Prop 8 & DOMA: The Court Decides. Mostly Good.

by Brian Leubitz

I’m currently awaiting the decisions that the Supreme Court is going to release. In the meantime, you should check out the websites of Americans for Equal Rights, who supported the Prop 8 case. SCOUTUSBlog will be liveblogging, and will likely have some of solid analysis very quickly. There will be a bunch of press releases and the like, and I’ll try to sort through some of that as well. Stay tuned.

7:03AM: DOMA Went down. Here’s the link to the decision. Here’s a post by Adam Bonin of Daily Kos analyzing the decision.

7:16AM: From the last paragraph of Justice Roberts dissent in the DOMA case, it looks like the Prop 8 case will be dismissed on standing grounds. “We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry.”

7:30AM: Yup, 9th Cir appellate ruling was vacated, meaning Judge Walker’s ruling stands.  From Amy Howe at SCOTUSBlog:

Here’s a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California’s Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.

UPDATE: Attorney General Kamala Harris is holding a press conference at 10:30 this morning. It will be live-streamed on the AG’s website here. Here’s her June 3 letter to the Governor stating that the Walker decision applies to all 58 counties.

In the press conference, AG Harris called for the 9th Circuit to live the stay, and to apply the permanent injunction against Prop 8. “We cannot delay or deny Californians their civil rights.”

She also strongly supported the Equal Protection decision on DOMA. “We as Californians should be very proud. Californians now support these couples’ right to marry. … Hopefully the children of these couples will understand that they are equal to all, and inferior to none.”

The stay could be as long as 25 days, but she is asking the 9th Circuit to lift the stay early. As soon as the stay is lifted, marriages can begin.

UPDATE: I’m still looking for clarity on when marriages will begin, but Gov. Brown has directed all counties to begin issuing licenses when the court lifts the stay. When that will happen will be up to the 9th Circuit and probably Judge Ware, who last had the case at the District Court level. At 9:40, I got an email from SF Assessor/Recorder that she expects the marriages to begin in mid-to-late July.

CapitolAlert is posting the press statements from California leaders. Read them here.

I’ve just updated the post with a map of events to celebrate tonight. You can see the whole thing from United for Marriage site.View United for Marriage: Decision Day in a larger map.

More from Adam Bonin. Long story short, good result, bad path. The problem with winning on standing means that we get a crappy precedent going forward. Maybe it will never matter in California, but now the Court has said that only the state Executive can defend legislation. And if they fail to do so, then the law just doesn’t get the same protection as laws the Executive likes.

This was the outcome which I wasn’t the only one to predict, but I will confess that while it ends in the right place (Prop 8: dead) I am not at all crazy about the route. As I’ve suggested before, I think there’s something constitutionally hinky about having an initiative system designed to allow The People to bypass elected officials which allows those elected officials to thwart a full airing of the constitutional issues involved in a referendum. I can too-easily imagine a counterexample which a Republican administration would refuse to defend a liberal initiative in court, such as a hypothetical effort to overturn Prop 209 and instead require California’s universities to employ affirmative action practices in admissions, or an initiative imposing new limits on campaign financing, and for which the initiative’s supporters would be similarly out-of-constitutional luck. (Adam Bonin)

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One thought on “Prop 8 & DOMA: The Court Decides. Mostly Good.”

  1. It’s a great start. Reading Nino’s annoyed harrumphs was worth the anxiety.

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