Filed under: Background
by Adam Bink
I just finished reading the meat of the decision. Chief Judge Vaughn Walker has ruled Prop 8 is unconstitutional on both Equal Protection and Due Process grounds. Huge win. The decision is likely to be appealed to the Ninth Circuit Court of Appeals. Developing…
UPDATE (1:43 PST): Here’s the conclusion from the decision.
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.
Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they 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, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.
Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants anddefendant-intervenors pursuant to FRCP 58.
IT IS SO ORDERED.
The full decision can be found here.
UPDATE (1:46): Other notable segment:
CONCLUSIONS OF LAW
Plaintiffs challenge Proposition 8 under the Due Process
and Equal Protection Clauses of the Fourteenth Amendment. Each
challenge is independently meritorious, as Proposition 8 both
unconstitutionally burdens the exercise of the fundamental right to
marry and creates an irrational classification on the basis of
UPDATE (1:53 PST): From Courage Campaign:
Federal Judge rules Prop. 8 UnconstitutionalCourage Campaign: ruling “an historic milestone for loving families and our nation as a whole.”
LOS ANGELES — In a landmark ruling released minutes ago in the case of Perry v. Schwarzenegger, U.S. District Court Judge Vaughn Walker has found that California’s ban on marriage equality — also known as Proposition 8 — violates the 14th Amendment to the United States Constitution.
“This ruling is an historic milestone for millions of loving families, for all who have fought to realize the dream of equality under the law, and for our nation as a whole,” said Courage Campaign Founder and Chairman Rick Jacobs. “While today concludes the first step in a legal process that could take up to two years, Judge Walker’s ruling is a landmark victory in America’s centuries long war against discrimination, and the result of months of extraordinary work by the American Foundation for Equal Rights, Attorneys David Boies and Ted Olson, and courageous plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo.”
Full press release can be found here.
UPDATE (2:02 PST): Reading through the decision, Walker is quoting the Loving v. Virginia and Griswold v. Connecticut decisions in ruling that the freedom to marry is protected under the Due Process clause, and generally goes on at length to discuss how restrictions with regard to race have been swept away, and and for a woman, “a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals.”
He goes onto write:
The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
More to come as I read through the decision.
UPDATE (2:11): I just saw Geoff Kors from EQCA on ABC News from Market and Castro in San Francisco, who said “it appears there has been no stay issued”. If that’s right, it doesn’t mean the Ninth Circuit could not issue a stay, which would prevent same-sex couples from getting married, but it’s worth noting.
Update on this: It appears Kors was mistaken. Update below.
UPDATE (2:16): Arisha just checked in from Missouri, where she is on the ground for the NOM event in St. Louis tomorrow (and won’t that now be a doozy). She’ll be getting some video reactions from folks on the ground that we’ll have up when we get them.
UPDATE (2:23): The American Foundation for Equal Rights presser with Olson/Boies/plaintiffs has started. I will provide notable updates for those of you who can’t watch/are out and about.
Chad Griffin is speaking. He’s discussing principles that inspired the marches in Selma, the Stonewall riots, and other civil rights activism.
UPDATE (2:29): Chief Judge Walker issued a temporary stay:
Defendant-intervenors (“proponents”) have moved to stay the court’s judgment pending appeal. Doc #705. They noticed the motion for October 21, 2010 and moved to shorten time. Doc #706.
The motion to shorten time is GRANTED.
Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to submit their responses to the motion to stay on or before August 6, 2010, at which time the motion will stand submitted without a hearing unless otherwise ordered.
The clerk shall STAY entry of judgment herein until the motion to stay pending appeal, Doc #705, has been decided.
CNN’s legal analyst, Andrew Cohen, says this means things are on hold for the time being, and they will give both sides a moment to make their case on whether marriages should be allowed or not before the next decision.
“Big surprise! We expected nothing different from Judge Vaughn Walker, after the biased way he conducted this trial,” said Brian Brown, President of NOM. “With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman. This ruling, if allowed to stand, threatens not only Prop 8 in California but the laws in 45 other states that define marriage as one man and one woman.”
“Never in the history of America has a federal judge ruled that there is a federal constitutional right to same sex marriage. The reason for this is simple – there isn’t!” added Brown.
Brown is going to do a live “response” with Q&A at 7 PM EST.
UPDATE (2:40): Back to the presser: Olson is at the press conference praising Walker for presiding with “meticulous care, sensitivity, with concern for the rights of every party in that courtroom, listening to the evidence.” Questions coming.
UPDATE (2:50): WSJ asks why they can win at the SCOTUS given the conservative nature. Boies makes a joke about Bush v. Gore/split of justices. Goes onto note that the fundamental right to marry is established… this case does not ask the court to establish a new right (Adam: see the excerpt I pasted in from this decision above).
Boies: We challenged this case based on three issues. Fundamental right to marry? Already established. Does fundamental right to marry help children? No dispute. And does depriving gays and lesbians the right to marry establish any compelling government interest? We know that not to be true.
UPDATE (2:56): Notable on the stay issue:
Question: Reports that a couple is trying to be married right now at City Hall. What’s the likelihood that marriages can occur given the stay, and will the plaintiffs go get married?
Olson: Judge stayed effect of his decision until he can hear our side on the stay. The case is going to go up to the Court of Appeals. We will fight hard so the constitutional rights vindicated by the 138-page, careful, analytical opinion will be brought to fruition as soon as possible. We will say to the Court of Appeals that if there is going to be any delay at all, it should be exremely short. We need an appellate court decision right away, and a Supreme Court decision right away… we’re going to fight to vindicate these rights as quickly as we possibly can.
Question: Did Judge rule on suspect class?
Boies: Yes. Judge ruled that even if it was not a suspect class, and strict scrutiny was not required, no rational basis for depriving gay couples of the right to marry. Yes, judge held it was a suspect class, but did so under even the most deferential standard of review.
Question: Anything that will come out of this decision that will affect professional gay advocacy groups?
Griffin: We would not be here today without for the advocates over the past decades.
Question: On impact generally
Olson: This trial has helped to educate the people of this state and people of the US. People of the US who will read this opinion and teach it in law schools and civics classes will begin to appreciate the harm this has done to our citizenry. Not giving advice to advocacy groups, but we feel very good about the fact that people watching this trial have said “oh, that’s what it’s all about. Why would we withhold the opportunity for loving couples to be married?”
Question: On witnesses and trial generally
Olson: Judge pointed out that two of the witnesses our opponents put on ended up agreeing with most of the propositions advanced by the plaintiffs… judge carefully examined interests and evidence on each side of the case… placed very little value on the evidence brought by proponents of Proposition 8… even found that one witness was not qualified to testify as an expert witness. Very careful examination of not just the legal but factual issues as well.
UPDATE (3:08): Question: NOM says this ruling jeopardizes the marriage laws of 45 states. How would you respond?
Boies: This decision grants rights to be married. As the court held, there is no harm to anyone’s rights as a result of this decision. In fact, it increases the stability and value of marriage for our society. No legitimate interest of the state in discriminating against a group of our citizens. That’s what even the defendant’s witnesses admitted, and that’s what the judge found. Everyone oughta read this opinion. It’s long but clear and sets the facts forth that everyone in this country might think a bout. I’d challenge anyone putting out those kinds of press releases (speaking to NOM) to read this opinion and tell me what they disagree with and what they have left to say. Shouldn’t just ignore this opinion, but take a look at this opinion.
The press conference has now concluded. Olson and Boies will fly to LA to speak at a rally there.
UPDATE (3:22 PST): NOM just blasted out this e-mail:
Dear Marriage Supporter,
Moments ago, in a burst of unprecedented judicial arrogance, Judge Walker struck down California’s Prop 8.
This is a ruling that not only ignores the clear, legally-enacted will of the people of California, but jeopardizes the marriage laws of 45 states and threatens to strip millions of Americans of our core civil right to vote for marriage. We will fight back! Details to follow . . . .
You can read the decision, and follow all the latest coverage at www.prop8case.com. And please join me online today at 7 p.m. (ET), when I’ll check in from our Summer for Marriage bus tour to provide our official video response to the ruling.
Of course, it’s only judicial “arrogance” or “activism” when they don’t like the decision. District of Columbia v. Heller, which struck down popularly supported gun control laws, legislated by the duly elected representatives of the people in DC? Not judicial activism at all.
FINAL UPDATE (3:35 PST): This will be the final update on this thread.
What’s on tap for the rest of the evening:
1. You all know Brian Leubitz here at Prop8TrialTracker.com. We’ll have an analysis piece up soon that gets into the nitty-gritty implications of this decision from his husband, Brian Devine, a litigator in California.
2. You all should make sure to head on over and ask Brian Brown a coupla questions at his “live chat” starting at 4 PM PST/7 PM EST, less than 30 minutes from now.
3. All of this work- blogging the Prop 8 trial since January, blogging NOM’s “Summer For Epic #NOMTurnoutFAIL In Empty Parking Lots Marriage” Tour, and providing coverage here at Prop8TrialTracker.com, costs a lot of money. It especially costs a lot per day for Arisha and the team to be out in the field with cameras, video, place to stay, gas, food, internet expenses. If you like our coverage and think we’re making a difference for the freedom to marry, contribute today to help keep it going.
If that’s not enough, I can double your interest (and money!). Tom Dolby and Drew Frist, just married last year, are up with a $25,000 matching ask to help keep this important work going. So you chip in $20, it’ll be doubled to $40.
Thanks for being a part of this community.
by Brian Leubitz
Well, today is the day. Sometime this afternoon, we’ll get our decision in what will go down as one of the most anticipated decisions around these parts since…well…last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive. No matter which way Judge Walker goes, this is history in the making. It’s a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)
So, with that as background, what are we looking for today? How do we win? How do we lose? And what defines a win? Well, I said yesterday that I’m optimistic, but there’s more than one way to skin the cat here. So, let’s just go through them, and I’m sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let’s start with the downers.
- LOSE – Prop 8 is a permissible act of the people acting legislatively.
Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us. In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest. This is the so-called “rational basis” test. Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
- Win – The implementation of Prop 8 is unconstitutional.
This is how we win, without getting everything we really want. This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states. The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed. This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs. It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality. And it further muddies the underlying issues when what we really need is clarity. Could it happen? Yes, it very well might. But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
- WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
This would be our ultimate victory, and really, what Olson and Boies are going for in this case. As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8. However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8. In other words, don’t make wedding plans just yet.
I shouldn’t quite leave that logic of our win hanging in the breeze quite so much, so I’ll pull a quote from Loving v Virginia to show you the Supreme Court’s logic in that case.
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law. If you’ve read much of the history of the era, you’ll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade. Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.
I’ll not give you the whole Wikipedia version of substantive due process, but long story short, it protects fundamental rights generally. But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument. As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won’t rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws. We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.
But, for now, this is just speculation. The real thing is just around the corner.
Cross-posted at OpenLeft.com
By Adam Bink
Some morning pre-game round-up coverage:
- Over at the DailyKos diaries, indiemcemopants notes that the proponents of Prop 8 have already filed a motion to stay whatever decision comes down from Judge Vaughn Walker. You can read a copy of the motion here. The rationale is fascinating (bolding from indiemcemopants’ diary):
Further, absent an immediate stay of any ruling invalidating Prop 8, same-sex couples would be permitted to marry in the counties of Alameda and Los Angeles (and possibly throughout California). Same-sex marriages would be licensed under a cloud of uncertainty, and should Proponents succeed on appeal, any such marriages would be invalid ab initio. Indeed, in 2004, the City and County of San Francisco issued marriage licenses to same-sex couples, resulting in approximately 4,000 purported same-sex marriages in about one month’s time.See Lockyer v. City and County of San Francisco, 95 P.3d 459, 465, 467 (Cal. 2004). The California Supreme Court held that San Francisco lacked authority for its actions, and ordered that “all same-sex marriages authorized, solemnized, or registered by the city officials must be considered void and of no legal effect from their inception.”Id. at 495.2
Repeating that experience would inflict harm on the affected couples and place administrative burdens on the State.
So a stay in necessary because the Prop 8 proponents are concerned for the emotional welfare of same-sex couples. Right. Much bigger reasons around media attention to couples getting hitched and more.
- Eden posted this yesterday at Prop8TrialTracker, but it’s worth doing so again: Chris Geidner has an excellent FAQ about what could happen today and what it means.
- Joe Sudbay has some useful thoughts on how this impacts the Obama Administration around DOMA. For my $0.02, I think the Administration’s position and choice to appeal the Massachusetts DOMA cases, and how they present their arguments, will be very interesting if the decision goes the pro-equality way today.
- What do you think the three most common words/phrases used by NOM to denounce a pro-equality ruling will be? For my money: “activist judge” “ignored a vote of the people” “shameful”. If it goes their way, I say “affirm” “marriage is between one man and one woman” “applaud”.
- If you’re looking where to find your local Decision Day rally (there are already a few dozen planned), Rex Wockner has a rapidly updating list.
- The hashtag of note to follow on Twitter will be #Prop8.
- A reminder that you can be among the first to be notified of the decision by following Testimony: Equality on Trial on Facebook.
I will be updating this thread as more info comes in, pre-decision. The decision is expected between 1 PST and 3 PST.
UPDATE (8:20 PST): American Foundation for Equal Rights will be holding a press conference in San Francisco immediately following the decision. The press conference will be livestreamed, and I will see about hosting the video here at Prop8TrialTracker.com. If it’s not possible, I will live-blog it for everyone. The press conference will be with Olson and Boies, as well as the plaintiffs and AFER President Chad Griffin. There will also be a public event in West Hollywood at 6 PM PST.
Further update: The livestream will not be embeddable. I will live-blog it here for folks who can’t get video or will be away from the computer.
UPDATE (8:48 PST): Over Facebook, Brian Brown issues a fundraising plea:
In a few hours, we will know how Judge Walker rules in the Prop 8 case. His opinion, and especially his findings of fact – regardless of which way he rules — will shape the litigation as it moves forward on appeal to the U.S. Court of Appeals for the 9th Circuit.
Many expect this case ultimately to be decided by the United States Supreme Court. In less than two years – before the 2012 elections – we could be facing a Roe v. Wade-like ruling on marriage from the Supreme Court, striking down the marriage laws of 45 states, forcing same-sex marriage on the entire nation.
I can’t put it more starkly: This case will decide the future of marriage in the United States. Losing is simply not an option.
We need your help today. If each of us do what we can – whether it’s $10 or $10,000 – we will help ensure that marriage receives the strongest possible defense at every stage of this journey. Please visit www.Prop8Case.com to make your most generous gift to the NOM Legal Defense Fund right now. All gifts are tax-deductible.
Thank you. Standing together, we will be victorious.
UPDATE (8:55 PST): Maggie has already started lowering expectations (via CNN) (link fixed):
“We have little doubt that this trial judge is going to knock down Prop. 8. I hope I’m proven wrong tomorrow,” said Maggie Gallagher, chairman of the National Organization for Marriage. “This has been a judge that looks pretty eager to make a historic decision.” She added Walker’s ruling will likely have national implications as he is a federal judge.
UPDATE (10:32 PST): For those of you on Twitter who want updates as they come, four feeds on which you can follow our coverage would be Testimony: Equality on Trial, Courage Campaign/Courage Campaign Institute, Brian Leubitz (who has a post shortly analyzing what kinds of wins/losses we could get today, and myself.
UPDATE (10:36 PST): Prop8TrialTracker.com friend Jeremy Hooper tells me NOM is going to do a video update at Prop8Case.com at 4 PM PST, then do a live chat on their site. The questions are all displayed for everyone to see, too, and last time he was forced to answer many from Jeremy.
Hmm. I think it’s time to take a look back at that “Hey, readers: what would you ask Brian Brown?” open thread. Be sure to stop on over and ask Brian a question. I’ll let you know when it’s up.
UPDATE (10:43 PST): Kathleen in the comments notes that Ted Boutrous for the plaintiffs has written a letter to Judge Walker in response to what he calls the “obviously premature” Motion to Stay the decision. Body of the letter:
Dear Chief Judge Walker:
I write on behalf of Plaintiffs in response to the obviously premature Motion to Stay filed
yesterday by Proponents (Doc #705). As the Court is aware, Proponents’ motion requests
that a stay be issued contemporaneously with the judgment. Plaintiffs intend to respond to
the stay motion, if a response is a warranted, as soon as practicable after the Court issues its
Order. If the Court is inclined to consider Proponents’ request, Plaintiffs respectfully request
the opportunity to be heard on their motion.
UPDATE (11:34 PST): The NO H8 campaign has a Twibbon on Twitter, which will add a “NO H8″ logo to your avatar in the bottom right corner (examples here), tweet the action on your behalf, and follow their campaign. Cool idea. Also, my personal favorite.
Judge: “I’m asking you to tell me how [marriage equality] would harm opposite-sex marriages….”
Pro-Proposition 8 Attorney Cooper: “Your Honor, my answer is: I don’t know. I don’t know.”
October 14, 2009 pretrial hearing rejecting defendant-intervenors’ request for summary judgment (10/14 Transcript Page 23, Line 10)
By Eden James, Courage Campaign Institute
Back in June, before the Prop 8 trial closing arguments, the amazing team over at the American Foundation for Equal Rights — the group founded to bring this case to trial — posted a summary of the case up to that point.
As we count down the hours to the decision sometime between 1-3 p.m. PST on Wednesday, check out AFER’s summary and then click the link below to read much, much more on their web site:
As we approach closing arguments, and the subsequent decision, we wanted to provide you with a summary of the case by sharing this memorandum. No law is allowed to violate the U.S. Constitution, and our nation’s Founders established the courts to protect every American’s constitutional rights against unfair laws. Accordingly, we believe that we will ultimately prevail in this case.
At its core, this case is about equal justice under the law. Separate is never equal, and Prop. 8 violates Americans’ constitutional rights by creating separate classes of people with different laws for each one.
Prop. 8 denies fundamental constitutional liberties, which harms adults and their children without due process and for no good reason – no compelling government interest is advanced through Prop. 8. It is wrong to deny people fundamental constitutional liberties, like equal protection under the law, simply because of who they are.
This case is about Americans like plaintiffs Kris Perry and Sandy Stier, who deserve the governmental recognition of their love and commitment that other families have. Kris and Sandy have been together for more than ten years. Both are in public service – Kris leads an early childhood health and education agency, Sandy works for a county health department. They have raised four boys, with two teenagers still at home, so they stay busy with the usual things – PTA meetings, soccer, music lessons – just like so many other parents. Kris and Sandy simply want the same rights as every other family, as do Paul Katami and Jeff Zarrillo, the other plaintiffs in the case.
This case is a historic one, and it is on the right side of history. The Supreme Court’s ruling in Brown v Board of Education ended “separate but equal.” Loving v Virginia ended bans on interracial marriage. This case is an extension of these and other cases that have defended the principles of liberty and equality upon which this nation was founded.
Meanwhile, here’s another reminder for folks looking to join one of the dozens of rallies happening across America on Wednesday. The most up-to-date information can be found at:
Rex Wockner is also using this post to collect info rallies as they materialize.
If you have information on rallies not listed above, share the info in the comments.
Consider this an open thread to talk about whatever is on your mind…
UPDATE BY EDEN: The always edifying Chris Geidner just posted this one-stop-shop FAQ on the Prop 8 trial at Metro Weekly.
Here are some choice nuggets to chew on:
3. What is going to happen later today?
Today, regardless of the decision, not much — in terms of actual change — will likely happen. Because both sides have made clear — and Judge Walker has acknowledged — that they plan to appeal should they lose on Wednesday, it is likely that a temporary stay would be granted, which would halt the enforcement of the ruling until an appeal can be heard by the U.S. Ninth Circuit Court of Appeals. AFER’s spokesman confirmed to Metro Weekly that the Proposition 8 proponents, who intervened in the case to oppose the plaintiffs, have filed a conditional motion to stay the trial court decision pending the outcome of the appeal.
8. The Defense of Marriage Act
Finally, any mention of the federal law, although not technically at issue in the case, is sure to raise eyebrows all across the country. Judge Walker asked about DOMA in written questions to the parties before the closing arguments, asking whether he could strike down Proposition 8 and not address DOMA. Although the parties did not ask for him to address DOMA, it obviously will be noteworthy should he decide to do so.
Much more here.
UPDATE BY EDEN: Courage’s Rick Jacobs is quoted by CNN in this story:
Rick Jacobs, founder of the Campaign Courage, which supports same-sex marriage, said he was hopeful about Wednesday’s decision because of what happened during the trial.
“I can only say that based on the evidence in the trial, it is absolutely clear that allowing gays and lesbians to marry will strengthen families and the nation,” he said. “No matter how the judge rules tomorrow, we’ve already won a significant victory because the other side admitted they have no argument.”
Rick is absolutely right, of course. Just read the transcript above of what Charles Cooper admitted before the trial even started.
by Brian Leubitz
Today, the Field Poll released their latest study on California opinions regarding marriage equality (PDF). It’s good news on the whole, with a slight majority favoring marriage equality. But there are some caveats:
The poll’s results – 51 percent in favor, 42 percent opposed, 7 percent undecided – show big differences among age groups, geography and party affiliation.
The results were close to those the Field Poll found in May 2008, six months before voters banned gay marriage by approving Proposition 8, 52 to 48 percent.
The current survey also found that support for same-sex marriage drops below a majority when voters are given another option – civil unions.(SacBee)
So, yes, there is 51% support, but that support is soft. Basically, we are back where we were two years ago. Prop 8 repeal can pass, but there is still a lot of work to be done. This time we have to run a better campaign to get our message out, be proactive and not just respond to the other side’s phony attacks. And of course, talk with our fellow Californians directly. We can, and should, win in 2012, but it will not be easy by any stretch of the imagination.
Of course, there’s still this Prop 8 trial going on, so I’ll just take a look at what one of the big California-centric pundits had to say. Dan Walters is the big California columnist at the Sacramento Bee. While I frequently disagree with his take on governance and other issues, he does offer an interesting perspective. But in today’s column, he just misunderstands the law. From today’s Bee:
In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal “Defense of Marriage Act,” which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.
Although Tauro’s ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states’ rights, to decide whether to recognize same-sex marriage, and the federal law “offends” those rights.
Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states’ rights matter, neither could they overturn California’s anti-gay marriage law, Proposition 8. (SacBee)
From a simple reading of a summary of the cases, that would appear to be the case, but once you delve into the law, that sort of fades away. Judge Tauro’s decision actually strikes down Section 3 of DOMA under two constitutional provisions. First, he does it under the more expected Fifth Amendment of the Constitution, ruling that DOMA has no rational basis. This is the first of the two combined cases, the Gill v OPM case.
It is very clear that this part of the two decisions is clearly not a setback whatsoever. This decision argues that the marriage ban on same-sex couples violates the Bill of Rights. The Fifth Amendment has generally been considered to apply most of the Fourteenth Amendment equal protection jurisprudence to the federal government. In other words, the fifth amendment equal protection clause in Gill is, for our purposes, functionally the same as the fourteenth amendment’s protections in the Prop 8 case. Rather than hurting the challenge to Prop 8, Gill affirmatively argues for Prop 8 to be struck down.
Now, to the Massachusetts case, there the court says that the federal government cannot block the states from defining marriage as they wish due to the Tenth Amendment. Now, first, let’s just say that this part of the ruling is on some shaky legal footing. While some of the TEA-baggers are fond of the tenth amendment, it simply doesn’t have much standing in the legal world. The tenth is rarely enforced in any substantive way, and this component of the case very well may well get some new reasoning on appeal if it is upheld. In some exceptional cases, the federal government has been batted down as over-reaching. But the bar is high, and essentially applies only to Congressional action, in other words, legislation.
The final point here is that the Equal Protection Clause applies to both the states (14th) and the federal government(5th). Whether or not the federal government has a right to tell the states through legislation how to define marriage, the states still have no right to violate the equal protection clause. So, long story short, far from being a back-handed gift to the proponents of Prop 8, the DOMA decision supports the plaintiffs case in Perry.
To bring it back around…Prop 8 is going to be short for the California law books, whether it goes down via judicial action or electoral.
by Robert Cruickshank
As many of you know by now, Hawaii’s Republican governor Linda Lingle announced last night that she will veto the civil unions bill just passed by the Hawaii legislature:
“After months of listening to Hawaii’s citizens express to me in writing and in person their deeply held beliefs and heartfelt reasons for supporting or opposing the Civil Unions Bill, I have made the decision to veto HB 444.
I have been open and consistent in my opposition to same gender marriage and find that HB 444 is essentially marriage by another name.
Lingle goes on to claim she didn’t veto this because of that personal opposition, but because she wants to punt this to the voters:
I am vetoing this bill because I have become convinced that this issue is of such significant societal importance that it deserves to be decided directly by all the people of Hawaii. …
This is a decision that should not be made by one person sitting in her office or by members of the Majority Party behind closed doors in a legislative caucus, but by all the people of Hawaii behind the curtain of the voting booth.
As we know, those votes haven’t always gone so well for our side. But there’s a more important reason why Lingle’s reasoning is flawed:
Hawaii voters already gave the Legislature the power to decide this issue.
Here’s the background. In 1993, the Hawaii Supreme Court ruled that the state was discrimination against LGBT couples by denying them same-sex marriage licenses. In 1996 a follow-up case confirmed the initial ruling.
When it looked like Hawaii would start granting same-sex marriage licenses, the US Congress wrote and passed the notorious Defense of Marriage Act in 1996, which President Bill Clinton signed, a likely violation of the US Constitution’s “full faith and credit” clause. And in Hawaii, opponents of marriage equality, led by the Mormon and Catholic churches, mobilized to pass Amendment 2 in 1998.
Amendment 2 did NOT outright ban same-sex marriage. Instead it gave power to the Hawaii legislature to ban it. In short, the voters of Hawaii already went behind that curtain and said “the legislature can decide.”
Which is what the legislature did back in April 2010 by passing the bill to grant civil unions, the bill Lingle just vetoed. Lingle’s logic doesn’t make sense, and doesn’t accurately describe the political situation.
Further, because the Hawaii House of Representatives isn’t likely to hold a veto override session – which Hawaii State Senators have said they would do – the civil unions bill appears dead until next year, when Hawaii will have a new governor (Lingle is termed out this year). The Democratic nominee, Neil Abercrombie, released a statement criticizing the veto:
Governor Lingle has made her choice and the Legislature has said it will not go back into a special session for any veto overrides. HB 444 was not a same-sex marriage bill. The State Legislature has already defined marriage as between a man and a woman. Civil unions respect our diversity, protect people’s privacy and reinforce our core values of equality and aloha.
Now, it will be up to the next Governor and Legislature to ensure that all people of Hawaii receive equal treatment. Protecting people’s civil rights cannot be compromised. I am committed to that most essential of constitutional imperatives.
Others have vowed to go to court. Lambda Legal and the ACLU put out a press release outlining their plans to file a lawsuit:
Lambda Legal and the American Civil Liberties Union of Hawai’i (ACLU) reacted today with deep disappointment following Hawai’i Governor Linda Lingle’s veto of HB 444, which would have allowed gay and straight Hawai’i couples to take legal responsibility for each other by entering civil unions. Having received strong majority votes by both houses of the Hawai’i Legislature, the bill was given final approval on April 29, the last day of the session. Lingle had until July 6 to take action on the bill.
“This was a sad surrender to political expediency that does not support business or family interests, but damages them,” said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal. “In caving in to a well-orchestrated disinformation campaign mounted by the bill’s opponents, Governor Lingle has abandoned thousands of Hawai’i families who have needed this bill’s protections for many years. We’re also disappointed that the Legislature opted to not override this veto immediately — we would have preferred to see couples win fair treatment through the political branch rather than having to pursue legal action. However, we’re still ready to do what’s necessary so our clients can protect their loved ones.”
Lambda Legal and the ACLU had readied a lawsuit after the House tabled HB 444 in January. The Hawai’i Senate had previously approved the bill by a veto-proof 18 to 7 majority and sent it back to the House for a conforming vote.
“We’re obviously disappointed that Governor Lingle has, once again, used her power to deny the people of Hawai’i their civil rights” said Laurie Temple, Staff Attorney for the ACLU. “Luckily for the people of Hawai’i, however, our constitution prevents discrimination based on sexual orientation. If the Governor won’t honor her oath to uphold the constitution, the courts will.”
Equality Hawaii weighed in as well:
“Today is a sad day for the thousands of Hawaii families who remain second class citizens,” said Alan Spector, legislative affairs co-chair for Equality Hawaii. “We fail to see how the Governor’s actions are in the best interest of Hawaii’s future and are nothing more than political maneuvering at the expense of people’s lives. We’re disappointed and outraged that same-sex families will not be treated equally under Hawaii law, but vow to come back and fight this fight another day.”
“Today was the first time a civil unions bill passed both Houses in Hawaii by solid margins and was on the Governor’s desk for signing,” said Jo-Ann Adams, Chair of the GLBT Caucus of the Democratic Party of Hawaii. “With such broad support from the legislators, who are the elected officials closest to the public, and the consistent results of the professional polls showing broad support for civil unions as a civil rights issue, we are deeply disappointed that the Governor ignored the will of the people and vetoed the bill. We are determined, no matter how many sessions and election cycles it takes, to achieve full recognition for our families.”
“Americans nationwide share in the disappointment and outrage of thousands of Hawaii’s families who will not receive equal treatment under law,” said Joe Solmonese, president of the Human Rights Campaign. “Thankfully, there are local advocates as well as leaders in the Hawaii legislature who will continue to further the cause of equality. For decades, we have been a loyal partner in this fight for fairness in the Aloha State and we pledge to stand with them for years to come.”
“Today, on July 6, 2010, Gov. Linda Lingle denied social justice when she vetoed HB444 for Civil Unions,” said Rev. Carolyn M. Golojuch, President of PFLAG-Oahu. “Her denial is a violation of the integrity of her office and a violation of her oath of office. Governor Lingle’s denial of equal rights, benefits and protections for one segment of our citizens is a denial for all of our citizens of Hawaii.”
“The members of Pride Alliance Hawaii are greatly disappointed in Governor Lingle’s decision to veto the Civil Unions bill and allow the state to continue its discriminatory practices against same-sex couples,” said Tara O’Neill, President of Pride Alliance Hawaii. “Two separate and independent economic studies, a poll conducted by a nationally recognized polling organization, and the thousands of residents who vocalized their support of the bill to the Governor and the Legislature over the past two years makes clear that the passage of HB444 is good economic sense, is socially just, and is supported by the people of Hawaii. The LGBT community’s fight for equality in Hawaii will continue.”
It’s clear that this fight will continue beyond yesterday’s veto – as well it should. Whether it’s through a lawsuit or through electing a pro-civil unions governor or in the courts, this battle isn’t over. Karen Ocamb has an excellent post about the scope of that battle, including an in-depth look at the way the Religious Right, including the Mormon and Catholic Churches, are likely to get involved over the next few months, and into 2011.