Quick Ruling for Gay Marriage in California Expected Despite Today's Prop 8 Ruling

By Matt Coker Thu., Nov. 17 2011 at 11:44 AM

Categories: Court, Gay Marriage

Pin It

The California Supreme Court ruled today that gay marriage foes can fight the reversal of Prop 8.

Because the offices of the governor and state attorney general refuse to defend the same-sex marriage ban, legal scholars such as UC Irvine School of Law Dean Erwin Chemerinsky had opined that Prop 8 proponents have no legal standing to appeal a federal court ruling against the voter initiative.

The state's high court said its decision had nothing to do with the constitutionality of gay marriage but rather the idea of challenging voter initiatives.

Although the federal appeals court that currently has the case is not bound by a state supreme court ruling, some legal experts believe it will likely remove the legal standing debate from the equation, clearing the way for an eventual U.S. Supreme Court handling of the constitutionality question.

Do not count Jon Davidson, Lambda Legal's legal director, among those experts.

"Today's ruling does not settle the question as to whether Prop 8 proponents have standing in federal court," he says via the gay rights organization's website. "It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don't. We think the U.S. Supreme Court has made clear that they don't."

Sponsors of the ballot measure rejoiced today's decision.

"This ruling is a huge disaster for the homosexual marriage extremists," Andy Pugno, an attorney for ProtectMarriage, tells the Los Angeles Times. "The court totally rejected their demands that their lawsuit to invalidate Proposition 8 should win by default with no defense. Their entire strategy relied on ... keeping the voters completely unrepresented. Today that all crumbled before their eyes."

In any event, Davidson believes Prop 8 foes will ultimately prevail.

"While a disappointing ruling, this case is now back in federal court, where we expect a quick victory," Davidson says. "The ruling addresses only a procedural legal question. The key question underlying this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state's high court has held to be a fundamental right. A federal court has already ruled that it may not. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry."

Like this Story?

Sign up for the Weekly Newsletter: Our weekly feature stories, movie reviews, calendar picks and more - minus the newsprint and sent directly to your inbox.

Write Comment

Email to Friend

Print Article

Related Content

I appreciate you reiterating that point: church and state are supposed to be separate entities, and being that most objections to gay marriage are based in religious dogma...why is religious prejudice allowed to pass and enforce SECULAR laws forbidding a certain group of people to marry? Why should religion be allowed, in any capacity, to determine the legality of two adults who are entering into a CIVIL (secular) contract anyway?
Awesome synopsis! Thank you! :-)
I really did add spacing and that was broken into multiple paragraphs before I hit the post button.
That's cool, I'm often called upon to mold a new hire into a good associate... I think you know what I'm getting at... In direct response to Vince's relying on the quote from the UCI law professor. He teaches law.... The supreme court practices law. If he was really that good shouldn't he be a judge by now or the partner in a Huge Law Firm? A little background on the good professor. Chemerinsky is pro-gun control and disagreed with the decision in District of Columbia v. Heller, saying that even if an individual right to bear arms exists, the District of Columbia was justified in restricting that right because they believed that the law would lessen violence. George Will specifically mentioned and responded to Chemerinsky's argument in a column that ran four days later. Chemerinsky believes that Roe v. Wade was correctly decided. He says, "Judicial activism is the label for the decision that people don't like. He also believes that gay marriage should be legal.Chemerinsky also represents a client held at the Guantanamo Bay detention center. He is in favor of affirmative action.Pretty much your liberal poster boy....He also argued 4 cases in front of the U.S. Supreme court. He came in at a respectable 3 losses one dismissal. (Please note the sarcasm)I guess he can put this on his resume... Helped draft the Belarus constitution. and In 1995, Chemerinsky was a commentator on the O.J. Simpson trial on KCBS-TV, KNX, and CBS News.Chemerinsky is married to Catherine Fisk, who is a law professor at UC Irvine. Huh... Hired his wife to probably get paid handsomely at the expense of the taxpayers. Caonflict of interest or Nepotism? You decide.
What??!??!!!? What was good enough for our non-educated goat herding antecedents isn't good enough for us? I, for one, plan to get divorced if gay marriage is emplaced, seeing as how the act is "in defense of marriage". I would expect all right-thinking (double entendre intended) white Americans to be right there with me. Before the middle ages, marriage in the the modern sense didn't exist. The union ceremony performed by reps of the church was the exception until well after Christ. Marriabe before then was largeley a civil contract between the families, or sometimes, the individuals. Relegating mariages to strictly the religious context means that all provisions regarding marriage would need to be expunged from the legal code. One or the other folks (not you Sammi), take a pick. Separation of church and state explicitly protects OUR religious freedom.
You know, I have a bunch of things to point out. First, it's true that Jerry Brown and Kamala Harris refused to defend Prop 8. It's also worth nothing that in the very midst of their public opposition to Prop 8's enforcement, the voters of California chose to give Mr. Brown a promotion, and hired Ms Harris as their new Attorney General. And I bemoan this daily....
"Those that can do ...", partially becuse they can't get adequate compensation for their expertise in the education mill. I'm the lead trainer (hence, "teacher") in our organization and I pull my weight on our projects in addition to training new folks that come in. Actually there are plenty of folks that can do that teach, for the love of the profession given the dismal financial reward. However, the dearth of science and math teachers is direct result of schools not being able to compete for their talents.
You know, I have a bunch of things to point out. First, it's true that Jerry Brown and Kamala Harris refused to defend Prop 8. It's also worth nothing that in the very midst of their public opposition to Prop 8's enforcement, the voters of California chose to give Mr. Brown a promotion, and hired Ms Harris as their new Attorney General. Moving on to the stupid argument that we ought to retain marriage in all of its 2000 year-old glory, let me remind everyone of what that so-called glory entails. For those of you Bible thumpers among us, I'll quote chapter and verse so you can follow along: Wives are subordinate to their husbands, marriages are pre-arranged and have nothing to do with love, and any bride who could not prove her virginity was stoned to death. (Genesis 2:24) Any widow who had not yet given birth to a son at the time of her husband's death was required to marry her husband's oldest surviving brother, and to submit to him sexually. (Genesis 38:6-10) A virgin who was raped was required to marry her rapist, who would pay the father of the bride 50 shekels for the loss of property (yes, the daughter was considered property). (Deuteronomy 22:28-29) This of course ignores all of the polygamy originally associated with marriage (yeah, all that one man, one woman stuff is a pack of lies), not to mention concubines, forced marriages of conquered peoples, etc. all countenanced under the 2,000 year old definition. Here's the bottom line: of all of the threats to marriage, and people out there want to pick on gay people? Britney Spears had a marriage that lasted a little over a day. Her second marriage didn't go so well either. Need I remind you all of Kim Kardashian? I keep hearing the "we're totally against that" line. Really? Then where are the constitutional amendments against that? How about a constitutional amendment banning or heavily restricting divorce? Put your money where your mouths are. When you, I might believe that you actually care about preserving marriage. Until then, I'm going to call it as I see it, namely that these initiatives are pushed to drive certain people to the polls, and are a form of institutionalized gay bashing.
Aw shucks, Mitch. I'll take your compliment. :-) And I do appreciate the opportunity to engage in civil discourse with someone I don't see eye-to-eye with... So...I guess this means I won't be seeing you at Midnight Insanity? Somehow I have gotten the impression that The Rocky Horror Picture Show isn't up your alley...har har :-D
Well, they do have all that stuff they advertise on TV -- "this is the age of getting things done!"
You seem pretty intelligent, if wrong on a lot of things : ). Have some kids, we need people like you reproducing.
Well Vinny, that reminds me of an old saying... Those that can... Do! Those that cant... Teach! I'll stick with the supreme courts ruling that it can be challenged. The main problem is that people cant divorce their ideology from the core issue. They said as much in their ruling. "The state's high court said its decision had nothing to do with the constitutionality of gay marriage but rather the idea of challenging voter initiatives." The voters voted and the measure won... The Governor and Attorney General are required to defend the laws of the state. If they don't like it I welcome them to get an opposing measure on the next ballot. The picking and choosing of which laws they are going to uphold is oligarchic. I promise you if we allow it to happen on this issue, which yes is a hot button issue it will happen again. This is NOT what this nation was based on. This simple act reverts us back 236+ years where there is taxation with no representation. And we might as well all start calling Jerry Brown, King Moonbeam.
Chemerinsky is right (and by the way a Law Review icon). Most certainly with procedural matters, federal courts do no need to follow state court standing principles because of overall conflict of law. Doing so might require all states that need to participate in the suit to find the same and would be a litigation hurdle that cannot be easily completed. The federal courts will likely not allow third parties to append based on state procedure especially when other states might have a stake in this federal court case. One of the most important concepts of procedure is just expedition and economy of litigation -- this will be more important than allowing third party standing.
I think you’re wrong (and unfair) blaming the AIDS epidemic solely on gay people. I would like to point out that straight folks have had their own part to play in spreading nasty venereal diseases throughout the world…but I digress. I think we may have to agree to (strongly) disagree on that point. I will honestly admit that condoms don’t feel good on my end, either. But these days wearing one or not wearing one can be the choice between life and death. I’m afraid it’s just the unfortunate reality of the times we live in.
I’m not yet married and seriously considering not ever having children…serious enough to contemplate getting myself “fixed”. I think the planet is over-populated and I also respect children enough to not subject a child to my parenting (even with my best intentions to do the right thing). I doubt I would change my mind about having kids if I ever did marry…so where does that leave me, a virtual poster child for deviating from this “norm(al)” you speak of? I personally think marriage in the "traditional" sense is an archaic institution…but I believe gay people have every right to be joined spiritually and legally if they choose to do so. That’s what it boils down to: choice. Live and let live, as they say.
Spam is pork too.... Holy crap!
OH SHIT.... Thats gonna be a problem since I'm mountain biker I'm double screwed!
No, but the nitrates can cause, uh, performance issues.
For readers who believe this is spam, it's actually directed at this post's gay readers, the only people these days with cash for Zhang8073's crap.
WHOA.... Bacon makes you gay?
Dave, I think if you look at the history, conservatives have been against 'no-fault' divorce and for 'abstinence education'. I am pretty sure if there was a campaign in California to drop the legal age of consent to 16 --the age it is in 31 of 50 states -- that social conservatives here would oppose that just as strongly as they oppose homosexual 'marriage'. Even in my limited circle I know of one married couple that changed their mind and decided to have kids after getting married, and I know of several that had 'accidents' that they were ultimately very happy about. That latter can't happen at all with homosexual marriage. Any sane society will 'privilege' heterosexuality in general and heterosexual marriage in particular. It is probably not an accident that states like Idaho and Utah, socially conservative, have high proportions of under five population while Vermont is simply evaporating demographically.
Which part? Verse 9, where cursing your parents gets you put to death? Verse 10, which prescribes death for adulterers (sorry, Herman Cain)? Verse 18, in which a man who does the mattress mambo with a woman having her menses gets both of them cast out from society? Let's not forget verse 25, which is the original genesis of kashrut—pork is bad, sayeth God. If you're going to quote chapters from the Bible at least have the goodness to follow ALL of them.
So why do we not enforce other ways to echo that tight connection? For example, why don't we ban pre-marital sex or deny children rights until they can prove they were born within wedlock? Why do we allow marriage for those who cannot or do not want to have children? Why are post-menopausal women and sterilised men allowed to marry? Why is divorce legal? I'm certainly not suggesting that any of these should be done, of course, but it's suspicious that only gay marriage is considered the threat and no steps at all are being taken to stop the other anti-"traditional"-definition-of-marriage acts.
"I'm honestly just curious...what exactly is your problem with gay people?" For one thing, my generation to put up with the cult of the condom -- man, those things suck -- until we figured out that the homosexual lobby and the government were lying, that the HIV Aids really was mostly associated with male homosexual activity (and the signature act thereof) or sticking yourself with IVs.
It devalues the whole concept of marriage, like calling sparkling wine from California 'champagne'. Ever hear of diluting the brand? As for your examples, ever hear the phrase 'hard cases make bad law'. In my personal experience the vast majority of marriages are focussed around children; when a couple gets married they immediately start trying to have kids. It is true we allow older people to marry, but at least that preserves the form of a normal family (and I do mean normal -- both in the functional and statistical sense). Further, studies are starting to show that 'marriage' for homosexuals doesn't mean what it means to heterosexuals. The sex researcher Colleen Hoff has shown that in the Bay Area 47% of homosexual couples are in 'open' relationships and in another 8% of the cases one partner thinks they are in an open relationship. Homo-propagandist Dan Savage himself is in an 'open' "marriage". Yes, there are a tiny tiny percentage of heterosexuals in 'open' marriages, but nowhere near the percentages that Hoff's research shows among homosexual 'longterm' couples where it is the *norm*.
Is that in the Betty Crocker cook book or the Better Home book?
Leviticus 20
Gangrape and Spermin Herman! Only problem with this pair is how will they agree to divide up all the Bootylicious?
I'm honestly just curious...what exactly is your problem with gay people? How exactly does gay marriage affect your life, if at all? Seriously. I will say your "marriage for reproduction" argument has a few holes in it...what about straight couples who choose to be childless and yet are still allowed to be legally married? What about people who are too old (or are physically unable) to have kids? Would anyone seriously call those marriages "illegitimate"? Is it also not just a little silly for the anti-gay folks to present the argument that gay marriage "cheapens" the institution when any heterosexual couple can get married on a whim with no questions asked? They have a drive-thru chapel in Vegas for pete's sake...
Wow, homophobe, much? So sorry you are being "forced" to recognize them. Jeez, what a terrible injustice for you. I'm sure that your own traditional marriage must be the perfect blessed union considering your tremendous capacity for empathy and compassion. God bless, ya'
The can 'get married' all they want, what they want is to force the rest of us to ignore 2000 years + of western history, the plain meaning of the institution of marriage, and its tight connection with our reproduction as a species. I couldn't care less if Adam and Steve got to the local Unitarian Universalist church, get 'married' and then butt fuck themselves silly. I do care that I am forced to recognize their homo-union as 'marriage'.
Found this today!! http://dailycaller.com/2011/11/10/tea-party-leader-calls-for-cain-to-drop-out/ If it makes you feel better. Not that I trust the tea party anymore...that labels been sold out, as you know. Now they are jumping on the Newt train!!! I know we have a chance if all RP supporters re-register if necessary and come out and vote. If he doesn't make it, I'm writing his name in!! Will not support any of the other fake ass candidates!! It's RP or none!!
And PS- How does Herman Cain still have supporters? He is ahead of Ron Paul in Iowa. I find it hard to believe that people still want to support this sexual deviant. So gross!
Nice to see there are other logical people out there. People are brainwashed by all these other candidates. Ron Paul is the only candidate who's well versed on the US constitution and the only one attempting to save this nation. All the other are cut from the same cloth, whether Republican or Democrat. Why wouldn't you want a candidate who wants to follow the constitution? All other candidates accept campaign money from lobbyists and corporations. Ron Paul is the only one who does not. He is given money by the people. I hope America wakes up within the next couple of months. It's pretty scary where this country is going...
Ron Paul supporter too!! Ron Paul 2012 if you believe in the constitution!!
14th amendment demands equal rights for all US citizens in the constitution!! So the government should allow gays to marry!! Why do we care if someone loves someone of the same sex and wants to get married to them, we all need to mind our own business...you don't like it, ignore it and move on with your lives. Stop the hate!!
It's unconstitutional for the government to even be involved with marriage, period. They shouldn't have say either way. Government needs to get out of these types of issues. If you're gay and want to get married, it should be left to churches. And if you have enough of a following, you can even open your own church. It's none of our business who gets married and the government needs to stay out of it. The only candidate with this view is Ron Paul. Ron Paul 2012!
I find it amazing that more people arent woried about the position of our elected officials to not uphold the law. It doesnt matter what side you fall on here if it happens once it will happen again... It shows the arrogance of our elected officials. And before someone responds that it is the dastardly republicans that are responsible for this look at the poll results This proposition only real opposition was in Santa Barbara and the Bay Area. Also, Support for Proposition 8 was strong amongst African American voters, interviewed in the exit poll with 70% in favor, more than any other racial group. The high-profile candidacy of Barack Obama is credited with increasing black turnout on the bill which has been seen as the crucial difference in its passing. Since African American voters tend to overwhelmingly vote democratic to the tune of 80-85% of the time, this should be a wakeup call that your elected officials dont care about you and merely pander to you to get votes. Either way it goes its really scary that the Govorner disregards the will of the people.