Why Do we even vote?

[crandc]

There is actually no legal requirement that state officials defend in court. Same holds true on federal level. The US Solicitor General defends the government position in court including Supreme Court but there is no obligation to defend each and every law in court. And since the court has decided, both the Republican governor, who opposes marriage equality, and the Democratic attorney general, who supports it, have supported implementing the decision.

The supporters of Prop 8 filed a very strange appeal of the lifting of the stay (appeal is only for stay, not yet the ruling itself). It basically consists of "the judge was biased" with no exhibits and no legal points. They claim there is a mountain of evidence that same sex marriage does terrible and awful things to straight marriage and to children but the judge did not consider it. They concede this so called evidence was not put forward at trial. This is beyond weird; by law a judge may only consider evidence put forth in the trial. The pro 8 forces say that their witnesses did not testify because they were afraid the trial would be televised even though it was not, and even though the witnesses had made numerous public statements in front of TV cameras about the terrible and awful things same sex marriage would do to straight marriage and children.

Guess (as attorney Boies said) it's a bit different when their statements are subject to cross examination and they have to defend something for which there actually is no evidence.

 

[Denny Crane]

There is actually no legal requirement that state officials defend in court. Same holds true on federal level. The US Solicitor General defends the government position in court including Supreme Court but there is no obligation to defend each and every law in court. And since the court has decided, both the Republican governor, who opposes marriage equality, and the Democratic attorney general, who supports it, have supported implementing the decision.

The supporters of Prop 8 filed a very strange appeal of the lifting of the stay (appeal is only for stay, not yet the ruling itself). It basically consists of "the judge was biased" with no exhibits and no legal points. They claim there is a mountain of evidence that same sex marriage does terrible and awful things to straight marriage and to children but the judge did not consider it. They concede this so called evidence was not put forward at trial. This is beyond weird; by law a judge may only consider evidence put forth in the trial. The pro 8 forces say that their witnesses did not testify because they were afraid the trial would be televised even though it was not, and even though the witnesses had made numerous public statements in front of TV cameras about the terrible and awful things same sex marriage would do to straight marriage and children.

Guess (as attorney Boies said) it's a bit different when their statements are subject to cross examination and they have to defend something for which there actually is no evidence.

When the USA is a defendant in the case, the Solicitor General sure does represent the government. He has no obligation to defend a State's laws.

This decision was a suit against Jerry Brown and Schwarzenegger, among others, and by the city of San Francisco. If there's no legal obligation, there sure is a moral one and I think an ethical one, to defend the suit. The guys in charge shouldn't have the authority to pick and choose which laws enacted by the people they choose not to defend. It's an important principle.

I have no issue with the ruling, and am actually quite pleased. It was a great day for Liberty.

However, the decision is flawed because the 52% of the people who voted for the law did not get their due process (representation in court). In fact, my basis for appeal, if I were in charge of doing so, would be exactly what I've written here. The judge could not make a finding of facts if the state presented no case - it's a forfeit, a win by default.

FWIW, Ted Olson as Solicitor General under GHW Bush took his job seriously. I don't know if he's pro-life or not, but he did argue for the abolition of abortion to the supreme court during abortion cases. The Conservative majority weighed all the arguments and did not overturn Roe. It was as it should be! While I'm pro-choice, I recognize there are a lot of pro-life people (likely several posters here, in fact) who deserve their case presented.

 

[crandc]

Denny Crane, I know I sound like a stuck record, but read the decision. The issue of the vote was taken up. Essentially, the ruling was that a popular vote must be given careful consideration but is not all-powerful. California in the 60s voted 3-1 in favor of a law that would have allowed realtors to refuse to rent or sell homes to non-whites. It was overturned as unconstitutional despite the overwhelming support.

As for solicitor general, you may or may not recall that some liberal (in the true, not pejorative, sense of the word) Obama supporters were vocally upset that he asked his solicitor general to defend Bush-era practices that he had campaigned against. It was widely reported, and I have no reason to doubt the accuracy of these reports, that the solicitor general is NOT required to argue any and all federal laws, although they generally do.

As for whether Schwartzenegger & Brown had a moral duty to defend Prop 8, questions of morality are very much up for debate and are not law. So we just have to disagree on that.

 

[Denny Crane]

crandc,

You're talking past my points. I read the decision a long time ago, thank you.

Obama supporters don't apparently know much. They can beef about things that have to technically be done and be ignorant that they must be done.

I never said the popular or ballot initiative vote is all powerful - quite the contrary. All I said is that because it was a ballot initiative, the representatives of the people have moral and ethical reasons to defend the suit, agree with it or not. The precedent is the people can vote for all kinds of really good ballot initiatives, like a balanced budget requirement, and all it takes is some sham lawsuit, a friendly judge, and elected officials who want to see the initiative overturned not defending it in the court. If an initiative is overturned by a judge after getting a fair hearing, them's the breaks.

 

[maxiep]

http://kron.com/News/ArticleView/tabid/298/smid/1126/ArticleID/6714/reftab/536/Default.aspx

 

[crandc]

Denny, I am not an Obama supporter, so throw out that line.

In an appeal the appelants (I think that's the right word?) would have to show evidence why the state has an overriding interest in preventing further same sex marriages. Now, if state officials honestly have no such evidence, and there really is none, what should they reasonably do? Make it up? That's not terribly moral IMO. In fact, the Prop 8 supporters admitted in court they had just made up all the horrible things that would supposedly happen if same sex couples wed. So the state officials can either repeat discredited argument, try to come up with new ones, or do nothing.

 

[Denny Crane]

Denny, I am not an Obama supporter, so throw out that line.

In an appeal the appelants (I think that's the right word?) would have to show evidence why the state has an overriding interest in preventing further same sex marriages. Now, if state officials honestly have no such evidence, and there really is none, what should they reasonably do? Make it up? That's not terribly moral IMO. In fact, the Prop 8 supporters admitted in court they had just made up all the horrible things that would supposedly happen if same sex couples wed. So the state officials can either repeat discredited argument, try to come up with new ones, or do nothing.

The decision cannot be appealed to an appellate court, only process and constitutionality of the ruling. The courts have the power to remedy things that are wrong.

That said, an appeal is going to be about the judge being biased, the state not providing a defense, and that sort of thing. Or the constitutionality of overruling a voter initiative.

 

[crandc]

Denny,

First, I highly appreciate this discussion.

There is precedent for the gov & AG. In Arizona, an English only ballot measure was approved about 15 years ago. The then gov & AG did not defend in court because their view was that the measure, although passed by voters, was unconstitutional. The case eventually went to the Supreme Court who decided it on other issues, but made no comment at all on the state reps not defending the measure.

As to the appeal. Basing it on the judge being biased is very dangerous. Courts tend to take a dim view of such arguments, even in cases where bias was open and obvious. And both sides accepted the judge prior to trial. It's hard to say that a conservative judge was fine, until he ruled against you. Saying the judge was biased because he "may" be gay might be good PR but it's crappy law since the California State Constitution prohibits discrimination in employment based on sexual orientation. In fact, that is why the State Supreme Court declared Prop 22, which prohibited same sex marriage, unconstitutional. And why Prop 8 had to be a constitutional amendment. Basically Prop 8 said the non-discrimination clause in the State Constitution did not cover marriage, but Prop 8 had no impact at all on employment or other non-discrimination issues. Moreover, saying the judge must be biased based on his conjectured sexual orientation, and therefore has a personal stake in the decision, is a double edged sword. Because Prop 8 supporters claim same sex marriage harms hetero marriage, so by the exact same logic a heterosexual married judge would be biased because, according to the supporters themselves, he/she would be directly impacted.

Actually, it appears they are appealing on other grounds. Prop 8 and the legal defense of it were based on claims that same sex marriage would harm hetero marriage and children. During the campaign they ran ads, wrote articles, made speeches, etc. citing supposed studies and scholarly books backing these claims. No doubt there were a lot of Californians who really don't care one way or the other if same sex couples wed who were swayed by these arguments. At trial, it was established that the studies don't exist and the claims made were literally made up. Invented out of thin air. So late in the trial they switched and said Prop 8 was needed for the state to "encourage responsible procreation", defined as procreation in marriage. Not only is there no law establishing such a concept, they could not show how same sex marriage would increase divorce, out of wedlock birth, etc. Moreover it could be used as an argument for marriage equality since thousands of same sex couples are raising children. Nonetheless, at least so far that appears to be the basis of their appeal.

Really, you know, they don't have legal or factual arguments. And a court of law is not a campaign. In a court you have to face cross examination and cite evidence. Sadly for them, gladly for equality, they have none.

 

[Denny Crane]

Denny,

First, I highly appreciate this discussion.

There is precedent for the gov & AG. In Arizona, an English only ballot measure was approved about 15 years ago. The then gov & AG did not defend in court because their view was that the measure, although passed by voters, was unconstitutional. The case eventually went to the Supreme Court who decided it on other issues, but made no comment at all on the state reps not defending the measure.

As to the appeal. Basing it on the judge being biased is very dangerous. Courts tend to take a dim view of such arguments, even in cases where bias was open and obvious. And both sides accepted the judge prior to trial. It's hard to say that a conservative judge was fine, until he ruled against you. Saying the judge was biased because he "may" be gay might be good PR but it's crappy law since the California State Constitution prohibits discrimination in employment based on sexual orientation. In fact, that is why the State Supreme Court declared Prop 22, which prohibited same sex marriage, unconstitutional. And why Prop 8 had to be a constitutional amendment. Basically Prop 8 said the non-discrimination clause in the State Constitution did not cover marriage, but Prop 8 had no impact at all on employment or other non-discrimination issues. Moreover, saying the judge must be biased based on his conjectured sexual orientation, and therefore has a personal stake in the decision, is a double edged sword. Because Prop 8 supporters claim same sex marriage harms hetero marriage, so by the exact same logic a heterosexual married judge would be biased because, according to the supporters themselves, he/she would be directly impacted.

Actually, it appears they are appealing on other grounds. Prop 8 and the legal defense of it were based on claims that same sex marriage would harm hetero marriage and children. During the campaign they ran ads, wrote articles, made speeches, etc. citing supposed studies and scholarly books backing these claims. No doubt there were a lot of Californians who really don't care one way or the other if same sex couples wed who were swayed by these arguments. At trial, it was established that the studies don't exist and the claims made were literally made up. Invented out of thin air. So late in the trial they switched and said Prop 8 was needed for the state to "encourage responsible procreation", defined as procreation in marriage. Not only is there no law establishing such a concept, they could not show how same sex marriage would increase divorce, out of wedlock birth, etc. Moreover it could be used as an argument for marriage equality since thousands of same sex couples are raising children. Nonetheless, at least so far that appears to be the basis of their appeal.

Really, you know, they don't have legal or factual arguments. And a court of law is not a campaign. In a court you have to face cross examination and cite evidence. Sadly for them, gladly for equality, they have none.

The govt. made no legal or factual arguments, as they should have. The appeal can't be about the decision unless the decision is somehow a constitutional issue, malfeasance or malpractice or somehow the trial was otherwise flawed. The judge being biased is perhaps a weak (pathetic) example of the kind of thing that could be argued. As I pointed out, the govt. not putting up a defense is the tact I see as being viable.

The appellate court would remand the case back to lower court to be retried if it were to "overturn" the law. It'd be up to the litigants to decide to pursue another trial or not.

Again, you're talking past my points because I'm not arguing the facts of the case and have stated numerous times I'm thrilled with the outcome. The closest you came is with this statement: "There is precedent for the gov & AG. In Arizona..." which doesn't speak at all to whether the California officials should have argued the case or not. In fact, it's a poor precedent, as I've stated a few times now.

I will point out one more thing, which is reasonable evidence that the case was something of a sham - the state wasn't named as a defendant. Can you guess why?

 

[Minstrel]

I will point out one more thing, which is reasonable evidence that the case was something of a sham - the state wasn't named as a defendant. Can you guess why?

Because they didn't defend the law, which they have no legal obligation to do. The government only has a responsibility to enforce existing laws, not defend them in court. Since they have no legal responsibility to defend a law, that's far from "reasonable evidence" that the case is a sham. It simply means that the only people interested in ensuring that this remains a law is a group of citizens...a much smaller group than the one that actually voted for the proposition. I quite doubt that the ruling will be overturned on the grounds that the state government didn't defend the proposition.

 

[Denny Crane]

Because they didn't defend the law, which they have no legal obligation to do. The government only has a responsibility to enforce existing laws, not defend them in court. Since they have no legal responsibility to defend a law, that's far from "reasonable evidence" that the case is a sham. It simply means that the only people interested in ensuring that this remains a law is a group of citizens...a much smaller group than the one that actually voted for the proposition. I quite doubt that the ruling will be overturned on the grounds that the state government didn't defend the proposition.

If the state is named in a lawsuit, they're supposed to defend it. The fact they named state officials and not the state is why it's something of a sham. Rather deliberate.

 

[crandc]

Denny, now you are confusing me. You wrote in response to me that the state was not a defendant and then that the state was named in the suit? The case was Perry v. Schwartzenegger. I'm not familiar enough with legal niceties to know whether normally a case would be person x v. state or person x v. official. But Roe v Wade was person v. official (the then atty gen of Texas), to give one famous example. I certainly see no reason to believe the Prop 8 case was a sham.

I appreciate that you like the decision but not how it was arrived at.

Incidentally, just read that the Nebraska Attorney General will not defend in court an extremely restrictive abortion law passed by the legislature and now challenged. I don't want to debate the merits of that law, or abortion. Just to point out it is not that novel that the gov & atty gen did not defend in court.

 

[Denny Crane]

Denny, now you are confusing me. You wrote in response to me that the state was not a defendant and then that the state was named in the suit? The case was Perry v. Schwartzenegger. I'm not familiar enough with legal niceties to know whether normally a case would be person x v. state or person x v. official. But Roe v Wade was person v. official (the then atty gen of Texas), to give one famous example. I certainly see no reason to believe the Prop 8 case was a sham.

I appreciate that you like the decision but not how it was arrived at.

Incidentally, just read that the Nebraska Attorney General will not defend in court an extremely restrictive abortion law passed by the legislature and now challenged. I don't want to debate the merits of that law, or abortion. Just to point out it is not that novel that the gov & atty gen did not defend in court.

Uh, no.

The state wasn't named in the suit, which is what makes it seem like a scam. Scam, as in, find a sympathetic judge and sue guys who won't defend the case.

The Nebraska case is a bit different, because SCOTUS already struck down a similar Nebraska law in 2000. It's in compliance with a previous court ruling, of sorts.

 

[barfo]

Uh, no.

The state wasn't named in the suit, which is what makes it seem like a scam. Scam, as in, find a sympathetic judge and sue guys who won't defend the case.

I'm no lawyer, but it appears there are legal reasons where suing an individual in his official capacity is the preferred route rather than suing the state itself:

(b) Some courts have identified four requirements for a valid Ex parte Young claim. See, e.g., Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 975-976 (10th Cir. 2001). See also Wright & Miller, Federal Practice & Procedure § 3524 at nn. 70.9-70.10 (2001 Supp.).

(i) The plaintiffs must sue state officials, rather than the state itself. See, e.g., Reickenbacker v. Foster, 274 F.3d 974, 976 n.9 (5th Cir. 2001) (amended complaint named no state official, and was not entitled to proceed under Ex parte Young); Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 975-976 (10th Cir. 2001); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 821 n.6 (9th Cir. 2001); Association for Disabled Americans, Inc. v. Florida International University, 178 F. Supp.2d 1291, 1295 (S.D. Fla. 2001); U.S. v. Mississippi Dept. of Public Safety, 159 F. Supp.2d 374, 378 (S.D.Miss. 2001); Diaz Reyes v. Police Department, 153 F. Supp.2d 74 (D.P.R. 2001); American Soc. of Consultant Pharmacists v. Patla, 138 F. Supp.2d 1062, 1070-1071 (N.D. Ill. 2001). Compare Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).

(ii) The plaintiffs must allege a non-frivolous violation of federal law.

(iii) The plaintiffs must seek prospective equitable relief, rather than retroactive monetary relief from the state treasury. For example, claims for reinstatement are prospective in nature. Carten, supra, 282 F.3d at 396 (rejecting defense argument that the plaintiff was seeking a retrospective reversal of a completed state decision to expel him).

(iv) The suit must not implicate the state's "special sovereignty interests." For more on this theory, see § 7(d)(iii) below.

barfo

 

[Denny Crane]

Here's a link, barfo.

 

[crandc]

Sympathetic judge, Denny? A conservative originally nominated by Reagan, whose nomination was stalled due to outrage over his very antigay litigation, not to mention membership in private clubs that excluded blacks and women of any color? He was at first successfully blocked by Nancy Pelosi but when the first Bush became pres, there were enough Republicans in Congress to get the nomination through. Vaughn Walker was so loathed in the GLBT community that some slammed Boies and Olsen for not trying to get him off the case.

It was Vaughn Walker who sued the founder of what were then known as Gay Olympics on behalf of USOC to have "Olympics" removed, even though everyone and their neighbor uses the term. He won that case, which could just be called doing his job for his client (although it should be noted his clients were all well-heeled corporations). But then he demanded compensation. The founder was in the final stages of AIDS and Walker demanded and got as compensation his home, furniture, and all assets, leaving this dying man literally homeless and destitute. Believe me, our community does not forgive this soon. It was Judge Walker who ruled that police did not used excessive force when they put hot pepper spray into the eyes of environmental protesters. The protesters were seated on the floor with hands bound, so clearly not a threat, when the police held their heads and dabbed pepper spray directly into their eyes with cotton swabs. I am not trying to get off into irrelevancies, just to say that the notion that this judge was "biased" towards gays or civil liberties or liberal causes is just hokum.

And actually the Supremes have not ruled on laws similar to Nebraska's current (on hold) abortion law.

 

[Denny Crane]

Sympathetic judge, Denny? A conservative originally nominated by Reagan, whose nomination was stalled due to outrage over his very antigay litigation, not to mention membership in private clubs that excluded blacks and women of any color? He was at first successfully blocked by Nancy Pelosi but when the first Bush became pres, there were enough Republicans in Congress to get the nomination through. Vaughn Walker was so loathed in the GLBT community that some slammed Boies and Olsen for not trying to get him off the case.

It was Vaughn Walker who sued the founder of what were then known as Gay Olympics on behalf of USOC to have "Olympics" removed, even though everyone and their neighbor uses the term. He won that case, which could just be called doing his job for his client (although it should be noted his clients were all well-heeled corporations). But then he demanded compensation. The founder was in the final stages of AIDS and Walker demanded and got as compensation his home, furniture, and all assets, leaving this dying man literally homeless and destitute. Believe me, our community does not forgive this soon. It was Judge Walker who ruled that police did not used excessive force when they put hot pepper spray into the eyes of environmental protesters. The protesters were seated on the floor with hands bound, so clearly not a threat, when the police held their heads and dabbed pepper spray directly into their eyes with cotton swabs. I am not trying to get off into irrelevancies, just to say that the notion that this judge was "biased" towards gays or civil liberties or liberal causes is just hokum.

And actually the Supremes have not ruled on laws similar to Nebraska's current (on hold) abortion law.

How can it not be seen as a sympathetic judge if there wasn't a state defense? Especially considering all the left-wing dirt you found dug up on him.

 

[crandc]

How can it not be seen as a sympathetic judge if there wasn't a state defense? Especially considering all the left-wing dirt you found dug up on him.

Huh?

Left wing dirt? What have I "found dug up" that is not true?

Sorry, but you have descended into smears and that's where I'm out. I mean I don't have a high regard generally for the legal profession. I'm more inclined to agree with Richard III ("First thing we do, kill all the lawyers.") But it's getting into black helicopter territory to say that 2 attorneys filed a sham lawsuit in hopes of getting a biased judge and we know the judge was biased because "the left wing" has been highly critical of his past actions as lawyer and judge.

In real news, Imperial County in Southeast California is petitioning to defend Prop 8 in appeal. In a front page feature in the Sunday SF Chronicle, spokespeople explained that they are not, you know, bigots. If gays would just stop being gay they'd be fine with us. Pretty similar to the antigay American Family Association saying no mosques should be built anywhere in the US unless the participants renounce Islam.

 

[Denny Crane]

Huh?

Left wing dirt? What have I "found dug up" that is not true?

Sorry, but you have descended into smears and that's where I'm out. I mean I don't have a high regard generally for the legal profession. I'm more inclined to agree with Richard III ("First thing we do, kill all the lawyers.") But it's getting into black helicopter territory to say that 2 attorneys filed a sham lawsuit in hopes of getting a biased judge and we know the judge was biased because "the left wing" has been highly critical of his past actions as lawyer and judge.

In real news, Imperial County in Southeast California is petitioning to defend Prop 8 in appeal. In a front page feature in the Sunday SF Chronicle, spokespeople explained that they are not, you know, bigots. If gays would just stop being gay they'd be fine with us. Pretty similar to the antigay American Family Association saying no mosques should be built anywhere in the US unless the participants renounce Islam.

The dirt you dug up in your previous post (I quoted it) shows the GBLT community thinks he's biased, even if the other way. So it speaks to bias, no?

The choice of where a law suit is filed is often the result of "shopping for a sympathetic judge." It's a huge part of the strategy of litigation.

For us to achieve the result we want, this case has to go to the supreme court who is going to rule that all states have to recognize marriages from other states and that all the states have to give equal treatment (protection) to their citizens. We don't want it to be seen as a sham, using legal trickery and activist judges along the way.

I repeat, the 52% who voted for it deserve to be fully heard before what they voted into law is overturned.