Prop 8 stands?

Consider this:

1.  The Supreme Court today ruled in its opinion holding DOMA unconstitutional that the states are entitled to decide their own marriage laws.  Assume this is not a meaningless statement – a “bald, unreasoned disclaimer,” as Justice Scalia called it.  (This may be asking much of those who recall the majority opinion author’s prior work in Lawrence and Romer, rich with such disclaimers.)

2.  President Obama also acknowledged today that Americans’ views on marriage are based on “deeply held beliefs,” i.e., not animus.  Recall that the challenge to Prop 8, California’s traditional marriage law, which challenge was also decided today, concerned whether to uphold the trial court’s ruling that that law could only be explained by “animus,” i.e., not deeply held beliefs.

3.  The Supreme Court also held today there was no standing in the Prop 8 challenge because of the fact that California’s then-AG (Jerry Brown) and present Governor (id.) refused to defend it.  Lacking the requisite “case” or “controversy,” judicial power could not legitimately be exercised in that case.

In light of (1) the Court’s ruling on DOMA, (2) the president’s statement, and (3) the Court’s finding of no legitimate Article III authority to decide the Prop 8 challenge and thus no ruling on its merits – does Prop 8 stand? Or is President Obama wrong about deeply held beliefs and the Court wrong about states getting to decide their own marriage laws?

Logically, exactly one of those two questions must be answered in the affirmative.  The President and the Supreme Court can’t both be wrong, can they?

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. Tim,

    The exclamation point at the end of your title seems to indicate excitement about Prop 8 standing. If so, I’m curious how you can read what Russell wrote on the front page and remain excited about a law that would make people like him who happen to live in California unable to pen such a piece? What about Prop 8 elicits glee for you (again, if it is indeed glee or something similar you are feeling).

    • The title is offered light-heartedly, and the post itself something of a riddle. I wish Russell the best, despite the differences in our deeply held beliefs about marriage. I mean him no harm or offense here or anywhere.

      • Thank you for responding. I meant those questions genuinely (not as “Gotcha’s!”) and appreciate you responding in turn.

  2. The Presidents words in point 2 were spoken for political purposes, and have little meaning in real life.

    When one’s “deeply held beliefs” are, essentially, that relationships like mine are intrinsically immoral and undeserving of respect or protection, then trying to dissect those beliefs away from “animus” is to search for a distinction without a difference. No matter how deeply held and sincere your beliefs may be, when translated into real life they result in injustice.

    I understand how precious your beliefs are to you, and that you grieve to see them lose their primacy as a basis for how our society governs itself. I understand that this is a loss for you, though I wish that you could find a way to be happy for families like mine. Perhaps that is too much for me to hope, but I do anyway.

    But what you are asking for is generosity from people like me. You ask that we try to refract the opposition, to separate out the people who hate us just because from those whose desire for us to stay closeted and unequal because their religious teachings instruct them so. You ask me to see a spectrum where instead I see a floodlight.

    While I do not know you in person, Tim, I think you are a genuinely decent and goodhearted man. For you, personally, I’m willing to find a distinction that means something. But for the law itself? It doesn’t matter to me how sincerely and deeply held the beliefs of those who oppose me are, when at the end of the day those beliefs would subject me to unequal protection under the law. I’m sorry, but my rights as a citizen of this country matter more to me than your ability to see your belief system hold sway.

    I am sorry that we can’t both be happy about yesterday’s rulings, but I have a family to look after. I am happy that I have my country’s help with that now.

      • Thanks for pointing that out, Tim. I don’t check that account nearly enough, and would have missed it for far too long. Which I would have regretted.

        I hope you don’t consider it an indiscretion if I tell others in this context that your reply was incredibly gracious, and in keeping with my impression of you as a genuinely kind and decent person.

  3. In point 3, the Court said that there was no standing to defend Prop 8, not no standing to challenge it. You’re not seriously suggesting that the state could pass a law to, say, confiscate all property held by Republicans and then avoid judicial review by refusing to defend it.

    Anyway, much has changed in 5 years. Place an initiative repealing Prop 8 on the ballot today, and it would win handily, reflecting our current deeply held beliefs (as well as the LDS Church’s likely unwillingness to poke itself in the eye again.)

    • Concurred. Though Scalia probably would have loved to rule that the challenges did not have standing to attack Prop 8 in court.

  4. I can’t believe that I’m resorting to Facebook memes.

    I went to Subway and the guy ahead of me in line ordered the wrong sandwich. First off, he got just plain “Italian” bread. Second off, he ordered ham. Third off, he said “no cheese”. Fourth off, he put mayo on it. Fifth off, he put olives on it. It disgusted me and screwed up my enjoyment of my own, proper, sandwich.

    This is what you sound like when you complain about gay marriage.

    • So, marriage is like a sandwich? I just want to establish a baseline so that, should I decide to respond with an example of my own, it will not be impeached unless it is less serious than a sandwich.

      • Are you aware of what marriage evolved into under heterosexual husbandry? I’m not asking about “what it’s currently becoming” or “what the end point of this journey is” but what heterosexual marriage actually evolved into by 6/25/13?

        Because so long as you incorporate what marriage *ACTUALLY* *WAS* up to and including 6/25/13 (rather than what you, personally, felt it ought to live up to), I’d be fine with treating marriage as an important part of day-to-day life that, indeed, keeps a lot of people from wasting away (and, indeed, causes others to put on a couple of pounds here or there (pats belly)).

        • But it also seems to me that if one wished to pull the “It’s A Sacred Institution” gambit, it’s just as easy for the counter-argument to be that “Congress shall something something AN ESTABLISHMENT OF RELIGION OR THE FREE EXERCISE THEREOF”. If we’re running with “sacred”, I’d say that the law doesn’t have the competence to say that those people over there aren’t *really* married and, as a First Amendment kinda jobbydoo, they have every right to have the ceremony, stomp on a glass, then have a party with an open bar. While I have no court case to cite, I’m also pretty sure that The Chicken Dance is protected speech.

          Now, if one doesn’t care about silly things like ceremonies that other people claim are “sacred” but only about real things that really are sacred like TAX DOLLARS, I’d have a great deal of sympathy for this position but I’d point out that people pairing up and buying houses tend to be net tax payers rather than net tax sponges at the end of the day.

          Religion… money… what else is there?

          • The fact that you didn’t come up with it on the first try is interesting, but I’ll give you another chance. Have you thought of any other reasons for marriage?

          • Me? I got the operation when I was 25.

            So… no.

            The reasons I got married were the gay ones.

          • (And that’s actually really unfair to Russell and Boegiboe and Jason Kuznicki because, hey, they actually *HAVE* kids that they’re raising and parenting and tutoring and molding into moral agents. Me? I’m just married.)

          • Russell took my position personally, left a gracious comment, and I responded to him privately. If Jason or Boegiboe or anyone else takes personal offense at my comments about marriage policy — and I hope they know certainly none is ever intended — they can do the same, or send me an email (my address is published here).

            Otherwise, this topic is emotionally charged enough as it is. I would appreciate it if you would not goad others into interpreting my comments as containing personal insults.

          • Dude, *MY* saying that *MY* marriage was for “gay” reasons was the insult, dude. Why? Because they’re doing the thing that I, and my wife, are not.

            I’m going to go out on a limb here and say that you see my marriage as fairly run-of-the-mill. Two people. Modular. Married.

            If you have stuff to criticize about it (“why did she marry *HIM*?” might be an excellent place to start), your criticisms would *NOT*, I’m guessing, include “their marriage shouldn’t be recognized”.

            Am I right so far? Assuming I am, I’m just going to go from there to:

            One does not protect the sanctity of marriage by passing laws. One protects it by being married, staying married, and being a damn good example.

            As such, I see people like Russell and Jason and Boegiboe being married, staying married, and being a damn good example.

            Gotta say, the argument that comes out and says “you’re paying attention to the wrong things, you should pay more attention to *THIS*” really needs to do a very good job of showing how *THIS* is better than the things I’ve seen with my own eyes.

            Additionally, I’d suggest that its emotional content be at least as compelling as what they, and the millions like them, have provided and continue to provide.

          • Have you thought of any other reasons for marriage?

            Have you thought of any reasons for marriage that don’t apply with equal force to same-sex couples as to opposite-sex couples? It’s a sincere question.

          • Really no way to answer this other than to give a full throated defense of the entire argument for traditional marriage. I might work up a post on my take of it. (I finally got my computer at home set up after our move, so I can start writing at home again.)

          • Traditional Marriage *IS WORTH HAVING AND WORTH KEEPING*. If you think that I am arguing against Traditional Marriage, you are mistaken.

            What I need explained to me is how two dudes getting married affects Traditional Marriage, let alone how it affects it negatively.

          • There are lots of advocates and scholars openly antagonistic to traditional marriage who see same-sex marriage as a means of undermining it. So no need to take just my word for it. I’d list several of those admissions against interest in the post I’ll consider working up. Many of them are collected in this work, which is an excellent brief if you’re really interested in understanding the position:

          • I’d definitely be interested in seeing those quotes. However, I’m sure you’re aware that most of the advocates of gay marriage are interested in spreading marriage, not undermining it. I’m also sure you’re aware that just because some people on one side of an issue agree with a basic premise of people on the other side doesn’t make that premise true.

          • There are lots of advocates and scholars who argued that the USSR would survive and the USA would not. They were wrong, of course.

            I need it explained to me, like I were a much-loved but slow child, how SSM would negatively impact TM.

            “This person said it would” is insufficient. I kinda need a “here’s how, and I can slow down if I’m going too fast”.

            Are you married? If you could explain how it affects your marriage, that might help me the most. I can give anecdata all day about how it doesn’t affect mine but… that’s because I know that it doesn’t affect mine. (Or if I’m mistaken and so deep into it that it already affected mine (I did get the operation 15 years ago, after all) and you could explain how it affects me, that might really help when it came to explaining it.)

          • There are lots of advocates and scholars openly antagonistic to traditional marriage who see same-sex marriage as a means of undermining it.

            Well, I suppose they could be right. After all, monogamy was a great way to undermine traditional marriage once upon a time.

          • More seriously, I think you missed the point of my question.

            Is there any purpose of marriage that heterosexual couples would seek in it that would not be a purpose also sought by homosexual couples?

          • Ah, I think I’ve found some of the quotes he means, in the book he links (you can find them starting on page 68).

            Some of them are innocuous and clearly misused by the authors to score points (not a good sign for the rest of the book), and some of them are by genuine radicals. I wish the radicals were right, as I do think it’s an archaic institution, and I’d be happy if gay marriage would change it, but I doubt it will. There just aren’t enough gay people out there. It’s up to straight people to make marriage more egalitarian and less dominated by traditional gender roles. Though they are, slowly, with or without gay marriage.

          • “There are lots of advocates and scholars who argued that the USSR would survive and the USA would not. They were wrong, of course.”

            The special significance is not that these people urging same-sex marriage are “advocates and scholars” but that they are urging same-sex marriage. It makes their conclusion that same-sex marriage will harm traditional marriage an admission against interest.

            To look for harm in specific couples is probably zooming in too close. Like if I asked “what is the harm of repealing laws against lead paint and leaded gasoline? Tell me the effect on you personally” It wouldn’t give me a meaningful answer if your demographic or other circumstances mean you wouldn’t be affected by it.

            Does no-fault divorce have an effect on my marriage? No (I hope!). But does it have an effect on society at large? That’s undeniable, I think.

          • And there are people who make admissions against interest that are still wrong.

            So let’s say that it has an affect upon society at large (and by “society at large” we, of course, mean “other people”). In the same way that we know that we should not eliminate no-fault divorce (we both know that, right?) , how do we know that gay marriage is something more like “lead paint chips (that only affect other people)” and not something more like “Traditional Marriage” that we agree we want more of?

          • (Oh, and for the record? If your argument that SSM will be like lead paint chips involves talking about stuff happening to marriage that already happened in the 70’s, 80’s, and 90’s? You should know that that stuff already happened to marriage back when SSM was a punchline. You should be sure that whatever damage you’re arguing will be done to marriage isn’t already being done by something else entirely and you’re making a mistake by blaming it on SSM. Good luck.)

          • It makes their conclusion that same-sex marriage will harm traditional marriage an admission against interest

            You’re being overly lawyerly here. In a court of law there is good reason to assume an admission against interest is factually true because the person making the admission knows the facts better than anyone else. Here there’s no reason to assume those people know the facts better than anyone else, so there’s no reason to think an admission against interest reveals any important facts.

          • I wrote a critique of Girgis, et. al, that apparently has gone into moderation. In it’s absence, I’ll point to this critique by Alex Worsnip, which is very much in line with my own. The short version of my critique is that Girgis, et. al, 1) create an unpersuasive claim about marriage’s supposed “objective core,” and 2) fail to demonstrate that same-sex couples can’t achieve that supposed core.

          • Which leads to the states adopting the models where anti-clericalism is the dominant state philosophy (France and Mexico are examples). In this model the act of marriage occurs at the clerks office, say by both signing the form. Then if you wish you can have a religious ceremony, but it has no legal standing. I believe the same holds in Germany.

          • Is there any purpose of marriage that heterosexual couples would seek in it that would not be a purpose also sought by homosexual couples?

            My question is different, but it requires some background: We know quite well that gay people are going to be in same-sex relationships, not opposite-sex ones. Even the people who used to think they could change that just gave up and abjectly apologized for all the harm they caused trying. So, gays are going to be in same-sex relationships if that’s illegal, they’re going to be in same-sex relationships if that’s frowned upon, they’re going to be in same-sex relationships if that’s tolerated, they’re going to be in same-sex relationships if that’s welcomed. (Likewise, no matter which of those is true, I’m still going to like women. Even if I’m giving up tax breaks.) Even if we think that same-sex relationships are wrong, all moving along the axis from imprisonment to “Hey, wanna come over and play bridge next week?” does is make life more pleasant for everybody involved.

            So, let’s assume for the sake of argument that there’s something special about man-woman relationships that’s unique, and that people in same-sex relationships are never going to achieve it. They may be in love, they may be devoted to each other, they may be great parents together, they may be the thing that makes each other’s life worthwhile. (All of that can be true; I’ve seen it.) But there’s this thing above that that they’re never going to find. As I said, assume that’s true.

            Why is that an argument against SSM? They’re not going to find it whether SSM is legal or not, because they’re not going to be in opposite-sex relationships either way. They’re already missing the best thing in life; why punish them further with difficulties about hospital visitation and child custody? It can’t be that declaring same-sex relationships a lesser legal category is going to lead them to find opposite-sex partners. We know better.

            Again, suppose everything that book says is true. Why is that an argument against SSM?

          • That is not the only reason for the admission against interest or party admission doctrine. In fact, it does not matter if the party has no foundation at all for making the statement. The doctrine is based on the nature of reasoned argumentation that uncontroverted issues are deemed settled and removed from debate. Evidence doesn’t make its own case: it must be advanced by a party. Where that party has admitted the negative of the issue of the evidence goes to prove, the evidence is moot.

            Here, the claim is whether traditional marriage proponents’ belief that adopting same-sex marriage negatively affects traditional marriage is so unsupported as to lead to no other conclusion but that the belief is founded in animus toward same-sex couples. But as it turns out, many of traditional marriage’s opponents, who obviously do not harbor animus toward same-sex couples, also believe same-sex marriage will negatively affect traditional marriage. They may be wrong, but their very admission defeats the claim that traditional marriage proponents cannot possibly be motivated by anything other than animus.

          • Is there anything that straight married people could argue on the part of gay marriage that could possibly be construed as being against their own interest?

            I mean, if I could find an Episcopal priest or something that said “gay marriage makes marriage betta like butta” or similar?

          • As far as I’m aware, there’s no one arguing, nor would it be relevant, that same-sex marriage proponents’ arguments for same-sex marriage are so driven by animus and devoid of any rational basis. It is for that purpose that the “admission against interest” argument is relevant.

          • A few quotes ~= many SSM proponents.

            While some of those quotes don’t say what you, or they, seem to want them to (though I suspect you know that), the ones that do are motivated by animus towards marriage (a common animus among certain groups: radical feminists, e.g., where radical means something different than what the umm… Old Right tends to use it to mean). Since there are two variables in this equation, gay people and marriage, and we know that the Old Right doesn’t have an animus towards marriage, then by reasoning pretty much identical to yours, we can infer that their belief is based on animus towards gay people. This is spurious reasoning, but it’s your method, not mine.

          • Could it be that people who favor traditional marriage, by which they mean fidelity, permanence, and family, and people who oppose traditional marriage, by which they mean inflexible gender roles and women trapped in abusive relationships, are talking about completely different things? Because I can’t see SSM interfering with the first one, but I can see it undermining the second one.

          • So long as we’ve established that it’s not possible, not even in theory, for me to find a straight person speaking against their own interest in the service of SSM, I’m cool with that.

          • OK, Tim. So you can find a handful of people that want to destroy traditional marriage. And you stack them up against the incomparably more numerous supporters of SSM who don’t. And you say the scales tip toward those who do, enough, at least, that you are protected from claims of animus.

            I might be willing to be generous enough to accept that with nothing more than just a raised eyebrow–even though such weighting is patently silly–if you could actually answer some of the questions put to you with some answer more intellectually sound than the special pleading of Girgis, et al. But in the absence of that, I find it difficult to have confidence in the claim of lack of animus. Because while there may not be burning hatred, a desire to stone or imprison, and while there may even be real and unfeigned acceptance of real live gay people, there’s still a desire to withhold from them benefits that you enjoy, a goal of keeping them second-class citizens, despite the lack of any substantiated evidence of harm; on the basis of mere speculation of unspecified dangers.

            If that isn’t animus, it sure isn’t love.

          • If we could find somebody who opposed gay marriage because he sincerely believed that it would cause us all to be eaten by unicycle-riding goblins, would that also invalidate the notion that animus is the only motivation for the position? It seems to me to be a legitimate counterexample, but is it really a useful one? I’d want to see a position that is not motivated by animus *and* has makes some reasonable argument about real harm.

          • If you were to ask an expert, “What would happen if we reintroduced leaded gasoline,” they’d be able to paint a fairly realistic picture of what the results would be over the next 30-50 years. There would be measurable variables that would be affected in a noticeable way. What are the comparable variables that would be affected by gay marriage? How are they measured, and what mechanism do you propose that would change their trajectory?

          • The argument that “you can’t have what I have, because there might be some negative effect that I can’t specify or provide any evidence for,” is really problematic.

            On the one hand, it sounds a lot like special pleading. “My marriage is a good thing for society, but your marriage might not be.”

            On the other, it seems to show that marriage violates the categorical imperative–our acts of getting married to the person we deeply love were not really acting in a way that we wished would become a universal law.

            The legitimacy of objections all depend on there being some actual harm caused by same-sex marriage, and until there’s a persuasive demonstration of clearly defined harms, particularly as the absence of evidence for any harms continues to mount from certain U.S. states and other countries, the objections’ claim to legitimacy wanes.

        • Unfortunately, the heterosexual husbandry lobby is elusive and disorganized.

          In my experience, most of the more thoughtful supporters of traditional marriage acknowledge that marriage has indeed been eroded by no-fault divorce and some efforts of New Left philosophy. But no canny politician would take no-fault divorce head on — it’s buried under too many false premises our culture has adopted in recent decades. That project has to start in the culture and universities, and that’s a long, difficult road. Same-sex marriage might be another way station on that road, but it’s much further leftward along that road.

          But I see no contradiction, as you suggest there is, in working to keep the remaining and more fundamental precepts of traditional-conjugal marriage intact even while things like no-fault divorce remain on the books.

          • So freakin’ keep them.

            I swear to Jesus that I will not get in your way.

            I also swear to you that the dudes getting married, and going grocery shopping, and comparing fabrics, and going to school plays where the kids sing songs about songs about America to “Old MacDonald”, and arguing about Tom Cruise movies will not get in your way either.

            I tell you this:

            When marriages fail among the righteous, it has nothing to do with the people whose hospital visitation rights you don’t see as necessary. When marriages fail among the righteous, it has nothing to do with whether or not these two guys can be compelled to testify against each other in a criminal case. When marriages fail among the righteous, it has nothing to do with homosexuals at all.

            And you know what? The arguments that marriage is less intact than it was than two days ago is transparent to every single person out there who watched “traditional-conjugal marriage” in action during the 70’s, 80’s, and 90’s.

            Personally, I’m expecting that the gays who so desperately want to marry will throw their backs into it and do a good job of patching back together what you people screwed up.

          • Unfortunately, the heterosexual husbandry lobby is elusive and disorganized.

            It all goes back to electing a divorced man to the presidency.

          • As to “traditional marriage”, which version? The polygamous version found throughout the Bible? The common-law version found throughout a chunk of human history? Or, turning to more modern times, how about the version where women had no independent legal existence, or where marriage was a defense to a rape charge? Or where the State could deny a marriage license depending on the melanin count in a spouse’s skin?

            Traditional marriage supporters advocated passionately that trad. marriage is about procreation. So the State should demand not only the potential for conception but actual conception? Single individuals should no longer be able to adopt, because every child deserves a mother and father (or, alternatively, the orphanage)?

            Yes, that’s snarky. It’s also serious. Once “canny politicians” (or, alternatively, our elected representatives) changed the civil version of marriage to what we have today — the pair-bonding of equals — then the Sup Ct will inevitably be driven to hold that the EP clause requires States to recognize the marriages of any adult consenting pair, irrespective of their genitalia.

        • it’s not possible, not even in theory, for me to find a straight person speaking against their own interest in the service of SSM

          “Sorry, hon, but if I’d been able to marry Dave or Phil, there’s no way I’d have wound up with you.”

  5. We will have to see what the 9th Circuit does with the stay. Governor Brown ordered the Department of Public Health to issue marriage licenses to same-sex couples as soon as the 9th Circuit lifts the stay.

    One of my law school professors thinks that it will be easier to repeal Prop 8 via the referendum process over interpreting the Standing decision. I am not sure I agree. I think that Roberts’ decision keeps Judge Vaughan’s district court ruling up and around.

  6. SCOTUS found that the proponents lacked standing to appeal the District Court’s decision. How they can do that without also finding that they lacked standing to contest the claim at the District Court level is beyond me. But either they threaded that needle, or in fact Hollingsworth et al. never had standing to do anything in this case and it all fell to the Governor and the Attorney General to defend Prop. 8 and everything the Courts did in reaction to their litigation efforts is void.

    If Hollingsworth et al. had standing to defend Prop. 8 in the District Court but not on appeal to the 9th Circuit or SCOTUS, then they tried the case to the best of their abilities in the District Court and lost, resulting in a decision finding Prop. 8 unconstitutional.

    If Hollingsworth et al. lacked standing to defend Prop. 8 in the District Court altogether, then what you have is a constitutional challenge by the plaintiffs (whose standing is uncontested) and defendants (at the time Arnold Schwarzenegger and Jerry Brown) who agreed with the challenge and declined to defend the law. Consequently, Perry wins by default.

    While I see the legal importance of figuring out which way we get there, either way, Prop. 8 is burnt toast.

    • Didn’t the Prop 8 decision say that Hollingsworth and co had standing in District Court because Cal granted them this right or some such?

    • Would Hollingsworth et al. have a case against the governor/AG for refusing to defend it? What if they attacked it from an angle having nothing to do with religion, but of refusing to follow their duties and uphold a democratically chosen law? Please substitute the requisite legalese to make this make sense.

      • Probably not. There is always discretion in the executive and among elected politicians. We live in a world of limited resources and elected officials can’t defend or look into everything.

          • There is also that problem of selective enforcement.

            But limited resources is an issue. I’m pretty sure that when my apartment was burgled in 2008, the police did nothing besides write a report.

      • Plus it would produce a paradox. How can you sincerely advocate for something that you despise? That would be what you would require Brown and Harris to do.

        • Well, I *DO* think that it’s a bit of a problem to deny standing to people more than happy enough to act as a defense when, at the same time, the officials won’t defend a law.

          I don’t like the idea of a citizen initiative passing, making it into the Constitution, then having that initiative challenged to fall apart after it makes it to the supreme court because state officials won’t challenge it and the Supreme Court won’t give standing to anybody except state officials to challenge it.

          And I say that as someone who does not like the law.

          • I don’t like the initiative process either. It was passed for noble reasons at the time (because the state legislature was controlled by Southern Pacific Railroad) but has become a mess.

            In general, I agree with the dissent. In a state with an initiative process, citizens of that state should have standing to defend those laws if the government will not.

          • That being said, I think Kennedy was ready to take day opposition to gay marriage but perhaps Ginsberg, Breyer, and Kagan felt otherwise and went the standing route.

          • Yea, I hate the law but there is a certain sense that the “will of the people” were thwarted, and not through a reasonable mean. If the law was challenged, defended, and overturned on Constitutional grounds… well, that’s how it is supposed to work. That is a protection against the tyranny of the majority. This does not feel like that.

            What could have come from the Governor/AG defending it, but only really going through the motions in doing so? Not necessarily throwing the case, but defending it so that the issue at hand was on Constitutionality instead of on standing. Is it possible that the Governor/AG shot Prop 8 opponents, themselves included, in the foot here?

            As for this: “How can you sincerely advocate for something that you despise?”
            As difficult as that might be, it seems part of the duties of an elected official. If you are not prepared to put your personal feelings aside to defend and enforce the law of the land and all that jazz, you might not be cut out for the office. If they took a civil disobedience approach, that would be one thing. But, again, this feels different.

            And I will again reiterate that I hate this law. I’m speaking here really on procedural grounds and a broader theory of government.

          • Agreed. If the state in unwilling to defend an initiative, its backers should be given standing to do so. And if they’re incompetent boobs like Prop 8’s were, c’est la vie.

          • Which is, by the way, how the District Court came to the conclusion that Prop 8 was motivated by animus. Whenever its backers tried to demonstrate actual harm arising from same-sex marriage, their argument boiled down to “because it’s icky”.

          • I’ge written on the issue of defending the law before. My conclusion is that regardless of the individual officeholder’s preferences, the law must be defended until and unless a strong showing of clear unconstitutionality is made. In the Windsor case the Attorney General did that with what is called a “550 memo” to the Speaker of the House and the President pro tempore of the Senate. Unclear if an analogue to that occurred in California.

          • Burt,

            I disagree. We will always have partisan politics. I don’t think that the opposition has any responsibility to carry out policies preferred by their ideologically-oppositte predecessor especially if done in the executive order kind of way.

            A Democratic AG can decide to go after certain issues that a Republican AG would not go after and vice-versa. Likewise, A Democratic AG is fully in his or her right to decide that it is better to spend resources fighting fraud and corporation than narcotics even if the Republican predecessor felt differently.

        • “How can you sincerely advocate for something that you despise?”

          Insert joke about soul-less money-grubbing lawyers here. (Apologies, Tim.)

    • That the parties agree to a challenge is of no moment to the court, who has a constitutional limitation to its jurisdiction that it only hear cases were the parties are adverse. As Scalia notes in his DOMA dissent, the majority in that case did in fact attempt to “thread the needle,” as you put it, in its similar problem with the appearance that the President was wagging the dog by enforcing DOMA to give rise to the lawsuit but then suddenly refusing to defend the law in court. By calling adversity a “prudential” issue, not a constitutional one, the Court breezed by the problem. Scalia wryly noted that the Court did just the opposite in Flast v. Cohen, and thus the majority’s needle threading suggests the Court doesn’t mind collusive suits so long as it agrees with the outcome.

      Needle threading aside, if a party doesn’t have standing to appeal, it stands to reason it didn’t have a sufficient legally adverse interest to satisfy the “case” or “controversy” requirement at trial. “Agreeing” to be sued doesn’t fix this. In fact, it underscores the lack of a real controversy and the possibility of collusive litigation.

      • Ergo, default judgment. Otherwise a defendant can win by simply not showing up.

        • Yes, but I believe the default judgment would be as to the plaintiffs only. It would not carry the same force as a ruling on the merits after trial. Recall that court rulings only apply to the cases before them. Thus, technically speaking, courts don’t “strike down” laws. Their precedent tells the political branches that promulgating or enforcing such laws would be futile because aggrieved parties would go to the courts and ask to be excused for the same reasons. Rather than go through that ruse, the political branches consider the courts’ rulings as de facto “striking down” the laws even when they do no such thing.

          A default judgment wouldn’t carry that precedent. It would allow the plaintiffs to get married, and that’s as far as it would go.

          • And so the next same-sex couple would have to go to court to challenge the law, and it would also receive a default judgement, allowing them to get married. But that’s as far as it would go.

            And then the next same-sex couple would have to go to court to challenge the law, and it would also receive a default judgement allowing them to get married. But that’s as far it would go.

            And then the nth same-sex couple would have to go to court to challenge the law….

            That’s a mighty elegant (cough, cough) solution.

          • It would select for people that were really serious about marriage.

            It would also be a windfall for the GOP, since it gives gays a reason to elect a governor who would try to defend Prop. 8 in court.

          • It would select for people that were really serious about marriage.

            Now if we could only apply that to heterosexuals as well, we’d have a real defense of marriage.

      • So that leads inescapably to Perry and the other plaintiffs winning on a default judgment.

        Oh! I get it now. You’re saying that they should win on a default, but simply haven’t done so yet, because no default has (yet) been entered. All the litigation between then and now needs to get vacated and then we enter a default and boom! We’re done.

      • You know, standing and jurisdiction doctrine has always been a mishmash of general principles with exceptions for various reasons here and there.* So it’s fair to criticize the logic of the Court’s jurisdiction logic in these cases, but to imply that they have done something outrageous or clearly beyond their constitutional scope is, well…let’s say it’s a stretch that seems animated more by disappointment in the outcome than by an objective analysis.

        FWIW, I see persuasive logic in both sides of the standing/jurisidiction arguments in both Hollingsworth and Windsor. I’m pretty sure the reason for that is that the issue isn’t as cut and dried as you imply.
        *Notable among these is Roe v. Wade. Whatever one thinks of the Court’s substantive decision there, the standing decision was important. Previously no woman had successfully challenged her state’s abortion laws because by the time the Court could hear any such case the woman was no longer pregnant, so could no longer get an abortion, so the case was moot; there was no longer a live case or controversy. But the stupidity of that, the recognition that an insistence on rigid standing doctrine in that case was an example of legal formalism at its most egregious, that prevented an injured party from ever being able to have her case heard to decide if the law that injured her passed muster or not, eventually became too obvious to ignore.

        Before criticizing the Court’s jurisdiction ruling in Windsor, think through the logic of ignoring the Executive’s decision (a decision I’m perfectly happy to criticize) to enforce the law without defending it. Seriously, work that one out. IMO, the Court acted to pre-empt what would have been a wild legal perversity.

      • So I started out yesterday being kind of intrigued by Roberts’ argument in Hollingsworth, as I mentioned at Burt’s place, but the more I think about it, the less it makes sense to me. The argument you’re making here about there not having been a case or controversy in the first place actually clinches for me that there should have been standing here at all stages. I realize this is the opposite effect you intended, but the suggestion you make here that there was no case or controversy in the first place just seems totally wrong to me. The reason is that I can think of several types of cases that happen fairly regularly that i think are indistinguishable from this but where standing or the existence of an actual case or controversy has never been called into doubt.

        The first example is that of two friends or family members that are in a car accident with each other (or some other personal injury situation). The “defendant” in such cases doesn’t want to pay up, and in fact doesn’t, but nonetheless welcomes the lawsuit and indeed would prefer to lose. Of course what happens (as I understand- I don’t do insurance defense) is that the insurance company intervenes and takes control of the suit’s defense. But no one would suggest even for an instant that there isn’t a case or controversy between the friends or family members. The plaintiff has an injury in fact and the defendant is refusing to redress that injury. They’re effectively “enforcing” their rights even as they are refusing to actually “defend” them. In response, another party with a colorable interest is entitled to intervene, and I am pretty sure that there is precedent indicating that a legislative body has an interest in defending the Constitutionality of the laws that it passes. In Hollingsworth, of course, Roberts seems to suggest that proponents of a referendum lack the interest of a legislative body, but this seems like a huge stretch to me since the proponents of a successful referendum in many ways are the legislative actors.

        The other example, even better for our purposes, is that of the qui tam suit. In such a suit, an individual is entitled to sue on behalf of the government for fraud against the government. There are no restrictions on who this individual may be, IIRC, and there is no requirement that they have any personal injury that they suffered as a result of the alleged fraud. In the process of pursuing such an action, the plaintiff forces the government to decide whether to take control of the action and prosecute it itself, or permit the plaintiff to proceed with the suit while standing in the shoes of the government.

        Quite frequently the government declines to take up the suit, either because it thinks there is no merit to the suit (frequent) or because it’s actually a party to the fraud (rare), or because it doesn’t want to damage it’s relationship with the alleged fraudster, or some combination of those reasons. Regardless, in such situations the government is effectively saying “we don’t want to fight this, so you have permission to officially represent our interests.”

        The difference between a qui tam action and these cases is obviously that in that case the government’s interest is that of a plaintiff, which here its interest is that of a defendant. But that should make this case even clearer for purposes of there being a real case or controversy and for purposes of there being standing – in a qui tam case, the plaintiff has no claim whatsoever to having suffered or being about to suffer an injury in fact, and indeed literally anyone can be that plaintiff. Here, the defendants have a direct interest in seeing the laws they were responsible for passing upheld; what’s more, there’s no possibility of conflicting results caused by permitting them to intervene – in theory, in a qui tam case, numerous separate plaintiffs could sue separately on the same alleged fraud, while here only one entity is going to get the requisite permission to appear on behalf of the state in response to any given alleged injury.

        • Mark,

          It took me a couple reads to understand the point you are making here. I think you’re saying that if an insurance carrier in a PI action and a plaintiff in a qui tam suit have standing, then so should have the initiative proponents in Hollingsworth. I’m not sure if I totally agree with the analogies, but I agree with the conclusion, and thus disagree with the majority in Hollingsworth. But taking the conclusion of that case – i.e., that the party defending the lawsuit actually had no business being there, only the AG did – it would seem to follow there was never a case or controversy from the moment the AG decided not to defend.

  7. You’re incorrect on (3), as Burt Likko noted; the standing question in Perry was whether the intervenors had standing to appeal the decision – the standing at the District Court level was not in question and the District Court order will take effect once the stays are lifted.

    Whether the District Court order can actually apply to the entire state (it seeks to), I don’t know; I also don’t know if anyone would have the standing to challenge the CA government if it decided it did. I suspect there’s going to be a few town clerks not issuing marriage licenses that will have fun legal consequences, for some definitions of “fun”.

  8. Here I am thinking the Republicans are going to be doing well in 2014… there’s Benghazi, the IRS scandals, the drone issue, Libya, the NSA wiretapping issue (not to mention the Snowden issue), the monitoring of reporters’ computers issue, and god only knows what’s going to be happening with Eric Holder.

    Of course it didn’t occur to me that they might see an opportunity to talk about gay marriage instead.

    (Rand Paul has opened with discussion of marriage to inanimate objects. He’s tried to walk it back… but, of course, he said it on the record.)

    • Like a lot of people (I’m not going to say just Republicans) Senator Paul seems to suffer from chronic foot-in-mouth disease.

      • He could have made a joke. “I certainly hope that people engaging in same-sex marriages respect the sanctity of The Chicken Dance being something that only heterosexual weddings should have at their receptions. NOW LET’S TALK ABOUT THE IRS TARGETING THE TEA PARTY.”


    • Since the GOP now has a license to gerrymander and suppress minority voting, they’re way ahead of where they were 3 days ago, Rand Paul channeling Box Turtle Ben Domenech (and how ironic is it that someone’s plagiarizing him?) or not.

    • So much for him being the great libertarian hope…

      • If only he’d criticized the VRA instead of the CRA, he’d be on the right side of history.

  9. . . .“animus,” i.e., not deeply held beliefs.

    Are animus and deeply held beliefs mutually exclusive categories?

  10. In an abundance of caution, let me make a “meta” comment about this post and the topic of marriage generally. Too many on “my side” of this debate sneer at the “other side.” This goes the other way around, too, but let me say that I do understand that many gay and lesbian people who want to be married view this as a civil rights issue, and therefore are understandably very emotional even about things that people don’t get too emotional about — like legal opinions. While it should be fair game for a lawyer and blogger to riff on legal opinions, as I do in this post, I will be more cautious in the future not to arouse suspicions that I am rolling my eyes at any person’s belief that they are being deprived of a civil right or their desire to secure or protect that right. I am not. I do at times make light of — even sneer at — arguments I might find wanting or defective. But never at people or their beliefs about something that affects their dignity. Observing that, in this case, such beliefs and emotions are so closely tied up with the arguments themselves, I now realize that caution and respect warrant more solemn prose. Removing some color and humor from the discussion is a small price to pay for the possibility of having a thoughtful and respectful one.

    • Part of the uphill battle you have is that you’re not giving a speech on, say, how prolonged exposure to Ozone and speeds in excess of Mach 2 affects test pilots of a particular kind of fighter plane.

      I mean, if you were explaining that, I’d have to take your word on a lot of little things because I only know so much about Ozone, I’ve only gone as fast as a 737 goes, and I’ve never flown a fighter jet.

      You’re talking about marriage. I happen to be married. When you say “this affects marriage”, right there, you’re saying “this affects you.”

      So, no sneering here, when you give your explanation at the end of the day, if it doesn’t explain how my marriage is affected by this thing that affects marriage? You should know that I, at least, will consider your argument to be wrong. (And I reckon that’s the case with more than just me.)

      Good luck.

    • Tim,
      I’ve been reading your stuff for long enough that I knew where you were coming from. You still have my respect, even before this “abundance of caution.” However, I suppose it’s worth noting that there was a time when I first started reading you when I did not respect your positions and arguments as much, and it’s possible a flippant attitude might have caused that. I honestly don’t remember.

      • Boegiboe,
        I’m sad at that, but not entirely surprised. While I always try to avoid being offensive, I’ve not always kept in mind the special nature of this discussion. At any rate, I appreciate your telling me.

  11. Tim,

    I was looking forward to your take on the term’s big cases. I’d love to get your take on Shelby.

    I think the answer to your question is pretty simple: the president is wrong. We could guess as to whether he is sincerely over-generous in his assessment of the motivation for anti-SSM laws or rather is being politic, i.e. disingenuous, in his statements on the question, but in either case I don’t think it’s much of a curiosity. Either would be in keeping with his overall tendencies.

    Obviously, you might disagree, and I’m not really looking to make the case that in fact the president is wrong; I’m just saying that if he were wrong it wouldn’t be at all remarkable, nor matter much for the legal arguments made by Walker, Kennedy, et all.

    But it’s a good point to raise. The president’s rhetoric definitely remains more conciliatory on this issue than probably the part of his coalition he has most delivered policy progress to (LGBT community, lookin’ at you there) would like for it to.

  12. Although there are a few comments left I would like to respond to, they are better left to a post devoted to the case for traditional marriage, which is beyond the scope of this post. I will consider whether I am up to the task.

Comments are closed.