Prop 8 Update: Court Rules County Clerk Lacks Standing, Refers Pro-H8 Group to CA Supremes

A three judge appellate court panel ruled Tuesday that an Imperial County California clerk of the court lacks the legal standing to file an appeal in the case of Perry vs. Schwarzenegger. Judge Vaughn Walker ruled last summer that the voter initiative banning same-sex marriage violated the 14th Amendment to U.S. Constitution. Former Governor Schwarzenegger and then-Attorney General Jerry Brown both chose not to appeal Walker's decision.

In a desperate attempt to find some way to fight the ruling, the bigots at ProtectMarriage.com scoured the roster of thousands of state employees, looking for a sympathetic "official" to jump on board their sinking ship. The best they could come up with was a deputy clerk from Imperial County. According to the L.A. Times, the court ruled that the regulation of marriages is the purview of the state, not individual counties.

As for the question of standing for Protect Marriage.com, the creators of Proposition 8, the panel decided the send the case to the California Supreme Court. The L.A. Times reports:

The state's highest court, which has considered the issue twice in the last three years, was drawn back into the fray by a panel of federal appeals court judges. The panel asked for guidance on the seemingly technical, but perhaps decisive, issue of who has the legal right to defend the ballot initiative on appeal, what is known in court as "standing."

The groups that originally placed Proposition 8 on the November 2008 ballot have asked the courts to allow them to pursue the appeal in place of the state officials. The initiative represents the will of the people, they argue, and should not be struck down with no one to defend it.

If those groups are found to lack standing to appeal, then Walker's decision, which is on hold, would take effect with no review by any appellate court. That would probably allow same-sex marriages to resume in California. By contrast, if the backers of the initiative do have standing, the appeals court panel would rule on the constitutional issues raised by Walker, and whichever side lost would probably seek further review by the U.S. Supreme Court.

Equality California's Executive Director Geoff Kors told the Times, "We are optimistic that the case will be dismissed, marriage equality restored and that same-sex couples and their families will finally enjoy equality and dignity under the law."

Read the full story here.

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• Ninth Circuit half-resolves, half-punts on Prop 8 standing (dailykos.com)
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Opening Arguments in Today's Prop 8 Appeal to be Televised

On August 4th of this year, Federal District Court Justice Vaughn Walker ruled that California's Proposition 8, the voter initiative that banned same-sex marriage in the gayest state on the planet, violated the constitutional rights of gay and lesbian couples under the due process and equal protection clauses of the 14th Amendment.

Today, four months later, a three judge panel in a San Francisco federal appeals court will hear opening arguments from the Pro-H8 side and the dream team of Olson and Boies, who won the case for us last summer.

Perhaps the most critical part of all of this is the question of standing. At issue is whether or not the Prop 8 defenders have the legal standing to file the appeal at all. Our side maintains that they do not, as they were not named in the case of Perry vs. Schwarzenegger. The Governator and incoming Governor-elect/Attorney General Jerry Brown both chose not to appeal the case.

If you're not constitutional lawyer, it may be a little hard to understand all the legalese and what's going on this morning, so AmericaBlog Gay breaks it down for us and provides links to the legal briefs being filed by each side. It's all pretty dry and technical, but some of it makes for some very compelling reading, especially the Olson-Boies responses:

Prop 8 Proponents Opening Brief: The defenders of prop 8 are looking to establish that (1) they have standing to pursue an appeal of Judge Walker's ruling in Perry v. Schwarzenegger; (2) Imperial County (a county in Southern California east of San Diego) also has standing to pursue the appeal; and (3) Prop 8 should be upheld. The Introduction (pp. 1-8) and Summary of Argument (16-18) provide a good outline of what they are arguing.

Main Response Brief filed by the Olson-Boies team: In this brief, our people are asking the court (1) to deny standing to the proponents of Prop 8 and (2) to strike down Prop 8 as unconstitutional. Pages 1-28 encompass the Introduction, the Statement of Facts and the Summary of Argument. If you only have time to read one thing, read this.

Response regarding Imperial County: filed by the Olson-Boies team. This is the response to the argument that Imperial County should be permitted to pursue appeal. You might want to look at pages 1-2. They contain the Introduction and Statement of the Issues.

The blog Pop 8 Trial Tracker will be live blogging the proceedings, which begin at 10:00am PST today (1:00pm Eastern). TV cameras will be allowed in the court room this time, courtesy of C-SPAN. (Watch here.)

Related articles

• California's Prop 8 gay marriage ban goes before federal court - MiamiHerald.com (news.google.com)
• Appeals court Prop. 8 hearing likely key to result (sfgate.com)
• "Gay Marriage: All Eyes Are on the Ninth Circuit" and related posts (sanfranciscosentinel.com)
• Judith E. Schaeffer: Preview of Live Blog Monday: The Ninth Circuit Hears Oral Argument in Historic Marriage Equality Case (huffingtonpost.com)
• Prop 8 appeal arguments to be broadcast live Monday (secularnewsdaily.com)

Judge Vaughn Walker Announces Retirement

Ninth District Court Judge Vaughn Walker, who ruled that California's Proposition 8 violated the Equal Protection clause of 14th amendment over the summer, has announced that he will retire effective at the end of December this year.

Walker said in a letter to President Obama, “Concluding twenty-one years of judicial service, I leave the bench with the highest respect and regard for the federal judiciary, its judges and their staff and the essential role they fulfill in our constitutional system."

Walker was appointed to the federal bench in 1990 by then-president George H.W. Bush who hailed his conservative values. The right-wing, anti-gay, enemies of freedom (a/k/a Republicans) now call Walker a biased, activist judge for his ruling, which read, in part, "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license".

It reminds me of those heartfelt words of my mother, who once told me many years ago when I was winning an argument, "Don't get rational with me!"

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• Judge Vaughn Walker Is Leaving 9th Circuit, Following Exits By Prominent Gay Marriage Justices (queerty.com)
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Prop 8 Re-enactment Trailer Now Online

Film makers John Ireland and John Ainsley have completed the trailer for their series of videos re-enacting the events taking place in San Francisco Federal Court in the landmark legal challenge to California's Proposition 8, Perry vs. Schwarzenegger.

Judge Vaughn Walker had ruled that video of the trial would be posted on YouTube under a pilot program. Proponents of Prop 8 challenged the ruling in the US Supreme Court, claiming pro-H8 witnesses would feel intimidated by public exposure. The Supremes ruled in favor of the pro-H8 side.

Last week Ireland set about assembling a cast and production crew to recreate the trial and has posted the first video on his site, marriagetrial.com and on his YouTube channel. The video features highlights of the opening arguments and witness testimony. It's about 3 and a half minutes long. Like most of us, I'm anxious to see more, but I understand the tremendous amount of work it takes to film and edit. Can't wait to see the rest.

Ireland told On Top Magazine, “People want to see this drama unfold and there is a tremendous narrative that was propelled by that first day of testimony. This is the first time that gay and lesbian people have talked about their lives in federal court. It's historic from that point of view.”

The video is based on transcripts of live bloggers who have been posting details of the proceedings from the courtroom every day since the trial began.

 The video postings are not currently embeddable, meaning I can't post them here, but can be shared via FaceBook, Twitter, MySpace, etc. and e-mail.

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Prop 8 Trial to be Re-enacted for Posting on YouTube

Judge Vaughn Walker's plan to tape the proceedings of the Perry vs. Schwarzenegger lawsuit for posting on YouTube was killed by the US Supreme court at the request of the pro-H8 side last week. Without the video, we've relied on the efforts of dedicated live bloggers to get the latest information out of the courtroom. Now, thanks to the efforts of journalist and film maker John Ireland, we'll be able to watch a recreation of the trial on YouTube.

Ireland told On Top Magazine in an interview posted Sunday, “People want to see this drama unfold and there is a tremendous narrative that was propelled by that first day of testimony,” Ireland told On Top Magazine on Sunday. “This is the first time that gay and lesbian people have talked about their lives in federal court. It's historic from that point of view.”

Ireland's production is much like what went on during the Micheal Jackson child molestation trial, where cameras were also banned from the courtroom. Casting and filming  began over the weekend. Dialog is based on the text of live bloggers who have been working non-stop to bring us the day-to-day details. Ireland says, “I don't think you have to be gay or lesbian to see that there is a tremendous human story being told but so few people are actually hearing it."

Filming is complete of last Monday's opening session and Ireland plans to post the video on YouTube Tuesday. I'll post the video, or a link here as soon as it is available.

Ireland and his partner are one of the 18,000 California couples that were legally married in 2008 during the window of opportunity between the California Supreme Court's decision to legalize same-sex marriage and the passing of Prop 8, which relegated the state's lesbians and gays to second class citizenship.