cross posted from the Prop 8 Trial Tracker

The Prop 8 Proponents filed their response to the Plaintiff’s brief opposing the motion for emergency stay.  The whole thing can be summarized thusly:

Nuh-Uh

As was mentioned in the comments, the brief is essentially a revising of history trying to ignore the fact that the trial took place.  But they get the whole party started off right: by using italics!

But when Plaintiffs’ distortions, cariatures, and straw men are cleared away, their constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history – from the ancients to the American states – for no good reason.

So, there you have it. The entire case boiled down to one easy sentence courtesy of Chris Cooper and the Prop 8 legal team.  You can all go home now, because this thing is all wrapped up into a tidy box with a shiny bow of discrimination.

In real life however, such quick rejections in legal documents aren’t really going to change any minds, or win any stays.  So, they do waste 22 perfectly good pieces of paper to write some other startling pieces of legally questionable arguments.  Matty Matt pointed this one out in the comments of the previous thread, and it is definitely worth addressing:

Because Plaintiffs have no concrete  plans to marry, not only will a stay not harm them, but their standing  to maintain this action is doubtful.  At any rate, Plaintiffs’ claims of harm to themselves, like their claims regarding the public interest, depend entirely on their claim that Proposition 8 is unconstitutional. (Brief at page 15)

This is another standing issue, but it brings up different questions than the question of the proponents ability to pursue appeal.  Under the jurisprudence on standing, the plaintiff must have a concrete injury.  Now, that is not to say that the emotional harm isn’t necessarily enough to pursue the case, because that would be a question that is on the fuzzy side that we wouldn’t really want to mess with.  The two couples who serve as the plaintiffs surely want to marry, but they want their legal case to be settled.  If they were to marry during the stay, their ability to continue the case could be called into question.  Out of an abundance of caution, they are waiting until the case if finally resolved, but that doesn’t mean that Cooper and the gang won’t try to use it.

That being said, this is fundamentally a weak argument.  The case cited, Lujan v. Defenders of Wildlife, is a very different question.  In that case, some environmentalists sued the government over a couple of development projects on other continents would possibly harm some habitat of some endangered species.  The plaintiffs claimed their injury was that they wouldn’t be able to see the animals on some as-yet defined trip to the regions.  The court said that was insufficient, with Justice Scalia saying that a plane ticket to the region would have been sufficient for standing. Now, there was debate at the time of that decision as to its legal basis, but that is the law of the land as it stands.

It really is not that hard to distinguish the Prop 8 case from Lujan. First, if you even just go by Justice Scalia, the plaintiffs engagement should be their “plane ticket” to satisfy standing requirements. Many couples take years to plan weddings, and these couples should not be forced to plan a wedding at some undetermined date simply because there is a “window.”  The plaintiffs want to marry, and they want the right to marry at a time of their own choosing.  Furthermore, these couples have a much more tangible right at question here than the simple good feeling from knowing a species is alive on the other side of the world.

With these sorts of winning arguments, I almost expect Andy Pugno to ask the Court “I know you are, but what am I?”

Late yesterday, the legal team behind the Prop 8 Challenge filed their response to the Motion for Emergency Stay.. You can see the full document over the flip. Nothing too surprising here. The plaintiffs basically went through the four factors for a stay, and showed that the burden has not been met.

The Plaintiffs’ motion specifically argues that:

·      Proponents cannot possibly make a “strong showing” that they are likely to prevail in their appeal.

·      There is significant question as to whether Proponents even have standing to pursue an appeal.

·      Proponents have failed to establish that they will likely suffer irreparable injury in the absence of a stay.

·      A stay will cause substantial irreparable harm to Plaintiffs.

·      The public interest favors immediate enforcement of the judgment.

The deadline, as you probably recall, is August 18 at 5pm.  If the 9th Circuit declines to issue a stay or simply does not do anything by then, counties will be able to issue marriage licenses to same sex-couples.

CA9Doc 9

Note: As I say in the diary, this election really is that important.  Whitman would be a disaster for the state.  You can contribute to Jerry’s campaign at the Calitics ActBlue Page.

If you’ve read this blog much, you’ll have seen Robert’s excellent writing on the flawed economic vision that Meg Whitman is espousing.  Her stated goal of cutting 40,000 jobs is unrealistic, at best, and at worst could push the state economy into an even deeper recession.  Heck, even the Governor questions whether that number is at all possible, saying something to the effect of that it was all a big campaign pledge with no real meaning behind it.  Let’s be honest, if Arnold is calling your campaign cynically out of touch, well, dang, you are that and then some.

But beyond that mere gamesmanship of that 40,000 number, her fundamental principles of her economic plan are just plain flawed. Sure, she can dress them up in a pretty magazine with glossy pages. But the stinker remains the stinker.   Or, as a panel of economists wrote in a new Center for American Progress Action Fund report (PDF) highlighted in the LA Times today:

In short, Whitman’s diagnosis of the California economy is deeply flawed and her “solutions” would be deeply damaging. Her approach to economic policy, which she calls “my kind of supply-side economics,” is wrong for California. As we document, the economic “studies” she draws upon are unscientific and an unsound basis for policy. If implemented, her policy proposals are likely to have negative effects on jobs and economic growth and to deepen the state’s budget crisis.

Just as Meg’s glossy magazine is a worthwhile read, even if only to get an idea of how the other side thinks, this brief report should be universally read by progressives.  Jerry Brown has articulated a vision that seeks to grow the economy through innovation, but in and out of government, while Whitman wants to simply burn the whole place down.

The report calls out the gaping wholes in her plan, which she has been touting as some sort of panacea.  But, the math just doesn’t add up. She wants to cut $15 Billion in spending while decreasing taxes. Yet the deficit stands at about $20 Billion, so how in the world does she think that this math adds up?  This isn’t one of those corporate gigs where you can just toss a billion here, a billion there.

Furthermore, when you talk about shaving $15Billion off a $86 Billion budget, you aren’t talking about easy fixes.  You are talking about ending services that save lives, and slashing education in ways that will continue to decrease our state’s ability to compete in the new knowledge based economy.  The cuts that have been made already are shocking enough, to further imply that cuts alone are the solution belies a thorough misunderstanding of the California budget.

So thorough is her misunderstanding that the simplest review of facts can put the lie to her statements.  First of all, you simply don’t just cut 40,000 workers without a major impact on government’s ability to function.  While she may beleive all the right-wing hooey about “waste, fraud, and abuse”, the fact is that goverment workers work just as hard as other workers, and there is no real evidence to show that waste is any higher in government than the corporate world. (Like, for example, go try asking a state worker if he or she has ever had some of the lavish lunches or private jets that Whitman got at eBay.)

Or another area, she argues that the state government is bloated, but the numbers just don’t bear that out.

In 2008, the most recent year available, California’s government employment per capita was 28 percent below the U.S. average, ranking 48th among the states, and California state employment per capita has not increased since the early 1980s.

So, is it all really as simple as Arnold has pointed out? She’s just saying this stuff to get elected, and that she’ll lurch towards sanity after November? Perhaps, but there are no sure bets, and Whitman is simply too dangerous to be complacent.  Jerry Brown’s victory is imperative for the state’s continued vitality.

UPDATE by Robert: It’s as clear as day: Whitmanomics doesn’t work for California. We already have 12% unemployment – over 21% if you go by the U6 measure. The absolute last thing we need is more unemployment, and the main thing we DO need is more investment in working people and the infrastructure that supports them. Whitman instead will continue a pirate economics of robbing the middle class blind.