A few good articles: Prop 8, Measure B and what they have in common.


Yesterday’s Supreme Court decision to strike down the Defense of Marriage Act (DOMA) was something to celebrate. According to Eliza Shapiro at The Daily Beast, “The DOMA decision was handed down first, to much jubilation among the large crowd of gay-rights activists gathered outside the court.”

From DOMA & Prop 8 Decisions Explained: What It All Means:

The 1996 federal law had barred defined the institution of marriage as a union between a man and a woman, thus denying federal benefits for gay couples whose marriages were recognized at the state level—like joint tax returns, Social Security, health insurance, pension protection, benefits for military couples, and immigration protections for couples from different countries.

But no longer: the court invalidated DOMA in a 5-4 ruling. Justice Anthony Kennedy, who delivered the decisive vote along with the court’s four liberal justices, wrote the majority opinion. DOMA “violates basic due process and equal protection principles applicable to the Federal Government,” Kennedy wrote.

Shapiro goes on to state that the Proposition 8 ruling is a little more complicated.

The Prop 8 ruling, on the other hand, is less decisive and more complicated. Prop 8 is a 2008 California ballot initiative that prohibited same-sex marriage by amending the state’s constitution. The case was dismissed today on the basis that the petitioners don’t have standing; since the California courts have already struck down Prop 8, the lawyers opposing the bill don’t have standing to defend it. This means the court has effectively validated the rulings of lower courts that have rejected Prop 8.

The ruling was not divided across the predictable liberal-conservative divide. The majority opinion to dismiss Prop 8 was written by Chief Justice John Roberts, who was joined by Justices Antonin Scalia, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer.

So if you’re a same-sex couple in California and want to get married, the court just cleared the way for that to happen. Lt. Gov. Gavin Newsom predicted on Twitter that gay marriages would begin in the state within a month or two.

Which makes this quote from Austin Nimocks in Supreme Court strikes down key part of DOMA, dismisses Prop. 8 case confusing:

“We are happy Prop. 8 remains the law of California.”

If the last court ruling struck it down, it can’t be “the law.”


What’s also interesting about the Proposition 8 dismissal is where Measure B is concerned.

As most of you know, Vivid Entertainment, Kayden Kross and Logan Pierce–adult industry professionals–are suing to overturn Measure B in Vivid Entertainment v. Fielding. As it stands, Measure B mandates that adult performers wear condoms and other protective barriers whenever they perform within L.A. County, but the plaintiffs are challenging Measure B’s constitutionality. AIDS Healthcare Foundation (AHF)–the sole entity behind the measure–filed an injunction to intervene because they have interest in seeing the measure in place. U.S. District Judge Dean Pregerson allowed AHF to enter the case, but adult industry attorney Allan Gelbard made a statement in yesterday’s XBiz article by Rhett Pardon, U.S. High Court Decision May Impact Measure B Suit [NSFW], that the Proposition 8 ruling changes that.

[T]oday’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,” 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.

Mark Kerne’s article Have Supremes Given Adult a Major Victory in Measure B Case? [NSFW] expounds on this.

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.”

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Author: Julie Meadows

Francophile, oenophile, French Scrabble advocate and future zombie apocalypse survivor.


  1. Also, on a techical matter, Prop 8, while rendered unenforcable, is still “technically” the law because the Supreme Court essentially “vacated” the Ninth Circuit’s ruling based on the lack of legal standing by the groups defending Prop 8; and sent the case back to the Ninth Circuit with instructions to rework their ruling. Of course, the California Supreme Court”s overturn of Prop 8 still stands, as well as District Judge William Walker’s ruling overturning the law on equal protection grounds…..so it’s simply a matter of the Ninth Circut adjusting their ruling to fit the SCOTUS’ parameters and permanently lifting the istay against granting licenses for same sex couples.

  2. Thank you, Anthony! That is extremely helpful.

  3. “They’re both backed by conservative a-holes”, is my initial response to what Proposition 8 and Measure B have in common.

    Based on what I had read it seems that although the battle is far from over; it seems all downhill from here. After all it’d be hard to find an entity (person/company/etc) that would incur damages for not having Measure B in place; which is what proponents of Measure B would need to find in order for it to be saved.

  4. Its about time the court has noticed the conflict of interest regarding AHF and Measure B

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