With all the excitement of winning marriage equality in New York this summer and the repeal of Don't Ask, Don't Tell last month, a profound insight that Chief Judge James Ware articulated in an ancillary opinion in the Proposition 8 litigation went relatively unnoticed. Chief Judge Ware explained more clearly than ever how we all benefit when we protect the fundamental rights of each other. The members of the targeted minority group are not the only ones who gain. Chief Judge Ware wrote:


In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.


We have been together for over 24 years and were one of the plaintiff couples in the 2008 California Supreme Court case that ended the exclusion of loving, committed same-sex couples from marriage, reversing Proposition 8. The California Supreme Court decision itself was profound. The import of that court's ruling was that for the first time in American history, all persons in a state enjoyed the fundamental constitutional right to marry the person they chose -- regardless of their race, religion, creed, national origin, gender, sexual orientation or gender identity. A person's fundamental right to the highest state recognition and protection for their relationship depended upon their humanity -- and no other external factor.


The California Supreme Court also became the first state supreme court in our country to hold that, under the state constitution, any law that treated lesbian and gay people differently from everyone else was subject to the highest degree of constitutional scrutiny. Any such law would be presumptively unconstitutional and could stand only if the state established the most compelling of reasons for the law. The California Supreme Court's ruling applies to every aspect of a lesbian or gay person's life -- and the court recognized the question of marriage equality simply as the particular case before it. President Obama followed the California Supreme Court's reasoning earlier this year when he decided that the United States Justice Department would no longer defend in court the so-called Defense of Marriage Act, which excludes same-sex couples from the 1,138 federal rights and responsibilities that come with marriage.


The most profound moment Stuart and I have experienced over the last seven years in the marriage equality movement came after we exchanged vows in our wedding ceremony in San Francisco City Hall and then heard the words ring out, "And now by virtue of the authority vested in me by the State of California, I pronounce you spouses for life." It was the first time in our lives that we experienced our government treating us as equal human beings as gay people -- and it changed everything for us. We vowed at the moment to do everything we could to make this opportunity -- and the human dignity that comes with it -- a reality for every LGBTIQ person. And as we move ever closer to that goal, Chief Judge Ware's keen insights remind us that achieving this goal will benefit not just LGBTIQ people, but everyone without exception.
Lisa McElroy and Amanda Frost: Can a Judge Be Biased Because He Is Gay?
Adam Winkler: Gay Judge Bashing
Rick Jacobs: Release The Tapes And Heal a Nation
My marriage is under attack. The California Supreme Court believes that rights conferred on a discrete minority that have been declared fundamental can be removed by a simply majority of voters.
That is the law of the land in California. It gives carte blance to HATE MONGERS to make minorities "second class citizens" well beyond #prop8 if the Federal Courts do not stop the legally perverted decisions of the California Supreme Court. and it is sickening. And that is how Kevin "C"s It.
The proponents of Proposition 8 filed a motion to intervene as of right that was granted on June 30, 2009 under Federal Rule of Civil Procedure 24(a). Please correct me if i am wrong but this is a District level Curt rule of procedure. Article III still requires a "case or controversy" requirement. (Diamond v Charles, 476 US 54, 68-69 (1986))
Honestly, as i see it, Yes on 8 had the ability to intervene under Rule 24 before the District Court but as a rule of procedure, the Proponents still must establish Article III standing if they are to appeal without the help of the state. Please correct me if i am wrong but that is how the precedent it. One always takes a risk when they intervene at the District Court level that they might not have article III standing to pursue the appeal.
The California Supreme Court must realize the truth before them. Sure they can pass the buck and hold standing exists for Yes on 8 and ignore Equal Protection, and permit standing by judicial fiat. But that would be judicial activism at its worst because it would expand current California Constitutional law to violate Equal Protection. Want proof? There is nothing in the California constitution or state laws that permit Yes on 8 to appeal when the government decides not to. So the Court could rule against Yes on 8 without even have to expressly rely to any federal authority as the basis for their decision.
In the second place, the old adage, "be careful what you wish for" certainly applies here. Many HP posters seem to think that a denial of standing will result in an early and automatic win for Prop 8 opponents. Not so. Most likely, it will only mean that Judge Walker's decision will be vacated.
Why? Because if the defendants had no standing for the appeal, then how could they have had standing for the initial trial? If there were no bona fide defendants in the original trial, then there was no case, no controversy to begin with; hence, no real trial, no real ruling.
U.S. courts do not play games with standing, as in "OK, now you have standing -- whoops -- now you don't have standing, we were just kidding." If you have standing to begin with, then you have it all the way through to the US Supreme Court, if the case goes there, or you never had it to begin with. Otherwise, it would mean that Judge Walker produced an un-reviewable, un-reversable decision that higher courts could not weigh in on, and that state officials colluded to make it happen.