Yeah, you heard that right. September 2011. So, we'll be waiting for a while. Here's what the Court said:
The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted. For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively "Proponents") are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).) In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows: The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18. Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011. The court does not contemplate any extension of the above deadlines. Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
We will likely have a decision by the end of the year on standing. If the Supreme Court rules that the proponents have standing, then we'll be talking about another few months. If they say there isn't standing, then in all likelihood Judge Walker's decision will stand for California.
I'll save you from another discussion of the general standing question, as there are many such blog posts around the internet, some of which I've written myself. Just google "Prop 8 standing" for more information, and you'll be flooded with information.
The Courage Campaign launched a campaign asking same-sex couples who are waiting to tell their stories. You can find more info about that here.
One final comment. The continued dragging on of this case means that real families are still denied equal rights. It is a tragedy and a travesty. I'm a political hack, but at some point, we need to win this one at the ballot.
It's been quiet for a while in the Prop 8 federal litigation, but today might bring some changes on that front. According to the LA Times (h/t Prop 8 Trial Tracker), the California Supreme Court will decide whether they will respond to the question that the 9th Circuit certified to them:
The California Supreme Court will decide Wednesday whether to plunge back into the legal battle over same-sex marriage.
The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8's sponsors have legal authority to defend the ballot measure. (LAT)
The 9th Circuit asked the California Supreme Court a question of state law, basically whether the proponents of a ballot measure have any special standing to defend the measure they helped to pass. The question has always been somewhat murky, both at the state and federal levels. A response on this question could have some pretty far-ranging impacts beyond the Prop 8 litigation.
This is fairly consistent with numbers that we've seen in the past, but PPP has just released their own data showing a majority favoring full marriage equality.
-The tide is turning in support of gay marriage in California. 51% of voters in the state now think it should be legal while 40% think it should remain illegal. It was just a little over 2 years ago that the state passed Proposition 8 but these numbers are reflective of a general liberalization in the views of Americans toward same sex marriage. (PPP)
The numbers get even better when you pull out senior citizens at 53-38. It is only a matter of time before we have full marriage equality in California and, eventually, the nation.
Oh, and they also tested a retrospective on the 2003 recall, and guess what, Californians wish they hadn't done that. By a 42-32 margin, voters would have refrained from recalling Davis. Too bad we can't take back the past seven years and the havoc the Governator wrought.
The 9th Circuit Court of Appeals today issued a "ruling" of sorts on the appeal of Judge Vaughn Walker's ruling that found Prop 8 to be unconstitutional*. The "ruling" was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker's decision:
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.
We understand that the Court may reformulate our question, and we agree to accept and follow the Court's decision.
A further reading of the document issued minutes ago by the 9th Circuit indicates that the court is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here's what the 9th Circuit said:
If California does grant the official proponents of an initiative the authority to represent the State's interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State....
We are aware that in California, "All political power is inherent in the people," Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." We are also aware that the Supreme Court of California has described the initiative power as "one of the most precious rights of our democratic process," and indeed, that "the sovereign people's initiative power" is considered to be a "fundamental right."...
The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so....
Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution's purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents' efforts to "propose statutes and amendments to the Constitution" or the People's right "to adopt or reject" such propositions. Cal. Const. art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.
So what does that all mean? Let me boil it down. Basically, California's constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people - in the form of the initiative proponents - DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people's initiative power.
But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say "yes, the proponents do have standing" or "no, they proponents do not have standing," or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes' longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.
In which case, the 9th Circuit would then rule on the issue of Prop 8's constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing.
The 9th Circuit also concurrently ruled that Imperial County does not have standing to appeal Judge Walker's decision, a ruling that was widely expected in the wake of the farcicial appearance before the 9th Circuit court of Imperial County officials.
The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we've essentially set up a fourth branch of government - the people - that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.
In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule. Whatever the outcome of the Prop 8 case, it's time to bring some sense and sanity to ballot initiatives here in California.
*Somehow I doubt that the 14th Amendment will be read out on the House floor this week by Republicans, who hate the 14th Amendment and want to pretend it doesn't exist.
As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker's bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil's advocate. Sometimes you can get a read, and sometimes you can't. Also, I haven't really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.
So let's take a look at the meat of the issues, and see what we learned today over the flip
I'll be covering the comments live here and at the Courage Campaign's Prop 8 Trial Tracker. You know the basic facts here, so I won't drill down too much. However, it is worth noting now that the hearing will be broken down into two parts, standing and Constitutionality:
In the first hour, a three-judge panel will consider if the group that put Proposition 8 on the ballot two years ago is eligible to appeal the lower court decision since its members are not responsible for enforcing the state's marriage laws.
Outgoing Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to challenge the ruling.
In the second hour, the panel will hear arguments on the constitutionality of Proposition 8. (AP)
Expect most of the fireworks to come out of that second hour, but in terms of how the case goes down, the first hour might be the more telling. There is a strong argument that the proponents of Prop 8 have no standing to appeal the case. Brown and Schwarzenegger chose not to appeal, and that certainly isn't going to change under Harris and Brown. But a decision may very well be made on the question of standing, skirting the constitutionality question entirely. While this would mean that we here in California will have marriage equality, it does not help create the national rule that many have been looking for in this case.
Note that standing would not have been a significantly different question if Cooley had won at this point, as he couldn't have interceded for another month. While the appeal deadline has obviously come and gone, the question about whether he could have appealed beyond the 9th Circuit will remain open. However, I suppose a Cooley victory is a mere hypothetical at this point.
In the end this case is about one basic, core value: separate is never equal. Yet the government under Prop. 8 violates Americans' constitutional rights by creating separate classes of people with different laws for each. The state sanctioned discrimination leads directly to a hostile environment for children and the possibility of hate crimes.
In short, discrimination shouldn't be allowed to stand in California's constitution. My live blogs over the flip...
When the Prop 8 trial goes for its oral arguments at the Ninth Circuit, they will be televised by C-SPAN and heard on local and nationwide radio:
A federal appeals court Wednesday authorized the televising of a Dec. 6 hearing on whether Proposition 8, the 2008 ballot measure that banned same-sex marriage, should be struck down.
The U.S. 9th Circuit Court of Appeals granted a request by C-SPAN to broadcast the two-hour hearing, which is scheduled to start at 10 a.m. The court said C-SPAN would provide its tape to other broadcast media that receive court permission to televise the hearing. (LA Times)
Now, the thing about the Prop 8 litigation, as somebody who sat in on several days of it, is that the defense really had no case whatsoever. They relied completely on the high burden of proof that the opponents of the measure have to prove to get it struck down. Now, that's not an entirely untenable legal position. After all, the standard is quite high. However, in this situation, with the world watching, you would think that they would have attempted to put on a bit more of a case.
Unfortunately for them, there just wasn't any "there" there. Nobody was willing to be cross-examined by Boies, and the two "experts" that did testify a) weren't really experts and b) did more help for the opponents to the measure.
Televising the oral arguments certainly isn't as good as had the state and nation been able to see the actual trial. Trust me, it was good. However, this should be seen by the world for what it is. Discrimination should not be allowed to stand, whether a slight majority wants it stand or not. There are certain rights that just should not go to a plebiscite.
Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I'll not go back over them, but when I read it I was, quite literally, laughing out loud. I had to read it a couple of times, and Brian didn't really believe me that they were really making the jurisdiction argument. Make it they did though.
The brief is long. Very long. 134 pages including the tables, 113 pages from introduction to conclusion. The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn't seem to have been a big issue for the Prop 8 Crew. Nonetheless, let's take a look at the argument on the merits over the flip
It was about a week ago that we saw the ruling throwing out California's Prop 8; that decision has now been appealed, and we will see, at some point in the future, how the 9th Circuit Court of Appeals handles the matter.
A couple of days later, I had a story up that walked through the ruling, describing the tactics used by the Prop 8 proponents, which, in the opinion of the Judge who looked at the evidence, were basically to try to scare Californians into thinking that gay people, once they're able to get gay married, will somehow now be free to evangelize your kids and make them gay, too.
In the course of answering comments on the several sites where the story is up, I noticed that there were those who felt the Bible should be guiding our thinking here...that if it did, we would be better off than where we are today, with all those immoral gay people running around free to do all those immoral gay things.
This led me to an obvious question: are those who have been using the Bible as a sort of "divining rod" to figure out who is immoral and who is not...actually any good at it?
As was mentioned in the comments, the brief is essentially a revising of history trying to ignore the fact that the trial took place. But they get the whole party started off right: by using italics!
But when Plaintiffs' distortions, cariatures, and straw men are cleared away, their constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history - from the ancients to the American states - for no good reason.
So, there you have it. The entire case boiled down to one easy sentence courtesy of Chris Cooper and the Prop 8 legal team. You can all go home now, because this thing is all wrapped up into a tidy box with a shiny bow of discrimination.
In real life however, such quick rejections in legal documents aren't really going to change any minds, or win any stays. So, they do waste 22 perfectly good pieces of paper to write some other startling pieces of legally questionable arguments. Matty Matt pointed this one out in the comments of the previous thread, and it is definitely worth addressing:
Because Plaintiffs have no concrete plans to marry, not only will a stay not harm them, but their standing to maintain this action is doubtful. At any rate, Plaintiffs' claims of harm to themselves, like their claims regarding the public interest, depend entirely on their claim that Proposition 8 is unconstitutional. (Brief at page 15)
This is another standing issue, but it brings up different questions than the question of the proponents ability to pursue appeal. Under the jurisprudence on standing, the plaintiff must have a concrete injury. Now, that is not to say that the emotional harm isn't necessarily enough to pursue the case, because that would be a question that is on the fuzzy side that we wouldn't really want to mess with. The two couples who serve as the plaintiffs surely want to marry, but they want their legal case to be settled. If they were to marry during the stay, their ability to continue the case could be called into question. Out of an abundance of caution, they are waiting until the case if finally resolved, but that doesn't mean that Cooper and the gang won't try to use it.
That being said, this is fundamentally a weak argument. The case cited, Lujan v. Defenders of Wildlife, is a very different question. In that case, some environmentalists sued the government over a couple of development projects on other continents would possibly harm some habitat of some endangered species. The plaintiffs claimed their injury was that they wouldn't be able to see the animals on some as-yet defined trip to the regions. The court said that was insufficient, with Justice Scalia saying that a plane ticket to the region would have been sufficient for standing. Now, there was debate at the time of that decision as to its legal basis, but that is the law of the land as it stands.
It really is not that hard to distinguish the Prop 8 case from Lujan. First, if you even just go by Justice Scalia, the plaintiffs engagement should be their "plane ticket" to satisfy standing requirements. Many couples take years to plan weddings, and these couples should not be forced to plan a wedding at some undetermined date simply because there is a "window." The plaintiffs want to marry, and they want the right to marry at a time of their own choosing. Furthermore, these couples have a much more tangible right at question here than the simple good feeling from knowing a species is alive on the other side of the world.
With these sorts of winning arguments, I almost expect Andy Pugno to ask the Court "I know you are, but what am I?"
Late yesterday, the legal team behind the Prop 8 Challenge filed their response to the Motion for Emergency Stay.. You can see the full document over the flip. Nothing too surprising here. The plaintiffs basically went through the four factors for a stay, and showed that the burden has not been met.
The Plaintiffs' motion specifically argues that:
· Proponents cannot possibly make a "strong showing" that they are likely to prevail in their appeal.
· There is significant question as to whether Proponents even have standing to pursue an appeal.
· Proponents have failed to establish that they will likely suffer irreparable injury in the absence of a stay.
· A stay will cause substantial irreparable harm to Plaintiffs.
· The public interest favors immediate enforcement of the judgment.
The deadline, as you probably recall, is August 18 at 5pm. If the 9th Circuit declines to issue a stay or simply does not do anything by then, counties will be able to issue marriage licenses to same sex-couples.
As Californians wait to learn today whether same-sex couples will again be able to have their weddings recognized by the state, as Judge Vaughn Walker will rule whether to stay his historic decision last week ruling Prop 8 unconstitutional, we at the Courage Campaign (where I work as Public Policy Director) are moving ahead with our ongoing effort to show Americans why the wedding matters.
We're proud to present "The Wedding Matters" -- a people-powered project launched by the Courage Campaign Institute's Entertainment Industry Equality Team earlier this year. In just one day, 38 videos about the meaning of marriage equality were produced by 119 volunteers on a budget of $1,600.
We've been waiting for the right moment to release these videos produced by Valerie Alexander and her phenomenal team of professional filmmakers, editors and volunteers, along with the same-sex couples, friends and family who shared their moving stories of being married in 2008. And now is that time.
That's why we want you to watch four of the most compelling videos in "The Wedding Matters" collection, each telling a unique story about weddings that happened in 2008, before Prop 8 passed. Then cast your vote for the video you think we should edit into a 60-second Public Service Announcement to be aired across California and the country.
The videos tell real stories, of real people, in their own real words. These are the stories that the right-wing opposition would prefer Americans not hear. And that's exactly why we're going to make sure those stories get told.
I don't want to bias you by showing just one of the videos here, so I encourage you to go view the four videos yourself and cast your vote now!
The airwaves (and the print and blog waves, for that matter) are filled with the news that a Federal Judge in California has declared that State's Proposition 8 to be unconstitutional, which could clear the way for the resumption of same-sex weddings in the State.
Ordinarily, this would be the point where I would present to you a walkthrough of the ruling, and we'd have a fine conversation about the legal implications of what has happened.
I'm not doing that today, frankly, because the ground is already well-covered; instead, we're going to take a look at some of the tactics that were used to pass Prop 8, as they were presented in Judge Vaughan's opinion.
It's an ugly story-and even more than that, it's a reminder of why it's tough to advance civil rights through the political process, and what you have to deal with when you're trying to make such a thing happen.
That's exactly what the American "Family" Association wants to do. In an email to their supporter list, the AFA called for Congress to impeach Judge Walker for failing to conduct himself with "good Behaviour":
Yesterday (August 4), U.S. District Chief Judge Vaughn Walker single-handedly overturned California's Prop. 8, which elevated protection for one-man, one-woman marriage to its state constitution.
In doing so, he frustrated the expressed will of seven million Californians who went to the polls to shape their state's public policy on marriage. ...
Fortunately, the Founders provided checks and balances for every branch of government, including the judicial branch. Federal judges hold office only "during good Behaviour," and if they violate that standard can be removed from the bench. Judge Walker's ruling is not "good Behaviour." He has exceeded his constitutional authority and engaged in judicial tyranny.
Judges are not, in fact, unaccountable. They are accountable to Congress, which can remove them from office. Impeachment proceedings, according to the Constitution, begin in the House of Representatives. It's time for you to put your congressman on record regarding the possible impeachment of Judge Walker.
Where to begin? There's just so much crazy that is genuinely difficult to choose just one nugget. Let's first start with the popular vote issue. I'm hesitant to bring this up again, because really? Really people?
Let's talk about this. Do we really want everything up for a popular vote? I guess it's easy to criticize when you are the one putting up other people's rights for a vote. But, flip the script, and what does the AFA say about it when somebody puts an initiative on the ballot limiting the number of kids you can have. I mean, limited resources and all. It worked for China, right? Right, AFA?
The larger point is that some rights are sacrosanct. They are not privileges that are earned or that should be put for a plebiscite. My relationship should not be disfavored because a majority of California voters get squirmish, or are fearful, or are baited into fear through a $40 million scare campaign.
This of course ties directly into the question of impeachment. "good Behaviour" wasn't intended to be some sort of generic "the majority doesn't like you" catch-all. After all, there are decisions made all the time that the majority disagrees with. Yet, we don't impeach those judges. Heck, the entire point of the judiciary was for judges to be a check on the tyranny of the majority. If we go around impeaching our judges because they apply the constitution simply in a way we don't like, the entire Article III power of the judiciary will be wiped away.
Of course, this isn't all that the AFA has said on the matter. In a right-wing online publication, they suggested that this was all in self-interest. Because, you know, Walker is gay (and doesn't have the good grace to hide it back like those pleasant closeted gays of generations past). I'll point them to my earlier post, "Did They Know Justice Alito is Male?" Back then, I pointed out the irony that nobody was complaining when Justice Alito was writing a ridiculously sexist opinion in Lilly Ledbetter's case:
We all have some mix of racial, geographical, socioeconomic and other backgrounds. And they are all mixed up with who we are. We can't take those labels off no matter how independent or fair you are. Yet some will still see this as sort of bias.
So, did anybody comment about Justice Alito's gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180 days from the discriminatory decision, even if they didn't know about the decision for years? The decision that ultimately spurred the passage of the Lilly Ledbetter Act because it was so egregious.
Can an African-American judge not rule an issue of race? A female judge not rule on issues of gender? These ideas, of course, are patently absurd, as is the charge that Walker should have recused himself.
Yet, AFA and their allies will continue to push for the impeachment of Judge Walker and of any 9th Circuit Judges that concur with the district court's decision, and probably for any Supreme Court Justice who dares to do the same. For the time being, their aren't enough right-wing zealots to really push this through Congress. But elections are right around the corner, and their are quite a few of said zealots lining up to enter the halls of power.
Will Congress really take the time, even with a Republican majority in the House, to impeach Judge Walker? It's doubtful at best. After all, "good Behaviour" was never intended to reflect a merely unpopular decision, rather to serious personal failings that would compromise his ability to be a judge. Things like taking bribes, that sort of thing. In our history, only 14 judges have been impeached, with only 6 of them being convicted. This is not to be done lightly, or for mere disagreements on issues for which reasonable minds can disagree.
But the AFA and their friends are on a rampage. They want blood, and they are going to demand that right-wing Representatives in Congress pick away for it. I suppose this just reiterates the importance of our involvement in not just the judicial process, but always being mindful that we can never forget about the political process.
Well, today is the day. Sometime this afternoon, we'll get our decision in what will go down as one of the most anticipated decisions around these parts since...well...last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive. No matter which way Judge Walker goes, this is history in the making. It's a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)
So, with that as background, what are we looking for today? How do we win? How do we lose? And what defines a win? Well, I said yesterday that I'm optimistic, but there's more than one way to skin the cat here. So, let's just go through them, and I'm sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let's start with the downers.
LOSE - Prop 8 is a permissible act of the people acting legislatively.
Well, I'm not sure how much I need to explain this one, but it's the worst case scenario for us. In this situation, Judge Walker would be saying that the people, acting as the state's legislature, had a "legitimate" interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest. This is the so-called "rational basis" test. Now, the Defense of Marriage Act recently failed that test, but that doesn't mean Prop 8 couldn't pass.
Of course, this doesn't mean the case is over, just that we are on hold as we move forward through the system
Win - The implementation of Prop 8 is unconstitutional.
This is how we win, without getting everything we really want. This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states. The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed. This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs. It could be seen as something of a middle ground, but let's be honest, it will not satisfy anybody who opposes marriage equality. And it further muddies the underlying issues when what we really need is clarity. Could it happen? Yes, it very well might. But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
WIN - Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
This would be our ultimate victory, and really, what Olson and Boies are going for in this case. As I presented above, there are two possible rationales, and I'll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8. However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8. In other words, don't make wedding plans just yet.
I shouldn't quite leave that logic of our win hanging in the breeze quite so much, so I'll pull a quote from Loving v Virginia to show you the Supreme Court's logic in that case.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law. If you've read much of the history of the era, you'll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade. Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.
I'll not give you the whole wikipedia version of substantive due process, but long story short, it protects fundamental rights generally. But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument. As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won't rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws. We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.
But, for now, this is just speculation. The real thing is just around the corner.
Well, it looks like tomorrow is the big day. Judge Walker will finally issue a ruling in the federal Prop 8 litigation:
District Court Judge Vaughn Walker will issue a decision Wednesday on the constitutional challenge to California's Proposition 8, the ban on same-sex marriage, according to a court announcement today.
Walker's written order will be released electronically Wednesday - no hour was given - and will later be available for public review in federal courthouses in San Francisco, Oakland and San Jose.(SacBee)
I am actually fairly optimistic here that Judge Walker will strike down Prop 8, at least as far as the inequity between married same-sex couples and those who missed the cut-off. That much, at the very least, seems to be something of a narrow decision that many judges like to make.
However, Judge Walker seemed to be hinting at wanting to take a bigger stand during the closing arguments. Now, hints are essentially meaningless. I might as well try reading my cranium for clues, but that optimism in me keeps rearing its head.
In legal terms, it all comes down to two questions:
What standard should the court review Prop 8 under?
How does the court complete the analysis based on that standard
Now, as I've mentioned in the past, there are basically three choices for the standard: "rational basis", intermediate, and strict scrutiny. Under strict scrutiny, getting a law that discriminates to pass constitutional muster is extremely difficult. It would have to be narrowly tailored to an important state interest. On the flip side, under rational basis review, the court need only find a rational basis for the discrimination for any state interest whatsoever.
Now, that last one sounds pretty broad. However, the Defense of Marriage Act (Section 3) was recently struck down under this standard. In that case, the Court said that the federal government simply had no interest whatsoever in regulating marriage. Now, this is slightly different, as we are talking about a traditional basis of state power and a state regulation. But all that is to say that even if Judge Walker uses the rational basis test, all is not lost.
Let's start by saying this: Sen. Roy Ashburn (R-Bakersfield) is a coward. Sure, on occasion, he broke party ranks to vote for a budget or something. But for well over a decade, he served in the Legislature, consistently voting against any and all bills that protected the LGBT community. And then, as he points out in this confessional published on the Gay and Lesbian Victory Fund website, he was outed in a flood of police lights. As I've said before, Ashburn was a slow-motion train wreck. The question was never if he was going to be outed, but when and how. Of course, he then went ahead and made sure it was a big spectacle. Good work, Roy.
But this little piece of work that he published, well, it's a real piece of work.
My past actions harmed gay people. In fact, all people are harmed when there is unequal treatment of anyone under the constitution and laws of our country. I do not believe in discrimination, and yet my votes advanced unequal of treatment of gay people and promoted the suspicion and fear that limits people from being forthright and accepted in society.
Now, from what I have lived and learned, I want to do the best that I can to advance equality and freedom for all people. Given the shame and confusion that many feel over their sexual orientation, perhaps my situation can serve as an example of both the harm that can come from denial and fear, and the opportunity to try to make things right.
Let's run down this timeline. Ashburn gets elected while outwardly proclaiming bigotry. Ashburn legislates consistent with that outward bigotry. Ashburn gets outed at the point of a policeman's MAGlight. And now, finally, Ashburn decides that bigotry was ridiculous.
Well, let's all give Roy a big ol' group hug now, right? Well, I'll just go ahead and skip that. Perhaps you would describe me as bitter, but for my part, I'll pass on all of the mushy stuff. While I praise traditionally conservative parties for taking an enlightened stance on LGBT issues (such as the British Tories), that's not what this is about.
This is about one guy, who lived his life selfishly. He was too much of a coward to come out. And let's be clear, Ashburn was representing himself as a leader. This deception is not how a leader behaves. The lying and the sneaking, are not how a leader behaves. And the suppression of his own supposed fair-mindedness is not how a leader behaves.
Call me back after Ashburn has done some real work to repair some of the damage that he has already done. Maybe then I won't be so cynical about his conversion via police lights.
The poll's results - 51 percent in favor, 42 percent opposed, 7 percent undecided - show big differences among age groups, geography and party affiliation.
The results were close to those the Field Poll found in May 2008, six months before voters banned gay marriage by approving Proposition 8, 52 to 48 percent.
The current survey also found that support for same-sex marriage drops below a majority when voters are given another option - civil unions.(SacBee)
So, yes, there is 51% support, but that support is soft. Basically, we are back where we were two years ago. Prop 8 repeal can pass, but there is still a lot of work to be done. This time we have to run a better campaign to get our message out, be proactive and not just respond to the other side's phony attacks. And of course, talk with our fellow Californians directly. We can, and should, win in 2012, but it will not be easy by any stretch of the imagination.
Of course, there's still this Prop 8 trial going on, so I'll just take a look at what one of the big California-centric pundits had to say. Dan Walters is the big California columnist at the Sacramento Bee. While I frequently disagree with his take on governance and other issues, he does offer an interesting perspective. Butin today's column, he just misunderstands the law. From today's Bee:
In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal "Defense of Marriage Act," which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.
Although Tauro's ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states' rights, to decide whether to recognize same-sex marriage, and the federal law "offends" those rights.
Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states' rights matter, neither could they overturn California's anti-gay marriage law, Proposition 8. (SacBee)
From a simple reading of a summary of the cases, that would appear to be the case, but once you delve into the law, that sort of fades away. Judge Tauro's decision actually strikes down Section 3 of DOMA under two constitutional provisions. First, he does it under the more expected Fifth Amendment of the Constitution, ruling that DOMA has no rational basis. This is the first of the two combined cases, the Gill v OPM case.
It is very clear that this part of the two decisions is clearly not a setback whatsoever. This decision argues that the marriage ban on same-sex couples violates the Bill of Rights. The Fifth Amendment has generally been considered to apply most of the Fourteenth Amendment equal protection jurisprudence to the federal government. In other words, the fifth amendment equal protection clause in Gill is, for our purposes, functionally the same as the fourteenth amendment's protections in the Prop 8 case. Rather than hurting the challenge to Prop 8, Gill affirmatively argues for Prop 8 to be struck down.
Now, to the Massachusetts case, there the court says that the federal government cannot block the states from defining marriage as they wish due to the Tenth Amendment. Now, first, let's just say that this part of the ruling is on some shaky legal footing. While some of the TEA-baggers are fond of the tenth amendment, it simply doesn't have much standing in the legal world. The tenth is rarely enforced in any substantive way, and this component of the case very well may well get some new reasoning on appeal if it is upheld. In some exceptional cases, the federal government has been batted down as over-reaching. But the bar is high, and essentially applies only to Congressional action, in other words, legislation.
The final point here is that the Equal Protection Clause applies to both the states (14th) and the federal government(5th). Whether or not the federal government has a right to tell the states through legislation how to define marriage, the states still have no right to violate the equal protection clause. So, long story short, far from being a back-handed gift to the proponents of Prop 8, the DOMA decision supports the plaintiffs case in Perry.
To bring it back around...Prop 8 is going to be short for the California law books, whether it goes down via judicial action or electoral.
While this might not have been on everybody's radar, the IRS kicked down a huge decision for California same-sex couples. But PLR-149319-09 (PDF) has some big importance to California registered domestic partners and same-sex married couple. Long story short, the IRS is now recognizing California's community property rules. And that's big. Really big.
Let's start from the beginning. I'm no accountant, but bear with me as I try to recall my tax class in law school. Basically, California, like many Western states, has a default rule for marriage that any property acquired (other than through inheritance) is treated as "community property" between the two married spouses. For California same-gender couples that got married in 2008, these community property rules apply unless you have opted out through contract (a "pre-nup"). Also, in 2006 and 2007, the legislature passed, and the Governor signed, two pieces of legislation that granted registered domestic partnerships the same rights and responsibilities of marriage, with community property first being excluded for tax purposes in 2006, and then being completely folded in to the RDP in 2007.
Of course, the problem here is that under the so-called "Defense of Marriage" Act, the federal government was not supposed to recognize any marriage not between a man and a woman. Thus, we had a real pickle on our hands. Under California property law, the property was community property, half belonged to both partners. But how that property got there was anybody's guess. Just off the top of my head, there are a number of ways the federal government could have handled the issue:
1) Ignored community property between same gender couples entirely. Sure, it would cause conflicts with state tax issues, but who cares, according to the Yes on 8 folks, this is a future of civilization thing here.
2) Acknowledge the community property, treating it as a gift between two unrelated partners for federal tax purposes. This would have been very bad for same-gender couples. Basically, couples would have had to pay gift tax on any difference in income over $13,000 (or so, depending on what the gift tax is that year). That would get pricy fast.
3) Acknowledge the community property, but treat it as earned jointly. Basically, each partner, for tax purposes, earned half of the income. This would be far more favorable and basically treat community property the same for all couples.
I'll let you read PLR-149319-09 (PDF) on your own if you'd like to, but long story short, the IRS went for #3. Once they went over the law, it seems obvious, but these things rarely are obvious before hand. And that's the case here. The IRS first relied on past precedent to first say that the federal goverment defers to the states to determine property law (U.S. v. Mitchell) and then to say that California community property law determines who owns what for California couples (US v Malcolm). Finally, the IRS simply stated that once California treated property as community property, the IRS would do so as well.
Now, in practical terms, what does this mean? Well, say you are a couple where one partner earns substantially more than the other. You'll have noticed that your California tax bills went down with community property. Now the same will apply to the federal government. For example, say "Adam" earns $50,000 as a public school teacher. His husband "Bill" earns $150,000 as a investment hot-shot or something. (No comment on our society's priorities there.) Under this new law, each would report income of $100,000. For a variety of reasons in the tax code, that's going to be advantageous. Now, I'm not a tax lawyer, and this isn't specific advice. If this is something that might apply, ask whomever prepares your taxes or some other tax professional.
There is one wrinkle in here. Technically, the IRS "private letter ruling" specifically addresses registered domestic partnerships, and uses that language. However, the ruling is entirely directed at the concept of community property, which applies in the same way for the 2008 marriages. In theory, it should be handled the same way, but theory often gets you audited by the IRS.
We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.
I don't usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as "the Feds" from time to time), is not so happy at the moment.
As with last time, there's a lot of ground to cover, and the sooner we get to it, the better.
