California Supreme Court rejects bid to enforce marriage ban
by Brian Leubitz
Andy Pugno and his ProtectMarriage.com crew are seemingly out of options in their increasingly quixotic quest to defend Prop 8. Everybody else in the world saw the writing on the wall when the Supreme Court dismissed the case on standing grounds, but they held out hope. It is over now:
The justices unanimously denied review of a suit by conservative Christians who put Proposition 8 on the ballot and argued that it remains in effect statewide, despite a federal judge's 2010 ruling in San Francisco that declared it unconstitutional. (SF Chronicle)
But don't worry, Pugno is taking it well. In a statement, he had this to say:
"The California Supreme Court's choice not to address the merits of our case, like the U.S. Supreme Court's choice to avoid the merits, leaves grave doubts about the future of the initiative process in our state. Now, voters will be less confident than ever that their votes will mean something. When politicians disregard the law, and the courts refuse to get involved, what are we left with?"
Oh, so much to work with here. First, Prop 8 was ruled unconstitutional by a federal district court judge, and then by a 9th Circuit panel. You are upset that your votes don't count? Tough, it is the purpose of the courts to protect minorities from the abuse of the majority. That isn't a bug, that is a feature of our Constitution.
But, on another level, Pugno and his crew should be happy to just have kept the game up for as long as they did. The writing was on the wall. It probably would have involved wasting a lot of money, but Prop 8 wasn't going to last long. In the most recent Field Poll (PDF), 61% of Californians support marriage equality. That's up from their 2008 poll, when 51% supported it. Had this gone to the ballot, marriage equality supporters would have won easily.
Perhaps Pugno should be thanking the courts for saving him a lot of embarassment (and cash). But for a guy who reaches at "increasingly absurd" legal challenges, as SF City Attorney Dennis Herrera called ProtectMarriage's remaining options, perhaps a thank you letter won't be forthcoming.
The Prop 8 proponents aren't giving up. Just because they were told that they don't have standing doesn't mean they won't try to find some way to fight the tide of history. This seems to be what they think is their best hope:
ProtectMarriage, the group that sponsored the 2008 ballot measure banning gay marriage, urged the state high court to act under a California constitutional provision that prohibits officials from refusing to enforce a law unless an appellate court has first determined the law is unconstitutional. There is no binding appellate ruling that says Proposition 8 is unconstitutional.
Legal experts predicted the California court would reject the challenge. Lawyers for the gay couples who fought Proposition 8 in federal court said they anticipated such an action and were prepared to respond to it. They said a state court may not interfere with a federal court's decision.(Maura Dolan / LAT)
You can read Mr. Pugno's handiwork here (Full Petition PDF). The petition alleges that since there was no appellate court ruling against Prop 8, the state actors violated Article III, Sec. 3.5 of the California Constitution. Under that section, state actors are not allowed to ignore state laws on their own finding of unconstitutionality barring an appellate ruling against the law. Now, that's all well and good, but in reality, a federal court has struck down Prop 8.
Judge Walker's opinion in the district court level has been left as the last court case in the matter. And as the stay against marriages has been lifted, that is a valid federal court matter. Whether Pugno and his gang like it, federal law is supreme over state law. Prof. Vic Amar of the UC Davis Law School said this of the petition:
"The California Supreme Court will likely stay out of this and say the scope of Judge Walker's order is a matter for the federal courts to determine," Amar said. "State courts generally won't get into the business of construing federal court orders. They leave that to the federal courts."(Maura Dolan / LAT)
It's not likely to go anywhere, but apparently Pugno has nothing better to do than spit into the wind of history.
A few folks have asked the all-important question of when will the weddings start. When, indeed?
It is a relatively simple question with a somewhat complicated response. With some help from the press office of the SF City Attorney's office, I've dug out that information so you don't have to. To start from the beginning, after any US Supreme Court decision, there is generally a 25-day period for parties to file a petition for rehearing of a U.S. Supreme Court decision. Once that period expires, the high court issues its final judgment. U.S. Supreme Court Rule 44 provides the following:
Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time.
In this case, the Ninth Circuit has a stay-pending-appeal in place, and traditionally the appellate court will not lift them until the final judgment is entered after the 25 day period. However, a party could still petition the appellate court to vacate its stay, and nothing would prevent the 9th Cir from acting on the petition. It is tradition to wait for the rehearing period to expire, but it is merely a judicial prerogative. The Ninth Circuit could decide to dissolve its stay even in before the rehearing period elapses, and before the final judgment. However, that is up to the Ninth Circuit in all their judicial wisdom.
All that being said, in today's press conference, Attorney General Kamala Harris very politely asked the court to lift the stay.
"There could potentially be that delay of 25 days," Harris acknowledged. "Our point is the Ninth Circuit Court of Appeals has within its power an ability to lift the stay before the judgment comes down, so what I am asking specifically is that the Ninth Circuit lift its stay.
How that request actually gets handled will be sorted out later this week, and the 9th Circuit will probably consider it shortly. The proponents of Prop 8 will likely be none too pleased, but the ship has sailed at this point. The highest Court in the land has ruled, and Prop 8 is not long for this world.
So, I can't give an exact date. In a perfect world, the 9th circuit would lift the stay right away and we would be able to start in a few days. But in the "worst case scenario", we are looking at a delay of 25 days, with weddings beginning in late July. Sounds like a lovely time for a few thousand weddings.
I'm currently awaiting the decisions that the Supreme Court is going to release. In the meantime, you should check out the websites of Americans for Equal Rights, who supported the Prop 8 case. SCOUTUSBlog will be liveblogging, and will likely have some of solid analysis very quickly. There will be a bunch of press releases and the like, and I'll try to sort through some of that as well. Stay tuned.
7:16AM: From the last paragraph of Justice Roberts dissent in the DOMA case, it looks like the Prop 8 case will be dismissed on standing grounds. "We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry."
7:30AM: Yup, 9th Cir appellate ruling was vacated, meaning Judge Walker's ruling stands. From Amy Howe at SCOTUSBlog:
Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.
In the press conference, AG Harris called for the 9th Circuit to live the stay, and to apply the permanent injunction against Prop 8. "We cannot delay or deny Californians their civil rights."
She also strongly supported the Equal Protection decision on DOMA. "We as Californians should be very proud. Californians now support these couples' right to marry. ... Hopefully the children of these couples will understand that they are equal to all, and inferior to none."
The stay could be as long as 25 days, but she is asking the 9th Circuit to lift the stay early. As soon as the stay is lifted, marriages can begin.
UPDATE: I'm still looking for clarity on when marriages will begin, but Gov. Brown has directed all counties to begin issuing licenses when the court lifts the stay. When that will happen will be up to the 9th Circuit and probably Judge Ware, who last had the case at the District Court level. At 9:40, I got an email from SF Assessor/Recorder that she expects the marriages to begin in mid-to-late July.
More from Adam Bonin. Long story short, good result, bad path. The problem with winning on standing means that we get a crappy precedent going forward. Maybe it will never matter in California, but now the Court has said that only the state Executive can defend legislation. And if they fail to do so, then the law just doesn't get the same protection as laws the Executive likes.
This was the outcome which I wasn't the only one to predict, but I will confess that while it ends in the right place (Prop 8: dead) I am not at all crazy about the route. As I've suggested before, I think there's something constitutionally hinky about having an initiative system designed to allow The People to bypass elected officials which allows those elected officials to thwart a full airing of the constitutional issues involved in a referendum. I can too-easily imagine a counterexample which a Republican administration would refuse to defend a liberal initiative in court, such as a hypothetical effort to overturn Prop 209 and instead require California's universities to employ affirmative action practices in admissions, or an initiative imposing new limits on campaign financing, and for which the initiative's supporters would be similarly out-of-constitutional luck. (Adam Bonin)
We are heading into the last few weeks of the Supreme Court's session, which typically ends in the last few days of June. June 24 is the last calendared day, but it is not uncommon to see the close of the session drift a few days back. With that in mind, a few folks are summarizing what could happen. Howard Mintz has a quick such article in today's SJ Merc.
We win on the merits. This is the best case scenario and could possibly end most of the litigation surrounding marriage equality. In short, that would be the U.S. Supreme Court reaching the merits of Proposition 8's constitutionality and affirming the Ninth Circuit decision invalidating California's measure. Any victory on the merits restores marriage equality in California. But, of course it isn't that simple, there are a couple options within this scenario.
Beyond California, the Court could hold that all state bans on same-sex marriage are invalid (i.e., legalizing same-sex marriage nationwide);
Separate but unequal: Court could rule that states with civil union and domestic partnership laws must require full recognition for marriage rights for same-sex couples (i.e., legalizing same-sex marriage in several more states, including: Colorado, Illinois, Minnesota, Nevada, New Jersey, and Oregon).
Punting the case: The Supreme Court 'DIGs' the case. In the next scenario, the U.S. Supreme Court dismisses the case, leaving the Ninth Circuit's ruling that Prop 8 is unconstitutional as the final, binding decision. In lawyer parlance, this outcome is called a "DIG" -- for "Dismissed as Improvidently Granted" -- and it occurs when at least five justices agree that the petition for certiorari (or review) should never have been granted (it takes only four of the nine justices to grant review). Though DIGs aren't typical, it's notable that Justices Kennedy, Breyer and Sotomajor all questioned in oral arguments whether review should have been granted. This outcome would apply solely to California. But it would remove any prospect that a party hostile to marriage equality would challenge whether the ruling applies statewide.
Standing: The Supreme Court holds that Prop 8 backers lacked standing. In the next scenario, the U.S. Supreme Court rules that the Prop 8 proponents lacked standing under federal law to appeal the U.S. District Court's decision. Such a decision would vacate the Ninth Circuit opinion, leaving U.S. District Court Judge Vaughn Walker's ruling that Prop 8 is unconstitutional as the final, binding decision. Prop 8 is held unconstitutional in this scenario, but parties hostile to marriage equality might seek to litigate over whether the District Court ruling applies statewide. Already, Prop 8 proponents and some ill-informed pundits have argued that such a ruling on standing should limit the judgment to only the two couples (who are named plaintiffs in the suit), or to the Counties of Alameda and Los Angeles (which are named as defendants in the suit). Those arguments are wrong, but certain to get litigated if the case is dismissed for standing in this fashion.
Losing: Here, a majority of U.S. Supreme Court justices agree to reverse the Ninth Circuit, upholding Proposition 8 as valid under the U.S. Constitution's equal protection guarantees. This would settle the legal question about Prop 8, though the larger debate about marriage equality in California would likely shift from the legal arena to the political realm.
After the parties and events closed up on Saturday night, some bleary eyed delegates strolled in on Sunday morning to see the completion of the efforts that the various committees and groups worked on over the week.
But first, I want to congratulate all of the new regional directors, especially Hene Kelly who is replacing me as Regional Director of San Francisco and San Mateo. And a hearty congratulations go out to Daraka Larimore-Hall for his election to the position of Secretary of the Party.
After a few more speeches from elected officials, labor and community leaders, and the regional director volunteer of the year awards, the party approved the slate of resolutions without much protest. Perhaps they got little fanfare at the convention, but these were some very impressive resolutions. See the full slate of this year's resolutions here (PDF).
The resolutions included a call for Prop 13 reform, resolutions supporting the heart of CEQA, a moratorium on fracking, and many more. Here's the crucial clause of the fracking resolution.
THEREFORE,*BE*IT*RESOLVED*that the California Democratic Party supports: 1) an immediate moratorium on fracking, with such a moratorium to remain in effect until legislation and regulations are put in place that repeal the exception in the Safe Drinking Water Act, guarantee public health and safety, mitigate the effects on climate change, protect the environment and allow government access and testing of the chemicals used; 2) full disclosure and testing of all sites; and 3) substitution of conservation and renewable sources of energy where practical;
Of course, the resolution calling for the Supreme Court to overturn prop 8 was close to my heart, and one calling for major reform of the UC and CSU boards and governance structure could have a big impact on an area that is gaining traction.
All in all, while it may not have had the excitement of some of the conventions of the past few years, this year's convention was a big success for the party.
It is never wise to predict U.S. Supreme Court decisions on oral arguments, or else Obamacare would have been repealed. Based on the Justices' line of questioning, however, it appears that they will overrule Proposition 8 - but on narrow grounds that will only affect California. The Justices spent a significant chunk of time on "standing," but they will likely consider the Prop 8 supporters as proper litigants. But Justices Anthony Kennedy and John Roberts had clear problems with finding a "right" to same-sex marriage that would apply nationwide - and the "nine-state" compromise was widely panned. I predict they will rule Prop 8 unconstitutional by applying the Romer precedent and sustaining the Ninth Circuit decision, i.e., Prop 8 was unique because it "took away" a right that same-sex couples already had.
Today, the Court will hear oral arguments on the federal Defense of Marriage Act - a case whose outcome should be more favorable. A state can grant marriage to same-sex couples, but we still don't have equality because DOMA denies them all federal benefits. I also expect that the standing question in DOMA to be clearer.
Court looks unprepared to make a sweeping decision for marriage equality
by Brian Leubitz
UPDATE: I have updated the post with the complete audio from the oral arguments. I also included some snips that the LA Times posted as well. You can select any of the clips to listen to it directly, or click down to the bottom to listen to the whole argument.
Any decision is still months away, but today's oral argument did give some strong clues that the Court, and Justice Anthony Kennedy particularly, is not ready to make any big decisions one way or another. From Tom Goldstein at SCOTUSBlog:
The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.
Several Justices seriously doubt whether the petitioners defending Proposition 8 have "standing" to appeal the district court ruling invalidating the measure. These likely include not only more liberal members but also the Chief Justice. If standing is lacking, the Court would vacate the Ninth Circuit's decision.
The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four - i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
Any ruling would likely end up with the 9th Circuit's decision being vacated and Judge Vaughn Walker's District Court decision striking down Prop 8 as being the last word on this case. The practical effect of such a muddled ruling would be marriage equality in California, but the rest of the country having to wait a few more years.
Despite 58% of Americans supporting marriage equality is not enough, the Court has learned to be a bit timid on these dramatic issues. Perhaps there will be a case in a few years that eventually ends marriage discrimination in all 50 states, but it might not be this one. At any rate, the current dramatic upsurge in support for gay rights will eventually make this issue quaint. But for now, perhaps we'll end up with a few more years of the fight.
By a nearly two-to-one margin (61% to 32%), California voters approve of allowing same-sex couples to marry. This represents a complete reversal in views about the issue from 1977, when The Field Poll conducted its first survey on this topic, and is the highest level of support ever measured by the poll. (Field)
No matter what the Supreme Court does on Prop 8, that odious measure is not long for this world. It will either be overturned in the courts or at the ballot before we get a new president.
In today's data, we get the voters take on the status of the economy. In short, people are still gloomy:
Greater than seven in ten voters (72%) currently describe California's economy as being in bad times. In addition, six in ten (61%) describe unemployment as very serious in the state, and just 36% expect job opportunities to improve in the coming year. While this represents a slight improvement in the extremely bleak assessments of the state's economy that voters have offered over the past five years, the views of Californians remain gloomy.
In addition, when asked to describe their own financial situation, nearly half (44%) say they are worse off now than they were last year, while fewer (30%) are better off. This is the sixth consecutive year in which more voters report being financially worse off than better off. (Field)
Now, the economic indicators show that the economy is slowly improving, but the results are just too modest for the time being. If the sequester can be cleared out in Washington, we should expect to see continued growth. If not, we could see an unfortunate downturn.
Upcoming brief expected to argue that marriage equality should be law of the land
by Brian Leubitz
There has been a lot of discussion over the past few days as to whether the president will file a brief at the Supreme Court about Prop 8. The answer, apparently, is yes.
The Obama administration will endorse same-sex marriage today by telling the Supreme Court that California should not be permitted to ban gays and lesbians from tying the knot.
The highly anticipated legal brief was expected later in the day, just hours before the deadline, the Associated Press reported.
UPDATE: Here's the brief, my take coming this evening. You can also find it over the flip.
The underlying argument of the brief is relatively simple. Namely, laws prohibiting members of the LGBT community from doing something, in this case getting married, should be subject to "heightened scrutiny." That is to say, government needs something more than merest rational basis for the discriminatory law. The administration's brief then goes on to say that the purported reasons given by the Prop 8 proponents do not meet that heightened scrutiny.
You've heard all the reasons they came up with why Prop 8 was valid: teh kidz, teh judges, and teh traditions. The government dismisses these with the one bullet that goes to the heart of the issue: California grants all the rights and privileges of marriage to gay and lesbian couples through domestic partnership. So, it can't be merely to protect children. Denying the word "marriage" is simply done for impermissible purposes. Or, in the solicitor general's words:
Private respondents, committed gay and lesbian cou-ples, seek the full benefits, obligations, and social recog-nition conferred by the institution of marriage. California law provides to same-sex couples registered as do-mestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.
In other briefing news, NFL players Chris Kluwe (Minnesota's punter) and Brendon Ayanbadejo (Ravens linebacker) filed their own brief, available here. Not sure it will carry similar weight to the solicitor general's, but their effort is sincerely appreciated.
The Supreme Court asked two questions, one on the merits of the case, the other on whether the Prop 8 proponents have standing to appeal the case. After discussing why they don't think there is standing, both move quickly on to the merits. The arguments are two-fold, that Prop 8 violates due process of the law, and that it is a violation of the equal protection clauses of the fifth and fourteenth amendments.
As the March 26 hearing approaches, I'll dig into all of the briefs and summarize what to watch for at oral argument. You can peruse all of the various filings at AfER's website.
Supreme Court takes on marriage equality, Prop 8 and DOMA
by Brian Leubitz
Mark your calendars for June 2013. That's the close of the current Supreme Court session, and by that time we should have a decision on marriage equality. On Friday, the Court announced that it would hear cases on both Prop 8 and the so-called "Defense of Marriage" Act. But there is a caveat in the Supreme Court's order:
About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider - but not necessarily to decide - some of the most important constitutional issues at the heart of that national controversy. Each side gained the opportunity to make sweeping arguments, for or against such marriages. But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so. (ScotuBlog)
With respect to that open question of whether the Court has standing, it is a question that was at the center of much speculation before the 9th Circuit's decision. Ultimately, the Ninth Circuit determined that the proponents of the law, ProtectMarriage.com, had standing to defend it. If the Court decides that it doesn't have standing, Judge Walker's original decision will hold and marriages will resume in California.
Now, as a matter of scheduling, we should have oral argument for both cases early next year. The cases will likely be scheduled for the same day, but that is not definite at this point.
Turning to the merits, well, you can find many reasonable predictions. But the Dean of UC-Irvine Law is both esteemed and usually pretty accurate at this game. His take:
"I believe the court will find that Prop. 8 and (the Defense Of Marriage Act) are unconstitutional," Chemerinsky said. "The court decision will be 5-4 and I predict Justice Kennedy will write it. The court will say that the government has no legitimate interest in denying gays and lesbians the right to marry. ...
"Justice Kennedy wants to write the next Brown v. Board of Education, not the next Plessy v. Ferguson," Chemerinsky said.
Kennedy has actually been pretty good on LGBT rights issues, having written Lawrence v Texas and Romer v Evans, two of the most noteworthy gay rights cases.
Supreme Court to decide on future of Prop 8 litigation
by Brian Leubitz
It has been over four years since Prop 8 passed in November 2008. Though it would now appear as pro-equality forces are on the march nationally, and could have flipped the 2008 final tally this year, we are still waiting for news from the Supreme Court.
In theory, that should come today. While the court could possibly hold over a final decision, that's the luxury of being the nation's highest court, I suppose. However, the justices were to discuss the case and announce a decision on whether to grant review of the decision today. So, what are we looking at?
If they decline to review the decision, Prop 8 remains dead in California. Marriages would likely begin once the Ninth Circuit lifts the stay and clears the last few procedural hurdles. Unfortunately, due to the narrow decision of the panel, the case only directly impacts California. However, you would certainly have to think that marriage inequality amendments in other 9th Circuit states will be looked at skeptically until there is a Supreme Court decision.
If they take the case, a decision would likely come in the batch of decisions released in June after oral arguments. The Court also will decide whether to look at the constitutionality of the Defense of Marriage Act. With DOMA have being ruled unconstitutional in several states, it seems at least better than a 50-50 call that the Court will deal with at least one of the LGBT rights issues.
And, so the waiting continues...
UPDATE: Well, as soon as I post this, it seems that they may be pushing it off. Not official yet, but ScotusBlog has a good track record. Their rumor is that the Court is determining which marriage equality cases to take, especially with regards to the DOMA cases.
#scotus did not act today on #ssm petitions.Could issue orders Mon, but Dec 7 more likely.2 other grants, including gene patents.
Blankenhorn testified at Prop 8 Trial, Now says we should work for marriage equality
by Brian Leubitz
In many ways, it was actually better for David Blankenhorn to be on the other side. He was something of a comic figure. He testified on behalf of the ProtectMarriage.com crew, and ultimately got so twisted around that his testimony likely did them more harm than good. In fact, he ended up saying that we would be "more American" on the day that we allowed marriage equality.
So it shouldn't be all that shocking that he's decided to write an op-ed in the New York Times calling for an end to the discrimination against same-sex couples. (h/t P8TT) Now, I'm not trying to be too cynical here, but how else was David Blankenhorn going to get an op-ed in the New York Times?
But, I digress, here's a snippet on his change of heart:
But there are more good things under heaven than these beliefs. For me, the most important is the equal dignity of homosexual love. I don't believe that opposite-sex and same-sex relationships are the same, but I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one's definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.
*** **** ***
And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.
So, is he saying that he is just now figuring out that much of the opposition to marriage equality is/was animus? Or, was his faith in his position strong enough that he could look past that. Either way, either he's insensitive or kind of slow.
But, there is value in the symbolic import of having somebody who testified in favor of Prop 8 changing their position, for whatever reason. If Blankenhorn can truly persuade a few folks to change their minds too, then perhaps his decades arguing vociferously against marriage equality can be forgiven.
Marriage equality case looks set for the Supreme Court
by Brian Leubitz
Today the 9th Circuit denied the motion for en banc rehearing of the case. The Yes on 8 supporters had sought review from an 11-judge panel, but the denial means that their only recourse at this point is the Supreme Court.
Interestingly, this puts the case on a similar time schedule as the Defense of Marriage Act (DOMA) case that was just decided at the 1st Circuit. We could potentially see the future of marriage equality firmly established (or severely set back) within the very near future.
Somewhat interestingly, the dissenting judges, O'SCANNLAIN, BYBEE and BEA, went off on the President's statement on marriage equality, suggesting that we should have a "greater conversation" and that blocking the en banc hearing cuts off the conversation. Judges Hawkins and Reinhardt respond:
We are puzzled by our dissenting colleagues' unusual reliance on the President's views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.
Hurry up and wait as anti equality litigation team seeks more attractive ruling to Supreme Court
By Brian Leubitz
Given the proposition eight supporters previous statements that they preferred to go to the Supreme Court as quick as possible, the decision to appeal to Ninth Circuit as a whole probably deserves some explanation. But the big problem for the so-called protect marriage team is that the ruling from the Ninth Circuit three-judge panel is more narrow then they would have expected. It leaves open the possibility that the Supreme Court could actually decline to hear the case. And what they're really looking for is the ability to continue on with their campaign of constitutional amendments against marriage equality.
So, rather than going directly to the Supreme Court, yesterday They decided to appeal the Ninth Circuit 11 judge panel:
ProtectMarriage, the sponsors of Proposition 8, will ask a larger panel of the U.S. 9th Circuit Court of Appeals to review the marriage dispute ruling instead of going straight to the U.S. Supreme Court, according to a spokeswoman.
The 9th Circuit would have to vote on whether to grant the extra layer of review. If a majority favors it, a larger panel will reconsider the constitutionality of the marriage ban and issue a ruling. Such a reconsideration could delay U.S. Supreme Court review by months or more than a year. (LAT)
After all, what do they really have to lose? With the appeal pending, and the previous decision of the three-judge panel stayed, the prop 8 supporters really only have money to lose. But their supporters have really shown no lack of desire to continue funding the litigation.
As it is, no marriages can go forward while litigation is pending in the 9th circuit. And while they risk the country becoming increasingly accepting of marriage equality, assuming there is no change in the composition of the Supreme Ct., the risk is minimal. So they get to delay the possibility of marriages in California for the better part of another year.
The previous, narrow, decision is just a complicating factor for them as they face the Supreme Court. It sill seems unlikely that the Court will not hear the case, but whatever small chance that is becomes greater with the narrow opinion. If they get a worse decision at the 9th, the case will definitely go to the Supreme Court. And heck, there is always the chance that the 11 judge panel would decide against marriage equality.
So, plan on doing a little more hurrying up and a lot more waiting on the final resolution of the Prop 8 litigation.
Court strikes down Prop 8 on narrow equal protection grounds
by Brian Leubitz
It probably isn't the decision that we would like, but it is sure better than the alternative. In a narrow decision, Judge Reinhardt held Prop 8 unconstitutional as denying equal protection under the law. However, this decision does not issue a blanked declaration that marriage bans are inherently unconstitutional in their own right. You can read the full decision over the flip or at this link.
That being said, the 2-1 decision was mostly positive. Judge Walker's findings of fact, which you can read on a footnote on Page 18 of the decision, were not disputed. The standard for changing these findings of fact is substantially higher than for the legal conclusions, but the maintenance of those facts is nonetheless important and notable. And of course, there is the fact that the 9th Circuit ruled that Prop 8 was unconstitutional, which is pretty great. However, I am guessing that AFER and Boies/Olson would have preferred an answer on the broader question of legality of same-sex marriage bans. But that was not to be today:
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. We need not and do not answer the broader question in this case.
And so, citizens of other states must wait in line for the time being. Metaphorically, I suppose, because the 9th Circuit also put a stay on the decision, so no marriages will proceed right away. But the Supreme Court can review this decision in any way they would like to. They could address that broader question if they so decide. Perhaps they'd prefer to rip the band-aid off in one grand gesture, or maybe we'll wait for that. The Supreme Court won't make its decision on whether to hear the case for a few months, so Court watchers will be left guessing.
All that being said, you can't help but smile when you realize that an appellate court sees the real injustice in this inequality. Check out page 37 and the subsequent pages for a rather heartfelt statement of the importance of marriage in our community.
The designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple designing to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not.
Furthmore, when Reinhardt gets to his conclusion, it is stark and simple:
Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.
Reinhardt ultimately wrote the opinion for an audience of 9. By limiting his opinion, it has a stronger chance of standing up, and possibly even inspiring Justice Kennedy to end marriage discrimination forever.
The 9th Circuit has just announced that they will be releasing their opinion in Perry v Brown, otherwise known as the Prop 8 case, tomorrow. The opinion will be posted on their website. Given that the 9th Circuit will likely be overwhelmed by traffic, we'll get links up to alternate sites as soon as we have them.
LGBT leaders will be gathering at the court in San Francisco tomorrow at 10AM for the decision, and then heading over to City Hall where clergy will be standing by to bless couples. (There will likely be a stay if Prop 8 is again ruled unconstitutional, so no real marriages.)
The team behind the lawsuit will, AFER, be llivestreaming their press conference with David Boies and Ted Olson.
My apologies for being away for a while. I've been traveling, and is often the case after traveling, I got sick. So, as I try to ward off this nasty head cold, here's some food for thought on the subject of marriage equality.
As you might remember, we were polling we'll on prop 8 several months before the election. Then the nasty (and untrue) ads about forcing your kids to get married to a gay, or something like that, started appearing. We had no coordinated response, and ultimately that became the story. But in the marriage debate, time is our friend. And as every year passes, the electorate becomes more favorable.
By a 2-to-1 margin, three out of five (60 percent)" decline-to-state "voters support allowing gay and lesbian couples to marry legally, with a resounding 44 percent who strongly support legal avenues to marriage. In contrast, less than a third (30 percent total oppose) oppose legalizing marriage for gay and lesbian couples and less than one out of ten is undecided.
In a July 2009 poll commissioned by Love Honor Cherish, Equality California, Courage Campaign and more than 30 other organizations to determine when to seek repeal of Prop 8, decline-to-state voters favored marriage by 49% with 18% undecided and 33% opposed.(LoveHonorCherish)
Now, to be clear, this is far from conclusive proof of anything. LHC has a ballot measure submitted in Sacramento, and is trying to rally support. However, as of yet, there hasn't been any institutional support for the measure while the legal case is outstanding. With that case expected to drag on for months/years, it seems unlikely that a consensus will be formed around the November 2012 date for a measure. No matter when it goes on, a ballot measure would be extremeley expensive. Now, that isn't to say that I don't support the concept, because I think we really need to win one at the ballot at some point to give the Supreme Court some courage.
And all the numbers are there, we can win in 2012. But from where we stand right now, we have a lot of work to do before we are ballot ready.
9th Circuit panel will hear arguments on releasing the videos and overturning Judge Walker's decision based on gay bias
by Brian Leubitz
UPDATE: KQED Public Radio intends to livestream audio of the hearing at www.kqednews.org and www.kqed.org/news/
In just a few hours, Olson and Boies will be back in action, this time on two motions. First, Plaintiffs' lead co-counsel Theodore B. Olson will present the oral argument advocating for the release of the trial tapes at 2:30pm PT. (Court release here) Plaintiffs' lead co-counsel David Boies will present the oral argument regarding Proponents' motion to vacate judgment at 3:30pm PT. I'm hoping to be on hand for those, but I expect competition for those seats to be a little tough. You can also check out the Prop 8 Trial Tracker for live coverage if I'm not able to make it.
If the appellate court does not block the video tape release, and there isn't an emergency Supreme Court intervention, expect the courts to release those tapes shortly.
The motion to vacate is that silly one about Judge Walker not being able to rule fairly on the issue because he is gay. Judge Ware dismissed it curtly, and as I have written on several occasions (including here and here), it should receive pretty short shrift. The Prop 8 team is essentially arguing that minorities can not rule on civil rights cases that remotely affect them. I'm wondering if they would have the temerity to argue that a female judge couldn't decide a gender case, or an African-American judge couldn't decide a racial discrimination case. It should be, and likely will be, rejected almost out of hand.
More updates on this later today.
2:45: I'm at the court now, where the Prop8ers are presenting their case regarding the video. There basic argument is that they are very injured, and that the code of civil procedure trumps the common law right to access materials from the trial.
Judge2: you had two witnesses? Didnt they go on tv?