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Filed under: Prop 8 trial

Equality news round-up: Justice Kagan talks marriage equality, and more

By Scottie Thomaston

Justice Kagan, with President Obama and Chief Justice Roberts. Attribution: whitehouse.gov
Justice Kagan, with President Obama and Chief Justice Roberts. Attribution: whitehouse.gov

- Maggie Gallagher, formerly of the National Organization for Marriage, suggested recently that Justice Kennedy issued a “fatwa” against people who oppose marriage equality.

- Former President George W. Bush made some vague comments recently about marriage equality, but refused to address the issue directly, saying he is out of politics.

- What’s next after DOMA’s downfall?

- A Colorado couple gets their green card post-DOMA.

- The LA Times looks at the anti-Prop 8 side’s strategy they had in place for a Supreme Court decision based on standing.

- In an interview with Jeffrey Rosen, Justice Elena Kagan briefly discussed the marriage equality cases the Court decided in June. She did decline to discuss the issue of state marriage bans, pointing out that the Prop 8 case was only decided on standing, so the Court has not yet spoken on the merits issue.

4 Comments July 8, 2013

Developing: After confusion, Imperial County issuing marriage licenses to same-sex couples

By Jacob Combs

Earlier today, an EqualityOnTrial community member posting under the handle ‘Whistleblower’ wrote in a comment on the website that he had contacted the county clerk’s office of Imperial County and was told the office would not be issuing marriage licenses to same-sex couples.  He later posted that a representative of the office had confirmed the clerk in fact was issuing licenses, which EqualityOnTrial has confirmed with the Imperial County Clerk/Recorder’s office, the San Francisco City Attorney’s office and the office of California Attorney General Kamala Harris.

Update 1 (2:15 p.m. Pacific): According to an initial post on EqualityOnTrial.com by commenter Jeff_Calif, an employee of the clerk’s office at 10:25 Pacific time said that the office would not be issuing licenses.  Christine Allen, of the national LGBT advocacy organization Marriage Equality USA, told EqualityOnTrial that she subsequently spoke with a woman at the clerk’s office and was told that the office had not received final word from its legal counsel as to whether or not the office should approve licenses for same-sex couples.  Allen, who did not obtain the woman’s name or position, was told to call back later in the day.  She alerted her organization’s legal director; Marriage Equality USA also contacted Fernando Lopez of the ACLU of Southern California, who investigated further.

At shortly after 1:00 p.m. Pacific time, Whistleblower posted that he had spoken with a woman named Virginia at the clerk’s office and was told the county was issuing licenses for same-sex couples.  EqualityOnTrial spoke with the same woman, whose full name is Virginia Wong, and received the same information.  EqualityOnTrial later confirmed this information with the San Francisco City Attorney’s office, who had received confirmation from Attorney General Harris’s office.

Update 2 (2:35 Pacific)Imperial Valley Press has also confirmed that the county clerk will be issuing licenses to same-sex couples.  According to the Press, “[t]he office was given direction about an hour ago to move forward with issuing licenses.”

Imperial County has been involved in the Prop 8 case since the litigation began: the county’s Board of Supervisors and then-Deputy/Clerk/Deputy Commissioner of Civil Marriages Isabel Vargas filed a motion in 2009 seeking to intervene in the Perry suit in a San Francisco district court, arguing that the named defendants (the clerks of Los Angeles and Alameda counties) were not adequately defending the marriage equality ban.  In his ruling invalidating Prop 8, Judge Vaughn Walker also turned down Imperial County’s request.

The county later appealed Judge Walker’s decision to the Ninth Circuit Court of Appeals, which dismissed Imperial’s action for lack of standing.  Last February, the current county clerk, Chuck Storey, filed a brief seeking intervenor status with the Ninth Circuit Court of Appeals, which was considering Walker’s decision.  His decision was quickly denied by the appellate court.

This is a developing story–check back for updates.

Leave a Comment July 1, 2013

Supreme Court rejects Prop 8 defenders’ request for emergency stay

By Jacob CombsProp 8 emergency stay request

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.

3 Comments July 1, 2013

BREAKING: Ninth Circuit lifts stay, allows marriage equality to resume in California

By Jacob Combs

Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation
Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation

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:

Prop 8: 9th Circuit Stay Lifted by EqualityCaseFiles

5 Comments June 28, 2013

A round-up of reactions to yesterday’s Supreme Court decisions

By Jacob Combs

The scene outside the Supreme Court yesterday, June 26, 2013, in Washington, DC.
Win McNamee/Getty Images

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.

2 Comments June 27, 2013

Supreme Court acts on DOMA, marriage equality, and same-sex benefits petitions that were held pending yesterday’s decisions

By Scottie Thomaston

The U.S. Supreme Court declined to review more LGBT rights cases yesterday.
The U.S. Supreme Court declined to review more LGBT rights cases yesterday.

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.

Leave a Comment June 27, 2013

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