Thursday, June 27, 2013

How The SCOTUS Prop 8 Repeal May Have Kneecapped AHF's Measure B Defense

 Updated: Scroll to bottom for latest.

Even this late in the eveniing, you can still feel the joy and relief in the air in California as gay/lesbian/bi folk and those who love them celebrate the US Supreme Court's dual rulings yesterday capping the federally passed Defense of Marriage Act and Cali's Proposition 8 -- both of which defined non-straights out of the benefits of marriage.

The DOMA ruling was straight forward and highly divided, with Anthony Kennedy allied with the four liberal Justices (Elana Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Steven Breyer) uniting in holding the 1994 bill as an unconstitutional abridgment of equal protection; while the four more right-wing Justices (Chief Justice John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas) strongly dissented (and in Scalia's case, dripping with venom) using the old "states rights and democracy) arguments.

The Prop (H)8 ruling, wasn't so straight forward; rather than risk issuing a grand edict on the legal validity of laws opposing same-sex marriages, the SCOTUS instead decided to punt the issue for now, merely upholding the lower appelate court decision that the defenders of Prop (H)8 had lost their legal standing to take the case to the federal level when the state of California declined to defend the law. It was officials with the antigay group Campaign for California Families and right wing Cali Assemblyman Dennis Hollingsworth which had carried on the defense of the law before the US Ninth Appelate Circuit and then the SCOTUS. (Similarly with DOMA, when the Obama/Holder Department of Justice decided not to pursue a defense of that law, Congressional Republicans under the leadership of House Speaker John Boehner paid their own lawyers for that law's defense.)

But, what does that have anything to do with Measure B, the attempt in Los Angeles County to impose condoms onto porn shoots??

As Mark Kernes of AVN recently noted, pretty damn much.

You see, there is currently another lawsuit ongoing in Los Angeles to invalidate the recently passed initiative, in which the plantiffs (VIVID Entertainment, performer Kayden Kross, and producer/director Logan Pierce) are suing the LA County officials who would enforce Measure B for an injunction against enforcement of the recently passed initiative. The original defendants in this lawsuit are the officials of LA County, but the presiding judge in this case, Dean D. Pregerson, did allow the AIDS Healthcare Foundation (AHF), who have been the principal boosters of the condom mandate, to enter themselves in the lawsuit litigation process as a party in defense of Measure B.

Problem is for AHF, the groups defending Prop (H)8, their status in defending the law is greatly undermined under Federal protocols that only those suffering direct harm can file claims for relief to the process. To quote directly from Mark Kernes' AVN article on the entire matter posted yesterday:

When the Ninth Circuit, which had asked Hollingsworth not to appeal his and the Campaign's loss, certified the essential question in the case to the U.S. Supreme Court, as it is required to do, it asked, "Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so."

In other words, did Hollingsworth and Campaign for California Families have standing to bring the case in the first place, since none of them were personally affected by the legality of same-sex marriage.

"What the Supreme Court has basically held is that regardless of a state supreme court thinks a party has standing in its state courts, the federal courts are still bound by Article III, and unless a party has actual Article III standing, it has no standing to pursue an action," First Amendment attorney Allan Gelbard analyzed. "How this applies to AHF is because, under the Article III cases that have come down so far, the proponent of a statute, once it becomes law, no longer has standing in Article III courts to defend or protect that law. That now has to be done by the Executive or someone appointed by the state to defend that interest. AHF hasn't been, so it appears that AHF will be out of court on this matter."

Chief Justice Roberts said nearly that exact thought in the Hollingsworth decision.

"Article III of the Constitution confines the judicial power of federal courts to deciding actual 'Cases' or 'Controversies'," Roberts wrote. "One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. 'The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III's requirements.' The doctrine of standing, we recently explained, 'serves to prevent the judicial process from being used to usurp the powers of the political branches'." [Citations omitted here and below]
Now, considering the humongeous bank that AHF has poured into their condom mandate initiatives, starting with the city of Los Angeles' condom law, then Measure B countywide, and now with the proposed statewide initiative of HB 332, you can clearly say that they are indeed a very involved party in defending Measure B. But, interest (and principal) is not the issue here; the folks filing the lawsuit are the ones who are claiming direct injury due to the passage of the condom mandate; and it is the county and city, since they are the ones who will have to enforce this law if it holds up, who will bear the responsibility for any resulting injury. Outside parties can file and have filed what are called a centori briefs supporting one side or another of a legal preceding, but they are still quite limited in directly intervening in the matters at hand..especially in a Federal court. I'm sure that state and local courts are more tolerant on this question.

It's also becoming more apparent that LA County is becoming more and more reticent to handle the hot potato of enforcing the condom mandate and the other henious byproducts of Measure B; preferring to allow Cal-OSHA to handle most of the dirty work. Obviously, that position isn't going too well with AHF, which is why they are going all out to break off the city of Los Angeles from the LA County Health system and form their own department. But even the city of LA isn't immune, because they recently tweaked their own condom mandate ordinance to copy the language and intent of Measure B...thusly putting them into the fire if the county law is rendered unconstitutional.

All this means that next week could get pretty interesting, as attorneys repping the porn folks attempt to use the SCOTUS rulings as a wedge to force Judge Pregerson to reverse his initial decision and remove AHF as a "party in good standing" in their suit. Again, quoting Kernes:

Hence, attorney Paul Cambria, on behalf of Vivid and the other plaintiffs, will be moving to have AHF disqualified as a party to the case.

"This is exactly what we had suggested was going to happen and should happen," Cambria told AVN, referring to his and the other plaintiffs' attorneys arguments at the hearing before U.S. District Judge Dean D. Pregerson. "It's an important decision because special interest groups with a lot of money shouldn't be able to take over a government role. They have no fiduciary duty, they have no ethical duty to the Constitution. It doesn't make sense to give them standing, and the Supreme Court has recognized that. It's not like the county legislature or a county attorney or an attorney general; those individuals have sworn to uphold the Constitution. They have a fiduciary duty to the citizenry, and if something is unconstitutional or should be narrowly interpreted, they have a fiduciary and ethical duty to do so, whereas special interest groups like AHF have no such fiduciary or ethical obligations."

The Supreme Court made exactly that point in upholding the Ninth Circuit's overturning of Prop 8.

"The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court," Roberts wrote. "But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him in a 'personal and individual way.' He must possess a 'direct stake in the outcome' of the case. Here, however, petitioners had no 'direct stake' in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law."

And that describes AHF's "interests" to a "T."

"We're going to renew our motion to have AHF disqualified," Cambria stated. "They clearly have no standing. The Supreme Court's ruling is on all fours without any possibility of distinguishing it. They have no standing. They shouldn't be heard. They should not be able to submit papers. They should be out. It's up to the county now to handle this matter. My anticipation is that when we show up on Monday [for the scheduled hearing on a Preliminary Injunction against Measure B], we'll ask the court to anticipate that motion and obviously recognize that they [AHF] have no standing based on that case, and seek some guidance from the court as to how we handle it from there."

What that could easily mean is that the case will go forward for a little while, as LA County decides whether it wants to defend the clearly-unconstitutional Measure on its own, or will simply allow the plaintiffs to be victorious through a renewed Summary Judgment motion.
The grand irony of all this is that had the SCOTUS decided to take the more aggressive route and use their Prop (H)8 ruling to invalidate other anti-samesex marriage laws in other states, the "due standing" doctrine would have been no issue, and AHF probably would have a firmer ground to stand on. Of course, they still probably would have lost anyway based on the "equal protection" clause due to discrimination against performers who don't want condoms mandated on them...but at least they would have been able to make their case.

So, Chief Justice John Roberts' reticence in going nuclear (same thing that enabled him to defend the Affordable Care Act last year) might have saved the porn industry in California from a nuke.

UPDATE:  Adult legal analyst and attorney Allan Gelbard jusst issued his own statement reinforcing the dominant position that the Prop (H)8 decision by the SCOTUS knocks AHF out of the Measure B suit. Quoting him from yesterday:

The AHF, in its arguments for intervenor status, contended that counsel for Los Angeles County won't make any arguments made by the proposed intervenors because it won't defend the constitutionality of Measure B.

But today's U.S. Supreme Court ruling, Hollingsworth vs. Perry, which dismisses a case relative to California's Proposition 8 gay marriage ban, could be key in the possibility of tossing the AHF from the Measure B case.

The U.S. Supreme Court today held in Hollingsworth vs. Perry, 5-4, that opponents of gay marriage behind California's 2008 Proposition 8 effort did not have the constitutional authority, or standing, to defend the law in federal courts after the state refused to appeal its loss at trial years earlier.

"The court [in the Measure B case] granted AHF's intervention motion based on the Hollingsworth vs. Perry (Proposition 8) 9th U.S. Circuit Court of Appeals decision that as a proponent of an initiative, they had standing," industry attorney Allan Gelbard told XBIZ.

"The Supreme Court ruled this morning that was incorrect when it held that the proponents of Proposition 8 lacked Article III standing in federal court and vacated the 9th Circuit opinion," Gelbard said. 

Pregerson wrote in the April ruling that the AHF had significant protectable interest in the subject matter of the litigation that was sufficient to support intervention.

The AHF, in its arguments for intervenor status, maintained that the county concedes that the group was a necessary party to litigate the constitutionality of Measure B because "no other party to the case will."

Among its affirmative defenses, the AHF said that it had reserved "the right to have proponents of Measure B intervene and defend the constitutionality of Measure B in light of the Proposition 8 gay marriage ban decision."
Like I said....Monday's shaking out to be an interesting day.

UPDATE #2 (6-27-13):  I guess they couldn't even wait until Monday; the plantiffs in the Measure B suit filed their motion this morning to have AHF disqualified as a party to their suit  AVN has attached a link to the transcript of their original article.


  1. A huge win for the GLBTQ community, and we at the Sex Workers Outreach Project are also celebrating the SCOTUS decision to knock out the anti-prostitution pledge that federally-funded groups fighting AIDS were forced to take.

    And, the NY State Assembly supported a law banning police from using condoms carried by women as evidence of criminal intent.

    BUT, why are the GLBTQ community, and even sex workers, winning lately, but African-Americans and women are falling back?

  2. I hope, and suspect there might even be a chance, that AHF will get kicked down the courthouse steps in light of the SCOTUS ruling, but it still comes down to an individual judges interpretation of that ruling. If the highest courts isn't immune to political pressure (and in Bush v. Gore and Citizens United we saw just how eagerly the Supremes deliver for the Republicans who put the conservative majority on the bench) it's safe to say that Pregerson will have one eye over his shoulder when he rules on the FSC motions. He doesn't live in D.C. He lives here, where AHF's money and influence are a serious political consideration. The law seems clear in this situation, but the politics remain murky. Anyone planning a weekend of celebration at the thought of Measure B's prime pimps getting the boot should probably just raise their glasses to last week's good news rather than in anticipation of what happens here.

    As to the question of why SCOTUS would empower gay people the week after gutting the voting rights of minorities has everything to do with G.O.P. calculations for sustaining itself in future elections. Suppression of majority votes is a nice present for the judges to give their buddies on The Hill and I don't expect them to prove very useful in striking down the unprecedented scum tide of anti-abortion laws flooding through Republican dominated state legislatures. Clearly right has no real hope of making headway with either racial minorities or pro-choice women, so they go under the bus. But absent the irritant of the Republican platform plank opposing same sex marriage, thee may be some hope for fiscal conservatives with some gay voters.

    All these rulings seem like a weirdly paradoxical mix of judicial philosophies but they're actually quite consistent in one way. They benefit Republicans at the expense of Democrats, the mission objective for which the Roberts court was created.

  3. And on a further cautionary note, I wouldn't underestimate the ability of the FSC to to snatch defeat from the jaws of victory once again. Even if AHF is excluded from the courtroom, you can bet they'll make themselves heard all around it, literally, and that our side will do as limp a job of pushing AHF's arguments into the landfill where they belong as they did during the election.

    By continuing to make business-based arguments and allow themselves to be represented mainly by big commercial porn interests they demonstrate that they learned litter or nothing from the ass-kicking they got at the polls and haven't updated their thinking to incorporate the political realities of Los Angeles County - a deep-blue constituency that's pro-labor, regulation-friendly and quick to intervene on behalf of all those poor, hapless porn performers AHF has convinced them needs their protection.

    While I like and respect the legal team the FSC has fielded in this case, the FSC itself is as toxic to many, including some inside the industry, as the AHF is to the rest of us.

  4. Damn, just stole the words out of my mouth that I've been saying about the FSC's campaign for the last 2 years.

    The main issue is while I have nothing but absolute respect for the FSC and those individuals who have put forth maximum effort in the war against the condom mandate (folks like Michael Whiteacre, Sean Tompkins of The Real Porn Wikileaks, and Lydia Lee, the former Julie Meadows, particularly deserve credit), I stil think that the libertarian Right approach ultimately taken towards opposing Measure B as " excessive government intervention" while ignoring the actual makeup of the LA County electorate, and the refusal to make actual inroads with the Black and Latino majority electorate, was something that would come back and ultimately bite the industry's asses BIG TIME. The escapades of Mr Marcus didn't help much, either, but the tone deafness of the anti-Measure B side in rolling out conservative tripes that simply didn't play in a progressive electorate I thought was a critical and ultimately fatal error.

    It also concerns me a bit that these same libertarian Right forces have been enabled to monopolize the campaign at the expense of more progressive spokespeople who could do much better to make a more concise case against the condom mandate on its demerits. I'm not saying that groups such as Stop Condom Lawz should not be at the forfront of the battle, but that a more diverse and comprehensive coalition should be built, and that no one should be left behind.

    I'm sure I'll get whacked for what I just said....but I've been whacked before. Never stopped me from speaking my peace, and never will.

  5. And as for Ernest's point about the SCOTUS and the strategy of the Gang of Five right-wing majority re: the VRA and Prop 8/DOMA rulings:, I do think that there is a bit of divide-and-conquer going on. But, what about the Religious Right/Tea Party/New Right ultracon coalition, who has invested their hearts and souls, if not millions of their tithes, into defending the essential nature of "traditional marriage"? Given their virulent reaction to what went down Thursday, even the establishment Right might have to take notice, especially since the Hard Right essentially owns the Republican Party in most localities in the US.

    Between that, the war against the Affordable Care Act (what I gloss as HeritageRomBamaCare rather than ObamaCare to note its true etiology), and the House TeaPub coming ambush against the Immigration Reform bill, it's not at all assured that the GOTP might still yet implode among themselves as the Far Right either bails out or simply overwhelms the Establishment and moves the GOTP ever further Rightward toward the American equivalent of Greece's Golden Dawn.

    Plus...if the lesson of the 2012 election didn't make it perfectly clear, Black and Latino folk don't take too kindly to attempts to deny them rights they earned through blood, sweat, and tears. Attempts at naked voter suppression, even if fortified by the Gang of Five, could be the spark that awakens the Democratic/progressive base to direct action and mobilization...and remember, demographics and political trends are still in their favor, regardless of whatever the GOTP will do to retain the New Old Confederacy.

    Who knows....maybe the Democrats might even rediscover some Left Populism and gain enough of a spine to actually fight the TeaPubs this time around?