of Jail Smacked Down by SCOTUS
Mentions of Hunter Biden on Fox News, by month
December: 1,307
January: 786
February: 512
March: 347
April: 60 thus far. https://t.co/pC87CQdz8G pic.twitter.com/CUW0qn4gQx— Matthew Gertz (@MattGertz) April 25, 2024
Watch CNN’s report below or at this link.
First on CNN: Hunter Biden’s attorneys are telling Fox News to stop claiming Hunter Biden and his father took bribes from Alexander Smirnov. His attorneys also accuse Fox of violating revenge porn laws. @evanperez joined me on @InsidePolitics to discuss the new legal strategy. pic.twitter.com/sN0Qeb6QOs
— Dana Bash (@DanaBashCNN) April 29, 2024
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