Archives – December, 2012
By Matt Baume
Here we are at the end of 2012, and after a year of amazing progress we’re closer than ever to full federal marriage equality. Think about where we were a year ago with Prop 8, with DOMA, with marriage laws from state to state. So much has happened since then. So let’s do a quick year-in-review to get you caught up with the progress we made in 2012, and where we’re going to focus in 2013, including which states are the most likely to make headlines in the coming year.
January, 2012: we start the year off with new civil union laws in Delaware and Hawaii. Pro-equality governors waste no time in the new year, with Washington’s Christine Gregoire and Maryland’s Martin O’Malley introducing marriage legislation.
And then, a major victory in February: In AFER’s case to overturn Prop 8, The Ninth Circuit Court of Appeals rules that Prop 8 is unconstitutional. And within days, another federal court rules against the Defense of Marriage Act. In New Jersey, the legislature passes a marriage bill, but it’s vetoed by Governor Chris Christie. Governor Gregoire signs Washington’s marriage bill into law, but first it must undergo a referendum.
March. Dustin Lance Black’s play “8″ has its Los Angeles Premiere with a star-studded cast. Maryland Governor Martin O’Malley signs a marriage bill into law — but it too must face a referendum. The New Hampshire legislature easily rejects a challenge to marriage equality, thanks in large part to a supermajority of pro-equality Republicans. And a ninth national survey shows a majority of Americans support the freedom to marry.
April. Lambda Legal files a new federal lawsuit against Nevada’s marriage ban. And a committee in Colorado passes a civil union bill that’s backed by an overwhelming majority of voters.
May: President Obama endorses the freedom to marry — the first sitting president to do so. DOMA is ruled unconstitutional by a federal district court in California. And then again by a second court — this time in a unanimous ruling by the First Circuit Court of Appeals, in a case brought by Gay and Lesbian Advocates and Defenders. But the good news is tempered by North Carolina passing a law that bans marriage and civil unions. And at the last possible moment, Colorado Republicans kill the popular civil unions bill.
June: Lambda Legal and the ACLU file suit to win marriage in Illinois. Another court rules that DOMA is unconstitutional — this time it’s a federal district court in New York in another case brought by the ACLU. More surveys show support from a majority of Americans, bringing the total to 13.
In July, the Democratic National Committee hints that it may add marriage equality in the official party platform. Multiple DOMA cases get on the fast track to the Supreme Court, skipping the usual appeal process and petitioning directly to the highest court in the land.
August: more bad news for DOMA, with a judge in Connecticut issuing the fifth ruling of the year that the anti-gay law violates the constitution. A court in Hawaii upholds the state’s marriage ban.
In September, with the election just two months away, the Democratic National Committee finally puts marriage equality in the party platform.
As the Supreme Court convenes in October, another DOMA case advances. This time it’s the Second Circuit ruling that the law is unconstitutional, finding in favor of widow Edith Windsor and the ACLU.
And then: multiple major victories in the November election. Obama wins re-election after endorsing the freedom to marry. Voters support marriage equality it all four states where it was on the ballot. Tammy Baldwin becomes the first openly gay member of the Senate. We have the largest LGBT congressional caucus in history. But there’s still no word from the Supreme Court.
Lambda Legal appeals a wildly anti-gay ruling in a Nevada marriage case to the Ninth Circuit, which previously found Prop 8 to be unconstitutional. The Supreme Court announces they’ll hear two marriage cases — AFER’s case against Prop 8, and an ACLU case challenging DOMA. The stage is set for us to win marriage equality at a national level.
And by the end of the year, the play “8″ has confirmed 340 readings across the globe. Over forty thousand people have seen the show performed live, and over 800,000 more have watched online. We’ve always known that telling our stories is one of the most effective ways to show people why the freedom to marry matters.
And as 2012 comes to a close, the number of polls showing a majority support the freedom to marry reaches a record high: twenty one national surveys.
2012 was an incredible year for marriage, and 2013 is likely to be even busier.
In the coming year, we could see legislative fights in Minnesota, Rhode Island, Illinois, and Delaware. The governors of all four states have pledged to sign marriage bills if they can make it through the legislature. Other states primed to make progress are Colorado, New Jersey, and Oregon. But we’re also facing an anti-gay constitutional amendment in Indiana.
We’ll have a special episode that focuses on all these states after the new year. In the mean time, subscribe here on YouTube to get weekly alerts about what’s happening and how you can help make a difference no matter where you are. And visit us over at AFER.org to pledge your support for the case to overturn Proposition 8 once and for all.
By Jacob Combs
Some late-breaking news this Saturday out of Illinois: the Chicago Sun-Times reports that President Obama will publicly support an effort by Illinois state legislators to introduce and pass a marriage equality bill before the end of the legislature’s current session. From the Sun-Times:
“President Barack Obama is urging the Illinois General Assembly to legalize gay marriage in his home state as lawmakers are poised to take up the measure as early as this week in Springfield.
“‘While the president does not weigh in on every measure being considered by state legislatures, he believes in treating everyone fairly and equally, with dignity and respect,’ White House spokesman Shin Inouye told the Chicago Sun-Times on Saturday.
“‘As he has said, his personal view is that it’s wrong to prevent couples who are in loving, committed relationships, and want to marry, from doing so. Were the President still in the Illinois State Legislature, he would support this measure that would treat all Illinois couples equally,’ Inouye said.”
We’ve been following the marriage equality push in Illinois for several weeks now: in mid-December, the bill’s two chief sponsors, Sen. Heather Steans and Rep. Greg Harris, announced that they would introduce the legislation in the current lame-duck legislature before the new body is sworn in on January 9, saying they were “within striking distance” of the votes needed for the bill to succeed. The next week, Lambda Legal, Equality Illinois and the ACLU of Illinois announced they were partnering with a range of business, labor and faith groups to form a new coalition called Illinois Unites for Marriage for the express purpose of passing marriage equality in the legislature in 2013.
As the Sun-Times notes, President Obama’s move is likely intended to provide some political cover for Democratic state legislators from more conservative districts than Chicago and its surrounding suburbs. Democrats hold majorities in both the Illinois House and Senate, but while the possibility of success for the marriage bill looks good in the state Senate, it is less assured in the House.
President Obama’s announcement comes after he publicly supported campaigns in three states–Maine, Maryland and Washington–to legalize marriage equality by popular vote in the November election. In the past, he has also expressed opposition to anti-gay constitutional amendments such as the one that failed in Minnesota this November. However, the president has seldom commented on state legislative politics as he has done so tonight.
We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies will run in the place of regular posts. Today’s post is the June announcement by the Ninth Circuit that there would not be an en banc rehearing of the circuit court’s decision that Prop 8 is unconstitutional. The comment thread featured 188 comments on the announcement and can be found here.
Regularly scheduled programming will resume on January 2nd – Jacob Combs
By Scottie Thomaston
The judges sitting in the Ninth Circuit have issued a new order in the Perry v. Brown case today. The full panel of Ninth Circuit judges have decided that en banc rehearing of the three-judge panel’s decision will not be granted. This comes after a months-long wait: the proponents of Proposition 8 announced their intention to seek en banc review of the Ninth Circuit’s three-judge panel decision on February 21 of this year. As we noted yesterday, the decision to deny rehearing of the case with a new, randomly-selected eleven judge panel means that Judge Reinhardt’s opinion, which was joined by Judge Michael Daly Hawkins and garnered a dissent by Judge N. Randy Smith, either way, will likely be appealed to the Supreme Court where the proponents will now likely file a petition for certiorari, asking them to review and possibly overturn Judge Reinhardt’s opinion for the Ninth Circuit’s panel of three judges.
An en banc rehearing at the Ninth Circuit Court of Appeals is much different from other circuits. Generally, en banc means that the entire court will rehear the case, with all judges in the circuit participating. But the Ninth Circuit has an inordinately large number of judges, so they have a procedure wherein they have an ‘en banc panel’ consisting of eleven judges: ten randomly-chosen judges plus the Chief Judge (at the Ninth Circuit that is Alex Kozinski) presiding. If rehearing had been granted, the randomly selected panel could have heard arguments and issued new briefing in the case or they could have decided to forgo that and issue a new decision without it.
Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.
Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”
No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari - who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.
This process has gone on for so long. The complaint was initially filed on May 22, 2009 and the trial began on January 11, 2010. Judge Walker didn’t issue a decision in the case until August 4, 2010. The Ninth Circuit’s ruling came much later, with the three-judge panel issuing its ruling on February 7 of this year. Now the Perry case is entering its final phase.
Now that the Ninth Circuit has denied en banc rehearing of the three-judge panel’s decision, the case will face its final test soon, at the Supreme Court, as the proponents are widely expected to seek review of the three-judge panel’s decision. If the proponents do file a petition for certiorari the Justices will look at the petition in a conference later this year where the final decision will be made: review the case or let the Ninth Circuit’s decision be the final word in this long journey to decide the fate of the odious Proposition 8. It promises to be an exciting year.
UPDATE 1 (Jacob): Thanks to the inimitable Kathleen, here is the full order from the Ninth Circuit (via Scribd):
UPDATE 2 (Jacob): Some more details. The original three-judge panel voted 2-1, along the same lines as the decision, to deny en banc rehearing, with Judges Reinhardt and Hawkins voted to deny it and Judge Smith voting in favor of it.
As expected, Judge O’Scannlain (who has written in favor of en banc rehearing on LGBT cases before and has excoriated the Ninth Circuit for its rulings favorable to gays and lesbians), wrote a dissent, joined by Judges Bybee and Bea, explaining why he supported the rehearing. Here is his brief dissent, in full:
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same- sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”1
Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.
For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.
Judges Reinhardt and Hawkins also filed a response to Judge O’Scannlain’s dissent today, concurring in the denial of rehearing:
We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.
UPDATE 3 (Jacob): I’ve updated our ‘where things stand’ page, which is the place to go for an overview of recent developments on the Prop 8 case and information about next steps. Here’s the pertinent section about what comes next, possible Supreme Court review, and how and when the stay on the decision will operate, as some have asked about in the comments:
Where things are at today: Because the Ninth Circuit has chosen not to rehear Judge Walker’s ruling en banc, the 3-judge panels decision striking down Proposition 8 is now the appellate court’s last say on the matter. The proponents of Proposition 8 now have 90 days to file hat is called a petition for a ‘writ of certiorari’ with the U.S. Supreme Court, which they have publicly stated they plan to do. The Supreme Court will then have discretion to choose whether or not it wants to hear the Prop 8 case, and may ask for additional briefings before issuing its decision (this is sometimes known as “denying cert” or “granting cert”). Because the Court takes a summer recess that starts in late June, it is unlikely any decision on whether the Court had chosen to take up the case would not happen until sometime into its fall term, which begins in October. If the case were reheard, a decision would likely be handed down by June 2013. In the exceedingly unlikely event that the proponents of Prop 8 do not choose to file a petition for certiorari, then marriage equality will be restored to California at the end of the 90-day period. If they do file a petition with the Supreme Court, the Ninth Circuit has issued a stay on its decision until Supreme Court review is complete. That means marriages couldn’t begin until the Supreme Court has officially denied cert or when it hands down its final decision, should it choose to rehear the case.
We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies will run in the place of regular posts. Today’s post is the announcement of the First Circuit’s decision in Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services, marking the first time an appeals court struck down Section 3 of the Defense of Marriage Act. The circuit court’s full decision is below. The comment thread featured 107 comments on the announcement and the thread is here.
Regularly scheduled programming will resume on January 2nd – Scottie Thomaston
By Scottie Thomaston
Updates to follow at bottom, scroll down…
Gill v. OPM was recently heard at the First Circuit Court of Appeals, and today the decision came down that the three-judge panel has struck down the law as unconstitutional.
The unanimous decision striking down DOMA in Gill v. OPM is here. It is the first time DOMA was considered unconstitutional by a circuit court.
The Huffington Post has more:
The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.
The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.
The decision will be stayed given the probability that the losing party will ask for a grant of certiorari at the Supreme Court.
From the decision:
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
It appears that they found they couldn’t apply heightened scrutiny to gays and lesbians, ruling that it wasn’t open to them (Cook v. Gates is binding precedent), and the Supreme Court “conspicuously failed to [apply heightened scrutiny] in Romer–a case that could readily have been disposed by such a demarche.”
Cook v. Gates is a binding First Circuit decision that ultimately decided not to rule that gays and lesbians are a “suspect classification” instead leaving it up to the Supreme Court to decide. The judges said that Cook ties their hands in deciding the issue of heightened scrutiny and whether gays and lesbians are a suspect classification.
The court also held that another case, Baker v. Nelson which summarily dismissed an equal protection claim that gay people have the right to marry under the Constitution applies in this case, but only to the extent that it limits the arguments to ones that don’t “presume a constitutional right to same-sex marriage.”
The court said that the line of cases from Moreno to Romer (holding that animus is not a rational basis for a law) applies to this case:
All three of the cited cases–Moreno, City of Cleburne and Romer–stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571.
Those cases used a stronger form of rational basis to strike down those laws. Lawrence did as well, and it’s cited in the opinion.
And Chris Geidner notes that:
In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: Massachusetts Attorney General’s Office Civil Rights section chief Maura Healey and Department of Justice Civil Division Chief Stuart Delery.
Delery is gay and argued successfully against the odious Defense of Marriage Act.
Attorney Adam Bonin, writing at Daily Kos, notes that the judges say that DOMA does have a rational basis, but that under the Romer/Moreno stronger rational basis review, it is unconstitutional.
UPDATE: The panel was comprised of two Republican-appointed judges and one Democrat-appointed judge, and was unanimous, so two more Republican-appointed judges have now joined in opposition to DOMA. The opinion was written by Judge Michael Boudin, a judge appointed by President George H.W. Bush.
UPDATE 2: It’s important to note that ultimately it was the Federal Government’s position that prevailed: the court rejected Massachusetts’ Tenth Amendment claims but still invalidated DOMA.
UPDATE 3: On a press call with GLAD and the Gill plaintiffs, and they note that the First Circuit is a six-member court, and three of the judges just ruled unanimously to overturn DOMA. This would suggest that en banc review is unlikely.
UPDATE 4: GLAD suggests the Supreme Court would likely grant certiorari. Chris Geidner asks them to explain why the Supreme Court should hear the case. Bounato says “same-sex couples are singled out for sweeping disrespect by the federal government.” “We think this is a good case for Supreme Court review… it’s like Romer (v. Evans.)” She says “this law is a real outlier.”
UPDATE 5: Asked about the time frame for possible Supreme Court review, she says, “They have 90 days to file cert petition.” August cert filing, October conference would be likely.
UPDATE 6: The GLAD conference call is over, and they’ve issued a press release:
Today, the U.S. Court of Appeals for the First Circuit ruled unanimously that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. The ruling has been stayed pending a likely appeal to the U.S. Supreme Court.
“If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” the court stated in its opinion.
“This is a strong opinion that affirms that DOMA is an outlier for two reasons. First, because it targets a historically disadvantaged and unpopular group. Second, DOMA intrudes broadly into domestic relations, an area of traditional state regulation,” said Mary Bonauto, GLAD’s Civil Rights Project Director, who argued the case. “Congress does not get to put its ‘thumb on the scales,’ as the court put it, simply because it does not agree with Massachusetts’ decision to allow loving and committed same-sex couples to marry.”
Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management have each been harmed because the federal government, under DOMA, has refused to recognize their marriages for all purposes, including Social Security protections, access to family health insurance policies, and joint income tax filings. On July 8, 2010, U.S. District Court Judge Joseph L. Tauro ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The U.S. Department of Justice appealed the ruling, which resulted in today’s decision.
The next step most likely in the case is for the federal defendants and BLAG to decide whether they will seek review in the Supreme Court. That request should come within the next 90 days.
UPDATE 7: Lambda Legal is up with comments on the decision:
We are thrilled that another court—this time, the Court of Appeals for the First Circuit—has ruled that it is unconstitutional to deny respect to the marriages of lesbian and gay couples.
The so-called Defense of Marriage Act is being challenged in multiple cases, and it won’t be long before that bad law is gone for good.
We congratulate our colleagues at Gay and Lesbian Advocates and Defenders (GLAD) and the State of Massachusetts for achieving this wonderful victory.
UPDATE 8: The Wall Street Journal‘s Law Blog has several excerpts from the opinion, emphasizing the judges’ decision to invalidate DOMA based on precedent related to a stronger rational basis review, instead of the Tenth Amendment federalism claims raised by Massachusetts:
In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.
UPDATE 9: Washington Blade‘s Chris Johnson says House Speaker John Boehner (tasked with defending DOMA) will have a statement soon on the next steps BLAG will take:
Boehner’s office tells me counsel will put out statement on #DOMA ruling this afternoon. Will Clement announce appeal to Supreme Court?
— Chris Johnson (@chrisjohnson82) May 31, 2012
UPDATE 10: Geidner at Metro Weekly notes (in a post linked above) that the White House is weighing in on the decision:
White House press secretary Jay Carney said today of the decision, “There’s no question that this is in concert with the president’s views.” He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.
UPDATE 11: Pam Spaulding has a post featuring a lot of reactions from Congresspeople, and from LGBT organizations.
UPDATE 12: Alliance Defense Fund, the group who is defending Proposition 8 in court, has issued a statement on the Gill DOMA ruling, comparing same-sex marriage to polygamy.
We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies will run in the place of regular posts. Today’s is to recall the big news back on February 7th, when the Ninth Circuit Court of Appeals issued a decision upholding Judge Walker’s ruling striking down Prop 8 as unconstitutional. The circuit court’s full decision is below. It spurred an incredibly vibrant comment thread with 289 comments on the decision, which you can find here.
Regularly scheduled programming will resume on January 2nd–Jacob Combs
By Jacob Combs and Adam Bink
Continual updates on today’s ruling will be published at the bottom of this post, after the text of the ruling.
Prop8TrialTracker.com has received the 9th Circuit’s opinion in Perry v. Brown that Proposition 8, the 2008 voter-enacted ban on marriage equality in California, is unconstitutional. In addition, the appeals panel ruled that the proponents of Prop 8 did have standing to pursue their appeal of Judge Walker’s decision striking down the marriage ban, and upheld District Court Judge Ware’s decision denying a stay to throw out Walker’s ruling because he is gay. The ruling on constitutionality was divided on an 2-1 vote, with Judges Stephen Reinhardt and Michael Hawkins voting to strike Prop 8 down, and Judge N. Randy Smith voting to uphold the ban. The ruling regarding standing and the motion to throw out Judge Walker’s decision was a unanimous 3-0 vote.
In his August 4, 2010, decision, which the 9th Circuit upheld today, District Court Judge Vaughn Walker struck down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th Amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact. Today’s ruling affirms Judge Walker’s findings of fact, meaning that they can but used in the future in other trial cases in the 9th Circuit that deal with LGBT rights.
Today’s ruling is also significant because the 9th Circuit ruled that District Court Judge James Ware, who took over the Perry case when Judge Walker retired, was correct in denying a motion filed by Prop 8′s proponents to overturn Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released). In a December 8 hearing on the motion to overturn Judge Walker’s decision, the 9th Circuit panel seemed deeply skeptical that Judge Walker’s ruling should be thrown out because of his orientation and relationship status. The 9th Circuit’s decision today is an important victory for the assumption of impartiality that our judicial system is based on, and demonstrates that LGBT judges are just as fit to preside over cases pertaining to LGBT rights as are their heterosexual counterparts.
What comes next? The first issue on everyone’s minds is whether same-sex couples can wed immediately if Prop 8 is struck down. The answer is that it depends on whether a stay is issued in the case. After Judge Walker issued his decision, a stay on his ruling was also issued that kept Prop 8 in effect as a law until such time that another court struck it down, meaning California’s same-sex couples have not been able to wed since his ruling. If the 9th Circuit panel or another court body issues a stay, same-sex couples cannot wed. Many legal observers expect a stay if Prop 8 is struck down, however it’s not entirely certain.
The other issue on everyone’s mind is, what comes next in terms of appeals? The losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the 3-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case. You can find a full, detailed history of the Perry case, which Prop8TrialTracker.com has been following from the beginning, here.
Below, you can find the full ruling striking down Prop 8, authored by Judge Reinhardt, via Scribd.
UPDATE 1: From the ruling, p. 80, footnote 27:
“The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.”
UPDATE 2: The National Center for Lesbian Rights’s senior attorney, Chris Stoll, shares his thoughts with us on the next steps of the trial:
The stay is still in effect. Footnote 27 the opinion says that the previously issued stay remains in effect pending issuance of the mandate. Mandate issues 7 days after the deadline for filing a petition for rehearing expires, or 7 days after petition for rehearing is denied, whichever is later. I expect that the proponents will ask for a further stay from 9th Circuit, and if that is not granted, they will ask the Supreme Court.
It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all of the 20-something active judges on the court. Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc. If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral argument and issue a decision. It is really almost like starting the whole appeal all over again.
The losing party has up to 90 days to ask the Supreme Court to take the case. It then usually takes a couple of months at least for the Supreme Court to decide whether to take a case. The party opposing Supreme Court review gets to file a brief saying why the Supreme Court should not take the case, and amicus briefs can be filed on both sides as well. Also, the Court does not do any business from the end of June to September. If all that briefing is not completed before the Court’s summer recess begins, then it will not even consider whether to take the case until it comes back in September.
UPDATE 3: The Courage Campaign sent out this email about the ruling:
Just now, the 9th Circuit Court of Appeals panel released their decision ruling that Prop 8 is UNCONSTITUTIONAL!
That means we are 2 for 2 in the courts. But we’re not done yet. Our opponents are certain to appeal today’s decision to the full 9th Circuit and/or the U.S. Supreme Court. This victory belongs to all of us and MUST be defended by all of us.
Here’s what we’re up against, Jacob: Prop 8 campaign leaders and right-wing fringe organizations like the National Organization for Marriage and Focus on the Familywill stop at nothing to delegitimize this decision before it ever reaches the Supreme Court. In fact, they already have: they tried to get the courts to throw out Judge Walker’s decision just because he’s gay.
To prevent the right-wing from spouting the same lies that were debunked and destroyed in Judge Walker’s courtroom, we must translate today’s victory in court to victory in the hearts and minds of Americans. We would not be here without the bold leadership from Ted Olson, David Boies and the American Foundation for Equal Rights, but we have work to do ourselves.We can’t forget that the courts pay attention to public opinion. The more we continue to demonstrate that Americans support marriage equality, the more likely the courts are to rule in our favor.
That’s why we need to raise $45,000 to support our work moving the poll numbers. That’s why we collected nearly 140,000 signatures to televise the Prop 8 trial — a campaign cited in a dissenting opinion to the Supreme Court’s 5-4 decision against broadcast. That’s why we put Palm Springs’ Ed Watson and Derence Kernek on the cover of the Los Angeles Times, telling the world why their relationship over more than 40 years deserves to be recognized. That’s why we made our “Fidelity: Don’t Divorce Us!” video about California’s same-sex married couples the most-watched political video in California history. That’s why we launched Prop8TrialTracker.com – generating more than 4 million views and 150,000 comments as the #1 Google result for “Prop 8 trial” so undecided Americans find us.It’s why we’ve live-blogged the trial along with every hearing, brief and decision. And it’s why we need your support today.
Thank you for all you have done to make today’s victory possible. With your ongoing support, full equality will eventually be the law of the land.
Chair and Founder, Courage Campaign Institute
UPDATE 4: Rick Jacobs, Chair and Founder of Courage Campaign, released this statement regarding the ruling:
Statement from Rick Jacobs, Chair and Founder of the
Courage Campaign, on the 9th Circuit Court of Appeals Decision
“This is the Day We’ve Been Waiting For”
Los Angeles – After three years of Prop 8 weaving its way through the federal and California court system, the 9th Circuit Court of Appeals panel upheld Judge Walker’s August 2010 ruling that Prop 8 is unconstitutional. Marriage equality proponents throughout the state, including Courage Campaign members who worked valiantly to overturn Prop 8, cheered the historic decision.
“The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign, a progressive, grassroots online organization with more than 750,000 members around the country. “Having live-blogged every piece of this trial, especially in Judge Walker’s courtroom two years ago, it became patently clear that the fringe opponents of equality would never prevail. We owe a huge debt of gratitude to the dynamic duo of attorneys Ted Olson and David Boies and their colleagues at the American Foundation for Equal Rights (AFER) who took to heart that real people are hurt by Prop 8 and its evil cousins across the nation. The time for waiting has ended.”
The Courage Campaign has played a leading role in informing and organizing around the entire Prop 8 trial. The organization collected nearly 140,000 signatures in support of televising the trial — the first time the U.S. Supreme Court ever cited such an online effort in an opinion. Upon learning that the historic trial would not be televised, Jacobs live-blogged daily from the courthouse and documented every important motion and court ruling on Prop 8 Tour Tracker (www.Prop8TrialTracker.com), a project of the Courage Campaign Institute. Over the course of almost three years, the widely-read blog has logged in over four million views and 150,000 comments. It is also the #1 Google result for “Prop 8 trial.”
Courage Campaign’s Testimony: Equality on Trial project staged re-enactments of the trial, including many from the general public. It was designed to educate the public on what happened in the courtroom, more vital now since the tapes have been forever sealed from public view. Two video re-enactments were used as evidence in federal court by the legal team from AFER. The first video was staged with Academy Award-winner Marisa Tomei (playing Kristin Perry, the plaintiff in Perry v. Brown) and actor Josh Lucas.
When the California Supreme Court decided it would take six months to offer its advice to the 9th Circuit, thus adding nearly a year to the process, the Courage Campaign asked members to submit their stories on what the delay meant to them and their families. Three hundred stories came in, including one from Ed Watson and Derence Kernek in Palm Springs, a couple for over 40 years. Ed had Alzheimer’s and his health was quickly deteriorating. A video of their story prompted a front page Los Angeles Times story. Ironically, Ed died on the eve of the last Prop 8 hearing in the 9th Circuit.
“The decision made by the 9th Circuit, to be honest, is a bittersweet one for me,” said Mr. Kernek, who still lives in Palm Springs. “I know that my partner of 41 years, Ed, would’ve been thrilled to have heard the news. He missed it by less than two months because he passed away in December. Even as he took his last dying breaths, Ed spoke of wanting to marry me. Even though he did not get his last wish, I am heartened to know that other gay couples who love each other will be able to take sacred vows and fully commit their lives to one another. And that makes it a glorious day for gay people in California.”
UPDATE 5: From the AP’s coverage of the decision:
The court crafted a narrow decision that applies only to California, even though the court has jurisdiction in nine western states. California is the only one of those states where the ability for gays to marry was granted then rescinded.
“Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question,” the court said. “We need not and do not answer the broader question in this case.”
UPDATE 6 (Adam): The money line from the ruling:
“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution]. We hold Proposition 8 to be unconstitutional on this ground.”
UPDATE 7: To those asking whether this ruling applied to just California or the entire 9th Circuit, the answer is California. The court narrowly tailored the ruling to the state of California in remarking that Prop 8 is unconstitutional. While there is still a possibility that the Supreme Court (if it takes the case) may strike down laws/constitutional amendments limiting marriage to opposite-sex couples, that did not happen here.
UPDATE 8: Jon Davidson, Legal Director at Lambda Legal, just sent in his reaction:
The opinion is wonderful. It goes right to the dark heart of Proposition 8 — the measure had no purpose other than withdraw from lesbians and gay men the right to designate their committed relationships as marriages in order to deprive us of a societal status that affords dignity to those relationships. That is simply not a government objective the federal Constitution allows. It also brilliantly explains why it matters so much. “We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered it” and that’s what Prop 8 wrongly tried to take away.
UPDATE 9: At the AFER press conference, attorneys Ted Boutrous and Ted Olson spoke about their ideas of whether or not the U.S. Supreme Court will take the case. Boutrous pointed out that the 9th Circuit’s decision today is deeply founded in previous Supreme Court rulings, particularly Romer v. Evans, and doesn’t raise any thorny issues that conflict with a decision from another circuit, the Supreme Court may be less inclined to take the case for those reasons. On the other hand, Ted Olson argued that part of California’s constitution, the largest state in the country (representing around 1/8 of the total U.S. population), has now been struck down by two courts, so the Supreme Court may wish to weigh in on those grounds. Both arguments are intriguing, and of course we won’t know anything until the case makes its way to the Supreme Court.
UPDATE 10: Also at today’s conference, attorney Ted Olson addressed the stay that is currently prohibiting Judge Walker’s now-upheld ruling from going into place. According to today’s ruling, the previous stay placed on that ruling by the 9th Circuit in August 2010 is in effect until the appeals court’s mandate is final. What this means is that the proponents of Prop 8 now have 14 days to ask for a rehearing by an en banc panel of the 9th Circuit. If they do not, the stay will be lifted. It is likely the proponents will ask for further appellate review, and ask for the 9th Circuit to place an extended stay on its decision pending that review. If the 9th Circuit were to deny that stay, the proponents could then go to the Supreme Court to ask for a stay pending appeal. The following guidelines for an en banc rehearing can be found after Judge Smith’s concurring and dissenting opinion in today’s ruling:
Purpose (Rehearing En Banc)
A party should seek en banc rehearing only if one or more of the following grounds exist:
- Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
- The proceeding involves a question of exceptional importance; or
- The opinion directly conflicts with an existing opinion by another court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
UPDATE 12: NOM’s reaction, which was itself predictable:
“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.”
UPDATE 13 (Jacob): I got to listen in to AFER’s press call this afternoon about the 9th Circuit decision. Here are some highlights:
- Ted Olson spoke in a little more detail about the stay. Essentially, in its decision today the 9th Circuit set it up so that the stay would expire when it issues a mandate affirming Judge Walker’s ruling. The proponents of Prop 8 have 14 days from today to request further appellate hearings. If they don’t, the mandate goes into effect 7 days later, and the stay is lifted (that would happen on Feb. 28). If they do seek a rehearing or Supreme Court review, the mandate cannot be issued until that process is complete, and the stay would remain in place.
- AFER’s attorneys were very clear that while the specific decision the 9th Circuit came to today is carefully crafted and applies only to California (following the principle of judicial restraint), the reasoning the judges use to make their decision is much broader and could have major repercussions. In essence, today’s decision says that discriminating on the basis of sexual orientation is unconstitutional. On p. 77 of the decision, Judge Reinhardt writes, “Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.” This kind of reasoning follows that made by AFER’s attorneys in trial, and as AFER President Chad Griffin points out, it could have ramifications in other states with marriage equality, such as New York (and possibly Washington, later this year), in which marriage opponents wish to seek to rescind previously enumerated marriage rights through a popular referendum or by changing the makeup of the legislature.
- To further prove this point, attorney David Boies pointed to this quotation from p. 60: “There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.” Again, because of the scope of today’s decision, that sentence technically only applies to California. Nevertheless, that sentence (and its explicit rejection of the ‘responsible procreation’ argument made against marriage equality) can be cited and expanded upon by other courts in the future.
- Ted Olson noted that when it decided Lawrence v. Texas, the Supreme Court (in a majority opinion authored by Justice Kennedy) argued that it was not making any decision about the validity of gay relationships, and only ruling about private sexual conduct. In his dissenting opinion, Justice Scalia blasted the majority and argued that Lawrence could some day used in support of marriage equality. He was correct, of course–the Perry decision cites Lawrence and Justice Scalia’s dissent specifically. In Olson’s mind, today’s ruling demonstrates unequivocally that marriage is a centrally important American institution, and that it is unconstitutional to call gay couples’ relationships civil unions or domestic partnerships, because doing so implicitly classifies those relationships as less valid than heterosexual marriages. In his mind, today’s decision lays the framework for further expansion of marriage rights in other courts.
UPDATE 14: Over on Twitter, “Modern Family” stars Jesse Tyler Ferguson and Eric Stonestreet ask a very good question.
UPDATE 15: GOP presidential candidate Mitt Romney released this statement regarding the 9th Circuit’s decision:
“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”
UPDATE 16: When asked about the appellate ruling, White House Press Secretary Jay Carney had no official response from the administration, saying, “I don’t have a comment on litigation in general and in this litigation to which we are not a party. Beyond that, I can say that the President has long opposed, as you know, divisive and discriminatory efforts to deny rights and benefits to same-sex couples.”
UDPATE 17: From the Wall Street Journal’s opinion pages, James Taranto writes:
The Ninth Circuit has a poor batting average in Supreme Court appeals, and this decision was written by Judge Stephen Reinhardt, who is notoriously liberal. Those facts are likely to inspire optimism among conservative commentators who oppose same-sex marriage. They shouldn’t. Reinhardt’s decision was expertly crafted to appeal to his former Ninth Circuit peer Justice Anthony Kennedy, whose view of the matter is all but certain to prove decisive.
In August 2010, this column ventured a prediction: “When the Supreme Court takes up Perry v. Schwarzenegger–perhaps under the name Brown v. Perry or Whitman v. Perry [it will be Perry v. Brown if today's opinion is appealed]–the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.”
Although we still think that is Justice Kennedy’s inclination, we hereby walk back our prediction a bit. The court will not find a constitutional right to same-sex marriage in this case, but it will strike down Proposition 8 and thereby reimpose same-sex marriage in California. Reinhard’s decision lays out a way in which Justice Kennedy can do so–and indeed makes it very difficult for Kennedy to uphold Proposition 8.
The trial judge in the Perry case held that same-sex marriage was itself protected by the U.S. Constitution. But the Ninth Circuit judges set aside this holding and decided the case on “narrow grounds.” They found that Proposition 8 was analogous to Amendment 2, a Colorado ballot measure that the Supreme Court struck down in Romer v. Evans (1996).
Amendment 2 barred state and local government in the Centennial State from official actions “designed to protect the status of persons based on their ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.’ ” In a 6-3 ruling, the high court held that the amendment violated equal protection by “imposing a broad and undifferentiated disability on a single named group.” The author of that decision was Anthony Kennedy.
UPDATE 18: Towleroad’s Ari Ezra Waldman has a long, detailed reaction and analysis piece to the 9th Circuit’s ruling. His fundamental argument, though, is crystal clear:
More than any single vote, more than any single veto, more than any single legislative majority, the Ninth Circuit’s decision in Perry v. Brown is the most significant advancement in the fight for marriage equality in American history to date. Consider this: Never before has a federal appellate court affirmed any of the conclusions that the Ninth Circuit did today:
- that denying committed gay couples their right to marry cannot encourage opposite sex marriages;
- that when a state denies the right to marry while allowing gay couples all the rights and privilges of marriage, it cannot base the marriage ban on any rationale that denigrates gay parents;
- that domestic partnerships are unequal to marriage;
- that, as a matter of law, marriage rights do not hinge on natural procreative ability;
and, of course,
- that a ban on same-sex marriage unconstitutional.
By Jacob Combs
2012 has been quite a year for marriage equality. We had some incredible victories: Prop 8 was struck down by the Ninth Circuit Court of Appeals and DOMA was declared unconstitutional by several courts across the country, including the Second Circuit. We made history on November 6 by winning marriage equality at the ballot box in three states and we witnessed the election of the first American president to endorse equal marriage rights.
There were also some disappointments: North Carolina passed an anti-marriage equality constitutional amendment in May, despite the hard work contributed by many of us. Judges ruled against equal marriage rights in Nevada and Hawaii. DOMA still infringes upon the rights of thousands of duly married couples; we have still not secured legislation that protects people from being fired based on their sexual orientation or gender identity.
But now we stand on the precipice of a new year, and a very exiting one at that. The Supreme Court will issue landmark rulings on the constitutionality of Prop 8 and DOMA. Advocates will continue to push for passage of the Employment Non-Discrimination Act and ask the president to sign an executive order that gets us part of the way. Marriage equality legislation is heating up in states like Illinois and Rhode Island. And, of course, there are likely to be victories and set-backs that we can’t possibly predict.
We here at P8TT are so proud of what this site has become and the wonderful community that supports it. We started liveblogging in a courtroom in California in 2010, and just three years later we’re now covering LGBT rights cases around the country with a level of detail that few other news outlets feature. All of our readers are a huge part of that accomplishment–our Supreme Court Q&A this month was filled with thoughtful and provocative questions about what Prop 8′s fate will be next year at the high court, and we thank you for your support and engagement.
We’ll be taking the week off from normal blogging, although we’ll bring you any breaking news that might come up. We’ll also be bringing back our Golden Oldies, featuring one post a day of the biggest news from 2012. If you have a suggestion for a post you’d love to see again, please write us at firstname.lastname@example.org.
To those of you who are celebrating this week, Merry Christmas and happy holidays. Please share your holiday plans in the comments and we look forward to an exciting 2013!
The Prop8TrialTracker.com Team: Adam Bink, Scottie Thomaston and Jacob Combs