NYT, Frank Rich on the Latest in the Prop 8 Case

The NYT hit Prop 8 hard yesterday. First, an article summing up the major points in the case and its potential trip to the Supreme Court, touching on whether or not Prop 8 proponents have standing as defendant-intervenors:

Prop8That said, the conservatives on the current Supreme Court — considered to be in the majority — “have always been the most restrictive about standing,” Mr. Chemerinsky said.

“And that then makes it hard for these conservative justices, however much they disagree with Judge Walker, to find standing,” he said.

He added, “The irony here is that a doctrine that the conservatives have developed over decades restricting standing in federal cases could now be used to end the debate over Prop 8.”

Judge Walker himself addressed the issue of standing in his opinion on Thursday when he denied a request from the Proposition 8 proponents for a stay of his initial decision, issued on Aug. 4, that found the ban unconstitutional. While saying that the proponents had “organized the successful campaign for Proposition 8,” he countered that it was not their job to enforce it.

“They are not (and cannot be) responsible for the application or regulation of California marriage law,” he wrote.

But Vikram Amar, a professor of law at the University of California, Davis, said the proponents had made more compelling arguments in recent court filings than they had in a two-week trial in January and in their closing arguments in June. In particular, Mr. Amar said, the defendant-interveners had done a good job in arguing that allowing same-sex marriages to proceed during appeals of Judge Walker’s decision could lead to confusion about their validity.

“I do think that if there’s marriages that are entered into and then he’s overturned, I think those marriages are vulnerable,” said Mr. Amar, who opposes Proposition 8.

And Frank Rich takes on Prop 8 in his column:

There has already been an attempt to discredit Walker, who has never publicly discussed his sexual orientation but has been widely reported to be gay. The notion that a judge’s sexuality, gay or not, might disqualify him from ruling on marriage is as absurd as saying Clarence Thomas can’t rule on cases involving African-Americans. By this standard, the only qualified judge to rule on marital rights would be a eunuch. No less ridiculous has been the attempt to dismiss Walker as a liberal “activist judge.” Walker was another Reagan nominee to the federal bench, recommended by his attorney general, Edwin Meese (an opponent of same-sex marriage and, now, of Walker), in a December 1987 memo residing at the Reagan library. It took nearly two years and a renomination by the first President George Bush for Walker to gain Senate approval over opposition from Teddy Kennedy, the N.A.A.C.P., La Raza, the National Organization for Women and the many gay groups who deemed his record in private practice too conservative.

The attacks on Walker have fizzled fast. With rare exceptions from the hysterical fringe — Michele Bachmann, Newt Gingrich — most political leaders have either remained silent about the Prop 8 decision (the Republican National Committee) or punted (the Obama White House). Over at Fox News, Ted Olson silenced the states’-rights argument in favor of Prop 8 last weekend by asking Chris Wallace: “Would you like Fox’s right to a free press put up to a vote and say, well, if five states have approved it, let’s wait till the other 45 states do?” (No answer was forthcoming.)

Ted Olson and David Boies filed a motion on Friday night with the 9th Circuit Court of Appeals, arguing that Prop 8 proponents motion for a stay does not have a chance of winning on appeal. California AG Jerry Brown once again urged the court to let same-sex marriages proceed.

The appellate court has until 5pm Wednesday to decide whether to put another stay on Walker's decision.


  1. MT says

    It’s thrilling that reason is winning. I was very nervous for a while there that the mob hysteria was going to get its way.

  2. anon says

    While conservatives have gone after standing in cases they don’t want appealed, they will want this case appealed and so force the ninth to grant standing. And, as a general rule, liberal judges don’t want rights denied through “enforcer nullification”. As in, if the police don’t like Miranda laws, then if they are the only ones granted standing then Miranda laws will be made mute because they are the enforces of such laws.

  3. David in Houston says

    The issue about Judge Walker’s sexual orientation is a red herring. Had the judge been heterosexual, and ruled against Prop. 8, these same people would simply be screaming, “An activist judge ruled against us! The votes of 7 million people mean nothing!” It would basically be the same rhetoric.

  4. says

    Loosen up, Milkman. I’m 63, and clearly recall when the closet was the rule and repression an absolute. When I joined GAA our biggest battle was getting outer gays and lesbians to come out — TO THEMSELVES!

    Hell when I first met Edmund White he STILL wasn’t Out!

    That’s all changed. Today’s kids are Out from nanosecond one. That means TONS — though somen in here (Hi Tank!) undoubtedly don’t think so.

  5. Jack says

    Um, I want there to be standing. Kennedy would likely vote with the liberal wing on this one. And if the case ends at the district court, the impact is minimal. Others would have to bring cases in other states, and would not have the Boies/Olson team to help them. And the anti-gay marriage side will have learned from their mistakes and come better prepared.

    We caught them with their pants down this time around, and we need to maximize its impact before they have a chance to re-litigate elsewhere.

  6. Steve says

    What’s with the auto-load of the obnoxious Butterfinger ad? Hate that.

    But I love Frank Rich – articulate, sensible. Yes, reason seems to be winning.