California bill to give Prop. 8 proponents legal standing dies in committee

May 4, 2011 at 12:53 pm 47 comments

By Adam Bink

Excellent news. The bill may have even been unconstitutional anyway:

A bill to give initiative proponents the right to defend voter-approved ballot measures against legal challenges was rejected by a Senate panel yesterday.

Senate Bill 5 targets an issue that has emerged in the court fight over Proposition 8, the 2008 voter-approved ban on same-sex marriage that was ruled unconstitutional by a federal judge last year. The Senate Judiciary Committee rejected the bill on an 3-2 party-line vote.

Then-Gov. Arnold Schwarzenegger and Gov. Jerry Brown, acting as attorney general, decided not to defend the measure in federal court, a position continued by Attorney General Kamala Harris. A federal appeals court considering the initiative proponents’ request to overturn the federal judge’s ruling has asked the state Supreme court to decide whether state law gives initiative sponsors standing to intervene in the case.

California voters deserve to have their position defended when an initiative is challenged in court and the State refuses to defend it,” GOP Sen. Tom Harman, author of the bill and a former primary candidate for attorney general, said in a statement. Harman introduced a similar bill in 2009 that also failed to make it through the Legislature.

Opponents, including representatives from gay-rights group Equality California and the National Center for Lesbian Rights, argued during yesterday’s committee hearing that the proposed change would conflict with the court’s existing power to decide who can intervene in a case. They also argued that law would undermine the constitutional responsibilities delegated to the state attorney general.

Good job, EQCA and NCLR.

Entry filed under: Prop 8 trial.

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47 Comments Add your own

  • 1. Kathleen  |  May 4, 2011 at 1:09 pm

    Good news.

    I’d lost track of this bill, so I really appreciate the report.

    • 2. Gregory in Salt Lake City  |  May 4, 2011 at 2:47 pm

      : D

  • 3. Sagesse  |  May 4, 2011 at 1:09 pm


    • 4. JonT  |  May 4, 2011 at 2:30 pm


  • 6. Colleen  |  May 4, 2011 at 1:11 pm

    I’m pleased to see that this one was shot down, but I’m wearying quickly of the party-line vote. It’s all so … unstable.

    We’re fighting it here in Minnesota, where all the odious bills (the constitutional ammendment, photo ID for voting, reducing abortion rights) are going through just as quickly as the Republican-controlled House and Senate can say “Aye.”

    I’m looking forward to hearing that someone, somewhere, is willing to go against the party line and say “no, this isn’t write.”

    (Sorry for the vitriole, Californians – I am actually tremendously thrilled that this was recognized for the ridiculous, time-wasting stunt it is.)

    • 7. Straight Ally #3008  |  May 4, 2011 at 1:23 pm

      Party-line votes become especially terrifying on the U.S. Supreme Court.

      • 8. Rhie  |  May 4, 2011 at 1:29 pm

        Especially since The Shrub stacked the court with THREE ultra conservatives.

    • 9. Rhie  |  May 4, 2011 at 9:26 pm

      They won’t do it. Over the last 30 years the Republican party has made a concerted and effective effort to get rid of all the Progressives, Liberals, and Moderates of the party. Most of them are now Democrats – Dixiecrats or Blue Dogs – or out of the political arena.

  • 10. Colleen  |  May 4, 2011 at 1:12 pm

    Is there an edit button? That was supposed to be “no, this isn’t right,” of course.

  • 11. Carpool Cookie  |  May 4, 2011 at 1:12 pm

    Great news.

    Reminds us, also (since the vote carried 3/2 “along party lines”) how important it is to have our friends in office.

    • 12. Ann S.  |  May 4, 2011 at 1:18 pm

      Definitely. I’m thrilled our daughter will be able to vote in the 2012 election!

      • 13. Carpool Cookie  |  May 4, 2011 at 1:56 pm

        Please – HAVE MORE KIDS!

        (I might adopt 20 or so nearly-grown orphans….)

        • 14. Ann S.  |  May 4, 2011 at 2:16 pm

          Ye gods, woman, I’m not interested in making medical history by having another at my age. Raising one to near-adulthood (so far) is about all I think I can handle.

    • 15. Mark  |  May 4, 2011 at 2:40 pm

      It should have been 5-0.

  • 16. Rhie  |  May 4, 2011 at 1:17 pm


  • 17. Adam G  |  May 4, 2011 at 1:22 pm

    Obviously I want to watch this, but I’m also really glad this happened.

  • 18. Straight Ally #3008  |  May 4, 2011 at 1:22 pm

    Considering that the current California system seems to allow anything on to the ballot without a check of constitutionality, I say, good show!

    • 19. DaveP  |  May 4, 2011 at 1:53 pm

      Yes. It would have been a disaster for California if something like this had passed, and not just for Democrats & Progressives, for everyone. The California legal system and State Constitution would have become even more insane than it is now, reducing the process to simply being tossed around randomly by the constantly changing whims of flavor-of-the-week opinions and popular trends, as steered by any group with the money to influence the gullible, with absolutely no safeguards to protect individual rights and constitutional principles.

      • 20. Rhie  |  May 4, 2011 at 3:37 pm

        Which would basically be the Founders greatest nightmare. That’s what makes it so wrong when the Conservatives try to argue from the Constitution for such things.

      • 21. celdd  |  May 4, 2011 at 6:56 pm

        I really liked the League of Women Voters Amicus brief on this. They laid out the historical reasons for the initiative process. Although it had a great purpose to reign in the then power brokers, they pointed out that the down side of the initiative process is that there is no back and forth vetting and negotiating and making sure the new law is consistent with all the existing laws and the California and US Constitutions.

        They pointed out there are typically lots of conflicts with existing laws – it is the Executive and Judicial branches that have the responsibility to sort things out for those initiatives to make them workable within all the other interests and constraints.

        If individuals could intervene to litigate their views, it would be chaos. It was an easy read and I thought presented the issues clearly.

  • 22. Ronnie  |  May 4, 2011 at 1:30 pm


  • 23. Phillip R  |  May 4, 2011 at 1:31 pm

    I haven’t seen this posted yet….

    • 24. Ann S.  |  May 4, 2011 at 1:48 pm

      Kudos to Pete Stark, but I don’t hold out much hope of this passing our Republican house. Plus, adoption is traditionally a state issue, not a federal one.

    • 25. Steve  |  May 4, 2011 at 4:15 pm

      Like that will go anywhere. The Catholic Church in particular will whine again. And the votes aren’t there in any case.

      • 26. Rhie  |  May 4, 2011 at 9:33 pm

        Laws like that aren’t proposed to pass. They are proposed to get people on record opposing or supporting a stance. That will later be used to hurt or help the candidate in a TV ad or fundraising mailer.

        This is to get Republicans on record saying they don’t want kids to be adopted. There will be ads or mailers to the effect of either “There are 1 million children on the streets. SO and SO wants to keep them there. He thinks the streets are better for a child than a loving home” or, from the other side, “XYZ Rep wants children raised by deviants! They are pushing the homosexual agenda ON YOUR KIDS!!”

    • 27. Phillip R  |  May 4, 2011 at 8:40 pm

      *shrug* It probably won’t go very far but still…it’s a nice gesture all the same. Anything that spurs conversations on equal rights is a good thing. Besides…who knows…could change some minds.

  • 28. NetAmigo  |  May 4, 2011 at 2:02 pm

    Efforts like this and the attack on the Prop. 8 Judge Walker just show how desperate Prop. 8 supporters have become. It, also, shows that they know they probably have no standing by law.

  • 29. Bill, in San Diego  |  May 4, 2011 at 2:36 pm

    @Kathleen, you’ve recently posted to your scribd account an amicus brief of Jon Eisenberg and Laurie Levenson, two well-known California attorneys. They are arguing that the court should take up the [much] broader question of whether the California initiative law itself is constitutional in responding to the question of the proponents’ standing under the law. There’s been at least one other brief in this case that went off on what might be considered a tangential issue – that brief seems to have been ignored by the court. In your experience, do these kinds of briefs pop up often in appellate cases?

    Bill, mostly a lurker

    • 30. Kathleen  |  May 4, 2011 at 2:59 pm

      I don’t have enough experience to know whether it happens often. It does seem that in high profile cases or those on particularly controversial subjects, there is a wider variety of opinions expressed.

      This proposition has been the subject of more than one lawsuit, and has had such a convoluted procedural history, in and out of different courts, that it has now managed to implicate a wide variety of state and federal laws.

      In general, courts don’t like to take up issues that aren’t in front of them. So I can’t see the CA SC making a decision on whether the proposition process is constitutional, when that isn’t what’s being asked by the 9th Circuit.

  • 31. Peterplumber  |  May 4, 2011 at 2:48 pm

    I just got around to reading the Amici Curiae Brief of Jon B. Eisenberg and Professor Laurie L. Levenson, and it was said very well near the end of that,
    “And the creation of any such a power in unelected and unaccountable initiative proponents would render California’s system of governance even more “dysfunctional” than it is today.”

  • 32. Sagesse  |  May 4, 2011 at 5:28 pm

    RI: Marriage Equality Activists vow to keep fighting

  • 33. Jennifer Gail  |  May 4, 2011 at 6:00 pm

    Seeing this post today caused me to finish writing a poem I have been working on since the whole standing thing first came up —

    Unequal Standing
    Show me the bruise
    The bill for the damage
    Inflicted by Steve wedding Adam;
    Show me the harm
    The painful particulars
    Caused you by Jane wedding Joan;
    I’ll show you my wounds
    The receipts for the money
    Paying fees, bills and taxes you don’t
    The costs paid in tears,
    In fear and in labor;
    The bully-tax paid for in lives
    I’ll show you the harm,
    The concrete still bloody
    Caused by the lack
    Of marriage equality.
    • 34. Straight Ally #3008  |  May 4, 2011 at 9:05 pm

      Hear, hear – well said!

  • 35. Sagesse  |  May 4, 2011 at 6:39 pm

    Palm Springs considering its stand on gay marriage|topnews|text|Frontpage

  • 36. Sagesse  |  May 4, 2011 at 6:43 pm

    From Minnesota

    U law professors oppose gay marriage amendment

  • 37. Sagesse  |  May 4, 2011 at 6:48 pm

    Chelsea Clinton: I Want My Kids to Grow Up With Marriage Equality

  • 38. Sagesse  |  May 4, 2011 at 7:09 pm

    AG Holder testifies

    Watch: GOP Congressman Compares Same-Sex Marriage to Incest, Polygamy in DOMA Hearing

  • 39. Sagesse  |  May 4, 2011 at 7:12 pm

    “El Diario, New York’s largest Spanish-language daily newspaper, has an editorial in today’s edition supporting same-sex marriage.”

    ‘El Diario’ supports gay marriage, alludes to Diaz

  • 40. Matthew  |  May 5, 2011 at 2:37 am

    Someone should file an amicus brief about this. Clearly all those people who tried to push this bill know the proponents don’t have standing. So they want to use a cheap trick to give them standing.

  • 41. Sagesse  |  May 5, 2011 at 4:28 am

    The NY Times Supreme Court columnist weighs in.

    Recuse Me

    What made my stomach lurch yesterday was a comment, I forget by whom, that this lame ploy is headed for the Supreme Court.

    • 42. Kathleen  |  May 5, 2011 at 7:38 am

      I read this yesterday. Loved this line: She says (obviously with tongue firmly in cheek), “Who, confronting stakes as high as the potential collapse of Western civilization, could reasonably be impartial?”

  • 43. Sagesse  |  May 5, 2011 at 4:45 am

    Losing count of the many fronts on which the equality war is being fought.

    AIDS funding: caught in the crossfire of the FY 12 budget battle

  • 44. Sagesse  |  May 5, 2011 at 4:55 am

    The source is Tony Perkins, with his usual slimy tone, but there’s new news.

    Navy Jumps Ship on DOMA

    “As part of last month’s training on the “Don’t Ask, Don’t Tell” repeal, our troops learned how to respond if they saw two male Marines kissing. But what if those two Marines are kissing… at the altar? According to the U.S. Navy, that’s okay too. Two weeks ago, the Office of Navy Chaplains shocked everyone by ordering their corps to toss the old training materials and replace them with a version that’s more accepting of same-sex “marriage.” Citing “additional legal review,” the Navy says it “has concluded that… if the base is located in a state where same-sex marriage is legal, then the base facilities may be used to celebrate the marriage… This is a change to previous training that stated same-sex marriages are not authorized on federal property.”

    Further down, the letter also gives chaplains permission to “marry” homosexuals.”

  • 46. Sagesse  |  May 5, 2011 at 5:16 am

    “Love In Action” Ex-Gay Documentary Premieres Next Month


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