Archives – February, 2010
By Julia Rosen
I hope you are all having a lovely weekend.
Here are the next two installments of the trial reenactment from MarriageTrial.com.
by Brian Leubitz
The AFER legal team has filed their summary of the Prop 8 trial. All 294 pages of it. Officially titled the Plaintiffs’ Proposed Findings of Fact and Conclusions of Law, the document lays out what the plaintiff’s believe they have proved and the findings that they believe are in order. Here’s the gist:
The trial proved that:
- Prop. 8 does irreparable harm to Americans
- Marriage has shed discriminatory restrictions over time
- Gay men and lesbians are entitled to the full protection of the 14th Amendment
- There is no good reason for Prop. 8’s denial of fundamental civil rights
Much of this information was laid out at the final courthouse press conference at the end of January. If you didn’t get a chance to see that, it is at the bottom of this post.
Look, what this comes down to is what we have known for years. Those who oppose marriage equality do it either out of fear, tradition, or religious reasons. We all disagree with that, but for many (but not all) these are sincerely held beliefs. And while I sincerely hope I will see that number dwindle markedly during my lifetime, I know that these people exist. If they choose to discriminate against gays and lesbians in their churches, that is their right. At your church, you need only marry those whom you wish. Heck, I’m not sure if an equality focused body like the MCC Church would want to be forced to marry two people any more than the Mormons would.
But as to the law, the law is on our side. Fear, tradition, and religiosity are not valid reasons under the law to discriminate. As the Prop 8 team’s own “expert” witnesses admitted, marriage would benefit LGBT families, their children, and even the nation.
“We would be more American on the day we permitted same-sex marriage than we were on the day before,” Blankenhorn wrote.
He said Tuesday he still holds that view, and also believes that allowing gays and lesbians to marry would probably be good for the couples and their children. (SF Chronicle)
As to the general facts, we all know them. Their one non-religion based argument, “think of the children…marriage is for the children,” has never made sense. Marriage has never been limited to procreative unions, otherwise we would require fertility tests before a marriage license was granted.
Yet, the evidence the plaintiffs presented in the case clearly shows the harm that Prop 8′s marriage ban has caused. It stigmatizes LGBT couples, creates multiple classes of Californians, and generally treats different people unequally under the law.
The facts, the law, the morals. They’re all there for anybody to see. But, the question that now remains is whether our judiciary is willing to see the facts for what they are.
Justice isn’t always swift or easy. We have to fight for it every step of the way. This case is just one small step along a much longer journey. As David Blankenhorn alludes to, America is a profoundly good nation, with a deep sense of social justice embedded in our law, our Constitution, and our definition of what it means to be an American. We haven’t always done right at the time we should do right. But we always struggle to overcome injustice. And, Prop 8 is an injustice of the highest order; it will be remedied.
The question is just how long it will take us to become “more American.”
By Julia Rosen
A new group launched yesterday called Fight Back New York, which is focused on creating the political landscape needed to bring marriage equality to New York. There are a number of great organizers behind this effort, including several friends of mine. Fight Back New York got its initial seed money from major LGBT political donor Tim Gill, but this project is designed to build a larger movement and base of support for independent expenditures in opposition to those who voted against equality.
Gay and lesbian New Yorkers have waited too long already for full equality. Committed activists have worked diligently for years to educate the public and our elected officials about the need for marriage equality. Last year a group of New York State Senators voted against marriage equality, neglecting the will of their constituents. Now a great group of progressives are fighting back.
To find out more and join the fight go to: http://fightbackpac.com/fight.
Their first target is former Senatore Hiram Monseratte, who is quite a piece of work:
Fight Back New York’s first campaign is aimed at defeating expelled State Senator Hiram Monserrate. Sen. Monserrate is currently running in a special election (scheduled for March 16) to regain his seat. Sen. Monserrate was expelled from the state senate in February following his conviction for misdemeanor assault of a female companion.
Following the March 16th special election, Fight Back New York will engage in a strategic examination of the political landscape and—together with allies and partners—determine where to channel its significant energies and resources in the rest of the 2010 New York election cycle.
It’s not long until that special election, but it will be interesting to see what Fight Back New York is able to accomplish in that window and how they build upon that to catapult into the rest of the election year.
By Julia Rosen
Judge Walker is proceeding forward to get the closing arguments televised. This is great news for accountability and transparency in the trial. And I’m sure welcome news for our Trial Trackers, for while you all loved all of the liveblogging, it’s just not the same as watching it live on TV.
Despite a rebuff from the U.S. Supreme Court, the Bay Area’s federal judges are again proposing to allow cameras in their courtrooms, a plan that could lead to telecasting of closing arguments in a suit challenging California’s ban on same-sex marriage.
Given the likelihood that Judge Walker will be active from the bench, peppering the lawyers with questions, the closing arguments are likely to be very interesting and not just a couple lawyers standing and talking for hours on end.
If his court approves the new rule next week, Walker could allow camera coverage of the arguments along the lines of his previous order, subject to approval by Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals.
Telecasting lawyers’ arguments, without witness testimony, might pass muster with the Supreme Court, which hasn’t objected to televised hearings of arguments before the Ninth Circuit.
No witnesses, no real argument against this one and Prop 8′s defenders aren’t saying yet if they will still try and fight it.
Prop. 8′s sponsors, who opposed telecasting the trial, won’t say whether they would challenge the airing of final arguments.
With no specific broadcast plan on the table, “we’re not going to speculate on how we would feel about that,” said Andrew Pugno, lawyer for Protect Marriage, the Prop. 8 campaign committee.
Oh Pugno, we know you have no reason to oppose it now, but you will invent something to try and keep this trial behind closed doors. The question is…will the courts rule in your favor this time?
by Brian Leubitz
In Maryland, the Attorney General had some good news for the LGBT community:
Maryland Attorney General Douglas F. Gansler (D) declared Wednesday that Maryland will recognize same-sex marriages performed elsewhere and that its agencies should immediately begin affording gay married couples the same rights as heterosexual ones. (Washington Post)
You’ll notice that it doesn’t that same-sex marriages are valid in Maryland, just that the state should be providing gay married couples the same rights. That’s a distinction that has a fair bit of meaning, for symbolic terms. However, for practical purposes, under Gansler’s opinion, the state should recognize few legal differences between straight and gay couples. The full report was about 50 pages (PDF), and steeped in legal background and Maryland history. The state courts ultimately have final say on the matter, but Gansler’s opinion lays out a solid legal roadmap for the process.
But, the right-wing anti-equality types won’t just let it go that easily. In fact, one legislator is calling for the impeachment of AG Gansler:
“It is not up to the attorney general, and that’s the reason I will be bringing charges of impeachment,” Dwyer said. “The opinion doesn’t change the law. It in effect usurps law.”
Of course, the law and most legal experts tend to disagree with Del. Dwyer. But, what are facts and legal scholarship for these people?
Congratulations to the people of Maryland. See more for the Attorney General’s press conference. You can find many more videos on Equality Maryland’s YouTube Channel.
From the comments DavidT says:
That Dwyer guy is a f#&$# idiot. It says right in the report:
An Attorney General opinion is not itself the law of Maryland in the same sense as a statute enacted by the Legislature or court decision elaborating the common law or construing a statute. Rather it is an interpretation of the statutory or common law that can guide a client agency and may be persuasive to a court reviewing agency action based on the opinion . . . Thus, what we say in this opinion is a prediction, not a prescription, as to the how the Court would approach this issue under current law.
The AG is saying, in effect, that yes, it is possible under MD law to recognize SSM. He goes further, and gives his opinion that, when confronted with this question, the MD Court of Appeals will probably rule in favour of recognizing out-of-state SSM. Finally, he remarks that any state agency that intends to change it’s policy based on his opinion should proceed very carefully.
This is not a broad affirmation of SSM rights. It is a carefully crafted legal opinion, with many caveats and conditions.
This is exactly right. The Attorney General of the State of Maryland has authority to review and advise, but does not have ultimate authority. And that is exactly what the Gansler has done; he has provided advice for state agencies on how to treat same sex couples married outside of Maryland. He rightly defers to the legislative branch for their action, or the judicial branch for theirs. Dwyer is just trying to score some cheap political points with his base.
By Julia Rosen
Day three from MarriageTrial.com is now available. Here are the first two chapters.
Yup, this is an open thread. Use it to chatter about whatever you’d like, not that you need me to tell you that