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Filed under: Prop 8 trial
Experts weigh in on Prop 8 at the Supreme Court
By Scottie Thomaston
Attribution: LGBTQ Nation
Greg Stohr, writing in Bloomberg News, takes a look at the looming decision in Hollingsworth v. Perry, the Prop 8 case. The Justices are widely expected to issue the decision in late June, possibly in the last days of the Term. The piece examines the issue of the Prop 8 proponents’ legal standing to appeal the case, an issue that was briefed and argued in the case and is a threshold issue the Justices will need to decide before reaching the merits. The issue of Article III standing is important in the case because none of the government defendants appealed the district court’s decision striking down the initiative, and that left only the ballot initiative proponents to appeal. The government defendants enforced the law but didn’t defend it in district court, although as Marty Lederman pointed out at SCOTUSBlog, most of the government defendants filed answers to the plaintiffs’ complaint, and no one opposed the proponents’ motion to intervene in district court to defend the amendment’s constitutionality:
The California Attorney General, Jerry Brown (now the Governor), answered the complaint by admitting that Proposition 8 violates the Fourteenth Amendment. The other named defendants, including then-Governor Arnold Schwarzenegger, did not admit the allegations, but also joined Attorney General Brown in refusing to defend the new law. Despite this nondefense, the defendants continued to enforce the law by denying marriage licenses to same-sex couples, including the plaintiffs.In the meantime, the five proponents of Proposition 8 and ProtectMarriage.com filed a motion to intervene as of right in the Perry proceeding, pursuant to Federal Rule of Civil Procedure 24(a), on the ground that the named defendants would not adequately defend the measure’s constitutionality. No party opposed the motion, and the district court granted the proponents’ motion to intervene, ruling that “as official proponents, they have a significant protect[a]ble interest in defending Prop 8’s constitutionality.” The proponents thereafter controlled the defense of Proposition 8 in the district court.
After the proponents appealed the Ninth Circuit asked the California Supreme Court if ballot initiative proponents either have a particularized interest or can step into the state’s shoes to defend their interests in a passed ballot initiative. The California Supreme Court said that proponents can defend the state’s interest, and the Ninth Circuit held that their decision led to the conclusion that the Prop 8 proponents would have standing to appeal based on the state’s interest in defending Prop 8.
One of the plaintiffs’ lawyers told Stohr that they would be happy if, in the end, the Supreme Court ruled that the proponents lacked standing to appeal the case, because it would allow marriage equality in the state:
“A win on standing would be a victory that would establish marriage equality and wipe out Prop 8,” said Theodore Boutrous, a Los Angeles lawyer with Gibson Dunn & Crutcher. “We would be very happy with that.”
But Stohr talked to others who weren’t so sure that the ruling would be that simple or final:
A standing ruling might mean “a quick death for Prop 8,” said Vikram Amar, a constitutional law professor at the University of California Davis School of Law. “But it’s also quite possible — maybe more likely — that it will take some time before we know which couples, beyond the two couples who sued, would be able to get their licenses.”
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Some constitutional law professors, including Marty Lederman of Georgetown University Law Center in Washington, say Walker lacked power to issue a statewide ruling.“District court judges generally do not have the power to issue injunctions that protect persons other than the parties before them,” Lederman wrote in a post on Scotusblog, which tracks the court.
Amar has written previously that he believes that when ProtectMarriage, the ballot initiative proponents, took on the responsibility of passing the initiative and it did pass, voters didn’t knowingly appoint the group to represent the state (since, typically, the Attorney General and the Governor represent California’s interests in court.) His own view is that since ballot proponents aren’t appointed by voters to represent the state, they lack standing. He has also written (as he did in the series in the link above) that he believes both the Ninth Circuit and Judge Walker’s decisions should be wiped out.
Lederman’s argument is somewhat different: he has argued that Judge Walker didn’t have the authority to issue an injunction that applied to all couples or officials, and should have only enjoined officials from denying the actual Prop 8 plaintiffs a marriage license. He believes that even if the injunction is construed to only apply to the two couples in the case, state officials and lawyers have several options to extend the ruling to the whole state: state officials could choose to view the injunction as uniform and make sure it applies to all same-sex couples in California, or, alternatively, deny a marriage license to a same-sex couple and then refuse to defend or appeal a case when it is challenged, or deny a marriage license to a same-sex couple and when it’s challenged in court, file notices of appeal and make sure the case is adequately defended.
But as Stohr’s piece points out, the scope of Judge Walker’s injunction may not be addressed by the Court in the first place (the parties had disputed that there would be authority for the Court to change the scope of the injunction if it lacks standing to hear the case at all.)
Along with those options, one issue that Stohr doesn’t address is the possibility that the Court may “DIG” the case: dismiss the petition for certiorari as improvidently granted. That would mean the case would revert back to its status before the Court granted the petition, meaning the Ninth Circuit’s narrow ruling would remain in place, but it would only apply to California, since the facts of the case aren’t likely to be repeated elsewhere in the Ninth Circuit. The Court doesn’t DIG cases often, but it does at times. (This term they’ve already dismissed one case as improvidently granted.) There are limitations though, because of the process: it takes four votes to hear a case, so in theory, in all cases where only four Justices vote to grant cert, the other five could dismiss the petition as improvidently granted. Because of this, the Court usually won’t DIG a case unless at least one Justice who originally voted to grant cert has changed their mind. There was speculation, based on the oral argument, that it’s possible the four conservatives voted to hear (and would reverse) the case. If that’s true then it doesn’t appear likely any one of those four would change their mind.
Whatever will happen in June, there are several options that would eliminate Prop 8 even in the event of a Court ruling on Article III standing alone. And as others have pointed out, there are several more options for the Court to strike down Prop 8 if it chooses to issue a ruling on the merits. There’s only one decision that would definitively keep Prop 8 in place, and that would be for five Justices to uphold it. It’s objectively difficult to come up with five votes on the current Court for a decision upholding Prop 8. And this month, the three states that have passed marriage laws may have made that even less likely.
Leave a Comment May 14, 2013
Bending towards justice: a reflection on President Obama’s marriage equality announcement, one year later
Media Research Center
By Jacob Combs
Exactly one year ago today, President Barack Obama sat down in an interview with Robin Roberts of ABC News and said, “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.”
One year later, those words still ring with the sound of history in the making, but they also seem almost unsurprising. As the saying goes, the arc of the moral universe (and President Obama’s public position on marriage equality) may well be long–and we are still seeing it bend towards justice.
When President Obama made his announcement last May, his words were couched in the careful language of the election-year politician. It was his personal belief, the president stressed, that same-sex couples should have the right to marry–a belief that did not necessarily mean that states should provide equal marriage rights to their citizens or that the president was referring to a fundamental constitutional right to marriage equality.
But then came the November election, when advocates of marriage equality in three states–Maine, Maryland and Washington–and opponents of a constitutional ban on equal marriage rights in Minnesota went to the ballot box. The Obama campaign had spoken out against the Minnesota ban in April, as he had against California’s Proposition 8 in 2008 and North Carolina’s Amendment 1 in 2012. But he had never taken a public position in support of a marriage equality ballot initiative. On a Thursday late in October, less than two weeks before the election, he did just that, issuing statements in support of all three state campaigns.
Despite these influential and very public statements of supports, LGBT advocates still eyed the ultimate prize: an unequivocal statement from the president that same-sex couples had a fundamental right to marry under the U.S. Constitution. Through the providence of political timing, the prime vehicle for such a statement was readily apparent: the Proposition 8 case, which was due for oral arguments at the Supreme Court in late March and which argued not only against California’s marriage equality ban, but against similar bans across America.
Obama and the Justice Department stayed mum as the days ticked closer to the deadline before which the DOJ would need to file a briefing in support of the Prop 8 plaintiffs with the high court. Advocates of equal marriage rights wrote that the President was being too cute by half by going public with his private views but stopping short of throwing the full weight of the U.S. government behind the biggest LGBT legal argument in a decade.
And then, late on another Thursday evening, at essentially the very last minute it could do so, the Obama administration filed its brief. If it wasn’t the total victory LGBT activists had hoped for, it came mightily close. “The exclusion of gay and lesbian couples from marriage,” the brief argued, “does not substantially further any important governmental interest.” Even though the DOJ’s filing did not explicitly call for the end of marriage equality bans across the U.S., its legal reasoning–in arguing for the more searching form of constitutional review known as heightened scrutiny–made that argument implicitly.
As we await the Supreme Court’s decisions on the constitutionality of Prop 8 and the federal Defense of Marriage Act sometime between now and the end of June, it’s clear that the marriage equality landscape has been fundamentally altered since last May. When President Obama sat down with Robin Roberts, six states–all in the Northeast, with the exception of Iowa–and Washington, DC allowed same-sex couples to wed. Just one year later, that number has nearly doubled, with victories for LGBT advocates in Rhode Island last week and Delaware this Tuesday. Two more states–Minnesota and Illinois–could very well follow in the next few weeks, and of course there is California, the most populous state in the Union, which could have marriage equality restored this summer.
Undoubtedly, many of these votes have had a demonstrably Democratic bias. Several Republican legislators across the country have stood up for equal marriage rights–including the entire (five-member) Rhode Island Senate Republican caucus–but by and large marriage equality has succeeded on the votes of Democrats. President Obama’s support has had an enormous impact, perhaps not on politicians’ private views, but certainly on their public position, as other Democratic politicians have fallen in line behind the president. At this point, for instance, only three Democratic Senators remain opposed to equal marriage rights. There’s nothing else to call that but a sea change.
But the question remains, for both supporters of LGBT rights and politicians who (now) support marriage equality, of what’s next. There are plenty of options: the Employment Non-Discrimination Act (ENDA), which would protect LGBT individuals from being fired for their sexual orientation or gender expression, the Uniting American Families Act (UAFA), which would provide protections to binational same-sex couples where one partner cannot currently sponsor the other for citizenship. In many states, transgender men and women are denied medically necessary treatments–and, in some cases, denied any health insurance–because of their gender expression. The rate of new HIV diagnoses amongst heterosexuals is declining across the U.S., but it is rising for men who have sex with men, especially in communities of color.
Marriage is an incredibly important and emotional issue. It’s no accident that support for marriage equality has swept into the hearts and minds of the American public–and, through them, to their politicians. But these politicians will soon face test votes that will demonstrate whether their support for equal marriage rights is based on principles of liberty and equality or an expedient reading of their constituents’ views. To take just one example, ENDA, if LGBT Americans should have the same right to marry as their heterosexual, cisgender counterparts, should they not have the same protections when it comes to wrongful termination?
On year ago, President Obama’s ABC News interview marked an inflection point in the marriage equality debate, and while it might yet take some time for the legal reality of equal marriage laws to catch up to the political reality, an undeniable shift has occurred. The LGBT community has many more milestones to look forward to, perhaps some of them with the help of this president. That will require the passion, patience and determination that we’ve already shown–the same qualities which led to President Obama’s historic announcement last May.
Leave a Comment May 9, 2013
Federal Election Commission decision holds that it can’t recognize same-sex marriages under DOMA
By Scottie Thomaston 
Yesterday, the Federal Election Commission (FEC) issued an opinion ruling on an aspect of election law that relies on Section 3 of the federal Defense of Marriage Act to determine whether a married couple can contribute to political campaigns jointly. The FEC generally allows married couples to donate jointly to campaigns, so that the amount doesn’t exceed the cap on individual contributions imposed by federal law. But they were asked to determine if same-sex married couples may legally do the same thing, and their decision says that no, same-sex married couples can’t do this until Section 3 of DOMA is repealed or struck down as unconstitutional by the Supreme Court (a possibility given that they’re reviewing United States v. Windsor now and a decision is expected by late June.
The opinion noted that the FEC doesn’t define “spouse” itself and its standard practice is to rely on state law to determine whether a couple is legally married. However, the point of Section 3 of DOMA was to provide a uniform definition of “marriage” and “spouse” that has the same application for all federal laws. So, as the FEC is obligated to follow DOMA’s restrictive definition of “spouse”, it has to interpret the federal regulation at issue differently. Instead of simply allowing for joint contributions, with DOMA in place, the same-sex couple would be considered to have made “a contribution in the name of another person”, which is illegal.
So, for now, the FEC has to follow DOMA, but the issue will probably be reconsidered after the Supreme Court issues its decision in Windsor:
The FEC’s ruling cited the Defense of Marriage Act’s definition of ‘spouse’ — being only between one man and one woman — as the determining factor that would preclude same-sex couples from recognition under federal regulations. Pointing to the upcoming Supreme Court decision, the FEC intends to revisit the question once the high court rules later this year.
The request from Winslow came as an olive branch to independent-minded Massachusettsians, who may warm up to his campaign following a more open social values platform. Compared to his Republican competitors: Gabriel Gomez, a former Navy SEAL turned politician, is in favor of same-sex marriage whereas Michael Sullivan, a former U.S. attorney, recently shifted his stance on the issue.
Former FEC officials had filed an amicus brief in the Windsor case pointing out how Section 3 of DOMA affects, and sometimes infringes on, free speech. The brief addressed this issue, along with others that affect campaign financing and federal election practices. Citizens for Responsibility and Ethics in Washington (CREW) filed its own amicus brief in the case: CREW is a Congressional ethics watchdog group, and its brief pointed out the myriad ways in which DOMA’s restrictive definition of marriage interferes with enforcing ethics laws and regulations.
The FEC makes a point to say that the issue will be addressed again after Windsor, and a footnote in the opinion also suggests that the Supreme Court’s resolution of Hollingsworth v. Perry, the Prop 8 case, could affect the FEC’s approach to enforcing federal election regulations in the context of same-sex marriage. The decision in Perry is also expected in June.
Leave a Comment April 26, 2013
