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.