CA Attorney General: Prop 8 Proponents Unlikely to Prevail, Obama's Move Adds to Discrimination's Doom

Obama RainbowAs you may know, the US Ninth Circuit Court of Appeals has certified the question of standing of the defenders of Prop 8 to the California Supreme Court. This basically means that the Court of Appeals has asked the state Supreme Court whether or not proponents of Prop 8 have a legal standing to defend the case under California law by intervening while the Governor and the Attorney General of the state have refused to defend it. Proposition 8, as you remember, was struck down by a federal district court in California, but the Ninth Circuit subsequently issued a stay of that decision while it considers an appeal.

The only Republican statewide candidate with a realistic chance of winning last year in California was Steve Cooley, their candidate for Attorney General. He had promised to defend Prop 8 in court. Kamala Harris, the Democratic candidate, promised not to defend it. In one of the closest statewide elections of all time, Kamala Harris was elected, as California Democrats crashed the nationwide red wave and swept all eight statewide offices. Harris' election is already proving to be crucial in the fight for marriage equality.
The latest offensive against Proposition 8 came when state Attorney General Kamala Harris told the 9th U.S. Circuit Court of Appeals in a letter that sponsors of the measure approved in 2008 were unlikely to prevail in their appeal of a trial judge's ruling last year that struck it down.

Keeping Proposition 8 in effect therefore is a fruitless violation of gay Californians' civil rights, Harris said.

"The public interest weighs heavily against the government sanctioning such discrimination by permitting it to continue," she wrote.
There was a new twist to this as well, as Harris indicated that President Obama's directive for the USDOJ to stop defending Defense of Marriage Act (DOMA) cases where a state already allows marriage equality adds to the doom of the social conservatives.
Harris also said the case for allowing gay marriages was bolstered by the Obama administration's announcement last week that it would no longer defend the federal Defense of Marriage Act, which prohibits the U.S. government from recognizing same-sex marriages.

While not directly relevant to Proposition 8, the administration's new position "substantially diminished" the likelihood the measure's sponsors will be successful in their effort to get the lower court ruling overturned, she said.
I don't know exactly the meaning of her indications, but my interpretation is that given the assumption of the US government that federal denial of marital rights to couples who are lawfully married in their states is unconstitutional takes away the argument of the marriage equality opponents that in California, Prop 8 amounts to the loss of merely the word 'marriage.' If the position of the federal government is - and especially if that position makes it to become legally ratified by the courts - that all couples married under the laws of their state should receive the same federal legal protections, benefits and obligations, then legally, the federal courts must take into account, while deciding on Prop 8, that Prop 8 not only bans the use of a word but over 1,000 federal benefits to same sex couples. Suddenly it's a case substantially and legally more impactful than nomenclature.

Again, I'm not sure that this is the line of reasoning that AG Harris is following. It's my layman's view.

The backers of bigotry, of course, are none-too-happy about this.
"It's a highly politicized case, and this is just a reminder that we need the initiative process exactly because state officials sometimes refuse to do their job," Pugno [legal counsel for the proponents] said. "The fact that President Obama has made a carefully calculated political decision in no way changes the law and the role of the court to decide Prop 8's validity."
Tony Perkins [President, Family Research Council] pointed out that lawyers for the two California couples asked the 9th Circuit to lift its stay just a few hours after U.S. Attorney General Eric Holder announced the administration's new position on the federal act. Perkins asked the government to provide records of any contact the Justice Department might have had with the attorneys.

"Even the appearance of collusion between the Department of Justice and litigants is highly damaging to the rule of law in America," Perkins wrote.
Really, Tony Perkins? Really? Come on. No one is better at extracting judicial collusion, let alone administrative ones, than the nutty Right. I never heard Tony Perkins complain about the "appearance of collusion" when Dick Cheney went duck hunting with Justice Thomas while the Supreme Court was considering a case against, umm, Dick Cheney. What a bunch of hypocrites.