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Yesterday's Hearing on Standing in the Prop 8 Case: FULL VIDEO, REACTIONS


As promised, here is full video of yesterday's hearing before the California Supreme Court regarding 'standing' in the Proposition 8 case.

Watch it, AFTER THE JUMP...

Our legal expert Ari Ezra Waldman weighed in yesterday afternoon, and lots of you had questions which Ari is planning on answering in the comments.


Lambda Legal issued the following statement from Legal Director Jon Davidson:

"It is often impossible to predict from the questions asked by appellate judges how they will rule and today was no different. All of the judges on the California Supreme Court asked probing questions and seemed concerned about the implications of any decision they might make. We continue to hope that the Court will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state.

"We also hope they will see that the proponents of Proposition 8 had no direct interest in the validity of the measure. Their only legal interest was getting it placed on the ballot. A philosophical interest based on prejudice against lesbian and gay people should not be enough to gain access to federal courts."

Shannon Minter, Legal Director, National Center for Lesbian Rights (via Rex Wockner)"

"I was concerned by the tenor of many of the justices' questions today. The court has a responsibility to enforce the California Constitution, which gives elected state officials--not private initiative sponsors--the authority to decide whether to appeal a federal court decision invalidating a state law. Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures. Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy.

I was disappointed that, with some notable exceptions, too many of the court's questions today did not address the specific legal questions before them, but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to "the people." The initiative process is already frequently misused to target vulnerable groups, due in part to the Court's past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution. I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch."

Cooper Equality California's Roland Palencia:

"Extremists that backed Proposition 8 want the court to grant them special authority to trump the decision of the Governor and the Attorney General. This request is not only ridiculous, it's outrageous. Anti-equality individuals and organizations are not official representatives of the State and, despite their claims, they will not experience harm if same-sex couples once again have the freedom to marry.

"In fact, it is gay and lesbian couples and their families who are harmed every day that they are denied access to the fundamental right to marry. Judge Walker recognizes this. The Governor and Attorney General recognize this and California citizens increasingly recognize it as well.

"First opponents of equality used lies and and cruel stereotypes about LGBT people being a threat to children and families to to scare voters into supporting Prop 8. They carried the same messages into the courts and now with their attempts to overturn the FAIR Education Act, which will teach factual history about the contributions of people with disabilities, LGBT people and Pacific Islanders adding to the list of often overlooked groups such as women, African Americans, and Latinos.

"We appeal to fair-minded Californians to reject this extremist anti-equality agenda once and for all. And we appeal to the California Supreme Court to apply the law fairly and accurately and reject our opponents' request for standing to appeal Judge Walker's decision."

Watch the full hearing, AFTER THE JUMP...

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  1. This goes WAY beyond Marriage Equality... Shannon Minter hit the nail on the head:

    "Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy."

    At least now the remedy to not liking the decision of the executive branch is to vote them out next time around. But, if special interests are given access to the courts, we're all screwed.

    Of course now the cat is out of the bag anyway so to speak and the Supremes probably know this...proponents will just start writing the proper language into their propositions.

    Posted by: Mike | Sep 7, 2011 9:05:38 AM

  2. "But, if special interests are given access to the courts, we're all screwed. "

    Special interest groups already have disproportionate access to courts, because it costs money to wage lengthy legal fights.

    Posted by: Nat | Sep 7, 2011 9:19:21 AM

  3. Does anyone seriously believe that if this weren't a question related to "the gays" that this whole thing would have been OVER a long time ago.

    As Shannon, succinctly points out above, the very idea of elected officials stepping aside to allow the whims of a few (righteous or ridiculous) to set the agenda for the State is patently absurd.

    There are other remedies; vote people out, reintroduce other measures, etc... but increasingly, this looks like a long-term game plan for any monied majority to deny rights & impose self-will.

    Posted by: Pete n SFO | Sep 7, 2011 9:34:45 AM

  4. The California Constitution vests executive authority in the executive branch -- the governator and the attorney general. Although it provides a complex proceedure for voter initiatives, it does not specifically give initiative proponents any rights to represent the state in any capacity except for making legislation. If the Supreme Court allows standing, it will in effect be amending the Constitution to provide words and authority that are simply not there at present.

    I really don't understand all the crybabies who worry that such a decision will be the end of democracy in California. If the court finds no standing, then it's (apparently) a very simple matter for the voters to change the Constitution to expressly provide standing for all future initiative contests.

    Posted by: Randy | Sep 7, 2011 11:50:25 AM

  5. I'm not a legal expert, but I hope that the court rules in favor of those wanting to defend Prop 8. 2 Reasons: If the shoe were on the other foot and some right-wing governor and/or attorney general did not want to defend a progressive proposition, I would want MY interest group to be able to defend it. More importantly, this will allow a higher court, and possibly even the U.S. Supreme Court, to rule that a ban on same-sex marriage is unconstitutional, thus paving the way for everyone to have marriage equality, including possibly even full federal benefits!

    Posted by: Daniel | Sep 7, 2011 12:56:00 PM

  6. Daniel, originally, I agreed with you, but my mind has changed, and this is why. (It's also something Olson mistakenly left out when directly questioned about it.) If the governor and AG refuse to defend a voter initiative, a random citizen or citizen group cannot step in to defend the law. HOWEVER, if a citizen can show that the repeal of the law would legally harm him (e.g., by showing that he would face discrimination or loss of property, etc.) he does have standing to defend the law. Therefore, yes, if a law can be shown to be harmful to you, you can step in and defend it, even if the governor won't.

    And the more I thought, the better this sounded. Because, if you think about it, a law cannot even be challenged unless someone can show that the law harms them. So, if a law does not legally harm anyone, even if it is unconstitutional, it cannot be struck down by courts, because no one can sue. If we require such standing in order to strike down a law (something which inherently limits freedoms (necessary as that may be at times)), we should at least require that much for people who want to uphold the law.

    Posted by: Matt S | Sep 7, 2011 2:43:59 PM

  7. I love how NOM bleated for years about keeping Prop 8 proceedings secret, but now they have the unmitigated gall to post a link to this video on their blog.

    Posted by: DN | Sep 7, 2011 10:44:20 PM

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