Filed under: Statements
By Andy Kelley
A conservative legal group is attempting to use the courts to force California Governor Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8 in court.
As reported late this afternoon by the Associated Press:
The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require state officials to appeal a ruling that overturned Proposition 8.
Chief U.S. District Judge Vaughn Walker struck down the voter-approved measure as unconstitutional last month.
Its sponsors have appealed. But doubts have been raised about whether they have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.
Though the state of California has until September 11th to file an appeal of Judge Walker’s ruling, both Schwarzenegger and Brown have stated they have no intention to do so.
Rick Jacobs, Founder and Chair of the Courage Campaign Institute called their lawsuit “the height of hypocrisy…frivolous and desperate” and released the following statement questioning why California taxpayers should be forced to defend a law which has already been declared to violate the United States Constitution:
COURAGE CAMPAIGN BLASTS EFFORT TO FORCE GOVERNOR AND ATTORNEY GENERAL TO DEFEND PROP. 8
Jacobs calls Conservative Groups’ lawsuit “the height of hypocrisy…frivolous and desperate”
LOS ANGELES: Earlier today, the conservative Pacific Justice Institute petitioned California’s 3rd District Court of Appeals to force Governor Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a Federal District Court ruling that declared California’s Proposition 8 unconstitutional.
Proponents of the law have pledged to appeal the District Court ruling—which found California’s ban against same-sex marriage to be a violation of the 14th Amendment to the U.S. Constitution—to the 9th Circuit Court of Appeals. Both Brown and Schwarzenegger have publicly declined to appeal the District Court ruling.
In response to today’s events, Courage Campaign Founder and Chairman Rick Jacobs has issued the following statement:
“With California laying off teachers, police and firefighters amidst an unprecedented budget crisis, it is the height of hypocrisy for so called ‘conservatives’ to demand that California taxpayers foot the bill to defend a discriminatory law that has already been declared unconstitutional in federal court. This frivolous action shows just how out of touch and desperate those who seek to limit the freedoms of loving American families have become.”
More updates to come as news develops…
UPDATE BY EDEN: Karen Ocamb has quotes from the Pacific Justice Institute, Lambda Legal and Equality California along with some incendiary footage from Right-Wing Watch:
In a blog on their website, PJI posits failure to uphold Prop 8 as a “constitutional crisis:”
“California is teetering on the precipice of a constitutional crisis. Former bodybuilder, turned Governor, Arnold Schwarzenegger, along with former Governor, turned Attorney General, Jerry Brown, are putting their shoulders down to push California’s voters over the cliff. With them, the state’s republican form of government will fall.”
Lambda Legal’s Legal Director Jon Davidson makes an excellent point about “judicial activism:”
“This latest, desperate move by antigay recognizes that, without an appeal by Gov. Schwarzenegger or Attorney General Jerry Brown, the Perry case may be over and Prop. 8 a relic of the past. It’s ironic that groups that regularly attack the judiciary are now asking judges to second guess the highest members of the state’s executive branch who correctly have decided that Prop. 8 so clearly violates the U.S. Constitution that it cannot in good faith be defended. Those officials swore to uphold the federal Constitution which, under our federal system of government, overrides state law.”
Equality California Executive Director Geoff Kors issued this statement in response to the PJI action:
“This is an outrageous attempt to try and force elected officials who have sworn to uphold the United States Constitution to defend a law that the Federal Court has found to be unconstitutional. It demonstrates their acknowledgement that the proponents of Proposition 8 lack standing to appeal, that the case should be dismissed and loving same-sex couples should be allowed to exercise their constitutional right to marry.”
by Brian Devine
State Attorney General Jerry Brown and Governor Arnold Schwarzenegger just filed papers asking Judge Walker to immediately enforce his decision declaring Proposition 8 unconstitutional and to allow equal marriages to resume in California right away.
The anti-equality backers of Prop 8 filed a motion with the Court asking it to hold off on enforcing (or “to stay”) its decision pending the appeal to the Court of Appeals. Judge Walker ordered that the Plaintiffs file their opposition to this motion today, and agreed to stay enforcement of his decision at least until he rules on this pending motion.
That both the Democratic Attorney General and the Republican Governor think that marriages should resume now shows that there is broad agreement that equality cannot wait for years of appeals. Sure, there are crazy outliers that think that we should continue to discriminate against same sex couples, but those people are far outside the mainstream of legal thought.
The jist of Jerry Brown’s argument is:
Defendant-Intervenors’ argument that the Attorney General’s opposition to Plaintiffs’ initial request for a preliminary injunction supports their request for a stay pending appeal ignores the fact that there has now been a trial on the merits that conclusively demonstrated that Proposition 8 is unconstitutional. In opposing the request for a preliminary injunction, the Attorney General argued that “the parties, the Court, and, indeed, the general public would benefit” from having the constitutionality of Proposition 8 “decided on the merits following full briefing and argument by the parties.” That has now occurred. And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this Court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional. Accordingly, the harm to the plaintiffs outweighs any harm to the state defendants.
Schwarzenegger’s agrument is similar to Brown’s. In essence, he argues that denying the stay and allowing marriages to resume will further the public interest by promoting equality for all:
[I]mplementing the Court’s order now, without further delay, serves the public interest. . . . California has long been committed to eliminating discrimination on the basis of sexual orientation and respecting the familial rights of same-sex couples. . . . The Court’s decision here is consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives. For that reason, California’s public interest is served by giving the Court’s judgment effect now.
The Plaintiffs (represented by Boies and Olson) have not yet filed their opposition to the Motion to Stay, but it will be filed wihin the next few hours.
UPDATE: Dean Logan, the LA County Registrar/Recorder/Clerk, says that he is preparing to start issuing licenses as soon as the stay is lifted:
“My office is definitely following all developments concerning the ruling and subsequent order to stay judgment. We plan to take immediate action to implement the court’s orders if the stay is lifted and judgment is entered. Operations wise the department is ready to issue same sex marriage licenses, our marriage license forms would not need to be altered and I have directed management staff to prepare for possible implementation.
We have received a number inquiries from members of the public regarding marriage licenses and also to volunteer as deputy commissioners of civil marriages. At this point we can only wait to see what action the court makes.”
West Hollywood officials are also preparing to start officiating marriages, as are other cities across the state. You can be sure that as soon as it is legally possible, San Francisco will be back in the act of marrying same-sex couples. Stay tuned for more updates if/when they come in on the stay.
UPDATE: The plaintiffs have now filed a motion opposing a stay.
From a statement released by the AFER:
Chad Griffin, Board President of the American Foundation for Equal Rights, issued the following statement today after the plaintiffs — and the Governor and Attorney General — opposed a stay of this week’s ruling in the Prop. 8 trial:
“The unconstitutionality of Proposition 8 has been proven beyond a doubt. Extending Prop. 8′s denial of fundamental constitutional rights represents a grave injustice. The time for the court’s ruling to go into effect is now. We welcome Governor Schwarzenegger’s and Attorney General Brown’s opposition to a stay after their thoughtful analysis of the evidence, the court’s ruling and the law.”
Their motion can be found here.
UPDATE BY EDEN: Karen Ocamb notices a wry wrinkle in the AFER motion:
Here is part of their argument, in which they cleverly quote from Protect Marriage witness David Blankenhorn:
“Whether Plaintiffs marry immediately or at a time of their choosing could not be less relevant; this Court’s ruling establishes that Proposition 8 is an unconstitutional barrier to the exercise of their constitutional right to marry, and that finding alone establishes the irreparable harm Plaintiffs would suffer if Proponents’ extraordinary request for relief were granted.
As citizens of a nation profoundly committed to the principle of equal rights, the public has a substantial interest in allowing Plaintiffs to engage in the fundamental right to marry to which they are entitled. “[A]ll citizens have a stake in upholding the Constitution” and have “concerns [that] are implicated when a constitutional right has been violated.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005). This Court’s judgment therefore advances the shared interest of all citizens in enforcing the Constitution’s guarantees and reinforces this “Nation’s basic commitment . . . to foster the dignity and well-being of all persons within its borders.” Goldberg v. Kelly, 397 U.S. 254, 264- 65 (1970). Suspending Plaintiffs’ constitutional rights at this point would, in the words of Proponents’ own witness, prevent this Nation from fulfilling the founding principle of “equal human dignity” and stop us from becoming “more American.” Doc #708 at 50 (quoting David Blankenhorn testimony and exhibits) (emphasis added).”
UPDATE BY EDEN: Kathleen in the comments has been an amazing resource for Trial Trackers looking for credible and timely information on the legal process. Often, she’s ahead of us in posting news and providing analysis in the comments. Check out the thread on this post as yet another example.
Speaking of extremely helpful experts in our movement, check out the“What the Temporary Stay in the Prop 8 Case Means” FAQ that Shannon Minter, from the National Center for Lesbian Rights, just sent us. For everyone who wants to understand the legal lay of the land right now, it’s a good short primer. Here are the money grafs:
Judge Walker can decide whether to stay the decision for longer at any time. If he grants the motion to stay, same-sex couples will not be able to marry in California until after the appeal is finished. The Judge can also delay the decision for a short time until the Ninth Circuit appeals court decides whether they will order a stay.
If Judge Walker denies the stay and permits his decision to take immediate effect, the Yes on 8 proponents can ask the Ninth Circuit appeals court to order an emergency stay.
By Julia Rosen
The hour by hour schedule for June 16th, the day of closing arguments in Perry v. Schwarzenegger have been released. It is a full day and Walker will doing his best to keep the trains running on time. That said, we have to expect that he will interject and ask questions, which could throw off this schedule. (via LGBT POV)
10:00 AM – 11:30 AM Plaintiffs (argued by Ted Olson and David Boies)
11:30 AM – 11:45 AM City and County of San Francisco
11:45 AM – 12:00 PM Governor, Attorney General and county defendants
12:00 PM – 1:00 PM Lunch
1:00 PM – 3:15 PM Proponents (argued by Charles Cooper)
3:15 PM – 3:45 PM Plaintiffs’ rebuttal
By Julia Rosen
This is bizarre, yet somehow unsurprising. David Blankenhorn, star witness for the defense, who was dismantled by Boies on the stand penned a letter-to-the-editor, kvetching about being tied to George Rekers. Blankenhorn swore that he cross his heart, hope to die, never read any of Rekers’ works.
My expert report to the court — which was written entirely by me, includes a list of scholarly sources and is available for anyone to read — includes no mention of Mr. Rekers. And for good reason: I have never met Mr. Rekers or read any of his writings. I recently learned that a separate, lawyer-generated document submitted to the court apparently does list an article by Mr. Rekers in connection with my testimony, but that document, on this point, is in error.
In a letter published on May 25, I incorrectly stated that I have never read anything written by the conservative minister George Rekers. In fact, in preparing for my report and deposition in the California Proposition 8 trial, I read one report to the court on a previous California marriage case written by Mr. Rekers, as well as a report to the same court taking a position opposed to Mr. Rekers’s.
Whoopsies…forgot all about that didn’t you. Did you also forget about submitting that article by Rekers to the court? Or are you still trying to blame that on the lawyers?
Too bad Boies doesn’t get to have another go at him on the stand. That would have been entertaining.
This won’t effect the trial at all, just Blankenhorn’s already diminished reputation. And it leaves one question: why did Blankenhorn feel so compelled to send this correction to the New York Times?
by Brian Leubitz
David Boies and Ted Olson made an appearance in New York this week, saying that they are optimistic about the disposition of the Prop 8 lawsuit. They pointed out the strength of their own case, and the weakness of the Prop 8 supporter’s case.
“I have yet to hear any powerful argument on the other side,” Olson said, suggesting that Prop 8’s defenders quite nearly defaulted in mounting any counter-case.
“They had no evidence and we had all this,” Boies said, pointing to his side’s success at proving what it set out to. (GayCityNews)
Of course, there’s one issue that seems to be troubling people. If they think they can get 5 votes for marriage equality, what’s up with the televising decision? After all, if you recall how ridiculous that decision was, and the scathing dissent pointing out just how extraordinary the ruling was, you might think that it wasn’t really about TV as much as it was about marriage equality. But Boies and Olson want to direct that question to the longstanding resistance of cameras in the courtroom by the Supreme Court.
Boies and Olson were having none of it. The Supreme Court, Olson said, has an allergy to cameras in federal courts, and was unwilling to allow them to get their nose under the tent in District Court Judge Vaughn Walker’s unprecedented plan for a video feed –– notwithstanding the Ninth Circuit’s approval of it.
In fact, cameras, though routine in many state courts, have made little headway in federal courts, so Walker’s plan was a break with tradition.
But, Liptak noted, the 5-4 majority –– split along the usual ideological lines, with Justice Anthony Kennedy, a swing vote on several gay rights victories, this time siding with the conservatives –– also gave credence to the Prop 8 supporters’ arguments that their privacy and even their well-being would be threatened by broadcasting their testimony.
This, of course, of course, is the problem. Why did the Court buy the “privacy” argument, when, as Boies points out, their witnesses were people that sought out publicity. They were people who spoke to conferences and at press events. The difference was that they were scared of being cross-examined and exposed by David Boies. Yet, despite the fact that these people have no problem appearing on television at the Heritage Foundation, the Supremes bought the “fear” argument, hook, line and sinker.
The question is then was this about cameras or was it about marriage itself. Frankly, we won’t have an answer to that question for several years. But Boies and Olson believe they have built a solid record that will stand up well through all levels of appeal.
“Every person in America should see this, and we would end this now,” Ted Olson, one of two superstar attorneys challenging California’s Proposition 8 said of the case he and fellow litigator David Boies have mounted in a San Francisco federal court.
Let’s hope they are right.
UPDATE: Towleroad has an interview with the pair. They weigh in on the question of Judge Walker’s sexuality (doesn’t matter), whether the Court will lead (Boies thinks so), and cameras in the courtroom (Olson thinks it’s more about the anonymity of the Justices). All in all, they seem pretty positive right now. Check out the video, it’s worth your ten minutes.
By guest poster Jasmine Beach-Ferrara
Director, The Progressive Project
Last Wednesday, The Progressive Project (TPP) and COLAGE filed an amicus curiae brief in support of the plaintiffs in Perry v. Schwarzenegger. Our brief focuses on the harm that occurs to children of same-sex couples when marriage equality is banned.
Ideally, parents wish to protect their children from violence and prejudice and will look to their extended communities, including schools, places of worship, and government, for such protections. The California constitution, however, perpetuates stigma and discrimination against children of gay men and lesbians and their families.
Lesbian and gay couples create families and lead their lives with joy, love and support despite discriminatory marriage laws and the stigma and prejudice they experience. Such resilience is a survival strategy, but it is not an adequate solution to prejudicial treatment.
Beyond the notion that children are not harmed by being raised by gay or lesbian parents, our brief argues that they are in fact harmed by discriminatory laws. Prop 8 and similar marriage bans in other states cause financial, legal, and psychosocial harm to children, a conclusion that is supported by medical research, social science research, the experiences of children whose families are headed by same-sex couples, and the teachings of faith traditions that recognize the right of same-sex couples to marry and honor the sanctity of the families they form.
Key findings include:
The campaign to pass Prop 8 subjected the families of same-sex couples to political attacks that questioned the legitimacy of their family bonds. Heightened stigmatization occurs during campaigns to pass measures like Prop 8, and lesbian and gay people experience an increased level of psychological distress when a marriage ban has recently passed in their state. Researchers have found that lesbian and gay people respond to campaigns to restrict civil rights with feelings of shock, fear, anger, sadness, shame and negative feelings about themselves. While research has not been completed on the subject, advocates report that the children of same-sex couples have similar responses, particularly during earlier developmental stages. During and after the campaign to pass Prop 8, the young children of same-sex couples consistently reported fears that their families would be ‘torn apart’ and that their parents would be forced to separate. Children have asked their same-sex parents: ‘are they going to take me away from you?
Marriage has incontrovertibly been proven to have beneficial effects on family stability. Same-sex families demonstrate less financial stability, a trend that is traced to factors such as unequal treatment in the workplace and denial of the right to marry. Studies show that poverty rates for children of same-sex couples are twice as high as poverty rates for children of married couples . . . There is good reason to think that access to the institution of marriage will enable the families of same-sex couples to achieve greater financial stability, which is in the best interest of children.