Prop 8 Question

Eric Segall esegall at gsu.edu
Wed Jan 20 16:17:49 PST 2010


I don't think there is a defendant in the case who has the authority to
grant or deny a marriage license. There would be a major
causation/redressability issue if that is the plaintiffs' claim of
injury (not that I really believe those should be legitimate standing
questions but the Court has so held).

Eric



>>> David Cruz <dcruz at law.usc.edu> 1/20/2010 6:48 PM >>>
Is there no case or controversy?  The plaintiffs wanted to get married,
and government actors who answer to the Attorney General and Governor
won’t give them a marriage license.  Sure, the governmental defendants
don’t dispute unconstitutionality, but they still refuse to fork over
the licenses.  Is the theoretical agreement enough to vitiate the
practice conflict?

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


On 1/20/10 3:37 PM, "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
wrote:

If there is no Article III case or controversy, how can the district
court have jurisdiction to determine that Prop 8 violates the US
Constitution? As Susan describes the Diamond case, the case was
dismissed. Prop 8 supporters would be very happy to have this case
simply dismissed.

Mark Scarberry
Pepperdine

________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Bandes, Susan
Sent: Wed 1/20/2010 1:26 PM
To: Eric Segall; Howard Wasserman; dcruz at law.usc.edu; Jonathan Miller;
Steve Sanders
Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
Subject: RE: Prop 8 Question

This case is quite similar to Diamond v Charles, a 1986 case in which
the Illinois Attorney General refused to defend a state statute
limiting
access to abortion. Americans United for Life (and a Dr. Diamond, a
member of the organization) had intervened below on behalf of the
State,
and sought to defend the statute in the Supreme Court. The Court
dismissed the case on Article III grounds. The Court said:

*******
Diamond's attempt to maintain the litigation is, then, simply an
effort
to compel the State to enact a code in accord with Diamond's
interests.
But "the power to create and enforce a legal code, both civil and
criminal" is one of the quintessential functions of a State. Because
the
State alone is entitled to create a legal code, only the State has the
kind of "direct stake" identified in Sierra Club v. Morton, 405 U.S.,
at
740, in defending the standards.
********

Diamond v Charles concerned a criminal statute. The Court noted that
only the state can prosecute criminal laws, and also that these
parties
were not claiming they were in danger of prosecution. Nevertheless, as
the language above suggests, the Article III reasoning doesn't seem
limited to criminal statutes.

And it seems correct that once the law is in place, the process by
which
it became law shouldn't matter for purposes of determining who has
standing to challenge or defend it.

http://supreme.vlex.com/vid/diamond-v-charles-19975661 


Susan Bandes


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall
Sent: Wednesday, January 20, 2010 2:53 PM
To: 'Howard Wasserman'; dcruz at law.usc.edu; 'Jonathan Miller'; Steve
Sanders
Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
Subject: RE: Prop 8 Question

I guess I am still confused about why the sponsors' interest is
different than any California citizen who wants to defend the law or
who
might be hurt if the plaintiffs win.I guess I am thinking that maybe a
default judgment should have been issued against California and the
citizens could vote those responsible out :)

>>> "Steve Sanders" <stevesan at umich.edu> 1/20/2010 5:42 PM >>>
Perhaps, though I guess I think a lot changes when the voters actually
make
law by casting their ballots.  At the getting-on-the-ballot stage, the
proposal still belongs entirely to the proponent organization.  But
once
the
voters have had their say and it's enacted into law, although the
sovereign
always has a presumptive interest in defending laws that are enacted
in
its
name, it's not perfectly clear to me that the private proponents still
have
the same claim.  It's no longer "their" initiative, after all.

I'm not sure this is about standing or just an interesting problem. 
But
how
do we know that the factual and legal arguments that the proponents
are
now
using to defend the matter in court accurately reflect what voters
themselves were thinking?  After all, this is a facial constitutional
challenge, but the trial centers on questions about the motives behind
the
law.  Because a sovereign by definition represents all citizens, it
can
more
or less invent any arguments it wants to defend a law against
constitutional
challenge.  Should a private interest group be given that same
latitude?


Steve


> -----Original Message-----
> From: Jonathan Miller [mailto:jmiller at swlaw.edu] 
> Sent: Wednesday, January 20, 2010 12:24 PM
> To: Steve Sanders; Howard Wasserman; Eric Segall; dcruz at law.usc.edu 
> Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> Subject: RE: Prop 8 Question
>
> If an organization places an initiative on the ballot -- and
> has standing in the event that the secretary of state refuses
> to place it on the ballot, whether because of the language
> used or the signatures provided -- doesn't it follow that it
> should be able to intervene in any action where the
> initiative is challenged on its face?  --  If you have
> standing as a plaintiff to get something on the ballot, it
> would seem to follow you should have standing to defend it
> against a facial challenge.
>
> Jonathan M. Miller
> Professor of Law
> Southwestern Law School
> 3050 Wilshire Blvd.
> Los Angeles, CA 90010-1106
> Tel. 213-738-6784
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steve
Sanders
> Sent: Wednesday, January 20, 2010 2:10 PM
> To: 'Howard Wasserman'; 'Eric Segall'; dcruz at law.usc.edu 
> Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> Subject: RE: Prop 8 Question
>
> In a similar vein as Justice Scalia's critique of the use of
> legislative history, can we assume that the groups that
> formally pushed Prop 8 will accurately and properly represent
> the voters who enacted it?  How do we know what
> considerations and motives influenced any given pro-Prop 8 voter?
> What
> if the groups pushing it (and now defending it) used
> deceptive arguments or lied to the voters about facts ("this
> will mean gay marriage is taught in schools," etc.), meaning
> the enactment could have been based, at least in part, on
> fraud?  We accept this in political campaigns, but aren't
> standing requirements (or, cf the FRCP 23 requirements for
> representing a class) usually more demanding?
>
> Steve
> _____________________________________
>
> Steve Sanders
> Attorney, Supreme Court and appellate litigation practice
> group, Mayer Brown LLP, Chicago Co-editor, Sexual Orientation
> and the Law Blog Adjunct faculty, University of Michigan Law
> School (Winter term 2010)
> Email: stevesan at umich.edu 
> Personal home page: www.stevesanders.net 
>
>
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> > Howard Wasserman
> > Sent: Wednesday, January 20, 2010 11:42 AM
> > To: Eric Segall; dcruz at law.usc.edu 
> > Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> > Subject: RE: Prop 8 Question
> >
> > Probably because it was passed via popular democratic
> > processes, so the back-up defender of the law is the private
> > organization(s) that worked to enact it. It does not seem (to
> > me) different than granting standing to members of the
> > legislature to defend a piece of enacted legislation that the
> > executive refused to defend.
> >
> >
> > Howard M. Wasserman
> > Associate Professor of Law
> > FIU College of Law
> > University Park, RDB 2065
> > Miami, Florida  33199
> > (305) 348-7482
> > (786) 417-2433
> > howard.wasserman at fiu.edu 
> > Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm
> > http://ssrn.com/author_id=283130 
> > ________________________________________
> > From: conlawprof-bounces at lists.ucla.edu 
> > [conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall
> > [esegall at gsu.edu] 
> > Sent: Wednesday, January 20, 2010 10:50 AM
> > To: dcruz at law.usc.edu 
> > Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> > Subject: Re: Prop 8 Question
> >
> > And that satisifes Article III?
> >
> > >>> David Cruz <dcruz at law.usc.edu> 01/20/10 10:05 AM >>>
> > The official ballot proponents of Prop 8 were granted
> > standing to intervene as defendants.
> >
> > David B. Cruz
> > Professor of Law
> > University of Southern California Gould School of Law Los
> > Angeles, CA 90089-0071 U.S.A.
> >
> > On Jan 20, 2010, at 6:48 AM, "Eric Segall" <esegall at gsu.edu>
wrote:
> >
> > > I am guessing the answer is obvious but can someone tell me
> > how there
> > > is federal jurisdiction over this case given that the State of
> > > California is not defending the validity of Prop 8. Could
> lobbyists
> > > defend an Act of Congress that the DOJ refused to defend?
> > >
> > > Thanks,
> > >
> > > Eric
> > > _______________________________________________
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