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Filed under: Supreme Court

‘It feels different’: The Prop 8 plaintiffs talk winning, wedding and what comes next

EqualityOnTrial caught up with Jeff Zarrillo and Paul Katami, two of the plaintiffs in the Proposition 8 case to return marriage equality to California, one month after their historic Supreme Court win. The couple talked about their wedding and what they look forward to both in their lives and for the LGBT community at large. At the center of the conversation was one simple theme: it was bigger than us.

Continue 1 Comment August 6, 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

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

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!

1 Comment June 26, 2013

BREAKING: Prop 8 proponents did not have standing to defend law, Supreme Court rules

By Jacob Combs, Scottie Thomaston and Adam Bink

The big news continues: The Supreme Court has ruled that the official ballot proponents of Prop 8 did not have standing to defend the law in Court.  That means the Court did not rule on the law’s constitutionality, and instead sent the case back to the Ninth Circuit to dismiss the appeal for lack of standing.  District Court judge Vaughn Walker’s ruling will thus be the final say in the Perry case.

Here’s the money quote from the opinion in Hollingsworth v. Perry:

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.

And again, from Kathleen, a Scribd embed of the opinion:

This is a breaking news post.  For further updates and reactions, follow us on our Supreme Court decision day liveblog.

4 Comments June 26, 2013

Liveblog: Supreme Court rulings on DOMA, Prop 8

By Jacob Combs, Scottie Thomaston and Adam Bink

Update 16 (12:01 p.m.): A few other news items that have straggled in.

The president released a statement on the DOMA ruling:

I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.

In addition, the Los Angeles County Registrar-Recorder/County Clerk issued the following press release on the Prop 8 ruling and the effect in California/L.A.:

Upon dismissal of Prop 8, the matter has been sent back to the lower Appellate Court where the decision overturning Proposition 8 was issued. The lower court must now take action to lift the stay before we can issue marriage licenses based on the decision.

No change in the issuance of marriage licenses can occur until further notice. Upon direction, the Los Angeles County Registrar-Recorder/County Clerk will begin issuing licenses and performing ceremonies for same-sex couples.

“We do not foresee any delays or interruption in service for our customers. We are prepared to accommodate any potential volume increases,” said Dean Logan, the Los Angeles County Registrar-Recorder/County Clerk.

Update 15 (11:23 a.m.): OK, last update right now for real.  Check out two amazing photos of Edie Windsor finding out that she won today, via the New Yorker.  Truly heart-warming.

Update 14 (11:20 a.m.): Scottie and Jacob are going to go into deep decision-reading mode now.  Long story short: DOMA is gone, Prop 8 will be too, but there are going to be some intermediate steps and things to figure out as the decisions are implemented.  Of course, we’ll be here for the ride with you!

Make sure to check back around 10:30 a.m. Pacific/1:30 p.m. Eastern for our CoveritLive event.

Update 13 (11:14 a.m.): Adam Liptak of the New York Times writes about the path forward for same-sex couples post-DOMA:

The decision will immediately extend some federal benefits to same-sex couples, but it will also raise a series of major decisions for the Obama administration about how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

Update 12 (11:12 a.m.): A tweet from Senior Advisor to the President Dan Pfeiffer:

Update 11 (11:10 a.m.): A few notes on what could be next.  There’s a roughly one-month waiting period before the Supreme Court’s decision can be final.  When that happens, there will likely be some controversy about the scope of Walker’s ruling (aka, whether it should apply to the whole state or just to the counties the two couples live in or the couples themselves).  Most observers think the final result will be state-wide marriage equality.  But there could be some bumps along the way.

Update 10 (11:07 a.m.): Here’s what that Prop 8 ruling means.  Since the Court said the proponents had no standing to appeal, the entire process at the Ninth Circuit was essentially moot.  The Supreme Court vacated the Ninth Circuit’s decision, remanded the case to the circuit court, and instructed it to dismiss the appeal for lack of standing.  This means Judge Walker’s ruling striking down Prop 8 will be the final say in the case.

Update 9 (11:04 a.m.): Sorry about the technical difficulties, folks!  We’re back now, and we have the Prop 8 decision.  The Court rules that the proponents did NOT have standing to defend the law in federal court.

Update 8 (10:14 a.m.): Per SCOTUSblog: Scalia’s bench statement is long, could be a delay before we hear the Prop 8 decision.

Update 7 (10:11 a.m.): SCOTUSblog says there is language intimating Court will dismiss Prop 8 on standing.  From the Roberts dissent:

“We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry.”

Update 6 (10:10 a.m.): SCOTUSblog reports that Roberts and Scalia write that the Court does not have jurisdiction.  Roberts writes separately.  Here’s a choice quote from Scalia’s dissent:

“both spring from the same diseased root: an exalted notion of the role of this court in American democratic society.”

Update 5 (10:08 a.m.): From the ruling:

The majority opinion need not get into the strict-vs.- rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is un- constitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty pro- tected by the Fifth Amendment,” ante, at 19.

So no heightened scrutiny, but also no mandate to lower courts to use rational basis scrutiny.

Update 4 (10:05 a.m.): SCOTUSblog says the ruling also relies in part on federalism.  Here’s the link to the opinion.

Update 3 (10:04 a.m.): This is an equal protection based ruling, which is BIG.  The question now is–what was the standard of review used.  Rational basis?  Or heightened scrutiny?

Update 2 (10:03 a.m. Eastern): From SCOTUSblog: “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

Update 1 (10:02 a.m. Eastern): The first ruling is on DOMA, per SCOTUSblog.  The ruling is 5-4, written by Justice Anthony Kennedy.  Chief Justice John Roberts dissents, along with Justice Scalia.  The ruling is based on equal protection.

ORIGINAL POST (9:55 a.m. Eastern): In just a few minutes, the U.S. Supreme Court will convene to issue rulings in the final cases of its current term, including the challenges to Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (U.S. v. Windsor).  We’ll be covering the decisions live in this post as they’re handed down, with updates scrolling from the top of the post.  We’ll also publish brief, breaking news posts as the rulings are handed down in each case, since we expect there to be a short wait between the two.  If you’ve already joined us, though, stay on this page for immediate analysis and reactions from across the web.

Later today, we’ll be conducting a CoverItLive chat to answer all your questions about the rulings–stay tuned for firmer details on that, which will take place late morning Pacific time/early afternoon Eastern.  After the CoverItLive chat, Scottie and I will write in-depth analysis of the two rulings.

If the details of the two cases have become fuzzy to you, fear not!  Our own Scottie Thomaston has a quick overview on the background of the legal challenges.

The Prop 8 and DOMA cases: a primer

In the Prop 8 case, Hollingsworth v. Perry, the plaintiffs are challenging California’s ban on marriage equality, 2008′s voter-enacted Proposition 8. The state’s supreme court had earlier decided that under California’s constitution, a ban on same-sex marriage is unconstitutional; Prop 8 amended the state constitution. The question is whether, under the federal constitution, they can do this. There is an additional question over appellate standing. The state government answered the original complaint at the district court, but did not want to defend the law; the district court allowed the ballot initiative’s proponents, ProtectMarriage, to defend the law. When the plaintiffs won, the state declined to appeal the decision, but the proponents appealed. The Ninth Circuit sent the case to the state supreme court to decide whether ballot initiative proponents can represent the state’s interests in court, and the state constitution said they can.

With that ruling in mind, the Ninth Circuit said that since the state allows proponents of ballot initiatives to step into the shoes of the state, there is standing in federal court to appeal, since the state is injured. The plaintiffs believe there is no standing here, because the Court itself has expressed “grave doubts” on the issue in a previous case, Arizonans for Official English v. Arizona. The proponents of ballot initiatives don’t have a personal injury or stake in enforcing Prop 8, and the plaintiffs believe the proponents’ interests are too general. The Court asked the parties to brief and argue the standing issue, and it was discussed first at the arguments in March.

The Court has once before been faced with the issue of marriage equality. They were asked to resolve a procedural case about same-sex marriage in Washington DC, and their opinion could have had the effect of holding off on allowing marriages in DC and putting the issue up to a public vote before anyone could enter into a same-sex marriage. Chief Justice Roberts issued a decision saying this could not happen. The Court, to be sure, didn’t address the merits in that case at all – it was strictly procedural. But the result had the effect of allowing same-sex couples to marry through, essentially, the Court’s inaction.

The challenge to Section 3 of the Defense of Marriage Act (DOMA) that the Court chose to review, United States v. Windsor, was brought by Edith “Edie” Windsor. Windsor is 83, and her spouse and partner of over 40 years died in 2009 (they were married in Canada in 2007 and lived together in New York.) Because of Section 3 of DOMA, all federal laws that use the word “spouse” or the word “marriage” refer only to opposite-sex married couples, meaning that the federal government does not recognize legally married same-sex couples as married. When Windsor’s wife died, the government sent her a tax bill for $363,000; the bill was for estate taxes, which the surviving spouse of a deceased person is not usually required to pay under federal law. Windsor, however, is not a surviving spouse under federal law because she is not a spouse at all under DOMA. The lawsuit challenged Section 3 of DOMA as a violation of equal protection principles established in the Fifth Amendment.

Another question the Justices added was about their own jurisdiction to take up the challenge to Section 3 of DOMA. This is an important question which came up because the President and the Justice Department declined to defend the Act in court, leaving it to Congress to defend. (There is a provision of federal law which lays out the procedures for when the Executive Branch believes a law is unconstitutional and declines to defend it, and when Congress was informed as per the provision, they decided to take it up.) The Justice Department stayed on the case as a party, and continued to file appeals and procedural motions in the case, as well as motions actively attacking the Act’s constitutionality. They filed a petition to the Court to review the case, along with the plaintiff’s lawyers. The Justice Department agrees with Windsor that the law is unconstitutional, and she won in the courts below (the district court and the Second Circuit Court of Appeals.)

Because of this, the Court asked whether they can take up a petition filed by a party who got what it wanted in the lower court. The Justice Department says they can, because as a representative of the Executive Branch, the Justice Department filed the petition on the basis that although the Executive agrees the law is unconstitutional, they are “injured”, legally, by a decision against them in the appeals court, which blocked them from complying with the federal law. The Court can decide, definitively, whether or not the Executive has to abide by Section 3 of DOMA.

Congress, through the Bipartisan Legal Advisory Group (BLAG), a five-person legal advisory group that is a part of the House of Representatives, defended the law and opposed the Justice Department’s involvement. They also argued that Windsor may not herself have standing to appear in court because there was no definitive decision by the highest New York court saying that they would have recognized her Canadian marriage; this issue was only briefly mentioned at the Supreme Court, after the lower courts disagreed with BLAG. But there is a similar issue with BLAG itself: the Court asked the parties to brief and argue whether BLAG has standing to appear in federal court as a five-member advisory group of one house of Congress. (Also, only three of the five members, the three Republicans, voted to allow BLAG to defend DOMA, though all five believe there is standing.) The standing issues are significant questions the Court has not addressed in a definitive way.

This is a developing story.  Check back for regular updates, which will scroll from the top of this post.

2 Comments June 26, 2013

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