Supreme Court puts off decision on whether to hear Prop 8 case

From Lambda Legal's Jon Davidson:

The Supreme Court’s today issued a brief list of cases in which review has been granted, which did not include the Perry case, the Windsor challenge to Section 3 of DOMA, or our Diaz v. Brewer case involving domestic partner health insurance benefits for Arizona state employees. The court did not yet issue a list of cases in which review has been denied or in which it has decided to defer making a decision. That list is expected on Monday. There could also be additional cases in which the Supreme Court has decided to grant review at this time that will be announced on Monday.

But, I heard yesterday that the Supreme Court had actually decided not to discuss the Perry case at yesterday’s conference of the justices, so I do not expect anything substantive to be announced about Perry on Monday. I have not heard anything at this point about exactly when the Supreme Court will discuss among themselves whether or not to grant review in the Perry case, or whether or when it will let us know when it will be discussed. The Court does not provide its reasoning regarding when it is making its decisions about most of these matters, and its discussions are kept highly confidential.

At this point, it’s anyone’s guess about exactly when the Supreme Court will announce whether or not it will grant review in any of these cases. I have heard speculation that the Court might wait to decide whether or not to hear the Perry case until it decides whether or not to hear one or more of the challenges to Section 3 of DOMA.. I’ve also heard speculation that the Supreme Court may not decide which, if any, of the challenges to Section 3 of DOMA to hear until the briefing is final in all of those challenges (including the Department of Justice’s most recent requests that the Supreme Court hear the Pedersen case, if it doesn’t grant review in Gill/Massachusetts or Golinski and that the Court hear the Windsor case if it doesn’t grant review in an of the other cases). That briefing will not be done until the latter part of October and the Supreme Court therefore may not issue any announcement about what it will do in any of these cases until after the election. Again, this is speculation, as the Supreme Court keeps its deliberations about which cases to hear secret.

Read the rest of this post...

A Father's Day letter to his gay son

The New York Times ran a piece today in the style section for Father's Day.  It's an incredibly emotional and personal piece about a father's hopes for his gay son and the Prop 8 case.  Grab some Kleenex before reading this one.

I can't excerpt this and do it justice, so I'll just post the closing.

...One day soon, though, the powers that be are going to do the right thing. I’m his father, and it’s Father’s Day, so let me believe it. One day soon they’re going to let my brave, beautiful boy walk the same path we all get to take home.

Read the rest of this post...

Appellate court refuses to re-try Prop 8 case we won

AMERICAN FOUNDATION FOR EQUAL RIGHTS
FOR IMMEDIATE RELEASE
June 5, 2012

Landmark Decision Striking Down Proposition 8 Will Stand

Ninth Circuit Denies Petition for Rehearing En Banc Filed by Anti-Marriage Proponents of Prop. 8

*** AFER to Hold National Media Conference Call at 10:30 a.m. PDT ***

RSVP to melissa@afer.org for access code

San Francisco, CA -- Today, the United States Court of Appeals for the Ninth Circuit denied a request from anti-marriage forces to reconsider its landmark ruling in Perry v. Brown that found California's Proposition 8 unconstitutional. Proposition 8 stripped gay and lesbian Californians of the fundamental freedom to marry.

The American Foundation for Equal Rights (AFER) is the sole sponsor of Perry v. Brown, the federal constitutional challenge to California's Proposition 8. AFER will hold a national media conference call at 10:30 a.m. PDT to discuss the significance and impact of today's order. Speaking on the call will be Plaintiffs' lead co-counsel Theodore B. Olson and David Boies; and AFER co-founder Chad Griffin.

"Today's order is yet another federal court victory for loving, committed gay and lesbian couples in California and around the nation," said AFER co-founder Chad Griffin. "The final chapter of the Proposition 8 case has now begun. Should the United States Supreme Court decide to review the Ninth Circuit's decision in our case, I am confident that the Justices will stand on the side of fairness and equality."

On February 7, 2012, a three-judge panel of the Ninth Circuit concluded that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Ninth Circuit panel majority held:

"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. The Constitution simply does not allow for laws of this sort."

The request for a larger eleven-judge panel of the Ninth Circuit to reconsider the case, known as rehearing en banc, is only granted upon a majority vote of the Ninth Circuit's 25 judges in regular active service at the time Proponents' petition was filed.

The Ninth Circuit also rejected Proponents' renewed attempt to impugn the reputation of the United States District Chief Judge who struck down Proposition 8. Unable to defend Proposition 8 on its merits, Proponents claim that the now-retired Chief Judge Vaughn R. Walker was disqualified from ruling on Proposition 8 and that his historic decision should be vacated because he is gay and in a committed relationship. The Ninth Circuit unanimously rejected Proponents' offensive argument, stating: "To do otherwise would demonstrate a lack of respect for the integrity of our federal courts."

READ THE NINTH CIRCUIT'S ORDER GRANTING REHEARING EN BANC HERE: http://www.afer.org/legal-filings/ninth-circuit-en-banc-order/

READ THE NINTH CIRCUIT'S PANEL DECISION HERE: http://www.afer.org/wp-content/uploads/2012/02/2012-02-07-Decision-on-Merits.pdf

Read the rest of this post...

Federal judge: Denial of fed benefits to same-sex spouse is discriminatory

Basically a gay couple married in California before Prop 8 tried to enroll his husband in the federal health insurance plan and was denied because of DOMA.  The judge ruled that denying benefits based on sexual orientation and gender was discriminatory.  From the SF Chronicle:

On Tuesday, Chief U.S. District Judge James Ware said the denial of insurance benefits based on the sexual orientation and gender of Nathan's spouse violated the federal court's guarantee of a "discrimination-free workplace."

Ware, acting as the administrator of the court's employee dispute-resolution program, said he has no authority to force the courts' national office to provide insurance coverage. Instead, he ordered the chief clerk of the San Francisco federal court to reimburse Nathan for the past and future costs of buying insurance for his husband.

The clerk, Richard Wieking, said Wednesday such orders by Ware and other judges pose a dilemma for court administrators, who must decide whether to follow their court's antidiscrimination policies or legal directives from the national office requiring them to comply with the Defense of Marriage Act.

Read the rest of this post...

Prop 8 creator leaves firm after clients get upset about his anti-gay antics

Boo freaking hoo.

Sacramento political consultant Frank Schubert, who guided Proposition 8's ban on same-sex marriage to victory in 2008, announced today that he is leaving the firm he founded.

Schubert suggested his advocacy for conservative causes -- opposing abortion rights and same-sex marriage -- was hindering Schubert Flint Public Affairs' work with corporate clients.

"My conservative ideology and my faith have been major guiding forces in my decision to work on some important but controversial issues, including life and marriage," he said in a statement. "But the firm has become much bigger than me personally. I don't want my work on social issues to continue to overshadow the people who work for me, or the clients we serve. ...

In other words, his political gay bashing was costing him money, so he chose cash over Leviticus.

The article notes later on that Joe Fox's film "Question One," which we've written about before, was also part of the cause of the heartburn.  That's the documentary we're hoping Landmark will show in its theaters nationwide.  Help us convince Landmark that it make good business sense to show Question One. Read the rest of this post...

Robin McGehee on "8, The Play": It was fun (but we shouldn't have to be doing this)

Note from Joe: Robin McGehee is a great friend of AMERICAblog's. We're big fans. She's the amazing activist who helped organized the National Equality March on Washington back in 2009, then founded GetEQUAL. Last night, she was in the audience for AFER's production of "8, The Play." Robin's activism started with Prop. 8, so she sent us her take on last night's event (along with some photos.)

If you missed the live broadcast, watch it here. It's worth it -- and remember, the haters don't want people to know what happened at the trial. The play begins at 29:51.
____________________________________

From Robin:

If you would have asked me a week ago if I was going to the American Federal for Equal Right's showing of "8" in Los Angeles - I would have replied, "I wish!" I am a full-time mom and professor at the College of the Sequoias in a small town called, Visalia, California. Although I am deeply devoted and in love with what AFER has done for the marriage equality fight in California, and globally for that matter, there is no way I could afford to get in.

For those who don't know what "8" is, here's the description on their Facebook page:

“8,” a new play chronicling the historic trial in the federal legal challenge to California’s Proposition 8, written by American Foundation for Equal Rights (AFER) Founding Board Member and Academy-Award winning writer Dustin Lance Black and directed by Tony Award-winning actor and director Joe Mantello, will have its world premiere on Broadway in an exclusive, one night only fundraiser to benefit AFER at the Eugene O’Neill Theatre on Monday, September 19, 2011.

The production is an unprecedented account of the Federal District Court trial of Perry v. Schwarzenegger, the case filed by AFER to overturn Prop. 8, which eliminated the right to marry for gay and lesbian couples in California.

But, somehow, I was presented with a ticket. Yes, I got there. To be honest, I was as honored to be in the room with LGBT movers and shakers as I was to be in the same room with the Hollywood elite. Don't forget, I am a lesbian that grew up in Jackson, Mississippi - reading the stories of these activist turned board members who were now standing with me as we all stood in awe of the fact that we were in the same room with George Clooney.

The first couple I was able to meet was Kris Perry and; Sandy Stier, in my humble opinion, rock star plaintiffs from the Prop 8 trails. We discussed the conservative, religious bigotry hotbed of the Central Valley that we both have called home and I shared how honored I felt to say "thank you" to the both of them for sharing the story of two mothers who just wanted a better life for not only themselves, but also for their sons. I deeply believe these women will go down in the history books, with their joint plaintiffs -- Jeff Zarrillo and Paul Katami -- as famously as Mildred Loving and Richard Perry Loving from the Loving vs. VA case of 1967. Because of what they have offered and sacrificed for our movement, I feel honored to have been able to have thanked at least two of them.

Robin, Kris Perry, Sandy Stier
and Robin's partner Stacey (l to r)

Prop. 8 has defined my life for the past four years. It spurred my activism. After we lost, I helped organize the statewide reaction to Prop 8, with Meet in the Middle for Equality in Fresno, CA (an area of the state that voted most against us), to helping organize the National Equality March -- bringing over 250,000 people to DC with a demand of nothing less than full federal equality and finally, as a GetEQUAL street activist with a whirlwind year of actions and events to help push for the repeal of Don't Ask; Don't Tell with Lt. Dan Choi and hundreds of others. For me, this night felt nothing less than surreal.

Yes, there was a red carpet, but I was not meant to walk that strip of fabric - I was meant to experience the night as the activist. I was able to bring some of the streets of activism in to the suites of power. Although, I felt like a girl who got the Willy Wonka "golden ticket."

Robin and Chad Griffin (r to l)

As I stood and surveyed the crowd, I was able to catch a glimpse of Chad Griffin, the new head of the Human Rights Campaign. Chad and I have had multiple interactions before tonight, but since hearing of his new position, I was hesitant to simply offer the "customary" congratulations. My words to him were brief, but heartfelt and serious: We *must* push for nothing less than full federal equality and we have to create an effective insider/outsider strategy. He said that he is in the current stages of preparing for his job and he expects nothing less than for GetEQUAL and the people who also feel our urgency to continue applying pressure, allowing HRC to leverage their lobbying power to gain the equality and dignity we deserve.

I feel strongly that while watching Chad, I felt like I was watching a true leader. He has chartered new ground, pushed us to ask "why not" and a person who has stood up to the organizations that were and are branded to represent us, pushing them to go in directions they did not feel possible. And, honestly, tonight I felt like I might be as cautious, yet hopeful, as the HRC board members who chose offer him this position.

I am so very hopeful that our movement is headed towards the full federal equality we deserve and were born to have, because I do not only want the right to marry! I want safe schools, full repeal and open service for all of the LGB & T, equal protection and access for our community in jobs, marriage, immigration reform and accommodations. Hell, I'll be honest, I want it all and at this moment, I don't think Chad Griffin or the new life that is going to be breathed in to HRC is going to be afraid to go for it -- at least I hope not!

The night was everything you'd expect a Hollywood, Dustin Lance Black evening to be - from the straight Hollywood elite who came out to show their support against the discrimination we face as a community to the long time civil rights veteran, Cleve Jones.

On the way to our seats, I was able to thank Ken Mehlman for his recent apology to our community for his strategy of using the LGBT community as a scapegoat to getting George W. Bush elected. But, I challenged him to understand that GetEQUAL style actions could and should be happening to pressure the GOP to stop their bigoted behavior against our communities and families. Ken may have taken the long road to the dance, but I'm glad he finally got here. Now, as a board member of AFER, I hope he will use his power to our advantage.

Barbra Streisand and Robin (l to r, duh)

Okay, besides the gay political types, there were stars, not only on stage, but in the audience. I mean, hell, I sat 2 rows away from Barbara Streisand.

Robin and Cleve Jones

But, the highlight of my evening was reconnecting with Cleve Jones. The former intern of Harvey Milk, conceiver of the NAMES Project AIDS Memorial Quilt, UNITE HERE worker's right activist, National Equality March organizer and all around great LGBT movement strategy thinker who was in the same room with people who felt called to stand up for our community - people like George Clooney, Martin Sheen, Kevin Bacon, Christine Lahti, Jamie Lee Curtis and countless others - oh yea, even Brad Pitt.

Last night was fun and energizing and inspiring. Listening to the testimony of both Perry and Stier's sons talk about the fact that they did not appreciate being seen as a mistake and were angry with the implication that their moms were causing them great harm, immediately brought me back to why I got involved. I was in tears thinking of my two children. Since our protest started after Prop 8, as we were marching on Washington or as our handcuffs coldly wrapped around our wrist as we were arrested in efforts to repeal DADT - this activism, celebrity spotlight and politicking might be fun, but, as I have said so many times, we should not have to be doing this.

Lawyers Olson and Boies, and
Elliott and Spencer (the sons of Kris and Sandy)

We deserve, just like the characters playing Sandy, Kris and their boys stated so eloquently stated tonight, to be able to take our kids to soccer practice, the park or just go out to dinner with love ones or our friends. We should not have to spend time trying to sell society, government or our world on the fact that we deserve nothing less than full federal equal in all matters governed by civil law, period!

Since the sad reality is that we have to be doing this, I thank Dance Lance Black, Rob Reiner, the board and staff of the American Federal for Equality Rights, the Prop 8 plaintiffs and those who starred in Los Angeles' production of "8" - THANK YOU. The world is changing before our eyes and last night, I think it moved a little faster in our direction. Read the rest of this post...

Why support for gay marriage is Increasing

This piece by Aaron Fischman about why support for gay marriage seems to be accelerating dramatically is spot on in my view. Fischman attributes the rise to three factors: (1) an increase in activism since prop 8; (2) more realistic media portrayals of lesbians and gays; and (3) gays and lesbians coming out to their families and friends.

From Fischman's assessment of the impact of Prop 8:

Casey Robinsons, 34, who has been engaged to his partner Jaron Kie for the last year, argued that Proposition 8 ironically helped the marriage equality movement.

“I think the passage of Prop. 8, in the long run, will actually be one the best moments in LGBT history.”

Although as Robinson noted, the 2008 passage of California’s Proposition 8 eliminated the marriage rights of tens of thousands of people, it effectively energized the gay rights community.

“The LGBT community, especially the gays in the LGBT community had become extremely complacent,” said Robinson. “They just figured over time they would get everything or it didn’t even bother them.

He added, “there was a resurgence of activism post-Prop. 8.”

The entire piece is worth reading. Read the rest of this post...

Proposition 8 Proponents to Seek Full Ninth Circuit Review

From Chris Geidner at Metro Weekly:

Charles Cooper, the lead attorney for the proponents of Proposition 8, tells Metro Weekly that the proponents of the California marriage amendment will be asking the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel decision issued on Feb. 7 holding that Proposition 8 is unconstitutional.

Although Cooper, of Cooper and Kirk PLLC, told Metro Weekly the filing has not yet been made, the filing is expected later today as today is the deadline for the filing to seek en banc review.

The move almost guarantees that the U.S. Supreme Court will not consider the case before this November's presidential election.

Read the rest of this post...

Leonard Link lays out what’s next in the Prop 8 lawsuit

Arthur S. Leonard is a New York Law School professor who provides wonderfully perceptive and thorough analyses of important LGBT rights cases on his blog, Leonard Link. He has a new one out on the future prospects and next steps of the Prop 8 case. For legal geeks, it is definitely worth the read. Here is an excerpt analyzing whether the Supreme Court will hear the case (i.e. grant certiorari):

Four votes are necessary to grant certiorari [before the Supreme Court]. The four Justices to the right, presuming they would be disposed to overrule the 9th Circuit, would be unlikely to vote for Proponents' petition for certiorari (on a theory of strategic cert voting) if they thought Kennedy was likely to vote to affirm. The four Justices to the center-left, presuming they would be disposed to affirm the 9th Circuit panel opinion, would be unlikely to vote for a petition for certiorari from Proponents if they thought Kennedy was likely to vote to reverse. But Kennedy is unlikely to signal any predisposition in this case, and there is lively speculation about whether Kennedy would see the 9th Circuit opinion as an appropriate application of his ruling in Romer or whether he would see a need re-examine Romer in light of the California facts of the Prop 8 case. Because judges are not supposed to announce a position on a case before it is briefed and argued, and in their function as judges they should reserve forming a conclusion before they have read the briefs and heard the arguments of the parties and discussed the matter in conference, nobody will know for certain where they stand. Confident predictions about how the Court will decide a case or how individual Justices will vote are sometimes proved wrong.

I continue to believe that because of the narrow basis on which the 9th Circuit ruled, there is a good chance that the Court would deny a cert petition filed by the Proponents.

Read the rest of this post...

Could have been written in 1967

From our good friends at NOM, the lead religious right group fighting to stop gay couples from getting the right to marry:

Dear Marriage Supporter,

Yesterday's ruling from the Ninth Circuit Court of Appeals in San Francisco was truly astonishing: Proposition 8—and by implication the marriage laws at the federal level and in 43 states—is unconstitutional.

Even while pretending their ruling was a “narrow” decision, these judges effectively decreed themselves to be the supreme overlords of the people, invalidating the votes of over 7 million Californians and declaring that they, the vaunted elite in black robes and cloaked with lifetime tenure, will decide what marriage means in California and the nation.

I don't know about you but my blood is boiling!

Not only must our founding fathers be rolling over in their graves with the preposterous notion that marriage is unconstitutional, but the ruling is an affront to the millions of Americans—the vast majority of the nation—who recognize that man does not have the right to redefine marriage. After all, how can federal judges redefine something that man didn't create?

Yeah, how can they? Read the rest of this post...

How our own Liz predicted the Prop 8 decision two years ago

Some seriously good prognostication from our own Liz Newcomb in January of 2010:

The current situation in California is unique. The Supreme Court reiterated post-Prop 8 in Strauss v. Horton that same-sex couples are entitled to enjoy all the rights the state can confer that opposite-sex couples enjoy, except for the right to call their unions marriages, and except for the exception to the exception, that same-sex couples who were married during the window would still be permitted to be married. To describe the situation is to highlight the absurdity of it.

The strength of Perry lies in this irrationality. Allowing California same-sex couples to obtain all the rights of marriage through domestic partnerships, without allowing them the right to actually marry, shows that there is no legitimate reason for denying same-sex couples that right. The denial has no other purpose than to demean same-sex relationships, or, to use the legal term, to show animus. In the 1996 case Romer v. Evans, the U.S. Supreme Court already ruled that animus alone is no reason to deny any group, including gays and lesbians, the equal protection of the laws. Olson and Boies seek to build on that ruling.

The uniqueness of California’s situation also means that a positive ruling could be limited to California. Courts often like to keep their rulings narrow, and they could do so here. In Perry, the court need not decide that same-sex couples throughout the country have the right to marry under the U.S. Constitution. It need not even decide whether civil unions and robust domestic partnerships are impermissible separate-but-equal constructions. The court could simply decide that a regime like California’s -- where some same-sex couples can be married, but others, through a fluke of timing, cannot --is so irrational that it cannot stand. And according to that reasoning, the court could strike down prop 8 in California as a violation of equal protection, and leave the status quo throughout the rest of the country.

And that's pretty much what the judges ruled. Read the rest of this post...

Dissenting judge in Prop 8 case went to BYU; Mormons announce they "regret" yesterday’s ruling

Liz wrote yesterday about the dissenting judge in the Prop 8 case.  It seems he went to Brigham Young University.  And 98% of BYU students are Mormons. Just an interesting factoid.

Then there's the Mormon's official statement on yesterday's ruling, via CNN:

Here's more from the Mormons, who were single-handedly responsible for Prop 8 passing:The Church of Jesus Christ of Latter-day Saints, which came under fire for its strong support of the referendum, said through a spokesman that it "regrets" the ruling.

"California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view," Scott Trotter, a spokesman for Utah-based Mormon church, said in a written statement. But Trotter added that the church wants "people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion."

Mutual and respect and civility, while we rip away your civil rights.  Yeah, I'm sure the Mormons wish it were that simple, that everyone would simply roll over and play dead while they run roughshod over our civil rights.  Sorry, not gonna happen.

And one more thing.  We don't need lectures on respect and civility from people who steal the souls of the dead of other religions.  They even baptized President Obama's late mother and made her a Mormon without the President's consent or knowledge, just before the election.  I'm sorry, but you just don't get to try to jam your religion down the throats of everyone else in the country - and practice the religious equivalent of grave-robbing - and then call for respect and civility. Read the rest of this post...

Why didn’t Maggie, Peter and Tony testify at the Prop 8 trial

Alvin over at Holy Bullies raises an excellent point.  If the religious right leaders are so upset about the Prop 8 court case not going their way, why didn't they testify at the trial?  (Is it perhaps because they were all afraid to be put under oath where they'd have to either that there's no factual basis to their bigotry, or lie?)

Meanwhile, others such as the Family Research Council, Concerned Women for America, etc. have sent out the usual junk about "unelected judges," "activist judges," "redefinition of marriage," and all of the other hyperbolic mess we have come to expect from them.

But here is my question and it's relatively simple.

Just where were these folks when the original trial was taking place last year? Why didn't any of these folks testify as to why Prop 8 was needed? Remember, the pro-Prop 8 side could only find two witnesses and both did a poor job defending the law. One witness, David Blankenhorn, inadvertently made the case for the anti-Prop 8 side?

Because as one of the lawyers for our side said before, the witness stand is a lonely place for a liar. Read the rest of this post...

Multiple news outlets press White House on Prop 8 decision

From Chris Johnson at the Blade:

Asked by NBC News whether the Ninth Circuit court decision will inform Obama’s evolution on marriage, Carney said the ruling had come out too recently for him to provide an answer.

“The decision was made within the hour before I came out here, so I haven’t had that conversation,” Carney said.

American Urban Radio pressed Carney further about when Obama’s evolution would come to an end and whether that would take place before June or the general election. Carney, however, said he “doesn’t have a timetable.”

“As the president discussed when he answered this question a while back, this is a process that involves his faith and the way he views these issues,” Carney said.

You'll recall that AMERICAblog's own Joe Sudbay was the reporter who initially got President Obama to say he's "evolving" on the question of gay marriage. But as the reporter above asked, how long is this evolution expected to take? Read the rest of this post...

The significance of Judge Smith's dissent in the Prop 8 decision

There was much in the ruling today to be happy about, like this money quote:

We do not celebrate when 2 people merge their bank accounts; we celebrate when a couple marries.

However, Judge Smith's dissent concerns me, and I want to share some preliminary thoughts about it (emphasis on preliminary).

The decision today was a 2-1 decision. As anticipated, Judges Reinhardt (Carter-appointed and very liberal) and Hawkins (Clinton-appointed) went our way. Judge Smith did not. Smith is a George W. Bush appointee who was chairman of Idaho's Republican party before winding up on the 9th Circuit. Smith was by far the most conservative member of the panel. So it is not all that surprising that he was not with us.

However, the inability to bring Smith on board is concerning for me. To understand why, one has to understand that the court issued a narrow ruling that was limited to the peculiar circumstances of California. I welcomed this, because I belong squarely in the camp that thinks that asking the Supremes to make same-sex marriage the law for the entire country at this juncture is a bridge too far. The narrower position that the court took is stronger. The court essentially said that regardless of whether same-sex couples have a due process right to marriage across the board, the situation in California is unconstitutional, because that right was granted and then taken away without good reason.

After watching the hearing, I thought there was a chance Smith might get on board with a narrow ruling and I hoped he would. A unanimous ruling with the support of such a conservative justice would have shown that the issue has the potential to transcend the nasty ideological divide on the court.

But the two more liberal justices didn't persuade him.

Smith's dissent was weak. In it, he gave some credence to two of the anti-marriage equality side's bases for upholding Prop 8: (1) the "optimal parenting" basis, whereby the proponents of prop 8 argued that opposite sex parenting was optimal and the state has a rational basis for encouraging that through marriage; and‎(2) the "accidental parenting" theory, whereby opp sex couples can conceive accidentally, and same-sex couples can't, so it's supposedly rational to encourage accidental parenting within the bonds of marriage, and there's no need to offer marriage to same-sex couples.

Now, I will have to check whether rationale number (1) was factually refuted at the trial, but I think it was. In any case, I know of no legitimate study that shows opposite sex parents are better parents than same-sex. But Smith's dissent ignored the factual situation and seemed to say it's enough if the government thinks its justification is rational. That's a head-scratcher for me. Moreover, the state does not prevent other couples who cannot conceive from marrying.

Rationale number (2) also seems like a very limited and tenuous basis upon which the state supposedly provides marriage rights. Again, the government does not restrict couples who cannot conceive from marrying. So this rationale would seem extremely overbroad on its face. Smith ignored that.

Finally, Smith did not even say that these were rational bases on which to deny same-sex couples marriage rights. Instead, he said these might be rational bases, and that's enough. Smith's reasoning seems incredibly weak.

The very weakness of his justification worries me. Now, the Supreme Court has done some good civil rights decisions, but they've also done some terrible ones -- Korematsu (Japanese internment, for instance) and Bowers (upholding sodomy statutes). So Smith's dissent illustrates a danger. It just goes to show you that some judges will grasp at straws to justify doing the wrong thing. And in this polarized, ideological climate, that worries me if this goes to the Supremes. Read the rest of this post...

Appeals court: Prop 8 UNCONSTITUTIONAL - full text of the decision

Holy cow.

So a few big questions, from friends I'm talking to.

1. Will this appeal now go to the full 9th circuit, en banc, or will it go to the Supreme Court?
2. If it goes to the Supremes, when would it go - as early as this fall?
3. If it goes to the Supreme Court, will the Obama administration be forced to take a position - will the President?
4. If the President demurs, gives his "I'm still evolving" answer, will that be enough to significantly damage gay support in the coming presidential election?

Okay, very interesting - on page 33 of the decision the court notes that it is only considering the argument that:

"Proposition 8 singles out same-sex couples for unequal treatment by taking away from them along the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protest minority groups from being targeted for the deprivation of an existing right without a legitimate reason."

Holy crap. This is very much Romer v Evans territory. Namely, that you can't conspire to take away rights without a legitimate reason. This calls into question all of the anti-gay ballot initiatives, and even anti-gay legislation, nationwide. Many like in Maine are trying to take away rights without a legitimate reason. This decision might overturn those initiatives if the Supreme Court affirms.

Oh, and the decision actually mentions Amendment 2 in Colorado, aka the Romer v Evans case, and says that "Proposition 8 is remarkably similar to Amendment 2."

Interestingly, the court echoes the Obama administration's argument that supporting marriage and opposing Prop 8 are two different things. Greg Sargent at the Washington Post notes the same. Yes, but. It's a court's job to nitpick legal arguments and to give as narrow an answer as possible on any issue. It is not a Democratic politician's job to nitpick our civil rights.

AFER Press conference about to start (it's 1:46pm ET here) - the thing is posting live ads that are really obnoxious, so Im not embedding, you can go there yourself.

For some reason it's not possible to copy and paste quotes. So here's a summary as I go through it:

Prop 8 violates the 14th Amendment to the US Constitution.
No "legitimate reason" for Prop 8 to treat gays differently as a class.
Prop 8 had no effect on religious freedom or on parents' right to control their children's education.
"Prop 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."
The official sponsors of Prop 8 are entitled to appeal the decision in court, they have standing to bring this case before the court.
"The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."
"We also affirm - for substantially the reasons set forth in the district court's opinion - the denial of the motion by the official sponsors of Proposition 8 to vacate the judgment by former Chief Judge Walker, on the basis of his purported interest in being allowed to marry his same-sex partner."
"The question we therefore consider is this: did the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of 'marriage,' and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of 'domestic partnership' for their relationships?"

Ninth Circuit Prop. 8 decision Read the rest of this post...

A guide to today’s upcoming Prop 8 court decision

Chris Geidner at MetroWeekly has a nice summary of the Prop 8 court case in preparation for today's decision which is expected at 1pm ET.

The long anticipated appeals court ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker's decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians' due process and equal protection rights guaranteed in the U.S. Constitution.

There's much more via the link. Read the rest of this post...

9th circuit to rule on Prop 8 case tomorrow

The American Foundation for Equal Rights (AFER) just received notice that the Ninth Circuit Court of Appeals will render its decision in the Perry v. Brown case TOMORROW, Tuesday, February 7, 2012 at 10:00 a.m. PST / 1:00 p.m. EST.

We are confirming the locations/details for our press events tomorrow and will email you again shortly with all the details.

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About the American Foundation for Equal Rights
The American Foundation for Equal Rights is the sole sponsor of the Perry case. After bringing together Theodore B. Olson and David Boies to lead its legal team, AFER successfully advanced the Perry case through Federal District Court and is now leading it through the 9th Circuit Court of Appeals before the case is brought to the United States Supreme Court. The Foundation is committed to achieving full federal marriage equality.
www.afer.org

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9th Circuit: Prop 8 trial tapes to remain sealed

From the 9th circuit decision:

For the reasons discussed above, we reverse the order of the district court as an abuse of its discretion and remand with instructions to maintain the trial recording under seal.

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9th Circuit will rule tomorrow about releasing videos of Prop 8 court case

Wikipedia has the background on this particular part of the case:

On September 19, 2011, [District Court Judge James] Ware ordered the release of the trial videotapes to the public, which the defender-intervenors had sought to keep under seal. The Ninth Circuit stayed the release of the videos pending appeal, and heard oral arguments on the appeal on December 8, 2011.

This is the decision that will be issued tomorrow. Read the rest of this post...