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.
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.
Just to brush up on the facts here, the National Organization for against Marriage (NOM) is a key organization in the anti-equality movement, playing a key role as a front group for Mormon donations. Of course, you can check out their NOM Summer Tour on the Courage Campaign's NOM Tour Tracker. See, they are travelling all over the nation, spreading their message that equality sucks or something like that.
Now, this is where Carly Fiorina enters into the story. NOM teamed up with two other Right-y organizations to found the "Latino Partnership for Conservative Principles". Here's the press release:
The Latino Partnership for Conservative Principles, an organization of conservative Hispanics, today announced the details of a $1 million campaign in support of California Senate candidate Carly Fiorina at a press conference in downtown Los Angeles on Tuesday, July 27. ... The campaign is being coordinated by our Latino Partnership for Conservative Principles, in collaboration with the Susan B. Anthony List and the National Organization for Marriage.
Poor Susan B. Anthony...having her name dragged through the mud like this. It just ain't right.
Nonetheless, if there was any facade of moderation with Carly Fiorina, this is where it should stop. Sure, this is an IE. But these folks know exactly what they are buying. They simply don't use their money on people that aren't "one of them." That's just not the way it works.
Of course, it would be nice if there were, you know, actual Latino organizations involved in this effort. But there's a reason for that. She's become a reactionary nativist on immigration policy, and she is just all wrong for California.
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.
If you've been busy waiting for the Prop 8 ruling you may not have been expecting the news yesterday that Section 3 of the so-called "Defense of Marriage" Act was ruled unconstitutional. But it happened, and you have, at least in part, Martha Coakley to thank for it. (Yes, that Martha Coakley, you can check her out over the flip.) But, this decision is real, and powerful:
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, "there is no reason to believe that the disadvantaged class is different, in relevant respects" from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
This was actually two consolidates cases, the first case being brought by ten married couples (Gill v OPM - decision here), the other being the Massachusetts case (decision here). In the Mass case, the judge ruled that DOMA violated the 10th Amendment. Yup, the one about the states having power over issues not delegated to the federal government. It's not used much, although the right wing is trying to go all anti-Obama with it these days.
Nonetheless, there are a couple of issues for Californians here. First, there are currently about 18-20 thousand same-sex married couples in the state. Give or take for folks who married in other states before moving here pre-2008 and for those relationships that have ended since then. So, how does this ruling affect us here?
Well, unfortunately, this federal court decision really doesn't affect us at all. In theory, the ruling only covers Massachusetts for the time being. The case was brought on behalf of the state, and unless and until it moves up through the 1st Circuit and possibly to the Supreme Court, the case only has persuasive precedential value. For now, DOMA is still valid in California.
That being said, there are still many ways to challenge DOMA, and this is a big first hurdle of getting a federal judge to call it for what it is: clearly unconstitutional. We should see additional lawsuits challenging DOMA from a variety of legal fronts over the coming months and years.
Of course, that Prop 8 decision will also play a major role in all this. The end game is, of course, for universal marriage equality, but the legal doors on the way there are slowly and steadily opening.
Check the flip for an interview with Martha Coakley about the decision as well as an interview with Tobias Wolfe, President Obama's campaign advisor for LGBT issues.
I've been trying to keep abreast of the Prop 8 closing arguments, hitting refresh on several different websites. Through all of this, I have tried to at least, on occasion, take a step back to be as objective as possible. I was always something of a skeptic. After all, much of our judiciary has been appointed by Republicans. It just seemed like the logical conclusion of all this was some sort of temporary victory for Maggie Gallagher's team. However, all that being said, I am now coming to the conclusion that our odds really aren't that bad. And in many ways, the real legal reach would be to not overturn Prop 8.
That isn't to say that Prop 8 will be overturned by the Supreme Court. The Roberts court has been known to make a few reaches of legal logic in the past, and a decision favoring Cooper's case would not really shock anybody. But, the case that the legal team, headed by Olson and Boies, has built here is really quite solid.
As Rick noted, Judge Walker spent much of the day trying to get a legally valid point to emerge from Cooper's mouth. But, when it comes down to it, this is the heart of their case:
The legislative process involves setting priorities, making difficult decisions, making imperfect decisions, and approaching problems incrementally. That process is what is at work in this state.
And it's at work elsewhere in this country. And as the court...said, there is a debate about the morals, the practicalities, and the wisdom of this issue that really goes to the nature of our culture. And the constitution should allow that debate to go forward among the people.
In other words, what Cooper is arguing here is that despite how wrong Prop 8 might be, it should still stand. He has essentially given up on arguing that Prop 8 is actually accomplishing some valid purpose. Instead, he is relying on the "rational basis" test to argue that the state legislative authority allows Prop 8 as some sort of valid exercise because the state might have some sort of "channeling" power towards marriage. (Who exactly they are channeling remains an open question. Because, I'm pretty sure I will not be channeled anywhere.)
He doesn't bother to claim that this is a good idea, or a just idea. Rather, it simply a "rational basis" to legislate from.
Trouble is that, quite simply, it is not a rational basis. I don't think I can say it any better than Ted Olson:
So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it's the right of the person. It's not the right of the State of California to channel us into certain activities or in a certain way.
There's a long way to go folks, but today was a good day. Even if we lose at the Supreme Court, this case has been a valuable exercise for the nation. Cross-posted from Prop 8 Trial Tracker
Today, the Proposition 8 trial in San Francisco Federal Court will hear its long-awaited closing arguments - as gay marriage advocates prepare to return to the ballot. And a new study conducted by the Haas Jr. Foundation looks at pre-election polling data from 33 states that passed anti-gay marriage initiatives. It concludes (a) we always do worse than what polls say, and (b) voters don't change their minds about this issue during campaigns. The lesson, of course, is that we must work harder to move hearts and minds - and that work can't be done in a short election season. Sadly, the implications of this study will strike many as discouraging - was all the money, time and energy we spent in California and Maine somehow a waste? It's true gay marriage is a sensitive topic that voters develop hard feelings about that can't be changed overnight. But the study did not focus on the small sliver of "persuadable" voters in each election who decide the outcome.
First, let's get this one out of the way: don't expect anything new. By definition, closing arguments are something of a summary of what's come before. What you see in closing argument is each side pressing their advantages, and this case is no different.
After the preparations had been made, the tally sheets from our phone calls completed, the carpools worked out, and the volunteers scheduled, I headed to Los Angeles with the hope that after the weekend was complete, there would be no question in the minds of the CDP delegates that Gavin Newsom has the grassroots support necessary to win the Lt. Governor's race against whatever the GOP throws at us in November.
In the weeks prior to the convention, our team of students from all across the state had been talking to delegates, volunteers, and fellow young voters about Mayor Newsom's candidacy and about his bold, new ideas that will be required to dig California out of our seemingly never ending state of economic misery.
The pitch was not hard to make. Young people are drawn to Newsom's campaign. We see public higher education becoming unaffordable to more and more Californians. We fear that in five or ten years our state won't be able to compete in an evolving global economy, and we worry that the living wage jobs that we will need in order to support our families will be harder and harder to find. While we are confident that our state will come to its senses when it comes to Gay Marriage and LGBT rights, we are concerned that the relentless beat of the status quo won't provide the framework necessary to drastically change the way we look at issues like immigration, the environment, and budget & tax reform. We have watched the forces of regressiveness drag our state (and our futures) under the surface, and we are ready and eager to support Gavin Newsom, who has proven time and time again in San Francisco that tangible change is not only possible, but it is also necessary.
Hi there, Nicholas Hatten here. Ye of McNerney '06 and '08 campaigns and Stockton's Drinking Liberally. First time poster but long time lurker. What's got me so excited that I've decided to break my lurking streak? Well, the awesomeness that is San Joaquin County's LGBT community.
A year ago this month I moved back to the lovely city of Stockton after a decade long love affair with the Bay Area and re-discovering the Central Valley during my time with Team McNerney. Now I was already aware of how progressive leaders like Councilmember Susan Eggman (LGBT icon), Jerry & Carol Bailey (single payer icons), Martha Gamez (uber-grassroots icon) and others had helped change the landscape of politics in the Central Valley. What I wasn't aware of was how much the LGBT had matured and evolved into a political force during my time away.
Equality California and ACLU, as I discussed yesterday, were appealing Judge Walker's order to turn over a slew of documents. Well, they lost. Sort of.
The 9th Circuit said it lacks jurisdiction to overturn a federal judge's order forcing gay marriage advocacy groups to turn over their Proposition 8 campaign materials. ... The organizations argued that their materials are protected by a First Amendment privilege shielding internal campaign communications.
But the three-judge panel said the organizations can't appeal Walker's order until they have been held in contempt for failing to comply with it. (Courthouse News Service)
I've noticed a couple other blogs discussing today's decision, some even suggesting that this would speed up the process. That is a possible outcome, if the groups choose to turn over the documents. However, they can also wait to be held in contempt and then go back to the real meat of the question as I outlined yesterday.
Jurisdiction, which basically answers the question of whether the court has authority over the case, is a threshold question. That is, if there is no jurisdiction, then your substantive arguments are simply not heard. That's what happened in this case, the 9th Circuit basically said you'll have to wait on this. The next move is up to EQCA and ACLU.
Before I delve into this, I'd like to say that while I'm an attorney, I am by no means an expert in discovery. However, I'll try to explain it as best I can.
To start, discovery runs on good faith backed by a big old stick. The normal process is for each side to ask questions ("interrogatories") and respond to the opposing counsel's questions with responses, and eventually documents. Document review is typically the domain of first year lawyers, who get to spend hours upon hours hunting for the smoking gun amidst heaps and heaps of meaningless paper. In fact, one discovery strategy is to bury the opposing counsel in so much paper that the good stuff remains hidden. A judge can control this sort of gamesmanship if it gets out of hand.
Now, in this particular case, the defendant-intervenors asked for a bunch of documents from the No on 8 Coalition. It was a similar request as the Yes on 8, protectmarriage.com, organization had received. Eventually, Judge Walker's order was slightly limited to exclude completely internal documents within a "core group" of campaign insiders. But, they ended up turning over a bunch of useful documents, which I won't go through now. But, go back over the old posts from the trial, and you'll stumble across them.
In return, the Yes on 8 asked for similar documents. Now, at first blush, you'd think, well, fair's fair. But, not really though. The only actions in question here are the actions of the Yes on 8 team and whether the campaign was seeking to deny equal protection of the law. On the flip side, the No on 8 coalition clearly had no such motives, and the constitutionality was never in question.
The relevant rules here are the Federal Rules of Civil Procedure, particularly Rule 26, which states, in part:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.
The key part of this is relevancy. There are a number of different standards for relevancy, but they are all generally lenient, or at least far more lenient that standards for evidence at trial. That being said, even by these more lenient standards, this is a big reach. And frankly, all of the parties know that, but the Yes on 8 team is trying its best to get as much information as possible for future campaigns. Sure, they won't say that, but that's what is going on here. But, to the issue at trial, I'll let Judge Walker sum it up:
This objection has three parts: first, that the magistrate applied the FRCP 26 relevance standard when a more searching standard was appropriate; second, that the subpoenas do not seek relevant documents under any standard of relevance; and third, that the magistrate failed to weigh the marginal relevance of the documents against the heavy burden production of the documents would impose.
Under the FRCP 26, the court, in this case Magistrate Spero, is to weigh the burden of disclosing the documents against the relevancy of the documents to the case at hand. After all, we don't want our courts to just be a big fishing pond, be it for corporations, individual litigants, or for campaigns, as we have in this case. These issues are all somewhat subjective, that is the judge has to look at evidence and weigh relative merits. Unlike what Justice Roberts would have you believe, this isn't about balls and strikes, it's more like judging a boxing match. Each side has relative merits, and the judge has to use his legal training and experience to end up with the best result.
Now, on the Yes on 8 side, the 9th Circuit ruled that Judge Walker allowed too broad of discovery, a loss for our side. However, the ACLU and EQCA argue that Judge Walker once again allowed for too broad of discovery. This time focusing on relevancy rather than any notion of privilege of free communication within a campaign. The importance of this distinction is critical. There is a bright line for why the Yes on 8 materials were discoverable. However, if the ACLU and EQCA documents are discoverable, any body associated with a campaign that is involved in litigation is discoverable. As Geoff Kors of EQCA points out, that is simply not something that we can allow to go unchallenged:
"Protect Marriage has not subpoenaed Equality for All, the organization that led the No on 8 campaign. Instead, it singled out two allied civil rights organizations that are not parties to the case to intimidate and dissuade all LGBT organizations and our allies from participating in future campaigns to defeat anti-LGBT measures. We want nothing more than for this case to proceed as quickly as possible. But if this ruling is allowed to stand it will set a harmful precedent that will have a chilling effect on all non-profits working in coalitions on social justice issues. They will fear harassment and the threat of being forced to spend precious, limited resources on responding to costly litigation and subpoenas rather than to do the critical work at hand."
I know people are anxious for some resolution on this case, but folks, it's going to be a while. There are still a lot of appeals to go; it's likely to be years before we see a resolution. Even if Judge Walker overturns Prop 8, he's likely to put a stay pending appeal. That's why it is critical that we not take our eyes off the ball, which is the ballot box. In my mind, Prop 8 is clearly unconstitutional for several reasons. That being said, sometimes you have to fight when you shouldn't have to. It's not right, but it's the way it is. We'll win both in the legal arena and the ballot box.
Today, Love Honor Cherish, the leader of the Repeal Prop 8 2010 organization sent out a press release announcing that they had failed to get enough signatures on the ballot. (The full release is available in the full post.)
Love Honor Cherish, which spearheaded an effort to place an initiative on the November 2010 ballot to repeal Proposition 8 and restore equal marriage rights for same-sex couples, announced today that the proponents did not gather the 694,354 signatures necessary to place the proposed initiative on the ballot. The group vowed to work toward the repeal of Prop 8 at the next general election in November 2012.
"This is a heartbreaking moment," said John Henning, Executive Director of Love Honor Cherish. "Despite the dogged efforts of hundreds of volunteers across California, we did not get the signatures we needed within the 150-day window set by the state."
Under California law, it is too late to mount a new effort to repeal Prop 8 in 2010. "Regrettably, Prop 8 will remain as a stain on our constitution until at least 2012, and perhaps later," said Henning. He challenged activists statewide to rededicate themselves and unify behind a 2012 repeal effort.
While this isn't a surprise, it does end a trying divide within the LGBT community. I do not speak for the courage campaign or anybody other than myself here, but generally, I'm inclined to believe gubernatorial elections have a better electorate for our side. That is 2010 would have been better than 2008, and 2014 will be better than 2012. During off year elections, you get better educated electorates, and that correlates fairly well with those who aren't really bothered by marriage equality. I have done some analysis looking at that, but also have spoken to a few huge voter number nerds who agree with that hypothesis. It's still an open question, however.
That being said, time matters as well, probably even more than presidential or gubernatorial year. As more millenials spill into the voting ranks, more pro-equality votes are stacking up on our side. While 2 years won't make a huge difference, many number nerds think it is just under 2 percent per year that the electorate moves toward equality. Obviously, that's far from a precise number, but 4 percent would be enough to flip the Prop 8 vote around.
That being said, this time we would be running a Yes campaign, which is always more challenging. Given this news and the rumblings coming out of major LGBT organizations, it looks we are headed like a laser beam towards a 2012 confrontation for our marriage rights.
It's a shame that Prop 8 still stands, and it is my sincere hope that Judge Walker and the federal courts strike it down. However, I am very cognizant of the fact that we are likely headed to the ballot. Get your door-knocking shoes all polished up, we have work to do.
