Filed under: Prop 8 trial
In the midst of this weekend’s celebrations in California and across the country, the Prop 8 case experienced one (probably) final hiccup.
It began on Friday afternoon, when we reported that the Ninth Circuit panel that invalidated Prop 8 in February of last year unexpectedly lifted its stay on Judge Vaughn Walker’s lower court ruling striking down the law and instructing California officials not to enforce it.
As we discussed last Wednesday, the proponents of Prop 8, as the losing party before the Supreme Court, have a 25-day window during which they may petition the high court for rehearing of its decision in the Prop 8 case. (As SCOTUSblog’s Tom Goldstein noted, that 25-day window lasts until July 21, a Sunday, meaning that Monday, July 22 is the actual final date to file such a petition.) Until that time, although such petitions are almost never granted, the judgment is technically not final.
Despite the fact that the Supreme Court’s decision in the Prop 8 case is not yet technically in effect, the Ninth Circuit has wide discretion over decisions regarding its own stay orders. Not surprisingly, when the stay was lifted on Friday, same-sex couples in California flocked to city halls to get married–including the two plaintiff couples in the Prop 8 challenge: Kris and Sandy and Jeff and Paul.
On Saturday, Andrew Pugno and lawyers with the Nevada-based Alliance Defending Freedom, which had represented the proponents of Prop 8, submitted a brief with the Supreme Court seeking an emergency order vacating the Ninth Circuit’s decision to lift the stay. The Ninth Circuit, the lawyers argued, lacked jurisdiction to issue its order lifting the stay, violated the stay order in lifting it and effectively deprived Prop 8′s defenders to the opportunity to petition for a Supreme Court rehearing.
Less than 24 hours later, Supreme Court Justice Anthony Kennedy, the circuit justice for the Ninth Circuit, denied the request without comment. As SCOTUSblog’s Lyle Denniston noted, there is essentially no way of knowing what legal rationale Justice Kennedy used in making his determination. Denniston also wryly pointed out the implicit irony in Kennedy’s action, given that he was in the four-justice minority who voted to allow Prop 8′s proponents to defend the law in court.
The proponents’ failure to obtain an emergency stay from the Supreme Court could likely be the last federal court proceeding in the case. The proponents still have until July 22 to file a petition for rehearing, but it looks exceedingly unlikely that such a request would be approved.
Of course, the proponents could also attempt to challenge the scope of Judge Walker’s injunction, which some have argued was overly broad and should not have been effective statewide. Most legal observers find that argument unpersuasive, and now that marriages have begun across California, it seems a stretch that anything could roll back that development.
Still, the proponents of Prop 8 have been tenacious in their defense of the law. Of course, we’ll have coverage of any and all attempts they make to postpone what at this point is essentially inevitable.
By Jacob Combs
Huge news: the Ninth Circuit Court of Appeals has just lifted the stay on Judge Vaughn Walker’s district court ruling striking down Proposition 8 as unconstitutional. More from the Los Angeles Times:
The U.S. 9th Circuit Court of Appeals on Friday cleared the way for gay marriages to resume in California.
The court lifted its stay on an injunction which ordered state officials to stop enforcing Proposition 8. With the court’s action, counties can now begin issuing same-sex marriage licenses.
A spokesman for the U.S. 9th Circuit Court of Appeals had originally said it would takes the court at least 25 days to act after a Supreme Court ruling. Immediately afterward, Gov. Jerry Brown ordered his public health agency to advise the state’s counties to “begin issuing marriage licenses to same-sex couples in California as soon as the 9th Circuit confirms the stay is lifted.”
The brief order, which you can find here, reads:
The stay in the above matter is dissolved effective immediately.
Marriages can resume in California right away. The Clerk of the Supreme Court had earlier issued an order saying their mandate would not issue for 25 days, but the Ninth Circuit was able to lift the stay of the district court’s mandate without waiting for Supreme Court action.
This is a developing story, and we will have more as events unfold.
h/t Kathleen Perrin for these filings
Ninth Circuit order:
By Jacob Combs
In the wake of yesterday’s historic Supreme Court rulings striking down the Defense of Marriage Act and setting the stage for marriage equality to return to California, equal rights advocates celebrated, opponents scowled, and–of course–marriages were proposed. Here’s a quick look at the myriad reactions to the Court’s rulings.
First, the good. At a press conference yesterday following the ruling, when asked about her reaction to the decision, a smiling California Attorney General Kamala Harris said, ”I’m feeling pretty good,” telling the crowd that marriage equality is coming back to California:
“As soon as [the 9th Circuit] lifts that stay, marriages are on. The wedding bells will ring … Today is a day that reaffirms our commitment as a country to giving every person equal protection and due process under the law.”
During the press conference, Harris asked the Ninth Circuit to expedite its process of lifting the stay on Judge Walker’s injunction against the enforcement of Proposition 8. An official with the circuit court told the Los Angeles Times the court had not received any paperwork asking for the process to be sped up.
Writing on his blog Blabbeando, Andrés Duque shared a wonderful image of Thomas Verni, the New York City Police Department’s LGBT community liaison, kissing his partner Joe Moran shortly after proposing to him in the West Village.
True to form, Michelle Bachmann decried the Supreme Court’s rulings, issuing the following statement: ”Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted.” House Minority Leader Nancy Pelosi had the best reaction, hands down, to that sentiment, when asked by a reporter what she thought of it: “Who cares?”
Rachel Maddow had thorough coverage of the day’s decisions, featuring interviews with the plaintiffs from a celebration in West Hollywood and a sit down with Edie Windsor’s lawyer, Roberta Kaplan, in the MSNBC studios.
The Daily Show’s John Oliver–standing in for Jon Stewart–waved a giant rainbow flag as he sang a few modified strains of ‘Do You Hear the People Sing?’ from Les Misérables, while Jason Jones and Al Madrigal prepared to marry in what Oliver described as ‘a 1980s stereotype.’
And, of course, there were the negative reactions. Speaking with a New Jersey radio station, Governor Chris Christie–who last year vetoed a marriage equality bill approved by the state’s legislature–railed against the end of DOMA and Prop 8:
I don’t think the ruling was appropriate. I think it was wrong. They, the Court, without a basis in standing, substituted their own judgment for the judgment of a Republican Congress and a Democratic President. In the Republican Congress in the ‘90s and Bill Clinton. I thought that Justice Kennedy’s opinion was, in many respects, incredibly insulting to those people, 340-some members of Congress who voted for the Defense of Marriage Act, and Bill Clinton.
Finally, Tim Heulskamp, a Republican representative from Kansas, said that he would introduce a new Federal Marriage Amendment by the end of this week which would essentially write a new DOMA into the U.S. Constitution. Such a move, he told the Huffington Post, would “trump the Constitution.” It’s a hail-mary move with almost no chance of passing: in 2006, when Republicans controlled both houses of Congress, the bill failed to secure the votes it needed to pass.
Supreme Court acts on DOMA, marriage equality, and same-sex benefits petitions that were held pending yesterday’s decisions
By Scottie Thomaston
Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.
Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.
First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.
The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.
Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.
Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.
In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.
By Jacob Combs
It was a sticky summer kind of New York evening as the throngs packed into the narrow intersection of Waverly Place and Christopher Street outside the steps of the Stonewall Inn. The event was equal parts rally, celebration, law lecture and thanksgiving. Edie Windsor, the newly-turned 84-year-old who today won a huge LGBT rights victory in her suit against the U.S. government, was the star–a heroic figure in the eyes of the crowd, albeit one for whom the mic had to be lowered when she stepped up to speak.
“We won all the way,” she said simply. She thanked Roberta Kaplan for taking her case when the legal advocacy organizations said it was the wrong time; she talked about the children who will grow without ever knowing the stigma of the Defense of Marriage Act, whether enforced against themselves, their parents or their families. And she spoke of her beloved Thea, the wife she lost after almost half a century together. “If I had to survive Thea,” Edie said, “what a glorious way to do it.”
For her part, Roberta Kaplan showered praise on Edie, likening her to Susan B. Anthony, Rosa Parks, Harvey Milk. The U.S. Constitution, she said, binds us together as a people and as a nation, and she swore there was no better case to demonstrate what equal protection under the law really means than U.S. v. Windsor. New York Congressman Jerrold Nadler, the lead sponsor of the Respect for Marriage Act, which would mop up the last vestiges of marriage discrimination in federal law after the demise of DOMA, spoke of today’s rulings as part of an ongoing struggle to expand the meaning and the scope and the inclusivity of the words ‘all men’ in the Declaration of Independence’s affirmation that “all men are created equal.”
Christine Quinn, the out Speaker of the New York City Council, got a big kiss (and an endorsement) from Edie Windsor, telling the crowd that the federal government “picked the wrong New Yorker to mess with.” She bragged that DOMA had been brought down thanks to two New York City lesbians; Rabbi Sharon Kleinbaum one-upped her, saying she was kvelling that it had been two Jewish New York City lesbians that had defeated the statute.
It was also a call to arms. “We have work to do,” Empire State Pride Agenda Nathan Schaefer told the crowd, acknowledging the ignominious defeat of the Gender Expression Non-Discrimination Act in the New York state senate just days earlier. Glennda Testone of the New York City LGBT Center said that “Edie Windsor fought the law, and Edie Windsor won,” listing off the myriad remaining priorities for the LGBT movement: transgender equality, immigration reform, bullying prevention, protections for LGBT seniors, an inclusive Employment Non-Discrimination Act, protection from housing discrimination and advocacy for people living with HIV and AIDS. Several speakers mourned the implicit loss of the Voting Rights Act, an exemplar of American civil rights litigation, in the same Supreme Court’s ruling of just the day before.
It was a day to be remembered, but also one on which to remember: ten years to the day after the Supreme Court ruling in Lawrence v. Texas that affirmed gay people’s constitutional right to the very act which made them different, 44 years after the night when the Stonewall Riots introduced LGBT rights as an issue in American life, just steps away from where Edie Windsor stood. In a small way, we returned to our roots as a community as we reflected on where we are taking this country, together, as a community. We won. We will keep fighting. We will lose, at times. But, even more importantly, we will keep on winning.
Edie Windsor got the last word–of course–and those who had started to drift away through the streets rushed back to hear what else she would say. The LGBT community, she said, was formed out of the injustice of HIV and AIDS, and in the last three years, out of the injustice of marriage discrimination, that community had come together more than she could ever have imagined. The crowd began to cheer her name–”Edie, Edie!”–while the 5-foot-tall woman stood there, looking radiant, and beamed. And this young California boy, homesick for that beautiful state and its people who had had their rights ripped away from them and now restored, far from the celebrations of Los Angeles and San Francisco and the many tiny towns in between–beamed back.
Analysis: Supreme Court rules Prop 8 proponents lack standing, restores marriage equality to California
By Jacob Combs
In a narrow yet major victory for marriage equality, the Supreme Court ruled today that the proponents of Proposition 8 did not have standing to defend the law in Court, paving the way for equal marriage rights to return to California. The ruling focused specifically on issues of standing, but will allow a lower court ruling that invalidated Prop 8 as unconstitutional to stand as the final say on the issue.
First, the ruling itself, which was written by Chief Justice Roberts and joined by an unusual coalition of Justices Scalia, Ginsburg, Breyer and Kagan. As the Chief Justice noted early in his opinion, “Federal courts have authority under the Constitution to answer such questions [of constitutionality] only if necessary to do so in the course of deciding an actual ‘case’ or ‘controversy.’ … It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.”
To briefly rehash the history of the Prop 8 challenge, the original lawsuit was brought by two same-sex couples who had been denied marriage licenses by their county clerks. When California’s governor and attorney general declined to defend Prop 8 in court, the measure’s official ballot proponents stepped in to defend the law. The two couples succeeded in winning a district court ruling that Prop 8 was unconstitutional, and the proponents appealed to the Ninth Circuit, where they lost, and then to the Supreme Court.
The central question in today’s Prop 8 decision is whether or not the proponents had the right–known technically as Article III standing–to defend Prop 8 in federal court. In order to do so, the Chief Justice wrote, the proponents would have had to assert “a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.” As he wrote in his opinion today, Roberts determined them unable to do so:
The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything…. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.
In court, the Prop 8 proponents argued that even if they did not have an individual, particularized interest in defending the law, they were authorized to represent California’s own interest in the constitutionality of the measure, relying in large part on a 2011 California Supreme Court ruling that staked out this argument.
Roberts disagreed with that holding, citing the 1991 holding in Powers v. Ohio that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” He distinguished the Prop 8 litigation from a case from New Jersey called Karcher v. May in which New Jersey state legislators were permitted to defend a law after the state’s attorney general refused to do so, writing that the Supreme Court specifically ruled those legislators lost the right to defend the law after they left office.
Roberts also cited a passage from the Court’s ruling in Arizonans for Official English to refute the proponents’ arguments based on the California Supreme Court ruling, writing that the state court’s decision answered only whether the proponents had “the authority to assert the State’s interest in the initiative’s validity” and did not authorize them to act “‘as agents of the people’ of California.”
Dissenting from Chief Justice Roberts’s majority ruling, Justice Kennedy–joined by Justices Thomas, Alito and Sotomayor, repeatedly asserted that the Supreme Court should have accepted the California Supreme Court’s arguments and granted standing to the proponents:
[T]he State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.
In his conclusion, Chief Justice Roberts wrote that the Court would not change its previous holdings on ballot proponents’ standing, and sent the Prop 8 case back to the lower courts:
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
This last paragraph of the ruling means that the Ninth Circuit’s decision invalidating Prop 8 is essentially nullified, since the proponents did not have standing to appeal to the circuit court in the first place. Judge Vaughn Walker’s decision, then, is now the final ruling on the law, and will apply only to California.
Some have argued that the Supreme Court’s decision should only affect the two couples who filed suit against Prop 8, or the two counties in which the couples reside, because the suit wasn’t brought on behalf of California’s same-sex couples as a class. This argument has little merit: Judge Walker’s district court injunction was worded to apply to California’s governor and attorney general, as well as all of the state officials under their authority.
In a statement following the ruling, California Governor Jerry Brown announced in plain terms that ” the district court’s injunction against Proposition 8 applies statewide and that all county clerks and county registrar/recorders must comply with it.” This determination was based on a legal opinion from the office of California Attorney General Kamala Harris.
There is a 25-day window during which a petition for rehearing can be filed with the Supreme Court, although such petitions are rarely granted. After that time, the Supreme Court’s opinion will become official and its instruction to the Ninth Circuit to lift its stay against Judge Walker’s injunction will be in effect. The Ninth Circuit could choose on its own accord to lift the stay before that 25-day window has shut, which would allow same-sex couples in California to wed even sooner. In either case, marriages should return to California within a month’s time.
We’ll have continued coverage of the Prop 8 case in the next few days and Scottie will be posting an in-depth analysis of the DOMA ruling later this afternoon. Congratulations, California!