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Lawyer fighting Prop 8 in court believes the Obama administration could weigh in “on our side”
May 21, 2012
Marriage equality Prop 8 trial
By Scottie Thomaston
When the president made his announcement in support of marriage equality in his interview with Robin Roberts, he was asked if his administration would get involved in marriage equality cases that are working their way through the courts right now, and could reach the Supreme Court within a year or two. He said that he views marriage equality as a state issue and that his administration believes the federal Defense of Marriage Act is unconstitutional. He said he thinks “it is a mistake to– try to make what has traditionally been a state issue into a national issue” especially considering that Mitt Romney’s position on the rights of same sex couples is that marriage equality should be outlawed in a constitutional amendment. Romney also opposes civil unions for gay and lesbian couples.
The Justice Department has said they have taken no position on Perry v. Brown, the Proposition 8 case:
The White House referred an inquiry on the Prop. 8 case to the Justice Department, which said Monday that it has not taken part in that case “or taken a position on the claims presented.”That’s true only in part.
In arguing that the 1996 federal law known as DOMA unconstitutionally denies benefits to same-sex spouses, the Justice Department has made one claim that would apply equally to a state marriage law: that DOMA discriminates against a historically persecuted minority that lacks the power to defend itself in the political process.
[...]
Similar reasoning appeared in the August 2010 ruling by then-Chief U.S. District Judge Vaughn Walker, who said Prop. 8 was part of a “long history of discrimination” against gays and lesbians and was based, ultimately and unconstitutionally, on “moral disapproval.”
And Theodore Boutrous, part of the team fighting against Proposition 8 in court, argues that the equal protection arguments are similar enough, and the case is important enough for the administration to step in, either on its own or if asked to give the administration’s views:
“The president made a brave and important statement about his personal views. … He wasn’t getting into legal strategy,” said Theodore Boutrous, a lawyer for same-sex couples and a gay-rights group that sued to overturn the California measure.But when the time comes, he said, “they will see that the Prop. 8 case, like the DOMA cases, presents extremely important equal protection and due process issues.” When the court, as it often does, asks the federal government to take a position, Boutrous said, “I think they will weigh in on our side.”
The case would not be headed to the Supreme Court until sometime in President Obama’s second term. Right now, the Ninth Circuit is still weighing whether it will rehear the case en banc or not. If it decides to rehear the case, that will prolong a final review by the Supreme Court. But even if it denies rehearing and the case can proceed to the Supreme Court, it would be next term or later before it’s heard and a decision is rendered.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
15 Comments Leave a Comment
1.
Bruce Stores | May 21, 2012 at 12:42 pm
On CNN this morning a black leader (I think it was the major of Newark, NJ) said he was in agreement with Obama re: SSM, but disagreed with the President's position that it is a matter for the states to work out. He went on to say that "states' rights" was the cry of the segregation movement. Anyway, how long will it take if we wait for all 50 states to come aboard? Can we imagine Mississippi ever doing so? Perhaps this is something the President might want to re-think.
2.
RightthingtodoTX | May 21, 2012 at 1:09 pm
that's cory booker…dude is awesome
3.
takemusu | May 21, 2012 at 4:32 pm
I wonder if States Rights is why the clerk at CA EDD thought I do not qualify for unemployment? Because not all states agree? I had to leave my job to go live with my wife. We're one of the 18k couples married before Prop 8. When I filed for unemployment the clerk said they do allow benefits for married couples one of whom has to leave a job to move and be with a spouse.
He then insisted I provide out Domestic Partner paperwork. "I can provide our marriage license" I patiently told him "because that's what we have".
Back and forth we went with him insisting I need to send DP papers and my patiently educating him "no. It's unusual I know. It's just your luck you got one of 18,000 such couples but it's true, we're married …"
My applications been denied and now goes before a judge.
4.
4marriageEquality | May 21, 2012 at 4:57 pm
its not up to the states when questions of social security benefits and immigration are concened
5.
takemusu | May 21, 2012 at 5:27 pm
I wasn't asking for social security benefits. I'm talking about the State of CA unemployment benefit. That department confirms they honor that right for Domestic Partners both before that all too brief period where we had the right to marry and and after prop 8 if registered DP. They give the same right (to resign to follow a spouse) to married couples but not to a same sex couple legally married before prop 8 took effect????? Uh uh. Under the Strauss v. Horton case we're legally married still under the grandfather clause. Our marriage has not "reverted" to a DP.
I'm not whining so much as pointing out we don't even get the rights we HAVE much less what we don't have.
6.
Straight Dave | May 21, 2012 at 9:28 pm
Oh, man, that's just completely broken. I would have asked to speak with a supervisor right away. This is not even a close call. You are a 100% spouse with full rights. Somebody must have misinterpreted a stupid memo somewhere along the line. It shouldn't have to require a judge to follow a simple law. I sure hope you manage to get this resolved soon.
7.
drx | May 21, 2012 at 10:10 pm
For this to even have to go before a judge is ridiculous! I am also one of the 18K that got married. My husband recently got a job in Washington State where they have the everything but marriage law still on the books at this point. The state says it accepts valid marriages from other states to be domestic partnerships within the state. I hope they don't think our marriage isn't valid because of all of the legal battles going on. Hope your case works out quickly. You are obviously correct.
8.
takemusu | May 22, 2012 at 8:21 am
I did not speak directly to the supervisor but "Buster" at EDD put me on hold and said he reviewed it with his supervisor. He said the supervisor also thought I needed the DP paperwork.
He asked me to fax the marriage license anyway which I did fax.
In my over 15 years experience in call centers one constantly gets the unusual situation. Some reps and even the supervisors don't know what to do or where to find out and just say "NO!". It seems easier to them than bothering to figure it out.
Others will take this chance to train and learn something new and say "wow, this is different. I will find out. Can you wait or I will call you back?". This is how we learn. So much of our training is "on the job".
I was the latter type of rep and mostly had the latter kind of managers.
It was just my luck on that day I got the former kind of rep and manager.
I have a family member who's an atty for whatever it is we call the State of CA department that investigates and prosecutes allegations of discrimination
I ran this by said person asking based on these facts will I win?
She said "yes, you should win".
She thought the judge may feel "why are these idiots bothering me with a case that should be a simple procedure when I could be golfing??" So it could come back to bite "Buster" and his manager for not knowing or more important bothering to find out.
It will go before a judge and also a representative of my ex-employer will be there. I must admit I trust the judge to be fair.
I don't trust the managers of my former employer as far as I can throw them.
I will prepare as best I can and may seek legal counsel if I can find it.
But my family member feels it should be a pretty simple procedural matter and not needed. I must say as I'm looking for work this is stress and a project I don't need. OTOH if i can put together an argument, presentation to the judge and win that will be quite an achievement and I'd feel pretty dang good about that.
9.
takemusu | May 23, 2012 at 6:54 am
Thank you Lambda Legal! They are sending me a list of CA lawyers with specialties in employment law and LGBT family friendly.
10.
Ann_S | May 23, 2012 at 8:10 am
Hooray! Best of luck with your claim, takemusu. I hope you are able to prevail quickly.
11.
takemusu | May 24, 2012 at 8:10 am
Thank you! I have a job interview today and in fact would rather have a job offer. Yet I will pursue this case both for me and for the edification of the EDD Department.
They need to know and keep track of the status of LGBT couples for when this happens again to another family.
Plus I'd really like to actually have the benefits I've been entitled to.
We could afford the champagne to celebrate my being here
12.
takemusu | May 26, 2012 at 2:47 pm
I just got the court date; Wednesday the 6th. Wish me luck.
13.
Ann_S | May 26, 2012 at 4:23 pm
Good luck, Takemusu!
14.
takemusu | May 28, 2012 at 10:24 am
Thanks! I'll need it.
So far no calls back from the lawyers but my niece says it sounds like a procedural kerfuffel on the states part and I will win.
So I just have to put on my favorite thinking cap and write a good clear argument.
15. Prop 8 Trial Tracker &raq&hellip | May 31, 2012 at 2:01 pm
[...] days in jail. Then, I wrote that Theodore Boutrous, a lawyer fighting Proposition 8 in court, has stated his belief that the Obama administration could very well weigh in against Proposition 8 in [...]
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