Tuesday, September 6, 2011

This week's prop 8 trial hearing

Are you tired of this yet? Imagine how I feel.

Last week there was a hearing in federal court about the video tapes from the Prop 8 trial: since everyone knows what is in them, should they be made public?

This week, there is another hearing. Although it is about the Federal Case, it's in the CA State Supreme Court. Over at Daily Kos, jpmasser explains,
[T]he California Supreme Court will hear oral arguments on whether the defendant-intervenors in the case have standing to appeal in the eyes of the California Constitution. (No California official would defend the constitutionality of Proposition 8, so Judge Walker allowed the proponents of the initiative to argue the case, becoming the awkardly typed 'defendant-intervenors').

Got that? So the Prop8 supporters were responsible for defending the constitutionality of Prop8, and were soundly trounced. But now they want to appeal the case. And,since the California officials refuse to appeal, the Proponents want to step in. Problem is, they themselves have suffered no injury from Prop8 or its potential repeal. So our side has said, they have no right to appeal a decision that basically doesn't affect them.

The ins and outs of this are beyond complicated. Basically the Ninth Circuit Court of Appeals, which held oral arguments back in December of 2010 on Perry v. Schwarzenegger, decided that they could not decide whether the defendant-intervenors had standing to appeal in Federal Court unless and until California decided whether they had standing with respect to California law. So they asked the California Supreme Court (CSC) to decide vis a vis California law. Once the CSC rules (and it must, within 90 days of the hearing), the case will go back to the Ninth Circuit.

The Ninth Circuit will then rule on whether the defendant-intervenors have standing with respect to Federal Court, presumably relying heavily on the CSC's opinion. If the Ninth Circuit rules that the defendant-intervenors have standing, they will also rule on the constitutionality of Proposition 8. However it goes, expect the Ninth's decisions to be appealed, and for a final resolution of the matter to take a long time.
So, then what? if the CSC decides no, it could all be over. If they decide yes, the proponents have standing in CA law, the 9th could still find that they don't have standing in federal law. Case over, and marriage is legal in CA. If that happens, expect the proponents to appeal THAT decision up the food chain.

If the 9th finds that they have standing then it can hear the appeal on its merits. Regardless of that outcome, it will get appealed up to the full 9ths (en banc) and then the SCOTUS.

Regardless of how it comes down, it is very unlikely that any decision from any court will apply to same sex marriage outside of CA. (Well, maybe the 9th, but they are frequently reversed.) Remember, things here are unique: we had marriage, and then we didn't--unlike states where there never was a right. Therefore, Prop8 uniquely punished LGBT people by taking a right away from us. There's a lot of push to keep this as narrow as possible for political and legal reasons.

More from the LA Times.

Update:  The court will release its decision within 90 days.  From all reports, the judges appeared to give great weight to the idea that the governor and Attorney General should not be allowed to "nullify" a vote of the people.  If they decide that Prop8 proponents have standing in state law, it is still possible that the 9th circuit will deny them standing in federal law, which has a higher bar (they would actually have to show some evidence that they are hurt by the decision).

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