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The Wright Perspective℠

Social Commentary from the C-Suite to Main Street℠

A Blog by Gary Wright II

Prop 8 Update - CA Left at the Altar?

Wednesday, August 18th, 2010

Today was supposed to be the big day for same-sex couples to marry in California - but they were left standing at the altar when the Federal 9th Circuit Court of Appeals granted an emergency stay on the district court ruling that Proposition 8 was a violation of the Constitution.

First, let's clear up some confusion over the language being used: "Prop 8" is an amendment to California's State Constitution that was passed by voters. It states that a marriage can only be between a man and a woman. "Proponents of Prop 8" are against gay marriage and are the "defendants" of the case. The "Opponents of Prop 8" support gay marriage and are the "plaintiffs" of the case. It gets confusing because the "proponents" of the law are actually "opponents" to gay marriage. Instead of using confusing language, I'll refer to this case as Perry v. Schwarzenegger.

On August 4th, United States District Chief Judge Vaughn Walker declared California Proposition 8 unconstitutional because it violated the due process and equal protection under the Fourteenth Amendment of the United States Constitution. (Please see my blog entry for a summary of the court ruling.)

Although Judge Walker ruled against Prop 8, he issued a temporary stay on the ruling. That stay was later lifted on August 11th, but he gave the legal system until today to prepare for the change. At the last minute, a three-judge panel (Judges Edward Leavy, Michael Daly Hawkins, and Sidney Runyan Thomas) in the US 9th Circuit Court of Appeals blocked the lower court's ruling.

The decision of the panel was in response to a 44 page OPPOSITION TO EMERGENCY MOTION FOR STAY PENDING APPEAL OF PLAINTIFFS filed on August 13th. Though lengthy, the filing did not meet the four requirements for an emergency stay, but the stay was granted and the case has now been put on an expedited appeals schedule. This case will most likely end up before the US Supreme Court and the outcome will ultimately affect similar laws in other states across the country.

The California Attorney General filed this statement with the court: As the Attorney General has consistently stated and as was convincingly demonstrated after a full trial on the merits, Proposition 8, which prohibits same-sex couples from marrying, violates the Fourteenth Amendment of the United States Constitution. Attorney General argued that "the parties, the [district court], and, indeed, the general public would benefit" from having the constitutionality of Proposition 8 "decided on the merits following full briefing and argument by the parties." That has now occurred. And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by the district court's conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional.

The City and County of San Francisco filed a separate opposition solely to respond to Appellants' contention that they have legal standing to appeal: Their contention is based on the theory that California law authorizes them to act as the State's chief legal officer, representing the interests of the entire State. As discussed below, that is wrong as a matter of law. The official proponents of Proposition 8 do not have standing to represent the interests of the State of California in this litigation, and therefore they lack standing to appeal.

What's next for Prop 8 fate? Case #10-16696 will start during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010.

Stay tuned to my blog The Wright Perspective and I'll keep you in the loop on any breaking news about this case.

Best regards,

-- Gary Wright II

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