That discussion contemplates a new party appealing after the original parties decline to pursue an appeal. In this case, the original parties to the litigation wish to appeal.
Let’s imagine an absurd case: suppose Judge Walker had said, during the trial, “This is a bunch of crap!” during the middle of the expert witness testimony for the Prop 8 proponents, and sprayed the Prop 8 lawyers with silly string and then chided them for poor concentration.
Suppose, in other words, he had blatantly and obviously sided with one side to the detriment of the other.
It should be noted that the “notoriously liberal” 9th Circuit can be anything but. The 9th is three times the size of any of the other federal appeals courts, and has something like 28 judges in total.
They don’t sit en banc, ever. If a case calls for an en banc panel, nine of the judges are selected via a sort of lottery. This means that unlike the other federal circuits, or SCOTUS, nobody can predict with much certainty what the 9th will do - because nobody knows which 9th will hear the case.
What is expansive or fuzzy about “…nor deny to any person within its jurisdiction the equal protection of the laws”?
People who want SSM are not asking for a new right or anything special. They want the state to treat them the same was the state treats heterosexual couples. They want “equal protection”, as stated in the constitution, and nothing more.
If the people who wrote it wanted to say, “equal protection except for those people” then they should have said that.
Theoretically the state. If the state chooses not to, I don’t think the intervenors have a seperate judicial remedy under 9th Circuit rules, because they don’t have standing. The discussion in the article looks at the fact that some Circuits don’t require that intervenors have standing. That’s why it looks at the 9th Circuit’s decision in Sagebrush Rebellion, which lays out the requirements to become an intervenor (which, as you’ll note, are below the requirements for Article III standing). You’re right that Yniguez is about a new party appearing, but if you look at Arizonans for Official English v Arizona, which was the Supreme Court case that was the ultimate result of Yniguez, even though the court doesn’t directly resolve the standing issue, it suggests that if it did, it wouldn’t be in AOE’s favor:
Wish I could. “Standing”, in the legal sense, can be mystifying to me in many circumstances. I think it is bizarre that an original party to a case can be blocked from appealing the case. I presume there is some rationale for that but at this point I am not holding my breath hoping to find logic in the legal system.
Would be interesting if the SCOTUS punted by finding the original trial was in error because standing was not achieved. It’d re-instate Prop-8 and put everyone back at square one in one fell swoop while dodging a thorny issue.
The Prop 8 Proponents brief says, "The California Supreme Court has granted the application of initiative proponents to defend initiatives they have sponsored by the State Attorney General and other public officials refuse to defend " How is “sponsored” defined? California Families said in their amicus statement in Strauss v Horton:
So, does an organization that doesn’t introduce the initiative but supports it after it was introduced count as “sponsoring” the initiative? Also, the 9th Circuit isn’t bound by the state of California’s courts in making their standing rules, right? Even if California law gives standing to appeal to California Families in state court, that doesn’t mean they have it in federal court.
Which is to say, is there any federal decision that says that an intitiative sponsor can directly assert the state interest? Because Diamond actually seems to suggest otherwise:
Only if there’s “a showing by the intervenor that he fulfills the requirements of Art. III.” Diamond v. Charles 476 U.S. 54, 68 (1986) An initiative’s sponsor might “directly assert the State’s interest in defending the constitutionality of its laws” under California law, but is there any federal caselaw granting the sponsor the State’s interest, because neither Taylor, Yellen, nor Diamond deal with a initiative sponsor/intervenor? And also, even under California law, can a non-sponsor advocate of an initiative assert the State’s interest?
This case seems like it could effect jurisprudence in this country in more ways than just the topic of SSM.
I have a somewhat separate question? What is the responsibility of the AG to defend a proposition? I have heard some argue that Jerry Brown is abrogating his responsibility by not vigorously defending the Proposition. I am glad he hasn’t but what of this?
Second question, if the Ninth does not issue the emergency stay, can we read much into that about how the Ninth would ultimately rule on the appeal (assuming the standing argument is settled in the Pro-Prop 8 side).
Not a sponsor, but why is that a critical distinction? Yellen deals with a group of farmers that wanted to buy land if a law was interpreted a certain way, and were granted standing when the government declined to appeal an adverse ruling. Surely that’s a WEAKER case for standing than we have here?
They are appointed by the Executive branch, approved by the legislative branch (not talking about state courts).
The legislature can, in most cases, write a law to cover a bad decision (IIRC after Kelo v. City of New London many states and the feds ran to tighten laws to not permit the use of eminent domain the SCOTUS opened up).
They can be impeached by the Senate.
The judiciary also has no enforcement power (famously illustrated in a misquote from Andrew Jackson “John Marshall has made his decision; now let him enforce it!” [actually he said, “The decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”]). They rely on the other branches for that and if they ignore it not much the judiciary can do.
If I were black and living in the US around 1950, I would certainly take issue with what you term to be a “fuzzy” standard. Like it or not, “The People” have always been easily manipulated by fear and the unknown. Get enough stupid people together and you can make them believe anything. How long was I supposed to wait for my rights in 1950? It was over 150 years after Jefferson wrote “…all men are created equal” and about a hundred years after we fought a war to ensure I couldn’t be bought and sold like an object.
The courts have always seem to be a little bit ahead of people in these types of cases. That’s because these “elites” as you call them eventually get around their cognitive dissonance and realize that a lot of the laws restricting rights are just bullshit. And they have, by the power of their position, the ability to do something about it in one fell swoop rather than gather petition and trying to convince millions of voters to do it during an election year, and the subsequently trying to convince millions of other voters later on not to reverse the first vote
It’s a slow ass process and if I grew up not being able to enjoy the same schools as my white neighbors, or sitting where I want to on the bus, or being able to eat lunch at a restaurant, I would say fuck the “correct” way to do something. There’s the “legal” way and then there’s the “moral” way, and if the moral way is faster, then I don’t care how many laws it manages to break or muddle in the process, I want my rights NOW!
Given the courts’ and society’s history in granting rights, I will settle for the evolving standards argument. I don’t care if the same Congress that freed the slaves also said it was still ok to segregate them. You’ll note that only a few lone nuts are the only ones who give a damn. There is absolutely 0% chance that we’re all going to have a judicial epiphany and reverse a long-standing and moral ruling from over a hundred years ago simply because there was something iffy about the reasoning. That’s why I’m happy if the SCOTUS uses Loving or any case to make the argument that yes, marriage is a fundamental right and gays can’t be denied it. Fuck waiting, gays deserve rights now. In 20 years, no one will care at all how it was done and there will be too much momentum to change things