Filed under: Background
DEVELOPING: Schwarzenegger and Brown file papers with California Supreme Court responding to PJI’s appeal
(Cross-posted at LGBTPOV)
By Karen Ocamb
Last week the 3rd District Court of Appeal rejected a lawsuit filed by the Pacific Justice Institute trying to force Attorney General Jerry Brown (who is running for governor in the 2010 elections) and the Governor Arnold Schwarzenegger to file an appeal in the federal challenge to Proposition 8. According to an email from the right wing Capitol Resources Institute, the California Supreme Court wants to know why the state isn’t appealing, too. Here’s the emai:
“Late yesterday the California Supreme Court responded to a request by the Pacific Justice Institute to compel the Attorney General and the Governor to file the appeal in the federal challenge to Proposition 8.
In August, a federal court in San Francisco overturned the voter approved measure that stated that marriage is between one man and one woman. While the Ninth Circuit Court of Appeals has agreed to hear the appeal of the lower court’s decision, they have made clear that there is a question whether the parties before them have standing to pursue the appeal. The Attorney General as well as the Governor have failed to file the appeal in this matter based on their personal opposition to Proposition 8. The proponents of the ballot measure took on the State’s job of defending the measure in court.
The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.
“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute. “Millions of Californians voted for Proposition 8. The issue should be heard all the way up to the US Supreme Court. No elected official ought to be able to substitute his judgment for the decision of our courts.”
Several sources are checking this out and I will update this as the information comes in. Theoretically, the California Supreme Court can order Attorney General Jerry Brown and Gov. Arnold Schwarzenegger to appeal Judge Walker’s ruling.
UPDATE from AP’s Lisa Leff:
The letters Schwarzenegger and Brown filed this morning are brief and reiterate their positions that they have discretion to choose which rulings to appeal. They also say that PJI miscalculated the deadline for filing an appeal with 9th Circuit–that it was Sept. 13, not Sept. 11.
UPDATE (2:20 Pacific) In AP’s report, Leff wrote:
“Proposition 8’s sponsors have appealed. But doubts have been raised about whether its members have the authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.”
UPDATE (12:45 Pacific):
Chris Geidner at MetroWeekly writes that Deputy Attorney General Tamar Pachter, responding for AG Brown, said in her letter that the Pacific Justice Institute’s effort on behalf of Pastor Joshua Beckley “is too little, too late.”
It is within the Attorney General’s discretion to determine that it is or that it is not appropriate to pursue an appeal. In Perry, given the Attorney General’s position at trial, there are no grounds for an appeal, and the filing of an appeal under such circumstance would be frivolous. The petitioner’s contention to the contrary is manifestly without merit.”
Geidner also notes that Wednesday’s filing was already set by a court order detailing a briefing schedule of the expedited appeal. He says the Capitol Resources Institute’s email is “misleading.”
Brown’s response can be found here: Letter Brief.pdf
“The definitive statement means the ability of Proposition 8 proponents to appeal will depend entirely on the legal standing of the Yes on 8 coalition……In a five-page letter September 8, Counsel for the Governor Andrew Stroud told the court, “Although Beckley may disagree with the Governor’s decision not to file a notice of appeal [in the Proposition 8 case in federal court], it was the Governor’s decision to make.”
UPDATE BY EDEN: Jeff in the comments just posted Gov. Schwarzenegger’s response from Metro Weekly:
(Cross-posted at LGBTPOV)
By Karen Ocamb
Here’s a quick wrap of some of the latest developments on the federal Prop 8 trial front.
Last Thursday, the 3rd District Court of Appeal rejected that lawsuit filed by the Pacific Justice Institute trying to force the state to defend Prop 8 on appeal. PJI are the folks who said “failure to pass Prop 8 in California would be akin to failing to stop Hitler.”
Meanwhile, Imperial County is using the pro bono service of the conservative religious firm Advocates for Faith and Freedom, according to the San Diego Union Tribune, instead of their own county counsel to try to intervene. This is curious.
District Court Judge Walker already ruled that counties cannot act independently of the state, which, through governmental defendants Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, has the responsibility to defend Prop 8 – which they’ve refused to do.
Imperial County passed Prop 8 by 20,217 votes or 70 percent, according to the Union Tribune. Last December the Board of Supervisors voted 3-2 to hire the outside firm, arguing that they had a governmental interest because their county clerks had to issue marriage licenses.
The county board appealed Walker’s ruling denying their petition to intervene. So when the 9th U.S. Circuit Court of Appeals convenes the week of Dec. 6 to considering the issue of whether Protect Marriage has legal “standing” as a civilian group to appeal Walker’s ruling on Prop 8, they will also decide if Imperial County has legal “standing” to serve as government-defenders in the case.
In addition to Walker’s reasons why Imperial County should be disqualified, it will be interesting to see if the 9th Circuit considers that the intervention plea is not being brought by the county’s own counsel, that it was authorized by a split political body, and that some of the 70 percent of Prop 8 voters may have since changed their minds and not want their local government advocating for Prop 8 in their name.
Ken Mehlman comes out as gay, will appear at AFER fundraiser; Former Bush campaign manager and GOP Chair takes heat for past actions
Shortly after this news broke yesterday, Karen Ocamb posted this piece on LGBTPOV. We’re cross-posting it on the Prop 8 Trial Tracker, as Mehlman will be raising money — reportedly $750,000 according to the Advocate — to support the American Foundation for Equal Rights and their case against Prop 8, as Karen explores in-depth below.
The discussion about Mehlman coming out of the closet is heating up across the media and the blogosphere, given his role in masterminding George W. Bush’s 2004 re-election as well as his tenure as Chair of the Republican Party. Both ABC News and the Advocate posted follow-up interviews with Mehlman last night in which he responded to questions about his past role in undermining marriage equality. For NOM watchers, Brian Brown makes an appearance in Kerry Eleveld’s Advocate piece, attempting to spin away the fact that his anti-equality agenda is becoming increasingly marginalized, as more and more conservatives come out in favor of the freedom to marry. — Eden
By Karen Ocamb
Marc Ambinder at The Atlantic blog broke the story: “Ken Mehlman, President Bush’s campaign manager in 2004 and a former chairman of the Republican National Committee, has told family and associates that he is gay.”
Ken who, you might ask if you’re new to LGBT politics? Well, as Ambinder explains, “Mehlman is the most powerful Republican in history to identify as gay.” He was head of the Republican National Committee in 2007 and George W. Bush’s campaign manager in 2004. He is considered incredibly smart on messaging and has a donor and politico address book that is the envy of political consultants everywhere. He was also intensely despised as a closeted gay man who was using those brains on behalf of antigay politicians.
“Mehlman arrived at this conclusion about his identity fairly recently, he said in an interview. He agreed to answer a reporter’s questions, he said, because, now in private life, he wants to become an advocate for gay marriage and anticipated that questions would arise about his participation in a late-September fundraiser for the American Foundation for Equal Rights (AFER), the group that supported the legal challenge to California’s ballot initiative against gay marriage, Proposition 8.
“It’s taken me 43 years to get comfortable with this part of my life,” Mehlman said. “Everybody has their own path to travel, their own journey, and for me, over the past few months, I’ve told my family, friends, former colleagues, and current colleagues, and they’ve been wonderful and supportive. The process has been something that’s made me a happier and better person. It’s something I wish I had done years ago.”
This is a big deal – as is, by the way, the fact that the AFER fundraiser Ambinder mentions is happening at the New York home of a huge Republican contributor Paul Singer, who is chair of the board of Chairman of the Board of Trustees for the Manhattan Institute for Policy Research.
Mehlman was at the center of the antigay political scene when Bush’s political director Karl Rove used antigay marriage initiatives as a way to get out the religious and conservative vote – winning in 11 states. Rove used the same tactic in 2006. Mehlman told Ambinder that he tried to “beat back efforts to attack same-sex marriage” and insisted that Bush “was no homophobe.” Ambinder writes:
“Mehlman acknowledges that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda.
“It’s a legitimate question and one I understand,” Mehlman said. “I can’t change the fact that I wasn’t in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally.” He asks of those who doubt his sincerity: “If they can’t offer support, at least offer understanding.”
“What I do regret, and think a lot about, is that one of the things I talked a lot about in politics was how I tried to expand the party into neighborhoods where the message wasn’t always heard. I didn’t do this in the gay community at all.”
He said that he “really wished” he had come to terms with his sexual orientation earlier, “so I could have worked against [the Federal Marriage Amendment]” and “reached out to the gay community in the way I reached out to African Americans.”
Mehlman was for years a target of outing by DC-based gay activist and blogACTIVE blogger Mike Rogers – who talks about his efforts to get media attention on RawStory. Rogers figures prominently in the Kirby Dick -directed 2009 documentary “Outrage,” which had a theatrical run before airing on HBO. The documentary is up for an Emmy award this Sunday.
In his interview with Ambinder, Mehlman
“admits to having mislead several people who asked him [about his sexuality] directly. He said that he plans to be an advocate for gay rights within the GOP, that he remains proud to be a Republican, and that his political identity is not defined by any one issue.
“What I will try to do is to persuade people, when I have conversations with them, that it is consistent with our party’s philosophy, whether it’s the principle of individual freedom, or limited government, or encouraging adults who love each other and who want to make a lifelong committment to each other to get married.”
“I hope that we, as a party, would welcome gay and lesbian supporters. I also think there needs to be, in the gay community, robust and bipartisan support [for] marriage rights.”
R. Clarke Cooper, the new executive director of the national Log Cabin Republicans, told me he welcomes the news.
“Log Cabin Republicans is very supportive and appreciative of Ken’s coming out. Being gay and being conservative are not mutually exclusive. As a fellow Bush alumnus, I also look forward to Ken helping me and our colleagues build a stronger more inclusive Republican Party.”
AFER board president Chad Griffin – who was an executive producer on “Outrage” – is thrilled that Mehlman came out and told me that the GOP political strategist has been quietly helping AFER with their federal Prop 8 challenge for months.
“Ken over past several months has been a key strategic advisor to our team,” Griffin told me, regularly conferencing “non-stop for two months” with Griffin and Lance Black and others on communications and messaging from the moment the decision came down blocking cameras from the Prop 8 trial.
Griffin said Mehlman reached out first to AFER lawyer Ted Olson, who put
Mehlman in touch with Griffin via email. “I wouldn’t do this unless I felt very strongly that he would fight on our behalf. He didn’t just call up and say ‘I would like to lend my name.’ He reached out to Ted Olson many months ago.” And Mehlman is responsible for bringing Paul Singer on board to co-host the fundraiser at his house. Griffin said:
“Our job is to bring together and work together with people who don’t currently support our work. What we should do is welcome him with open arms and hope that many others follow him. And we shouldn’t underestimate that the youngest person in history to chair a major political party, a former senior Bush White House aide – that that person is openly gay and lending strategic advice and guidance and well as opening up his tremendous network of contacts – which is unparallel. We are very good at talking to ourselves. But it’s important that we take a step back and realize how significant this is to have someone advising us who knows how to win voters in the center and right.”
Griffin is very well aware of the consternation Mehlman’s coming out may cause among some LGBT activists over the 2004-2006 hey-day of antigay GOP activism. But he is philosophical and optimistic.
“That was then, this is now. There’s a long list of people who were against marriage equality – Democrats and Republicans. We are in a new age. I don’t care where people were in the past. If we are going to win equality, we have to welcome every single person to our side. That was a different time and place and today is today – we have to look forward. Ken is a tremendous asset to our efforts.”
Cross-posted at my home blog, OpenLeft.com
by Adam Bink
NOM is all a-Twitter (pun intended) about two polls (here and here) that they say shows nowhere near a majority of Americans support the freedom to marry. They point to one poll from FOX News showing 37% of Americans support the freedom to marry, and another from the Chicago Tribune of Chicago-area residents showing 42% support the freedom to marry.
A coupla things:
1. It’s FOX News. I wouldn’t even trust FOX to truthfully tell me if it was raining outside or not. Contrast this with the recent poll from CNN/Opinion Research recently showing a majority of Americans believe gays and lesbians should have the constitutional right to marry, or the respected Field Poll showing last month that a majority of Californians supports allowing same-sex couples to marry.
2. The broader point is the wording of the question. Notice that FOX’s question is not “do you support gay marriage or not”, or anything like it. It’s:
Do you believe gays and lesbians should be: SCALE: 1. Allowed to get legally married, 2. Allowed a legal partnership similar to but not called marriage, or 3. Should there be no legal recognition given to gay and lesbian relationships? 4. (Don’t know)
I’m no polling expert, but that is a much different question in terms of giving many people the way out they are looking for to demonstrate that they support equality, but “just don’t call it marriage”. You’ve probably encountered many of those people who, if pushed, support full marriage equality, but if given a way to show they support rights and all of that, just under a different name, they’ll do so. In fact, the Field Poll, in the same survey with the result of a majority of Californians supporting same-sex marriage, words the question a similar way and gets similar results:
In a statewide survey completed earlier this month, The Field Poll updated its trend measurements of how California viewed the issue of same-sex marriage. The results show that by a 51% to 42% margin, the overall California electorate supports allowing same-sex couples to marry and having regular marriage laws apply to them.
However, when voters are offered three alternatives – allowing same-sex couples to marry, allowing civil unions but not same-sex marriage or granting no legal recognition to same-sex relationships – slightly less than half of voters (44%) favor the marriage alternative. In this setting, a significant portion (34%) of California voters opt for allowing civil unions but not marriage for same-sex couples. Just 19% believe that there should be no legal recognition of gay couples.
And that’s also why I question the Tribune poll, which asks individuals if they support civil unions- if that question is asked first in the polling, that may skew the results of how many support full marriage equality- particularly given the latest buzz and how civil unions have, for some people, become forgotten. So it’s not surprising to me that FOX gets this result. I’m not saying FOX is necessarily doing this, but it’s a clever (and probably common) tactic in polling to word questions and responses to avoid certain aggregate responses you may not want. Polling that has the more simple up-or-down question has demonstrated that majorities of people both in California and in the country as a whole support the freedom to marry, and when NOM finds unbiased polling surveys with identical wording without questions on lesser forms of equality that show different results, then we’ll have something to talk about.
Los Angeles County preparing to extend hours, ceremony availability in anticipation of Prop 8 Motion to Stay ruling
by Adam Bink
I learned yesterday that the Office of the Los Angeles County Registrar-Recorder/County Clerk is extending hours in preparing to issue marriage licenses to same-sex couples after 5 PM PST on August 18th (should the Motion to Stay go our way- for more on progress with that, see Eden’s post late Friday night regarding the Emergency Motion to Stay and both sides filing papers). The Office will also be performing ceremonies on a first-come, first-serve basis through August 27th. Here’s the press release via e-mail:
SERVICES IN PLACE TO ACCOMMODATE PROPOSITION 8 COURT RULING
Registrar-Recorder/County Clerk Headquarters in Norwalk to Issue Marriage Licenses Beginning August 18th at 5:00 PM
Los Angeles County Registrar-Recorder/County Clerk (RR/CC) Dean Logan announced today that his office will extend business hours at its Norwalk Headquarters, to accommodate federal court orders to cease enforcement of Proposition 8, permitting same-sex couples to obtain a marriage license as of August 18 at 5:00 PM; the effective date of the Court’s order lifting the stay of execution on the court decision declaring Proposition 8 unconstitutional.
The RR/CC Headquarters in Norwalk, located at 12400 Imperial Highway in the City of Norwalk will remain open from 5:00 PM to 8:00 PM for the purpose of issuing Marriage Licenses and to offer Civil Marriage ceremonies. All other services will close at 5:00 PM and resume at 8:00 AM the following day. RR/CC District offices, located throughout the County, will begin issuing marriage licenses to same-sex couples on Thursday, August 19, 2010 during regular business hours (8:00 AM – 5:00 PM).
To accommodate the anticipated increase in requests for civil marriage ceremonies, the RR/CC will expand the availability of ceremonies it offers at its various locations. Starting August 19th through August 27th couples with a Marriage License may request a civil marriage ceremony without an appointment, on a first-come, first-served basis during regular business hours at all RR/CC locations.
The rest of the release can be found on the Office website.
What we could end up seeing is evening ceremonies, some that even go late into the night as couples line up to wed while they can. It will be quite a sight to see.
by Karen Ocamb
Rabbi Denise Eger said Judge Walker was playing the “have-it-both-ways” biblical King Solomon in his decision on Protect Marriage’s motion to stay his ruling halting enforcement of Prop 8 – both permanently lifting the stay and re-imposing a stay for another six days.
In his decision last week, Walker wrote that “Proposition 8 harms the people of California,” and that “[n]one of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED.”
No wonder Freedom to Marry’s Evan Wolfson and others thought the stay was lifted. For 10 pages of his 11-page ruling, Judge Vaughn Walker talks
about how the proponents of Prop 8 failed to satisfy any of the legal imperatives to warrant a stay.
So why did Walker throw in this temporary, six day, limited stay to give the 9th Circuit Court of Appeals the opportunity to consider all aspects of the issue? These aspects include whether or not the defendant-interveners have standing to bring an appeal, since the 9th Circuit has stricter standards for “standing” than does the lower court. Walker already got called on the carpet by the US Supreme Court when he wanted to broadcast the Perry v Schwarzenegger trial: the high court said he over-stepped his bounds. So now he doesn’t want to anger the 9th Circuit or further annoy the nine Supremes?
Intellectually, I get it. Temporary stay. No big deal. Unless, of course, it does turn out to be a big deal.
Perhaps because I still have not recovered from a decade of constant loss during the AIDS crisis; perhaps because I’m tired of rebutting the heterosexual assumption by having to come out over and over and over again; perhaps because I am apoplectic that “freedom” and “equality” have been reduced to campaign slogans while Democratic politicians promise that second-class citizenship for LGBTs in America is only a temporary political necessity. It’s just a matter of time.
Six days. No problem. It’s just a matter of time. It wasn’t
until I got home when my disappointment and sadness turned into anger.
I flashed back to a briefing on Tuesday night by researcher David Fleischer,who pointed out in his Prop 8 Report that we lost because people who had been “with us,” such as women and Democrats, switched to the Yes on 8 side in the last weeks of the campaign primarily because of the ads posulating that “children” would be forced to learn about the nasty gays. Perry attorneys Ted Olsen and David Boies presented plenty of evidence at trial that these ads were motivated by animus toward LGBTs.
And Walker agreed, writing that “[m]oral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. He cited the groundbreaking Romer v. Evans decision: “‘[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.’”
Wrote Walker: “Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.”
Beautiful. Prop 8 is unconstitutional. And further, “[b]ecause the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change….”
In the “Remedy” section of his Perry ruling, Walker writes that same sex couples “will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same- sex couples and has not suffered any demonstrated harm as a result … moreover, California officials have chosen not to defend Proposition 8 in these proceedings.”
But here’s the thing: just as women and Democrats– who knew Prop 8 discriminated against gays– voted for Prop 8 anyway, so, too, did Judge Walker seemingly suspend his reasoning. He knows that the continued enforcement of Prop 8 is unconstitutional and harmful to gays – but that’s OK for another six days.
In last week’s ruling, Walker concludes that “the trial record left no doubt that Proposition 8 inflicts harm on plaintiffs and other gays and lesbians in California. … Any stay would serve only to delay plaintiffs access to the remedy to which they have shown they are entitled. Because a stay would force California to continue to violate plaintiffs’ constitutional rights and would demonstrably harm plaintiffs and other gays and lesbians in California, the third factor weighs heavily against proponents’ motion.”
Prop 8 proponents filed an appeal with the 9th Circuit for an emergency stay, the Mercury News reported, “arguing that it is ‘imperative’ for the court to freeze Walker’s order ‘to avoid confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.’” They’re concerned that lifting the stay might cause “harm” to those same sex couples whose marriages might be voided by the US Supreme Court like marriages were in 2004. These new married couples would be different from the approximately 18,000 couples married before the passage of Prop 8 because the California Supreme Court upheld those marriages as valid, even while ruling that Prop 8 was constitutional. Marriages under Walker’s ruling risk being voided if Walker’s ruling is overturned.
Let me hit the pause button here and refer you to a good analysis by Brian Devine with links to further assessments on what’s next from NCLR’s Shannon Minter and MetroWeekly’s Chris Geidner.
What I’m angry about, frankly, is how in both the Prop 8 ruling and in Walker’s “Solomonic” motion lifting the stay he talks about how Prop 8 harmed gay couples. But suddenly, with the temporary stay, the issue of “harm,” indeed of “irreparable harm” shifts to the Prop 8 proponents and “harm” to gays evaporates.
I was struck by this during a radio interview with Warren Olney on KCRW. My job as the LGBT guest was to describe the emotional reaction to the stay. Most mainstream LGBTs applauded Walker’s ruling because of the larger point about denying the Prop 8 proponents their motion to stay his ruling permanently. I concurred that this was a big deal – but then laughed at the irony that it was the Prop 8 backers who were now so worried about the potential “harm” done to same sex couples if they were allowed to marry. But then I described how real harm was just done to the hurt and disappointed couples who wanted to marry immediately but were suddenly told to wait six-days.
Erwin Chemerinsky, dean of the UC-Irvine law school, was also a guest on the show. He pointed out that Walker suggested the defendant-interveners now had the difficult task of proving how they would be “irreparably harmed” if Prop 8 was stayed. The only harm the defendant-interveners would suffer, he said, would be an ideological one.
Olney made a distinction between the legal “irreparable harm” and the mere sadness gays would have to endure for six days. Olney, however, took my point and asked the other guest, Greg Mitchell at the Recorder in San Francisco about the reaction from couples there. Mitchell concurred with me – lots of disappointment and hurt.
This is not abstract. The LA Weekly interviewed 25-year-old Amanda Pentacost, who had hoped to marry her partner Thursday: “It’s a bitter sweet victory,” Pentacost said. “It’s hard to wait six days not knowing what’s going to happen.”
But as I thought about how easily this emotional roller coaster was dismissed I also noted that just days before the US Department of Education, at the behest of openly gay Kevin Jennings, held the first ever national summit on bullying. In his remarks, U.S. Education Secretary Arne Duncan said that not only is bullying a national epidemic but:
“A powerful testament to the fact that bullying is not part of the natural order of things is that most people can remember, even decades later, the feeling of being bullied or bullying another individual. Or they may feel haunted by the memory of standing by while a friend or classmate was bullied.”
Like being bullied, these same sex couples who lined up to get married will never forget experiencing absolute joy one minute and near despondency the next. That is “irreparable harm” done knowingly, in the name of expediency, against gays and lesbians who must once again endure what even some LGBTs think is merely benign discrimination. Six days. It’s just a matter of time.
Perhaps I’m angry because I’m keenly aware that time is running out for me to be free and equal.