Sunday, September 19, 2010

Prop 8 Trial Tracker Takes on Prop 8 Proponents' Appellate Brief

"Hey, Pearl, what's bugging you, girl?"

On Prop 8 Trial Tracker, Brian Devine has "attempt[ed] to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8[,] writing about the issues of standing and jurisdiction."  You can read his take here.

I appreciate the value of trying to wade through the Proponents’ filings for the general public.  But I don’t know whether Brian Devine is an expert in the relevant legal areas. (I teach various courses in sexual orientation and the law, constitutional law, and federal courts.)  And the problem here is that significant parts of his analysis are wrong.

For example, he states (and reemphasizes in a comment) that “In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused.”  I believe this is not true.  Rather, the district court “permitted this intervention [of Alan J. Karcher, in his representative capacity as Speaker of the New Jersey General Assembly; Carmen A. Orechio, in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate] because the Legislature had been responsible for the enactment of the statute and because no other party defendant would defend it.”  The defendants made this point in their earlier (and successful) emergency motion to the Ninth Circuit Court of Appeals for a stay of Walker’s judgment.  Since there was no state statute there, nor here, it cannot distinguish Karcher v. May.

Moveover, Brown v. Board of Education was indeed filed as a class action, and whether or not the district court in that case (or the other state cases consolidated with Brown before the Supreme Court), the Supreme Court understood those cases as being class actions. So, since Perry was not even filed as a class action, the propriety of statewide injunction in Brown doesn’t settle the propriety of Walker’s injunction.

Likewise, Loving v. Virginia did not involve a suit for an injunction against the state; Richard and Mildred instead were seeking, and the Supreme Court granted, an overturning of their criminal sentences. Thus, even if the Proponents are right (though I don’t think they are) about the proper scope of Walker’s injunction, that would not conflict with Loving.

All this said, there is plenty of reason for hope still. My blog entry at gives a pretty lengthy, technical, and careful take on the standing issue.  I’ll also try to blog shortly about the scope of the injunction issue (just the two plaintiff couples, or everyone who may try to marry in California).  Ninth Circuit case law doesn’t clearly dictate that Walker’s injunction was too broad, and I’ll explore relevant Supreme Court precedent.  (In short, I think Vik Amar is wrong.)

But now, I must return to preparing to teach Federal Courts tomorrow morning (Monday, September 20).