Supremes May Give Adult a Major Victory in Measure B-UPDATED

UPDATE: Click here for the Motion filed by attorney Paul Cambria on June 26 to ask Judge Pregerson to reconsider his Order allowing AIDS Healthcare Foundation to intervene in Vivid's Measure B lawsuit.

WASHINGTON, D.C.—This morning, the United States Supreme Court handed a victory to all gay/lesbian couples in California, though sadly not the rest of the country, and it did it in a way that may have a major impact on Vivid Entertainment's lawsuit against LA County's Measure B, the mandatory barrier protection law which would force adult performers to use condoms, goggles, rubber gloves and other devices in sex scenes.

In the majority opinion in Hollingsworth v. Perry, unofficially referred to as the Proposition 8 case, for the referendum which took away the right of same-sex couples to marry, Chief Justice John Roberts noted that the Supreme Court need only answer the question of whether the Ninth Circuit's decision overturning Prop 8 was constitutional if those seeking to overturn that decision have the legal right to do so.

"Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual 'case' or 'controversy'," Roberts wrote for the court's majority. "As used in the Constitution, those words do not include every sort of dispute, but only those 'historically viewed as capable of resolution through the judicial process.' ... For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have 'standing,' which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit."

That last phrase is particularly important, since the Supreme Court is saying that although the same-sex couple that wanted Prop 8 overturned sued several elected California officials including Gov. Brown and Attorney General Kamala Harris, when those defendants refused to defend the Proposition, that should have been the end of the case right there, giving victory to Kristin Perry and partner Sandra Stier. Instead, however, the Ninth Circuit allowed State Sen. Dennis Hollingsworth and the conservative religious group Campaign for California Families to essentially take over the case from the officials, on behalf of anti-marriage-equality forces like the Church of Latter-Day Saints (Mormon), which donated millions of dollars to pass Prop 8 in the first place.

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]

And of course, that's exactly the position AIDS Healthcare Foundation (AHF) now finds itself in as the "Intervenor" in the lawsuit against Measure B filed by Vivid Entertainment, Kayden Kross and Logan Pierce against Los Angeles County and two of its officials: AHF has not suffered any "concrete and particularized injury that is fairly traceable to the challenged conduct," nor has it suffered any "personal and tangible harm" that could be solved by a favorable court decision.

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.

Whatever happens, LA County's Measure B, to which the City of Los Angeles has also linked the fate of its current barrier protection law, might soon no longer pose a threat to the adult industry.