Live-blogging: Today’s CA Supreme Court hearing on standing in the Prop 8 (Perry) case

September 6, 2011

Updates will scroll from the top

By Adam Bink

12:04: Press conference is over with no other highlights. That concludes today’s coverage. This thread will no longer update. What did you think of today’s proceedings?

11:48: Olson: If we win on standing, we win on Prop 8. We’re sure the US Supreme Court will agree with us.

11:38: From the AFER press conference: Olson says in response to reporter, good justices ask hard questions. Said he was happy those questions were asked. Feels encouraged. He says our side wins either way, on the merits or on standing.

11:13: As I wrote below, it takes time and resources to cover these hearings and the trial in general, and work to end Prop 8. If you appreciate the coverage we do here, please consider becoming a Sustaining Member of the Courage Campaign. If you can’t do a monthly donation but would like to keep the coverage going here on Prop8TrialTracker, you can make a one-time tax-deductible donation. Everything helps. Thanks for supporting us!

11:11: Ana will be headed down for the post-hearing press conference from AFER. More from the press conference soon.

11:08: Court stands in recess. That’s it, folks. What did you think of the arguments and exchanges?

11:07: Justice Liu: It seems you’re merging particularized interest and state interest. Why? What is your particularized interest? Cooper: Our interest is to protect and defend our fundamental right to propose initiatives. We have to defend that. Justice: Doesn’t that right arise before the initiative is qualified? Cooper: This court has never recognized any distinction between before and after enactment. That wouldn’t make any sense. What the proponents have a right to do is propose valid constitutional amendments. It is inescapable that they then have the right to defend that measure, before OR after enactment. Justice: Your argument is that, your client got this started, argued for it publicly, and those facts survive before AND after? Cooper: Yes.

11:00: Cooper is back up. Justice: If we agreed with you… what would happen if the AG makes an appearance and says, ‘i represent the interests of the state.’ What would happen? Can there be two entities at one time? Cooper: There would be two, yes. Justice: Which gets authority? How could authority be divided?

10:59: Olson’s time has expired.

10:56: Justice Liu: Haven’t Mr. Cooper’s clients put in a substantial amount of money, time, effort? They’re the ones who control the arguments in favor of Prop 8. Isn’t it just common sense that they are the ones most clearly invested in the success of the proposition? Olson: They sure spent a great deal of time and money, and exercised their power to “propose and enact.” What they’re asking for is the power to represent themselves because of a particularized interest, which they don’t have. My understanding of CA law and case law is that the legislature doesn’t have the power to defend legislation in court unless it specifically deals with the legislative power itself. There is no case, and Cooper agrees there is no case, in which the legislature has the power the proponents are claiming here. I think the initiative power is important, but the constitution of CA fundamentally limits the power of the initiative and initiative proponents to exercise their right to propose and defend, that’s it.

10:53: Justice: In the Karcher case, if a legislator has standing to pursue appeal, why shouldn’t the people get that power? Olson: There are specific statutes in NJ that gave legislators the power to do that. In CA, proponents are not elected to anything and don’t get that power. Proponents took no oath to represent the people. If the CA Supreme Court decided that the initiative statutes convey the same power as they do in NJ, and there is a specific authorization for legislators in NJ to have standing, then that’s a different story. But we don’t have those statutes or authorization in CA.

10:49: Justice: If we were to agree with you that the state AG refuses to defend a particular initiative then it’s simply too bad for the people if they don’t get a vigorous defense… who is there to defend a citizen’s measure? Olson: The AG has the authority to decide that. Justice: It’s not for the executive to determine questions of constitutionality… it is in their discretion to decide whether to represent, but you’re saying they essentially get a “pocket veto.” Olson: The people do not get a power to represent the state. Nothing in law that says that power exists. Otherwise, random members of the legislature would get to sail in and represent the state when they decide the AG isn’t doing a good enough job or having “sufficient vigor” as Cooper argues.

10:44: Justice: Were this court to state in an opinion that under CA law, we traditionally have allowed liberal intervention… and we sent that over to the 9th Circuit… because that IS the present state of CA law. We’re being asked to extend that to talk about federal court, but the present state of CA law is liberal intervention. Wouldn’t it then be up to the 9th Circuit to then decide whether that confers standing on proponents under Article III in federal court? Olson: Yes. Justice: Then they can discuss under federal law whether that’s sufficient under the circumstances to have standing under federal law? Olson: Yes. Justice: You seem to agree that it is better to have both sides represented, to give both sides the benefit of legal argument? Olson: Yes, I agree with that. Justice: Agreeing with you would not promote principles of fundamental fairness when the people have exercised their great power of initiative, then don’t have anyone to defend the measure. To agree with that argument would nullify the power of the people to propose initiatives? Olson: You’re not being asked to decide that, though. Only 2 questions here: Particularized interest? Does the initiative power convey along with it the power to represent the state? Do people essentially get executive power to represent the state? I submit the answer is no. No case law saying that’s so. No constitutional provision, no statutory provision.

10:42: Chief Justice: What happens to state interest when government officials decline to enforce? Interest of the state vanishes? We’re talking about all initiatives here, not just Prop 8. Olson: No, it does not vanish. Prop 8 and all other propositions remain in effect, remain the law, are enforced through writs of mandate. AG is enforcing Prop 8. Justice: If the gov or AG aren’t defending, you’re saying no one can defend it? Olson: People don’t have that power under the constitution.

10:37: Justice: With respect to “power of the people” here in CA, if we were to agree with your argument, it would appear to me that to agree with you would be to nullify the great power of the people that they’ve reserved to themselves with respect to proposing/adopting state const amendments. Olson: Power to “propose and enact”, which is the term the constitution uses, has NOT been nullified. Prop 8 is being enforced — clear example of that “power” you cite. Justice: Has the AG filed any briefs in this case? Olson: Yes, it’s persuasive with respect to the authority of the executive branch to check the legislative. Cooper says that proponents could step in to represent the state whenever the AG did not enforce with “sufficient vigor”. What does that mean? “Sufficient vigor?”

10:32: Olson: Found no case in which proponents have the power that the proponents here are claiming to have. Justice Liu: Historically, the initiative power is a check? Olson: Yes. Justice Liu: It seems to me the 9th Circuit has set up a hoop in which the initiative proponents have to jump thru to appeal. My question is, given how protective in our own cases in California, and given that proponents clearly would have standing to appeal were in state court, why shouldn’t we read the CA Constitution to offer the proponents what they need to jump thru that hoop? Olson: You would be amending the constitution if you did that. Prop 27 in the year 2000, the proponents of that initiative put that in their initiative that they would have standing to defend that initiative. You’d have to do that. Proponents didn’t do that in Prop 8.

10:28: Justice: Does the AG have the authority to 2nd-guess the people when the people have voted? Olson: Yes, the AG has that authority. Justice: So the AG gets to pick and choose the laws he/she wants to enforce? Olson: Initiative power is for proposing and enacting, not for defending. The separation of powers under CA Constitution gives the exec branch the authority to make discretionary decisions with respect to enforcement of the law.

10:27: Ted Olson, representing the plaintiffs, is up. Olson: There is nothing in case law that gives proponents the right to represent the state when the state’s officers drops out.

10:26: Cooper’s time has expired.

10:24: Cooper replies that the Karcher case involves a state law, if not a ballot initiative, and so it has merit to his argument. Justice: Would it suffice to write an opinion saying under CA law we have generous liberal intervention policies so that it doesn’t matter if the gov or AG defends the state, proponents get to defend the initiative. Would that suffice for you? Cooper: Acknowledges that the party must have a direct interest. Justice: Are you making the argument that there is an unconditional right for proponents to intervene under state law? Cooper: Yes. Also, every time an intervenor steps forward and seeks to intervene in a case, the intervenor must demonstrate an immediate and direct interest in the issue. Chief Justice: We have shown that the CA Supreme Court and Court of Appeals have liberally allowed intervention. We’ve held that it should always be discretionary. In this situation, the government officials have dropped out of the equation. So what we have is whether proponents can represent the state by themselves. Is it your argument that when official proponents are alone in the defense, and gov’t officials drop out, that it is NO LONGER discretionary and that IS an unconditional right? Cooper: Yes.

10:22: More on Karcher case can be found here.

10:21: Justice: Our ruling would apply to any other instance when proponents are asserting appeal when the state refuses to defend the instance. “With respect to the particularized interest how would you be able to satisfy the particularized interest because it would appear that you would have to allege a particular injury. Wouldn’t you have an uphill battle?” (making the point that his client wouldn’t be “injured” if same-sex couples were allowed to wed) “Where is the actual injury?” she presses him.

Cooper struggles to explain where the “particularized injury” is. Justice says if you have no case to make on “injury” we would have to look at the Karcher case. Karcher did not involve an initiative as this case does. Justice asks, why would your argument around the Karcher case be on point? And what about the Arizona case (before the SCOTUS in which Justice Ginsburg ruled that Arizonans for Official English did not have the standing to represent the state).

10:14: Justice Liu asks “are Proponents representing state only for purposes of appeal, or is it broader than that?” Cooper replies, “proponents are representatives of themselves and their own interests.” Liu notes that all the cases that came before that Cooper noted never had to decide this issue. This issue has never come up definitely before the court. If the court were to agree with Cooper, it would be agreeing to a specific rule in a specific context. He’s trying to ask whether Cooper is going larger, in effect, on proponents and ballot initiatives in the state (e.g. what Rick discussed this morning around Amazon.com or other proponents putting initiatives on the ballot) or just the Perry case. Cooper agrees that this would be limited to the specific context.

10:10: Justice: the logic of the NJ case makes sense because they were representatives of hte legislature and when they’re not, someone else has to step into their shoes. That’s not the case here, no? Cooper replies that in the NJ case, the representatives represented the state. When they were removed after an election, someone else stands in. Basically, he makes the case that in this case (Prop 8), when the governor and attorney general are in effect removed, the proponents of the ballot initiative have to step in.

10:07: Cooper is asked whether a particularized interest or state interest is stronger, or equal. Cooper says they are equal. Justice says, wait, we’ve never, as a court, seen this issue before? Cooper says, the court has. The justice replies it’s been discretionary as far as the case law. Cooper says the court has held that proponents have had a direct interest with respect to intervening in proceedings in which a proponent’s initiatives have been challenged. Justice asks how his position is squared with Karcher case (a New Jersey case) when the Assembly Speaker and President of the Senate were removed and therefore no longer had a state interest to protect? Cooper replies in that case, the state’s interest didn’t go away, it was just transferred to a different set of hands. In this case, the official proponents are standing as agents of the people to represent their interest in the validity of initiative measures.

10:05: He is interrupted about a minute in by one of the justice, who asks “would you agree that whether or not your side has standing depends onwhether the representatives on your side have authority to represent the state’s interests in defending the law’s validity, or whether you representing the proponent of the initiative have a particularized interest that may be affected by a decision invalidating the law? Are you relying on both, or mostly on one of them, or what?” Cooper replies that he’s relying on both propositions. He’s asked if one of those two interests may be stronger than the other. Replies that the court’s interests and statements make much clearer that the official proponents do have a direct interest either as intervenor or as real parties at interest in both cases challenging the initiatives that they have proposed.

10:03: Charles Cooper who represents the defender-intervenors in the case (ProtectMarriage.com et al) is up first to make arguments for why his client should have the ability to represent the entire state of California.

10 AM: The court just gaveled into session.

9:45 AM PST: Beginning in about 15 minutes at 10 AM PST, the California Supreme Court will convene a hearing to decide whether the proponents of a ballot initiative — in this case, Proposition 8 — have standing to defend the initiative in court when the governor of California and the attorney general decline to do so. This thread will house all the coverage of the hearing itself. For more on what is at stake in today’s hearing, check out this thread and explanation here.

As Courage’s Rick Jacobs wrote in an op-ed this morning, the ruling, which is required to come within 90 days from today, could have broad implications on the political process. After that, the ball will be kicked back over to the 9th Circuit Court of Appeals for a ruling on (a) whether proponents have standing to defend Prop 8 in court at all, and possibly (b) merits, e.g. constitutionality, of Proposition 8 itself.

Rick and Courage’s Ana Beatriz Cholo are sending in dispatches from the courtroom while I’m watching on CalChannel and blogging updates on this thread for those of you not able to watch the live feed. If you’re not able to follow along here, you can follow our Twitter feeds, @couragecampaign and @equalityontrial. If you’re at the hearing or have a note to add that you think would help inform the community on the proceedings, send it in to prop8trial at couragecampaign dot org.

As always, it costs resources to cover these hearings — travel, time, and other needs — so if you like this coverage of these hearings and the trial in general and want it to continue, please consider becoming a Sustaining Member of Courage Campaign by making a small monthly donation starting today. For the cost of a few coffees a month, not only will it keep Prop8TrialTracker.com up and running as the #1 Google search result for the trial, but it will help give us the resources we need to fight Prop 8 and educate the public around why every couple should have the freedom to marry who he or she chooses. You can give here. We can’t do this without you!

Filed under: Prop 8 trial

Today’s California Supreme Court hearing on... How not to spend $40,000 keeping gays from...

11578180 Comments2011-09-06+16%3A49%3A27Adam+Bink Leave a Comment

1. Elizabeth_Oakes | September 6, 2011 at 9:58 am

I am so excited! This is better than Xena, Law & Order, and Lucha Libre combined! Also watching on CalChannel, and surprised that the upbeat jazz fusion "theme song" playing while court convenes.
2. socalliberal | September 6, 2011 at 10:00 am

Lol I know

I'm going to try and live blog this too.
http://www.dailykos.com/story/2011/09/06/1013913/…
3. Ronnie | September 6, 2011 at 10:00 am

Please rise………… ; ) …Ronnie
4. Ronnie | September 6, 2011 at 10:03 am

Look ….its the "Your Honor I don't know, I don't know" guy……. ROFL….. XP…Ronnie
5. MichGuy | September 6, 2011 at 10:06 am

Did we crach the http://www.calchannel.com/ web server because the weblink does not work now ! it worked a few min ago tho
6. bJason | September 6, 2011 at 10:06 am

I can't get in at the moment, either!

GGRRR!
7. Elizabeth_Oakes | September 6, 2011 at 10:07 am

He seems a little nervous and they're peppering him with questions. He's also following rather than leading. Whoo boy.
8. atty79 | September 6, 2011 at 10:07 am

Dang server must've crashed.
9. Ed South Bend | September 6, 2011 at 10:09 am

I think we did crash it. I can't view it at all
10. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 10:13 am

Great, CalChannel is totally down. I was so looking forward to watching it!
Does anyone know another place where we can watch it online?
11. Elizabeth_Oakes | September 6, 2011 at 10:14 am

Bummer–I'm watching it,maybe there's a max number of connections. Unlike the NY Senate website, there's not a counter showing how many people are watching the webstream.

Is there a mirror site or broadcast on another news channel, Adam?
12. Adam Bink | September 6, 2011 at 10:15 am

will keep an eye out for one
13. Ed South Bend | September 6, 2011 at 10:15 am

YAY!! it's back up!!
14. Steven | September 6, 2011 at 10:17 am

dammm it!!!!!
15. Tim in LA | September 6, 2011 at 10:19 am

Go to http://abclocal.go.com/kgo/livenow?id=8343507 (KGO TV). Not as clear but you can see/hear it.
16. DaveP | September 6, 2011 at 10:19 am

Bah! When I try to launch it I still get a status bar eternally stuck at 50% : (
17. socalliberal | September 6, 2011 at 10:19 am

Mine isn't working still. Very Frustrating.
18. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 10:23 am

Yay! I got the feed!
19. Dana_Jeanne | September 6, 2011 at 10:23 am

Watching this now—- who is the man with the red tie with white polka dots? Is that The Other Side?
20. Tim in LA | September 6, 2011 at 10:24 am

Cooper is up now (lawyer for the bigot side).
21. Dana_Jeanne | September 6, 2011 at 10:25 am

Ah– the dude with the red tie and white polka dots!
22. Dana_Jeanne | September 6, 2011 at 10:27 am

Guy in the maroon tie up now— is he ours?
23. bJason | September 6, 2011 at 10:28 am

Awesome!!! Thanks, Tim!!!
24. Tim in LA | September 6, 2011 at 10:33 am

Now it's Ted Olsen (our guy, Bush 41's lawyer in 2000).
25. Elizabeth_Oakes | September 6, 2011 at 10:34 am

I'm so glad Ted can think on his feet. Unlike Cooper.
26. Dana_Jeanne | September 6, 2011 at 10:35 am

CNN had a quick little blurb on the trial just now.
27. DaveP | September 6, 2011 at 10:40 am

Odd questions right now about 'qhat happens to the will of the people?" sometimes the will of the people is to try to enact an unconstitutional law. And once it is made clear that is it unconstitutional by a court ruling, it means that their will was wrong and the court tells the people "no, you can't do that".
28. Elizabeth_Oakes | September 6, 2011 at 10:45 am

I don't understand why they aren't arguing that the buck stops with state officials and that, though not granting standing might leave challenged initiatives undefended by proponents every once in a while, giving initiative proponents TWO chances to force their law through–through election or the courts–also isn't fair and not in state interest?
29. socalliberal | September 6, 2011 at 10:46 am

That's why we have blogs!
30. Dana_Jeanne | September 6, 2011 at 10:48 am

I can't tell— are the judges totally eating Olson alive?
31. atty79 | September 6, 2011 at 10:51 am

@Elizabeth_Oakes…thanks for bringing up a point that driving me nuts over here. Why doesn't Olson bring up the fact that the people have the right to ELECT the executive branch? If the AG isn't doing his job, a writ of mandate can force her to do something she's supposed to. OR, the AG can be voted out of office or recalled. Those are the rights of the initiative proponents to exercise executive and judicial power–INDIRECTLY, as is necessary in a representative democracy.
32. Tim in LA | September 6, 2011 at 10:53 am

Yeah, because they really don't like the idea that the AG and Gov can "veto" an initiative enacted by the people. They say it's "unfair". But hey, the loser of a case, or the one on the wrong side of the judicial rules, ALWAYS finds the process to be unfair.
33. Elizabeth_Oakes | September 6, 2011 at 10:53 am

They're hammering both sides hard. The ball's all over the court here. It's scary, huh?
34. DaveP | September 6, 2011 at 10:54 am

Nah. It always comes across as antagonistic like this, with lots of interruptions etc.
35. Dee | September 6, 2011 at 10:56 am

The last AG declined to defend, and he went and got elected governor. And then, in the AG election, the two candidates took opposing positions on defending Prop 8, and the one opposed went and got elected AG. Was this not the people of California expressing our views?
36. Dana_Jeanne | September 6, 2011 at 10:57 am

Yeah. It's good that they're so picky and wanting to be fair, but…. still scary with all that's at stake here!
37. Gregory in SLC | September 6, 2011 at 10:57 am

AFER AmericanEqualRights

BTW: While all this is going on, there's an art exhibit in the lobby featuring various families, including LGBT parents. http://ow.ly/i/gRP4
2 minutes ago Favorite Retweet Reply
38. Dana_Jeanne | September 6, 2011 at 11:00 am

So they each get 7 minutes at a time?

And, heh, Cooper-dude: I'm a California member of the "people" and you don't represent me, so go home….
39. Cayten | September 6, 2011 at 11:01 am

Live-blog returns! Yes!
40. Elizabeth_Oakes | September 6, 2011 at 11:03 am

Cooper still hasn't named what their particularized interest IS. Just putting money into an initiative seems to be an OPTIONAL activity, not an interest. Does that then mean whoever puts more money into an initiative has a greater "interest"? The CA initiative process has just gotten so far away from its initial intent. We seriously need to kill/modify it.

Anyway, maybe Cooper and Crowd will think of some sort of "particularized interest" before this gets punted back to the Ninth, because they sure don't seem to have an answer now.
41. Tim in LA | September 6, 2011 at 11:03 am

It's like that maid and the French IMF head (former) who allegedly assaulted her. I doubt very much that she thinks it's fair that the DA exercised his or her discretion not to press charges. Sucks for her, but she doesn't have the constitutional right to force the government to proceed in court.

It's true that they're antagonistic to both sides. They like to play devil's advocate. It forces the lawyers to supply the answers or arguments that the court uses eventually in their decision. But you can tell sometimes which they are leaning based on the tenor and type of questions.
42. Elizabeth_Oakes | September 6, 2011 at 11:07 am

Ah! Lui's going after that! What will Cooper say?? "To protect and defend their fundamental right to propose initiatives to the people"? Isnt' that interest already there???
43. Patrick | September 6, 2011 at 11:08 am

Following the blog and to restate……..the justices are hammering pretty badly. My sense is that they want this to go to the 9th Circuit Court and are trying to create the conditions for standing. Liu especially seems to be using language that is less judicial and more street language e.g. "guess it's just simply too bad for the people if they don't get a vigorous defense." Getting iritated!! Someone tell me I am misreading this.
44. Elizabeth_Oakes | September 6, 2011 at 11:08 am

Whoa, he's saying the right to propose VALID initiatives and defend them? After the Federal court held Prop 8 invalid? Did he really say that??
45. DaveP | September 6, 2011 at 11:09 am

…..and… they're done.
46. Steven | September 6, 2011 at 11:11 am

Chief Justice cut Cooper off without letting him to finish his BS what do you guys think? I think they were harder on Cooper than Olson..
47. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 11:11 am

It was a little bit disturbing for me to see Olson hugging Cooper after the recess was announced. Seriously? Hugging it out?
48. DaveP | September 6, 2011 at 11:11 am

Yup. I see what he was trying to get at, but that sounded like a pretty big blunder to me.
49. socalliberal | September 6, 2011 at 11:13 am

I unfortunately was not able to see too much of the questioning of Cooper. I thought that they were particularly tough on Olson but he stood his ground well and argued his position well. I give him props.

The Justices by and large seemed to indicate their belief that the proponents had standing in the case except for Justice Werdegar.
50. DaveP | September 6, 2011 at 11:13 am

Yup. And the court pottned out that those facts still remain (even after the court rules their proposition unconstitutional. They still had the right to propose it).
51. Kate | September 6, 2011 at 11:14 am

Did Cooper really say that he was arguing for standing ONLY for this proposition and not for the entire initiative process?
52. socalliberal | September 6, 2011 at 11:14 am

That's what I would argue!
53. DaveP | September 6, 2011 at 11:14 am

It's a California thing. We hug everyone for no reason at all. Doesn't mean that we mean it ; )
54. Patrick | September 6, 2011 at 11:16 am

Those of you who were there………what is your take on the demeanor and posture of the justices? How many justices were actually presiding? Is Liu trying to establish credibility with this case to offset allegations of "special interest"?
55. Balu Vellanki | September 6, 2011 at 11:18 am

Based on the arguments I heard today and the questions being posed by Judges on the bench, I believe proponents (Cooper et al) should have standing. I understand that this would delay marriage equality in CA, but it is important to get our equality the right way.
The people who draft a proposition (however vile it may be) and spend money getting it passed should have the right to defend it in the courts. By denying standing in this case, we are giving a pocket book veto to Gov and AG of the great state of CA. Imagine a situation where the Gov and AJ would not defend a ENDA like ballot proposition when it is challenged in court? Do we really want that power of pocket book veto to Gov and AJ?
56. Dee | September 6, 2011 at 11:20 am

I'm a Californian and would sooner a spider lay eggs in my eye than hug him.
57. tom | September 6, 2011 at 11:25 am

It sounded to me like they are going to punt. We are liberal here in California, with our intervention and proponents of initiatives. So 9th circuit court of appeals, dunno what that means in federal court, you all decide.
58. Jamie | September 6, 2011 at 11:25 am

So If I spend 1 billion dollars to get the people to change the constitution to give my company veto rights over any elected official, you are perfectly comfortable that I should be able to stand in court and defend it "for the people"?
59. DaveP | September 6, 2011 at 11:26 am

But it WAS defended at the trial, by the defendant intervenors. And once that trial showed that it was unconstitutional, it is then the DUTY of the AG and Gov to decide if the state should defent it FURTHER by appealing that decision. They did their job and declined to appeal it further. They should not be forced to defend a proposition that has been ruled unconstitutional, and the defendant intervenors do not have standing to appeal because they do not have authority to override the decision of the AG and gov, and they also can't show any harm that would result from allowing the ruling to stand.
60. Dave T | September 6, 2011 at 11:27 am

I agree, in principle, but… As Mr. Olson pointed out, the proponents have no obligation to represent the best interests of the people of California, they have sworn no oath, and they are free to pursue their own selfish interests. In effect, in our system of checks and balances, allowing the proponents to defend weakens an important check on their power. I think that's an important strike against allowing the proponents to defend.

However… there is also a problem with the attorney general's position: Mr. Olson is correct that the AG has the authority to decide which laws to enforce, but we're not talking about a law here, we're talking about the state constitution. What happens if we have a proposition that alters the role of the AG or governor in the state constitution – should they be in a position to effectively veto that change? Of course, there's only a veto in the event that someone challenges the proposition.

This is not an easy question to answer… I suspect that the first argument I mentioned (the check on the proponent's power) will carry the day and the supreme court will find for our side.
61. Paul | September 6, 2011 at 11:29 am

Doubt it. There simply isn't anything in the constitution that says that. The Attorney General has been given the power to represent the state. This conservative court is not going to invent some right for initiative proponents if none exist.
62. DaveP | September 6, 2011 at 11:29 am

Well, you could stick a 'kick me' post-it on his back….
63. Paul | September 6, 2011 at 11:30 am

agreed. A waste of a year.
64. Elizabeth_Oakes | September 6, 2011 at 11:31 am

AND the People can veto the AG and Gov! Why should proponents–who are unelected and DO NOT necessarily represent a majority of voters, especially now that approval levels of marriage equality and AG/Gov have changed–why should they get the final "veto"? I still say allowing proponents standing is "double dipping." I thought the distinction Olson made about standing in the case where PRIVATE PARTIES who were suing each other and had a particularized interest in defense was a good one, and is distinct from the situation here. I hope the Justices latch on to that.
65. Elizabeth_Oakes | September 6, 2011 at 11:33 am

Maybe he was burping him, seeing as his formula didn't go down well.
66. Paul | September 6, 2011 at 11:34 am

On a good note, it looks like the proposed constitutional amendment in Minnesota is being poorly received. The straw poll that the Minnesota House of Representatives did at the state fair found 66.5% opposed to adding language banning gays and lesbians from marriage. http://be4marriage.com/archives/495

I'm guessing that people that attend the state fair are more likely to be conservatives too, wouldn't you think?
67. Bruno | September 6, 2011 at 11:35 am

I think it's more of a "lawyer thing."
68. Balu Vellanki | September 6, 2011 at 11:37 am

Yes. Note, however vile the proposition might be, they will have their day in the court. It is our judicial branch that will protect the rights of elected official (in your example) because the said proposition is unconstitutional.

If there is no faith left in our judicial branch, then we all might as well pack our bags and move to Canada.
69. dwpiper | September 6, 2011 at 11:37 am

I, too, got the sense that that Justice, at least, wants to send a carefully worded, completely accurate non-answer that "California has always liberally allowed intervention" (which the 9th Circuit *already knows*) "…and besides, it's an issue of Federal standing under Article III of the U.S. Constitution…."

Kinda reminds me of a line from "Jesus Christ Superstar": "You're Herod's race / You're Herod's case"; she, if not the Court as a whole, sees a way to wash their hands of it.
70. MFargo | September 6, 2011 at 11:39 am

For me the key question was “what if the AG and the proponents BOTH showed up to defend a prop?” they cannot be equal. And if they were who would sit in first chair? It’s a conflict of “the people’s” interest.
71. Steven | September 6, 2011 at 11:39 am

9th Circuit asked CA Supreme Court under state law do the supporters have a right to standing.. the State law says no if they didn't have support from the state……….
72. Balu Vellanki | September 6, 2011 at 11:40 am

DaveP, thanks for clearing up a few things for me. I see how the proponents can have right to defend the proposition but do not have right to appeal once the Prop is ruled unconstitutional.

However, based on proceedings today, I think the court will grant standing to Cooper et al. Sucks to wait for equality.
73. Dee | September 6, 2011 at 11:40 am

EQCA said it would take stock of the arguments at the California Supreme Court, then decide whether to support a proposition to repeal Prop 8. Now the Supreme Court says it may consider responding with "we give people lots of leeway in California–you figure it out." How many couples forever lost the chance to marry in the time it took for this nonsense to unfold?

Where's the ballot initiative?
74. Balu Vellanki | September 6, 2011 at 11:43 am

Putting too much power in one person's hands always scared me. So if I had to decide on this case based on your two well presented arguments (and counter argument), I would rule for standing (sucks, I know) to avoid pocket veto.
75. Reformed | September 6, 2011 at 11:44 am

Proponents are asking for the right to "represent the state". I would think the "representation of the state" would be best left to someone who was elected or appointed to represent the state. The state has been represented when the elected or appointed official decides that no representation is necessary. I am sure that "Sufficient vigor" in the proponents eyes would never be attained short of the attorney general being a card carrying member of either NOM or the "Family" "research" "council". Checks, balances, due process, these exist for a reason.
76. Gregory in SLC | September 6, 2011 at 11:44 am

guess the glitter helped ; )
http://www.startribune.com/local/129242748.html
77. TrlrPrkAtty | September 6, 2011 at 11:45 am

How does one determine the qualified components of the proponents Mr. Cooper? 1 million signatures. The ones with the largest monetary investment? How many? If those are RC Church and LDS then are they tax exempt? Separation of church and State? Must they disclose individuals as plaintiffs here had to?
78. James Sweet | September 6, 2011 at 11:45 am

Well, I will say one thing, Cooper looks a lot less stupid arguing this point than he has having to argue his client's other points. There's room for reasonable disagreement here on both the interpretation of the state constitution and on what solution makes the most sense.

I'm not entirely sure where I fall on the specific issue… Rick's article the other day is interesting and he makes a compelling argument… it's sort of hard for me to evaluate it because I think California's initiative process is just such a dumb idea to begin with. Allowing a bare majority in a popular vote to change the constitution?! Insanity! Given that completely insane policy, it's hard for me to say what the least insane way of applying it is…

Make no mistake, though, if the D-I's are not granted standing, the anti-marriage folks will crow about not being given a fair hearing in court, and that argument will resonate with large swaths of the public. And, it will scuttle any chance of SCOTUS making a ruling in favor of marriage equality any time in the near future. Winning this case on the standing issue will be great for California families in the short term, but it's not clear whether it would be the optimal outcome for the good guys in the long term.
79. Lymis | September 6, 2011 at 11:46 am

The problem with that is that the initiative process itself was designed to allow the people to pass a law that the legislature refuses to or that the governor vetoes. Since in theory, the point is to allow the people to override the government, their point is that allowing the government to simply go limp and refuse to defend it defeats that purpose – which is effectively true.

But law doesn't work on "what they should have said when they wrote the law" – it works on what the law says, and it doesn't give them the power to do this. If that means that their initiative doesn't have anyone who is allowed to defend it in court, that just means that the initiative process is flawed, not that the courts have an obligation to let them do whatever they want to do.
80. Paul | September 6, 2011 at 11:49 am

EQCA isn't going to ever support a repeal to Proposition 8.
81. DaveP | September 6, 2011 at 11:49 am

Yup, you may be right – they might make the wrong decision ; )
82. Lymis | September 6, 2011 at 11:52 am

The governor has the right to veto any law signed by the legislature, and they are clearly put in place by the people. Why is it so abhorrent that the governor could scuttle an initiative this way?

Remember, this isn't a veto in the literal sense. To get to the place we are now, someone had to sue and the initiative had to be found to be unconstitutional by the court. Then the governor and AG had to essentially agree. So, checks and balances. If there was nothing wrong with the law, Judge Walker would have found it constitutional and the opinion of the AG and the governor would be immaterial.
83. TrlrprkAtty | September 6, 2011 at 11:52 am

How does one determine the qualified components of the proponents Mr. Cooper? 1 million signatures. The ones with the largest monetary investment? How many? If those are RC Church and LDS then are they tax exempt? Separation of church and State? Must they disclose individuals as plaintiffs here had to?
84. Dana_Jeanne | September 6, 2011 at 11:54 am

Why not?
85. Paul | September 6, 2011 at 11:55 am

I think your last paragraph is a little much. I don't see an adverse reaction from a ruling that stated California law doesn't give the proponents of initiatives standing to appeal court decisions if they don't have a particularized injury from said court decision. I think adding California to the "marriage equality" roster would be a greater plus than any negative.
86. TonyDouglass in CA | September 6, 2011 at 11:56 am

Balu, I think what you are hung up on is this "pocket veto" assertion. It's not a pocket veto in this case, it's part of "Checks And Balances" of the government process. California doesn't have a check on initiatives to see if one is constitutional before it's voted on. Giving the judiciary the power to check a law after it's passed is essential to keep the majority from trampling the rights of the minority.
87. Bruno | September 6, 2011 at 11:57 am

It's interesting because there's an implication with this "pocket veto" that 3 politicians–Schwarzenegger (R), Brown (D), and Harris (D)–were all in cahoots to "overrule the people." I don't believe that, it's more obvious that they just felt it was a waste of their time to defend a law they feel is unconstitutional.

Regarding the future of the central case, I'm not so positive I want to see this at SCOTUS anytime soon. While there may be 5 members sympathetic to gay rights, that doesn't mean they'll find Walker's eloquent conclusions persuasive enough to uphold A case can always be brought from a different state. Although no other state holds a true parallel to California on the issue right now, I could see a case a few years down the road that might be similar if Iowa votes to overrule their marriage equality.
88. Paul | September 6, 2011 at 11:58 am

They are already crying about SB48 being an un-winnable campaign.
89. Paul | September 6, 2011 at 12:00 pm

Easy solution. The people can amend the constitution to allow initiative proponents to defend initiatives in court. They haven't.
90. Paul | September 6, 2011 at 12:03 pm

That's not true. Proposition 8 proponents had their "day in court" and lost. Are we entitled to one day in court, or many?
91. Karen Solon | September 6, 2011 at 12:07 pm

THANK YOU! I've never understood why a judge is considered "activist" simply for applying the Constitution (state or federal, whichever applies) to determine whether a piece of legislation passes constitutional muster. That is their JOB! It's one of the main reasons we HAVE that branch of government!
92. MFargo | September 6, 2011 at 12:10 pm

I think the question is: "Do they have a right to represent the State in Federal Court?" That's a different question than "Do they ahve a right to defend the initiative in court.?" This is a rare situation by all counts. And any Attorney General can opt out of defending something that has been thrust upon him outside the usual channels. The State Constitution should be hard to amend. When there is a violation of the Federal Constitution, it makes perfect sense–to me–to let calmer heads make the decision whether to support something or not.
93. MFargo | September 6, 2011 at 12:12 pm

It's back to the pointed question, "What if both the AG and the proponents show up? Are they both equal?" It would be an untenable conflict.
94. Dave T | September 6, 2011 at 12:13 pm

And, in fact, it's not a veto – a veto is a much broader power. In this case, the AG only gets to "veto" if someone challenges the law. If nobody had challenged Prop 8, the AG couldn't have done a darn thing about it.
95. Dee | September 6, 2011 at 12:14 pm

It probably is, but it's not the end of the world. It was great but mostly symbolic, and it's taken all the attention off the real victory, which was AB 9, Seth's Law. AB 9 will actually target school bullying.

But really, what does EQCA do anyway?
96. DaveP | September 6, 2011 at 12:14 pm

"Well, I will say one thing, Cooper looks a lot less stupid arguing this point than he has having to argue his client's other points. There's room for reasonable disagreement here on both the interpretation of the state constitution and on what solution makes the most sense. "

It did feel like this hearing was somehow different from all of the others and you just nailed it – During all the others, it was a surreal mess of illogical soundbites and vague nonsensical claims from the Prop8 proponents. At least this time it involved an issue (standing) that may actually have two sides that can be rationally discussed.
97. Gregory in SLC | September 6, 2011 at 12:14 pm

optimistic leter from AFER

Dear Gregory,

Today, gay and lesbian couples across California moved one important step closer to marriage equality.

The California Supreme Court heard oral arguments this morning in Perry v. Brown – the case to overturn Proposition 8 – regarding whether the anti-marriage proponents of Prop. 8 have “standing” in the case.

Make no mistake about it; Proposition 8 is hanging by a thread. And no matter how the California Supreme Court rules, that thread will soon be permanently severed.

After today’s hearing we will have been before 34 state or federal judges and produced over 1,000 legal filings. The facts of this case and the strength of our arguments are undeniable. We submitted powerful evidence that shows Proposition 8 violates the Constitution, and that there is no basis for this law other than animus.

We won a historic victory in federal District Court and soon that victory will be realized.

Although it’s easy sometimes to get tied up in the legal filings and the technical issues of this lawsuit, this case is about far more than that. This case is about our plaintiffs and their families who have selflessly stood up for all gay and lesbian Californians who wish to marry.

This case is about gay and lesbian young people who are growing up believing that they are second-class citizens, because that’s what Prop. 8 tells them.

This case is about an elderly couple from Palm Springs, who have been together for more than 40 years. One of them was recently diagnosed with Alzheimer's disease. They simply want to get married while he can still remember the occasion.

Whatever the Court decides, the American Foundation for Equal Rights is confident we will soon all stand together in victory; a victory that upholds and affirms every American’s constitutional right to marry the person they love.

Sincerely,

Chad Griffin
Board President
American Foundation for Equal Rights
98. Balu Vellanki | September 6, 2011 at 12:15 pm

Thanks to DaveP, I figured they have right to defend the prop in state court but not appeal once the prop is ruled unconstitutional.
99. Balu Vellanki | September 6, 2011 at 12:19 pm

Agreed that Judiciary should have to the power to check the law. The judiciary does this by listening to arguments on both sides. That is why I think proponents should have standing to defend their proposition.

DaveP and Patrick2 helped me understand that proponents did have the right to defend, but they clearly do not have right to appeal in a federal court. Based on this, I agree Cooper et al does not have standing to appeal to 9th circuit.

Lets see what the judges would say.
100. Seth | September 6, 2011 at 12:19 pm

i dont think thats going to happen in iowa now, its nearly impossible for like prop h8 to happen in iowa , it would be like 2016 before something like that could happen, plus theres a new poll came out in iowa showing for the first time the majority of Iowians support marriage equality 46% to 45%
101. DaveP | September 6, 2011 at 12:22 pm

But nobody vetoed anything. Prop 8 was enacted. It is still in effect. It was then ruled unconstitutional and the stated decided not to appeal it further and that is their job. If the defendant intervenors are allowed to appeal, that doesn't 'give the people the power to override the govornment'. It gives a small group or a single individual the power to replace the elected officals of teh state and speak for ALL of us and try to override the courts determination that prop 8 is unconstitutional.

And yes, the California initiative process id badly flawed, but not because the defendants don't have standing to appeal. The main problem with it is that anyone with a pile of money can get ANYTHING enacted and then we have to drag it through court when it is something that was unconstitutional. There should be a test for constitutionality BEFORE it is enacted.
102. James Sweet | September 6, 2011 at 12:24 pm

I have no doubt whatsoever that there will be "an adverse reaction" of some sort — it fits the anti-marriage crowd's narrative far too well for them to ignore it. I do think it's an open question as to whether that will have a non-trivial effect at the ballot box (one might argue that virtually everyone who is swayed by the "we never got a fair hearing in court!" argument would already be likely to vote against marriage equality anyway, and I don't necessarily disagree with that). There will be an adverse reaction, but I agree with you that it could very well be a trivial one. It's hard to say.

I think adding California to the "marriage equality" roster would be a greater plus than any negative.

And I'm not going to try to make a case against this… there is simply no way I can in good conscience argue that California families should be denied equal treatment under the law for a single day longer. Furthermore, as Bruno points out below, it's far from certain that SCOTUS would rule the right way on this.

But I'm not going to mount the opposite case either… Marriage equality is going to start winning at the ballot boxes in many states, but without a court ruling it will struggle for decades in places like Utah, Texas, etc. If we assume that the good guys would have won at the Supreme Court, winning this on standing instead could accelerate marriage equality for California at the cost of delaying it for years for families in a dozen other states. There's a lot of "ifs" in that scenario, but it's at least plausible.

I guess all I'm saying is, it's murky.
103. Michael in SF | September 6, 2011 at 12:25 pm

in re: the fact that we're talking about the state constitution, I always marveled that the state supreme court ruled that prop 8 was an amendment to the constitution and not a revision. For a change that has caused so much sturm and drang and had such widespread effect on the legal status of so many people, it seems only logical that it would have been a revision and required a 2/3 approval of the legislature.

But water under the bridge…
104. Ray M | September 6, 2011 at 12:26 pm

I agree, definately not a veto. The way a veto works, an enactment goes from legislature directly to governor, who can then sign-on or veto as an absolute right. But in this case the law went into effect, it is still in effect, and the gov has no say over it either way because it was a Federal decision. That's not a veto, that's the judiciary doing it's job.
105. DaveP | September 6, 2011 at 12:29 pm

Yes, I really liked that question from the court. it points out that if we give standing to individuals or groups to take over for the elected officials responsible for these decisions, what happens if the officials DO decide to appeal, but differently? Who gets to go to court? Both of them? Just one, and if so, which one?
106. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 12:36 pm

Long story short, the plaintiff argues that the California law says nothing about the proponents of an initiative to have the authority to defend their initiative in court (California law, however, allows liberal intervention left to discretion of the court considering the issue), the people only have the power to propose and to enact legislation, not to defend it in court (which is left to the government enforcing the law).

However, the Justices are fearful that this creates a “pocket veto” power for the government that usually has no power to veto an initiative that was voted on by the people; but if someone files a lawsuit against an initiative that was enacted and is enforced and the Attorney General has the right to exercise the discretion and not defend the initiative, the court is very likely to side with the plaintiff if nobody defends the initiative since the government refuses to mount the defense — this is how it is similar to vetoing the legislation and not allowing the people who voted for that legislation to say anything in its defense. Also, everybody agrees that it is always better to have two sides in the court to give both sides the benefit of legal argument, rather than hear the case with only one side presenting its case.

The plaintiff also argues the proponents cannot show any particularized interest in the case itself, however, the proponents argue their real interest here is to protect their fundamental right to propose initiatives that somehow magically leads to the right to defend those initiatives in court (which is not explicitly stated in the California Constitution).

Did I miss anything?

My personal opinion below.

As much as I agree that the current law does not give the proponents of the initiative a specific right to defend that initiative in court, I think it is dangerous to leave the court with no one to defend a properly enacted initiative in cases where the government decided not to defend that initiative. It does create a mechanism for the executive branch to effectively nullify the initiative process and it makes it unfair for the court and for the initiative in question by robbing the court of the chance to hear legal arguments from both sides.

Initiatives are voted on by the majority of constituents, initiative process is a special process allowing the people to directly vote on issues, without the involvement of elected representatives from the legislative branch, so just like that there must be a special right for the people to defend those initiatives in court directly (through the proponents of the initiative, for example), without the involvement of elected officials from the executive branch when those elected officials refuse to defend that initiative. Initiatives, as a result of a special legislative right of the people to vote on issues directly, are far too important not to give the people the right to also defend them in court.

Where am I wrong?
107. Carpool_Cookie | September 6, 2011 at 12:40 pm

Well, that might be what you'd catch from hugging him, so your instinct is healthy.
108. Carpool_Cookie | September 6, 2011 at 12:45 pm

"Cooper replies in that case, the state’s interest didn’t go away, it was just transferred to a different set of hands. In this case, the official proponents are standing as agents of the people to represent their interest in the validity of initiative measures."

But I don't want initiators of ballots who have associations to known hate groups officially, legally, representing "the people" ! ! ! Bluuggghhh…..
109. Paul | September 6, 2011 at 12:47 pm

I agree. We should change the constitution to provide initiative proponents with the power to defend their initiatives in court, or they could include such language as part of their initiative. Proposition 8 proponents did neither. What you are asking for is for the CA Supreme Court to interpret that everyone voting for Proposition 8 assumed or intended for the proponents to have this power, even though there is nothing in the constitution, law, or the ballot materials to suggest such a thing.
110. Carpool_Cookie | September 6, 2011 at 12:54 pm

"I guess all I'm saying is, it's murky. "

Yes. Welcome to the legal system : )
111. TomTallis | September 6, 2011 at 12:58 pm

It seems to me that Olson missed a good point. There IS a way in California for initiative proponents to get standing to defend the initiative. They simply put language to that effect in the initiative in question. I hope that the justices know about this and that they take it into account.

In 2008 there WAS an initiative with that language, but I don't remember which one.
112. truthspew | September 6, 2011 at 1:02 pm

On the one hand I'd like to see them not have standing and then the whole thing would be over and Walker's original ruling would stand.

But knowing what a piss-poor defense the bigots are putting up, I want them to have standing so we can try this in a Federal Appeals court. At which point it becomes case law that can then be used elsewhere in the Federal system.

That would be the best option to me. Let the bigots fall once again on their fallacious arguments. And let it be writ into case law that it is so!
113. fiona64 | September 6, 2011 at 1:02 pm

Nope. You have just said that California should be a plutocracy, and that's not okay. "He who has the most money wins" is not what a Constitutional republic is about.
114. MFargo | September 6, 2011 at 1:03 pm

Will this decision be used as any kind of precedent or will it just be an advisory “memo” to th 9th about this one case?
115. Juli | September 6, 2011 at 1:05 pm

It is still a long shot that Varnum V Brian would be overturned in Iowa. Both houses of the legislature have to approve a ballot measure in identical form in two consecutive sessions of the legislature, then it has to be approved by a majority of Iowa voters. The measure has yet to pass both houses of the legislature a single time, thank you House Majority leader Mike Gronstal, who refuses to allow it to come up for a vote. It is not impossible, but very difficult to do, which is one of the reasons the court case was brought here.
116. DaveP | September 6, 2011 at 1:12 pm

Actually, Olson did make that good point. (Maybe you should work for AFER!)
117. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 1:20 pm

@Paul
I am not aware if the California Supreme Court has the right to interpret the Constitution, other laws and the intent of the people who voted for Proposition 8 that they intended to give the proponents of that initiative to have the power to defend the initiative in court. If they can assume that and make such a ruling, I would support it on its face, even though I don't think Justices should have that much power (making assumptions on behalf of the people in the initiative process is something that legal professionals should avoid), but, yes, the initiative process should be changed with the proposed amendments, and either the proponents of Proposition 8 can try again enacting a law against same-sex marriage after those changes were made, or with a provision about the people giving them explicit rights to defend the initiative in court, but in this case they must concede that they have no standing because the law is not perfect as it is right now.
118. kidquertus | September 6, 2011 at 1:28 pm

Bingo!! Soooooo sick of that argument!! Just saw it again here and am mighty tired of it: http://www.aarp.org/relationships/love-sex/info-0…
119. Mjausson | September 6, 2011 at 1:30 pm

Just imagine what Chevron would do if they were given this power. Or any other company/church with lots of money. They don't even have to be headquartered in California.
120. David | September 6, 2011 at 1:35 pm

I think he brings up what you're talking about, though not that specific initiative from 2008.

"10:32: …Olson: You would be amending the constitution if you did that. Prop 27 in the year 2000, the proponents of that initiative put that in their initiative that they would have standing to defend that initiative. You’d have to do that. Proponents didn’t do that in Prop 8."
121. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 1:35 pm

From today's live-blogging:

Olson: You would be amending the constitution if you did that. Prop 27 in the year 2000, the proponents of that initiative put that in their initiative that they would have standing to defend that initiative. You’d have to do that. Proponents didn’t do that in Prop 8.
122. grod | September 6, 2011 at 1:45 pm

@TomTallis
10:32 Olson: Prop 27 in the year 2000, the proponents of that initiative put that in their initiative that they would have standing to defend that initiative. You’d have to do that. Proponents didn’t do that in Prop 8.
123. Lizz Mullen | September 6, 2011 at 1:46 pm

I agree with Tom. It was said repeatedly by more than one justice that the CA Supreme Court has always given discretionary authority to Prop Proponents to defend their props in CA Courts. The good news is they do not seem to want to set precedent and they don't seem to want to tell the Fed courts that it means they should have standing in Fed Court. My best scenario would be for the case to be tried on its merits on appeal, we win on grounds of unconstitutionality,and then the US Supreme Court to decide not to hear it. That way, it would apply to CA, and perhaps other states within the 9th circuit.
124. Steve | September 6, 2011 at 1:46 pm

I can sort of see their point about a "backdoor veto", but it's not really a veto in all cases. They didn't just disagree with Prop8. They thought it's unconstitutional. So the government can't simply "veto" any initiative they don't want
125. VoiceOfConcern | September 6, 2011 at 1:47 pm

After the hearing, I had a chat with one gentleman who was out front. I believe said he was from a church in Salinas. He had a sign that said "Marriage = 1 man + 1 woman". I asked him about the marriage rights of intersex people. People who are neither woman (XX) or men (XY), who those have no opposite sex. Initially, he said "The parents consult with doctors & take steps to fix it." I replied "You can't go to the doctor and get fixed for intersex, any more than more than you can go to the doctor and get your race fixed."

He then said "you look like a man to me, so you can marry a woman." I replied, "But I am not a man. I am intersex. Your position is, that in order to marry, I should lie? I find that morally defensible." The man then admitted "I have no answer for you" & he backed away from the conversation.
126. Steve | September 6, 2011 at 1:47 pm

They can't veto any initiative. Just ones they think are unconstitutional. And then they still have to prevail in court
127. DaveP | September 6, 2011 at 1:49 pm

Exactly. They could just pay to get ANYTHING passed (due to the flawed CA initiative system) and then just pay their hundreds of lawyers to keep dragging it through the courts for YEARS, even after it had been ruled invalid or unconstitutional, and even if everyone in the government knows it is wrong and all of the citizens come to their senses and realize they were duped . It would be worth it to them since they would continue to reap all of the benefits of whatever they got enacted during the entire time they keep it stuck in the courts. Sure, it might eventually get tossed out after several years (or never, if their pro-environment opponents run out of cash) but it will certainly be profitable until then.
128. Steve | September 6, 2011 at 1:52 pm

Even if it's a law. Let say along comes a law that the AG doesn't like. It somehow goes to court and he refuses to defend it. The only reason to win that court case is by declaring the law unconstitutional.

So the AG can't just veto any random law. Only ones that are null and void in the first place
129. JefferyK | September 6, 2011 at 1:55 pm

The court is going to go out of its way to give the anti-gay side standing.
130. Steve | September 6, 2011 at 1:58 pm

It helps that there are actually logical arguments to be made for his side here. In the Walker trial he really had nothing to work with, even if he made some ridiculous comments in addition
131. Steve | September 6, 2011 at 2:03 pm

That mechanism only exists if the proposition is actually unconstitutional. They can't just disagree with any random initiative because they feel like it
132. MichGuy | September 6, 2011 at 2:03 pm

Does anyone know where I can find an archived copy of todays court hearing ??
133. MichGuy | September 6, 2011 at 2:05 pm

I think I found it here.. n/m LOL http://www.calchannel.com/channel/viewVideo/3005
134. Sam_Handwich | September 6, 2011 at 2:06 pm

I'd been thinking the same, until i considered what sort of precedent such a ruling might lead to. Wouldn't it mean that any individual or group that simply puts a name on a flier supporting a particular initiative has standing to defend it in state court? What about individuals who merely sign the petition – do they have standing as well, since their name is legally associated with the measure?
135. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 2:14 pm

@Steve
Executive branch is not allowed to make determinations regarding constitutionality of laws it enforces, that's why we have courts. So, technically AG is not bound by law to refuse to defend laws only if they are unconstitutional, which means there must be other rationales for that.
136. Bill S. | September 6, 2011 at 2:21 pm

I know the court technically has 90 days to issue a ruling, but do you think it's going to take that long? Any chance they'll hurry this process up and rule before the end of the week?
137. JefferyK | September 6, 2011 at 2:21 pm

Is the individual/group conservative? If so, it would have standing. If not, it would not. !
138. Ann S. | September 6, 2011 at 2:22 pm

§
139. Steven | September 6, 2011 at 2:28 pm

have been thinking if they decide to recommend that the supporters of Prop 8 have a right to standing it will set a dangerous precedent to who can have a right to defend when the state does not want to appeal.. SCOTUS made decisions based that ballot measure supporters DO NOT HAVE STANDING.. CA Supreme Court needs to be careful
140. Jeff | September 6, 2011 at 2:34 pm

Did Olson say "I think the initiative power is important, but the constitution of CA fundamentally limits the power of the initiative and initiative proponents to exercise their right to propose and defend, that’s it." or was this a typo in the transcript? 10:56am. Because at 10:28 the transcript for Olson says "Initiative power is for proposing and enacting, not for defending."
141. Steve | September 6, 2011 at 2:37 pm

It's exactly what they have been doing in the case of Prop8. They have filed briefs arguing against its constitutionality.

What they can't do is singlehandedly declare a law unconstitutional. That''s completely different from thinking that a law is not constitutional and stop defending it in court on those grounds
142. Carol | September 6, 2011 at 2:44 pm

Exactly!
143. Carol | September 6, 2011 at 2:46 pm

I think their particularized interest is, "We bought it, we should get to keep it."
144. Elizabeth_Oakes | September 6, 2011 at 2:47 pm

I think that comes down to the definition of "official proponents" i.e. those who are the official sponsors of the initiative, collected the signatures, created the language, and were allowed to write the arguments that appear in the ballot materials, etc.

That said: Amazon's talking about putting a ballot initiative before CA voters to allow Amazon get around the new law that requires them to pay sales tax on CA purchases. Should we allow Amazon, by virtue of its superior legal and financial resources, have the last say on a CA law if they don't like the outcome of their ballot initiative? To have a second shot at forcing their law on us even if voters reject it? Slippery slope , if you ask me.
145. Steven | September 6, 2011 at 2:48 pm

I don't know I haven't read the transcript.. I know they can't defend it on their own, that's my opinion. They didn't asked or get permission from the state of CA…
146. Steven | September 6, 2011 at 2:51 pm

If they release the decision this week it must be on Thursday. we will be getting 24 hours notice. They only release decisions on Mondays and Thursdays unless it falls on a holiday. I'm thinking October or before Thanksgiving.
147. Carol | September 6, 2011 at 3:16 pm

As someone above has pointed out, Brown and Harris were elected to their present positions after campaigning that they would not defend Prop 8. So "the People" have had our say about whether we want Prop 8 defended.
148. Carol | September 6, 2011 at 3:30 pm

If the court identifies that as the issue, then I don't see how they can confer standing on a volunteer group who say "we should have standing because we wrote and paid for the initiative." After all, other groups, like the Catholic and Mormon churches, also contributed lots of money, and they have not tried to intervene. I don't see the court finding that the voters knew who Protect Marriage and Andy Pugno and Charles Cooper were and wanted them to be the ones to defend the initiative.
149. Carol | September 6, 2011 at 3:32 pm

It's part of the AG's job to have an opinion about the constitutionality and meaning of California laws.
150. Raj | September 6, 2011 at 3:40 pm

The part I think is wrong is "right for the people to defend those initiatives in court." It was defended in court. This is an appeal of a law that was deemed unconstitutional. Maybe there needs to be another vote by the people to find out if they want to appeal in this circumstance. Frankly, after reading the court transcripts and Judge Walkers ruling, I have to wonder how an appeal is allowed to happen. Who am I kidding, it's all about money and politics.
151. fiona64 | September 6, 2011 at 3:43 pm

Heck, NOM is headquartered in NJ …
152. Steven | September 6, 2011 at 3:44 pm

THIS is what NOM bigot reported……. oh man, 2 whole different stories on same hearing lol
153. fiona64 | September 6, 2011 at 3:45 pm

Furthermore, the AG and the governor swear to uphold the US Constitution as part of their oath of office. I think it would be a violation of their oath to defend something that a federal court had determined to be in violation of the US Constitution.
154. Carpool_Cookie | September 6, 2011 at 3:53 pm

Is there a link missing (above) ?
155. Steven | September 6, 2011 at 4:01 pm

why is my link be deleted?????????
156. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 4:11 pm

@Steve
I'm simply saying there might be other reasons why the government theoretically can justify ceasing the defense of some initiative, not just that it believes the initiative is unconstitutional. And you were saying "only [...] if the proposition is [...] unconstitutional".
157. ĶĭŗîļĺęΧҲΪ | September 6, 2011 at 4:21 pm

@Raj
I was mostly talking about the initiative process in California in general, not in the Prop 8 case in particular. I don't know if you know that, but before January 2010 hearings judge Walker specifically granted a request by the proponents to intervene in this case, he didn't have to, he could have heard the case without them and only with the lawyers from the governor and AG who gave up without a fight. He only let them intervene because of the liberal intervention tradition in California when it comes to defending initiatives. So, in my comment over there I was talking about granting the proponents a right to defend their initiative, rather than a chance that the judge will let them intervene as a party. That would give them standing in federal court, including the appeal in the 9th Circuit court.
158. Steve | September 6, 2011 at 4:24 pm

Which would get them nowhere because they'd have no case in court
159. Paul H | September 6, 2011 at 4:26 pm

Are you legally considered to be male or female, or neither?

Also, who do you wish to marry? A man, a woman, or an intersex individual?

If you prefer not to respond, that's fine. I am curious, but I understand if you prefer not to answer.
160. Carpool_Cookie | September 6, 2011 at 4:34 pm

NOM strikes again ? ? ?
161. PoxyHowzes | September 6, 2011 at 4:56 pm

I have a crystal ball, and here's what it says is going to happen:

The CA Supremes will take at least 60 of their 90 days.
They will issue an "advisory" opinion to the 9th Circuit, not a definitive ruling that anyone does or does not have standing.
That opinion will say (as the CA AG's brief does) that only the AG (and Gov, maybe) can decide whether to appeal // that that is a discretionary duty (they are not obligated to defend; so if Judge Walker's opinion convinced them that Prop8 was unconstitutional, then they did not have to appeal, and in not doing so, they did not fail in any duty to the CA people.
That in CA discretion among the courts appears to be much broader than in Federal Court, and a CA Judge may well have allowed the Proponents to appeal. // BUT, that discretion always rests with the CA Judges, it is not a CA constitutional or statutory right.
That the Proponents included no ballot language giving themselves the right to appeal, and did not allege specific damage to themselves during [today's] hearing.
Therefore: over to you, 9th Circuit!
162. Steven | September 6, 2011 at 5:02 pm

i dont know lol its under nom blog
163. Patrick2 | September 6, 2011 at 5:25 pm

Balu, that's missing a critical point.

The proponents get to support their proposition until it's law. Then it's not a proposition, it's law.

It's not "theirs" any longer.

It's not a question of what we want, or what should be. It's a question of law. Do they have some special legal standing that I–a Californian citizen–don't have? Why?

Because they spent money to get it on the ballot and pass it? No. That doesn't work. Because money should have no special standing, for one thing. And because many, many people–on both sides–spent money around this. They need to come up with a reason that THEY have special standing. The CA Supreme Court already found that the fundamental right existed, and Prop 8 attempted to take that away (we can't raise taxes without a supermajority, but *fundamental* rights can be stripped by a mere majority of the electorate?), and the courts have found 8 invalid. That's a law–not a proposition. The executive has the discretion to decide to defend a law, or not. If it's passed legislatively, the legislature doesn't have the authority to have the bill's authors and supporters step in as the state to defend it. Why should a proposition's authors and supporters?
164. VoiceofConcern | September 6, 2011 at 5:37 pm

I'm not clear what your questions are getting at.
165. Keith | September 6, 2011 at 5:54 pm

I believe they could be given standing. Proponents of that past initiative had standing because it was written into the initiative. The court could feasibly rule that it's not necessary to actually write it into the initiative, especially if they can prove they are the major backers of the initiative. Also, they should announce their ruling within a few weeks at most since they understand the importance of it.
166. Paul H | September 6, 2011 at 7:47 pm

Honestly, I'm not sure what I'm getting at. Maybe nothing. Your comment just made me curious. Your comment seemed to imply that you, as an intersex individual, want to have the option to have a legally recognized marriage. I am curious, because I honestly do not know, would an intersex individual such as yourself want to marry a man, or a woman, or another intersex individual? (I suspect that there is no "one size fits all" answer for this.)

Also, I was curious whether current California law would prevent you from having a legally recognized marriage with your preferred partner — which I guess would depend on your legal sex and on the sex of your preferred partner.

Again, if you prefer not to answer, that's fine. And if any of these questions sound rude or offensive, I do apologize. My knowledge on this subject is limited, and so from your perspective, perhaps these sound like stupid questions.
167. VoiceofConcern | September 6, 2011 at 9:06 pm

My point about Intersex, underscores why Gender Neutral is appropriately inclusive. As intersex folks don't have a simple "opposite sex", limiting the right to marry strictly to the mythical male/female gender binary disenfranchises an entire group of people. Based purely on their biology.

My position is that all adults should be able to marry in any pairing. Gender Neutral Marriage is inclusive to women, men, trans folk and intersex folk. Gender Neutral Marriage is based on 2 partners regardless of gender or orientation, making a choice to build their lives together..

My position is that Gender Neutral Marriage, ie what Judge Walker ruled, does away with the need for gender being a meaningful test, to qualify for marriage.
168. Bill S. | September 7, 2011 at 3:14 am

The executive branch did NOT nullify the law. The judicial branch did, after a fair trial, after both sides gave their best arguments, and after careful consideration by an Article III judge appointed by the President of the United States and confirmed by the Senate.

The California Supreme Court seemed to take this philosophy too and I don't understand it. The executive branch did not unilaterally "nullify" the law. It was ruled unconstitutional. The people ELECTED a governor and attorney general who stated they would not continue to defend it in court. End of story.
169. Bill S. | September 7, 2011 at 3:18 am

The California Supreme Court couldn't, even if they wanted to, issue a definitive ruling on standing. They're merely answering a certified question from the 9th Circuit Federal Court of Appeals, who ultimately has the final say.
170. takemusu | September 7, 2011 at 7:13 pm

Nice little clip for those of us who could not be there:
http://www.youtube.com/watch?v=wUQ7Bu7L6sA&fe…
171. Truth speaks out | September 7, 2011 at 7:51 pm

Let this be a warning, that it was a mistake to even allow gays to have a domestic partnership with state rights similar to marriage.
So, you said that any man or woman should be able to marry. Are you a liar or just plain dumb? Serious. Any man or woman and any same sex couple, would include a same sex adult incest couple.
Prop 8 is equal and it equally bans ALL same sex marriages, even those desired for tax purposes by a heterosexual partnership. Serious, why should two men form a business partnership, when they can form a marital partnership and reap greater tax benefits. Just like gays, same sex hetero marriage would not be about procreation.

Bottom line, gays lose, sexual orientation is not a federally protected "suspect class" and even more so, they are not targeted by Prop 8. Prop 8 does not target anyone, it simply takes a marital definition and legal recognition that has a 6000+ year history, and defines it for the legally dissonant.

You gays thought you had back door ed yourself in when the CSSC ruled against Prop 22 in May 2008, but like then, you got slapped into reality and you will be slapped into reality again. Prop 8 has been legal and law for almost 3 years a nd I will celebrate its 10 year, 20, and maybe even 50 year anniversary.
172. Ann S. | September 7, 2011 at 7:59 pm

You're funny. Tell us another one.
173. Ann S. | September 7, 2011 at 8:00 pm

Thanks for the link! Very nice video. I got to meet Sean, the filmmaker, too.
174. Phillip R | September 7, 2011 at 8:19 pm

*yawn* The trolls are certainly out a lot more lately.

Prop 8 is already on it's way out. If you haven't noticed, your side is seriously struggling.
175. Phillip R | September 7, 2011 at 8:23 pm

LOL, Yea some of their comments over on their site are hilarious. At first I tried to make points with them but it's just like arguing with a wall. Their perceptions of reality are so far off base that it's just pointless.

In fact one of their regular posters is absolutely certain that if it does in fact get to the Supremes that it will be a 6-3 decision in their favor.
176. Ronnie | September 7, 2011 at 8:30 pm

ROFLMGAO… Awe, look another OTIO… No matter how much the South celebrates their separation from the Union…10 years, 20 years, 50 years, 150 years, 6000 years.. the result will always be the same… They LOST… MMMMMMMUAHAHAHAHAHAHAHA!!!!!…… XP …Ronnie
177. Elizabeth_Oakes | September 7, 2011 at 11:43 pm

Let this be a warning to YOU, Trolly darling. You can selftalk all the garbage you want, you can even embarrass yourself by posting your misinformed nastiness on a website, but y'all better pack your bags if marriage for Teh Gayz bugs you, because in another year or two you're going to be surrounded by happy gay married couples and standing there all alone in your shame….as usual. Serious.
178. Bill S. | September 8, 2011 at 6:14 pm

This isn't true. They would violate their oath if they disregarded a court order (such as an order to cease enforcing Prop 8). They had the right to appeal, just like anybody else being sued in court.

Also keep in mind that, due to the 11th Amendment, states cannot be sued in federal court (at least not without their permission). Rather, agents of the state are sued for exerting power beyond what is given to them in their official capacity (no state agent has the capacity to enforce unconstitutional laws). If the attorney general believed he was rightfully acting in his official capacity in denying same-sex marriage licenses, then he had every right to appeal.
179. Prop 8 Trial Tracker &raq&hellip | November 16, 2011 at 12:58 pm

[...] accepted the question, heard arguments (for live-blogging of those arguments at the hearing, click here), and tomorrow will issue its opinion. From there, the 9th Circuit 3-judge panel which heard the [...]
180. Prop 8 Trial Tracker &raq&hellip | November 17, 2011 at 7:36 am

[...] like to read the arguments before the California Supreme Court back in September, you can find them here. From a legal point of view on whether people should be allowed to stand in for duly elected [...]

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