Last week, the plaintiffs in the Prop 8 litigation asked the 9th Circuit to lift the stay against enforcement of Judge Walker’s decision.  With the President’s decision to stop defending DOMA’s constitutionality, the legal team fighting Prop 8 felt that situations had changed enough to reconsider the stay.

The bigger issue seems to be in the way that the Supreme Court has defined the standard for these types of stays.  Traditionally, the party seeking the stay has to show not only a likelihood of prevailing on the merits but also that nobody will face undue prejudice due to the stay.  Of course, as we know, same-sex couples are facing unnecessary and painful delays.

But the issue that I found most intriguing, and that the City and County of San Francisco focused on in their brief (PDF) was the question of jurisdiction.  The 9th Circuit has already questioned whether the proponents of Prop 8 have standing to appeal, and the threshhold for a stay is fairly high. So, should there really be a stay?

As the Supreme Court has held, when jurisdiction is unsettled a stay of judgment cannot be maintained.  Here, this Court’s certification order makes plain that Proponents have not, to date, met their burden. The stay should be lifted unless  and until Proponents establish that this Court has the power to hear their appeal. (SF Brief)

Well, today, the LA Times joined the act, calling for marriages to resume in a speedy manner.

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system. (LAT)

Amen.

As momentum builds for his plan to eliminate the redevelopment agencies, the agencies themselves are going around rapidly approving projects.  Well, apparently the Governor thought about that possibility:

Looks like Gov. Jerry Brown’s office has a contingency plan for all those cities around California that have been rushing to approve redevelopment money before the state can kill the program. (Eliminating redevelopment is a key part of Brown’s plan to solve the state’s $26 billion budget deficit.)

Included in a bill proposed by Brown’s office that would eliminate redevelopment is language which would let the state “review the validity of the adoption or amendment of a redevelopment plan at any time within three years after the date of the adoption of the ordinance adopting or amending the plan, if the adoption of the ordinance occurred after January 1, 2011.”(SF Gate)

This is another component that would likely get lumped in with the budget trailers.  If the legislature goes along with ending the redevelopment agencies, it would be hard to imagine that they wouldn’t pass this as well.  

Over at the Bee, they have some video of Freshman Assembly Member Shannon Grove (R-Bakersfield) calling for the state to stop “raping the taxpayers.”

Is this a valid analogy these days? I thought we were trying to cut down on all the rhetoric, after all we’ve been moving away from all the war analogies.  But apparently, rape, yeah, that’s still on the table.  

Meanwhile, the Taxpayers’ Caucus got off to a rousing start, with Sen. Tony Strickland, with his fellow right-wing zealot, Asm. Wagner, there to kick off the party.  Apparently they have one simple goal: denying the people a fair say at what they desire for their future.

A group of Republican state lawmakers announced today the formation of a legislative Taxpayers Caucus, pledging to oppose Gov. Jerry Brown’s proposal to ask voters to extend increased tax rates set to expire unless commensurate tax cuts are also placed on the ballot.

Just over two-thirds of the Republican legislators — 21 in Assembly and eight in the Senate — have signed on to join the unofficial caucus, which organizers say is open to members of both parties. (SacBee)

Of course, this isn’t really a problem. It just means the remaining members of the Republican caucus is going to get some extra attention as the time for for votes approaches.  Strickland and his cronies are essentially driving their car straight down the road to irrelevance.

Today, US Attorney General Eric Holder and President Obama announced that they would no longer be defending the odious Defense of Marriage Act:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.  

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.(US DOJ)

For now, DOMA has not been struck in the 9th District, so it technically still applies here, but for how long? With this non-defense pledge outstanding, we can expect DOMA to be challenged facially (on its merits) very soon in California.

Hidden within the statement is the important sentence that indicates the President and his team believe that rational basis scrutiny is simply not enough. This is a potential game changer for employment discrimination (either formalized as ENDA, or just a de facto enforcement of other non-discrimination provisions), housing discrimination, and other provisions.  So, this is important for marriage, but it goes far beyond that.

Press release after the flip.

UPDATE: After the administration’s announcement, Sen. Dianne Feinstein has announced a bill to repeal DOMA. More details pending …

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.  

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.   We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.   I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.   The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.  

Furthermore, pursuant to the President ‘ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.   At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one.   Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.  

Much of the legal landscape has changed in the 15 years since Congress passed DOMA.   The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional.   Congress has repealed the military’s Don’t Ask, Don’t Tell policy.   Several lower courts have ruled DOMA itself to be unconstitutional.   Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.   But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

The Assembly Budget Committee is going all bonkers today, reviewing various proposals from the Governor.  Fortunately, for the time being, Brown’s proposals seem to be more of a ceiling than a floor:

The Assembly Budget Committee plans to approve much of Gov. Jerry Brown’s budget today, but it will reject some of his most controversial cuts to social service and health programs, according to a document released Thursday by the committee.

In particular, Assembly Democrats will not eliminate welfare aid for children after a four-year time limit, and they plan to cut grants by 5 percent rather than 13 percent. They will, however, impose a four-year time cap for adults proposed by Brown.

As Senate Democrats did Wednesday, Assembly Democrats will reject Brown’s proposal to cap doctor visits and prescription drugs for Medi-Cal patients. They will also reject Brown’s plan to eliminate Adult Day Health Care.(SacBee)

You can watch the proceedings live here.  If you want a more twitteriffic experience, the community college league has a good recap of the action.

Right now, the 10-cap Medi-Cal maximum, a cruel cut if there ever was one, won’t survive very long.  I’ll try to update this a little bit more throughout the day.  If you see anything interesting, put it in the comments.