Filed under: Trial analysis
By Matt Baume
Hi, I’m Matt Baume from the American Foundation for Equal Rights, and welcome to special edition of Marriage News Watch. I’m up at the Russian River for thanksgiving right now, but there’s been some marriage equality news so let’s do a nice quick update so we can be back to eating.
We’re closer than ever to the next Prop 8 decision. The case has been working its way through the courts in little bits and pieces, but this week the ninth circuit court of appeals consolidated some of those pieces. Our next hearing is in ten days, on December 8 at 2:30pm. We’ll be discussing the release of the tapes of the trial, and then we could have a ruling on the entire appeal anytime thereafter.
The other Prop 8 news this week is an announcement from AFER about the LA debut of Dustin Lance Black’s play, “8,” based on the transcripts of the trial. After its huge premier on Broadway in September, the show will have an LA premier on March 3 at the Wilshire Ebell Theater with an all star cast. Casting and ticket info will be coming out soon.
And in Spain, the conservative Popular Party won big in national elections. Party leaders have vowed to repeal the country’s marriage equality law, so now Spanish LGBTs are rushing to marry before lawmakers have a chance to make good on their threats.
Hope you had a great thanksgiving — and we’ll see you next week.
By Matt Baume
Get ready for a busy holiday season with a slew of activity in the Prop 8 case. Washington and New Jersey ramp up their marriage campaigns, with good news possibly coming before the end of the year. And homosexuals account for half of all murders, according to guy who makes things up.
Well the big news last week was the renewed momentum in the Prop 8 case. It’s been over a year since the Court declared Prop 8 unconstitutional, and we’ve had to endure a lot of delays before marriages can start back up again. But now we’re facing a flurry of docket activity, hearings, and decisions. It’s a really exciting time, since the case is finally moving forward on the merits.
The ruling last week means that the Proponents have standing to go back to court. But court hasn’t worked out so well for them in the past — they could not have lost the first round of the Prop 8 case more resoundingly. If they want to go again, fine: we’ll be seeing at the 9th Circuit in less than 3 weeks, on December 8 at 2:30pm.
They’ve spent the last year throwing out every distraction they can think of, from gay judges to videotapes to standing, but now they’re finally running out of excuses. On December 8th they may have to talk about the merits of their case — and that’s the last thing they want, because they know their case doesn’t have any merits.
While the anticipation builds in California, a campaign to pass a marriage bill in the legislature is ramping up in Washington state. Visit WashingtonUnitedForMarriage.org to learn more about the coalition pushing the bill. In the last week, they’ve hosted a series of community meetings in Puyallup, Lakewood, Vancouver, Gig Harbor, and Seattle; and this week they’ll be meeting in Bellevue, Richland, Spokane, and Bellingham. It’s all part of a buildup to an intense lobbying effort that’ll target state lawmakers during the 2012 legislative session.
The momentum continues in New Jersey, where Deputy Assembly Majority Leader Reed Gusciora voiced his support for introducing a marriage equality bill before the end of the year. Despite a veto threat from governor Chris Christie, Gusciora claims to have bipartisan support for the measure in the lame duck session.
It’s a bit of a flashback to 2009, when outgoing legislators — including Governor Jon Corzine — were rumored to be working on a lame-duck marriage bill. That effort never materialized, leaving voters feeling disenchanted and betrayed. We’ll find out in the next month if we’ll see a repeat of that failure. It was five years ago that the state Supreme Court ruled that LGBT couples deserve equal treatment under the law, and we’re still waiting.
And finally this week, Oklahoma City has added sexual orientation to its nondiscrimination policy, but not before this guy testified to the city council about why they shouldn’t:
“Judge John Martaugh, Chief Judge Magistrate of the New York City criminal courts, stated, ‘homosexuals account for half the murders in large cities.’”
Oh, neat. Half? That’s a lot. Good thing that statistic is made up. As is “Judge John Martaugh,” who doesn’t exist. If you mean Judge John Murtagh, yes, that’s a real person and he might have said that … sixty years ago, when he was alive and an “anti-pervert” crusader. Judge Murtagh’s son, by the way, also named John, is active in politics to this day. He’s a Councilman in Yonkers, a Republican who supports the freedom to marry.
Those are the headlines, visit us over at MarriageNewsWatch.com for more on all these stories and more. And visit AFER.org to follow the federal case to overturn Prop 8. I’m Matt Baume, see you next week.
Guest post: California Supreme Court Decision Makes the Initiative Process More Dangerous For Minorities, But The Prop 8 Case Is Back On Track
Please welcome Shannon Minter and Christopher Stoll back to Prop8TrialTracker.com for a guest post breaking down yesterday’s California Supreme Court decision. Shannon Minter is the Legal Director for the National Center for Lesbian Rights; and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights. -Adam
By Shannon Minter and Christopher Stoll
Yesterday the California Supreme Court issued its long-awaited decision in Perry v. Brown, the federal court challenge to Proposition 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California. The court ruled that California law gives the official sponsors of Prop 8 the authority to “represent the interests of the state” and to appeal a federal court decision striking it down—even though the state’s official representatives have decided not to appeal. The decision is unprecedented and will undoubtedly have damaging repercussions for the state for years to come. But as disappointing as the ruling was, it clears the way for the federal courts to move forward and decide the fate of Prop 8.
What the California Supreme Court Held
In August 2010, Chief U.S. District Judge Vaughn R. Walker ruled that Prop 8 is unconstitutional. Although the California Attorney General and Governor declined to appeal, the official sponsors of Prop 8 did so immediately. In a prior case addressing this situation, the U.S. Supreme Court had said that initiative sponsors cannot appeal unless state law specifically authorizes them to do so. To resolve that question, the Ninth Circuit asked the California Supreme Court to determine whether California law gives initiative proponents the power to represent the interests of the state and bring an appeal even when the official state representatives have declined to do so.
Yesterday, the California Supreme Court said the answer is yes. The court held that when state officials decide not to defend a ballot measure’s constitutionality, the individuals who put the initiative on the ballot have a right “to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure.” The Court derived this newly identified right from “the nature and purpose of the initiative process” and “the unique role of initiative proponents in the constitutional initiative process.”
Why the California Supreme Court’s Decision Was Wrong
The Court’s decision gives initiative proponents sweeping power and disregards the limitations imposed on the initiative process by the California Constitution. The California Constitution gives voters legislative power—specifically, the power to propose and vote on initiatives. But nothing in our Constitution or statutes allows voters to wield the power of the executive branch, which is responsible for enforcing and defending state law. Rather than respecting the constitutional limits on the initiative process, the Court’s decision wrongly transforms the initiative process into a free-floating super power that disregards the traditional checks and balances that are essential to any healthy democracy. This is dangerous for all Californians, but it is particularly damaging for groups that are vulnerable to bias and discrimination.
Before yesterday’s decision, executive branch officials had the final authority to decide whether to appeal a federal court decision invalidating a state law. For example, in Reitman v. Mulkey. 387 U.S. 369 (1967), the California Attorney General refused to defend a state constitutional amendment—enacted by initiative—that repealed existing protections against race discrimination in housing. Recognizing that the measure was indefensible, the California Attorney General submitted an amicus brief to the United States Supreme Court arguing that the amendment violated the Fourteenth Amendment guarantee of equal protection because it amounted to an official endorsement of discrimination based on race. Similarly, in 1999, Governor Gray Davis dismissed the state’s appeal of a Los Angeles federal district court decision striking down most of Proposition 187, an initiative that excluded immigrants from a wide range of state benefits and protections. Davis decided instead to settle the case through mediation. While rare, such decisions are well within the broad discretion given to the executive branch under our state Constitution and serve an important function in safeguarding minority rights.
After yesterday’s ruling by the California Supreme Court, the state’s elected officials no longer have the power to make those important decisions to protect minorities improperly targeted by the initiative process. Instead, that power now resides with the handful of private individuals who typically sponsor an initiative for the ballot—people who are unelected and unaccountable to voters, and who have no obligation to take the interests of the state as a whole or the protection of the state’s minorities into account.
What This Means for The Perry Case
The case will now head back to the Ninth Circuit, which may ask the parties to submit additional briefs discussing how they think yesterday’s decision affects the case. After that, the Ninth Circuit might schedule additional oral arguments, or it might go ahead and issue its opinion. The court will likely want to get a decision out fairly quickly, since the appeal has now been pending for over a year.
The Ninth Circuit panel will have to decide two issues: whether the Prop 8 Proponents have standing to prosecute the appeal in light of the California Supreme Court’s decision, and if so, whether to uphold Chief Judge Walker’s August 2010 decision. The Proponents’ standing to bring an appeal in federal court ultimately is an issue of federal law, and the Ninth Circuit could still decide that they don’t have standing despite yesterday’s decision. But since the California courts have now issued a clear statement that state law authorizes initiative proponents to represent the state’s interests and bring an appeal, it’s likely that the Ninth Circuit will conclude that this state-law right is sufficient to allow Prop 8’s supporters to appeal.
If that happens, the Ninth Circuit will address the heart of the case: whether Prop 8 is unconstitutional. There are good reasons to be optimistic that the Ninth Circuit panel will uphold Chief Judge Walker’s meticulous August 2010 opinion. As that landmark decision showed in vivid detail, Prop 8 is blatantly unconstitutional for a host of reasons.
Prop 8 is unique and unprecedented. No other ballot initiative has stripped away an existing fundamental right from a targeted group and deliberately inscribed inequality into the California Constitution, and it was passed through a campaign that appealed to fear, prejudice and stereotypes. Prop 8 relegates same-sex couples to the second-class status of domestic partners—a category that serves no purpose other than to mark them as unequal and deny them the universally understood and celebrated status of married spouses. As the U.S. Supreme Court’s 1996 decision in Romer v. Evans held, laws like Prop 8 that serve no purpose other than to mark lesbian and gay people as unequal violate the Constitution’s Equal Protection Clause in the most literal sense.
After the Ninth Circuit panel issues its decision, the losing party will have to decide whether to immediately ask the Supreme Court to review the case, or whether to first ask a larger panel of Ninth Circuit judges to review the case. It’s too early to tell how likely it is that the Supreme Court will take the case—that might depend on exactly what the Ninth Circuit says in its decision. If the case does end up in the Supreme Court, it’s unlikely that the Court would hear the case any earlier than the fall of 2012, and probably would not issue any decision until 2013.
The Senate Judiciary Committee has voted to repeal the anti-gay Defense of Marriage Act. Now it moves to a Senate that’s hostile to marriage equality — but that’s actually okay.
On one side: ten Senate co-sponsors of the Respect for Marriage Act. Patrick Leahy of Vermont, Herb Kohl of Wisconsin, Dianne Feinstein of California, Chuck Schumer of New York, Dick Durbin of Illinois, Sheldon Whitehouse of Rhode Island, Amy Klobuchar of Minnesota, Al Franken of Minnesota, Christopher Coons of Delaware, and Dick Blumenthal of Connecticut.
On the other side: eight opponents of marriage equality. That’s Chuck Grassley of Iowa, Orrin Hatch of Utah, Jon Kyl of Arizona, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Michael Lee of Utah, and Tom Coburn of Oklahoma.
Right now the case against DOMA is racing through all three branches of government. This latest advance is in the Legislative branch, but the Executive branch also stands against DOMA, and there’s a slew of cases working their way through federal courts.
Meanwhile, although AFER’s case, Perry v. Brown. concerns Prop 8 instead of DOMA, the arguments are similar: marriage discrimination violates the Constitution of the United States, whether it’s DOMA or whether it’s Proposition 8.
Orrin Hatch may have had the hearing’s strangest argument — he claimed that DOMA protects states’ rights. But no. Look at the law. DOMA has 3 parts. Part 1′s just the name. Part 2 prevents LGBT couples from moving their marriage from one state to another — so if you’re married in Iowa and you move to Utah, your marriage evaporates and there’s nothing Iowa can do to protect you. And Part 3 is even worse: it changed the federal definition of marriage, forcing federal agencies to ignore marriages. So even if you’re married in Iowa and you stay in Iowa, every single federal agency will work to undermine that marriage.
That’s why this state-by-state patchwork of marriage laws is so unfair. You’re married over here, you’re not over there, you’ve got to fill out four different sets of taxes, the YMCA can tell that you’re married but the IRS can’t. This is why full federal marriage equality is the only solution.
Senator Whitehouse put it best. He said that his constituents in Rhode Island are “prejudiced needlessly under this law. … We owe them better. We should treat [their] commitment with respect.”
And Senator Franken was even more succinct. “DOMA hurts families.”
The 10-to-8 victory for the Respect for Marriage Act means it now moves to the full Senate, where it has the support of 31 Senators. It’s pretty unlikely that it’ll be brought up for a vote anytime soon, but that’s fine — it gives time for support to grow in Congress.
Meanwhile, our case continues its expedited progress through the federal courts. Ari Ezra Waldman had a great piece on Towleroad this week about why we get more strength from legal arguments than from popular elections. Remember the misleading ads in California? Our opponents spent millions to trick Californians into thinking that Prop 8 had something to do with protecting marriage.
But when they’re in court, they’re under oath, and “limited by the compulsion to tell the truth.” And that’s why they’re trying to hide. They want to hide their names. They want to hide their arguments. They want to hide the tapes of the trial … because they know they have no case.
And if the country had voted on interracial marriage, it wouldn’t have been legal until the 1990s. It was a visionary Supreme Court that ruled in Loving v. Virginia that marriage is one of the “basic civil rights of man,” and that marriage bans are “subversive to the principle of equality at the heart of the Fourteenth Amendment.”
In fact, the Supreme Court has ruled 14 times that marriage is a fundamental American freedom. And soon, we’re going to make that 15 times. See you in court.
By Adam Bink
A collection of coverage and responses (some via e-mail):
Shannon Minter of the Nat’l Center for Lesbian Rights, who along with his colleague Chris Stoll previously stopped by to answer Prop 8 legal questions from the Prop8TrialTracker community (you can find the transcripts here and here, they are incredibly informative if you have legal questions about where the case heads from here), and who argued the original In re marriage cases before the CA Supreme Court, wrote:
I was concerned by the tenor of many of the justices’ questions today. The court has a responsibility to enforce the California Constitution, which gives elected state officials—not private initiative sponsors—the authority to decide whether to appeal a federal court decision invalidating a state law. Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures. Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy. I was disappointed that, with some notable exceptions, too many of the court’s questions today did not address the specific legal questions before them, but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to “the people.” The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution. I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.
NCLR’s Kate Kendell also commented:
It would be an unthinkable blow to California’s democratic system of government if the handful of individuals who sponsored Prop 8 could make decisions for the entire state. Today’s arguments raised critical questions affecting the future of all groups who may be targeted by unconstitutional ballot initiatives, and the California Supreme Court’s decision will determine whether our state can be held hostage by special interests with no accountability to the public. We are hopeful that the Court will affirm that a handful of private citizens representing only their own narrow interests cannot usurp the role of the duly elected officials of the state of California.
Maura Dolan of the LA Times opines that the court leaned towards giving standing to the proponents.
The Advocate looks at Olson’s comments after the hearing.
Ari Ezra Waldman does some summary and Q&A.
Any other interesting takes you’ve found?
Update: Archived video of today’s hearing can be found here.
Please welcome frequent P8TT legal analyst Brian Leubitz of Calitics.com for some thoughts on yesterday’s hearings -Adam
By Brian Leubitz
I suppose I shouldn’t be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this. No, I’m not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren’t all that bad. Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.
I was unable to make it to the courthouse like I had hoped to yesterday, but thanks to both Arisha and Rick at P8TT and the good folks on the AFER twitter feed, I was able to keep pretty good tabs on the argument. And as I was reading them, on both the video and the motion to vacate, one idea came to mind:
Before the hearing yesterday, if you asked most any attorney of note, bringing up the old “he’s gay!” argument was something of a sign of discomfort with the way they put on the original case. Pugno and friends essentially acknowledged that perhaps they could have done it better.
If you look at it legally, they still have a lot of appellate options remaining. And much of the case boils down to “questions of law” to which appellate courts review de novo, that is they look at them completely fresh. Judge Walker’s determinations are essentially given no deference there. However, Judge Walker also listed a slew of “findings of fact.” These are not reviewed fresh, but are only overturned if they are “clearly erroneous.” (I’ll leave the question about whether those are really findings of fact for another day.)
So, if you take that his findings of fact are really that, then sure, you’d really, really want a new trial. But there are several very important questions of law that much of the case turns upon in Judge Walker’s decision. Those are reviewed fresh, and Team Prop 8 doesn’t seem to like their hand on that one.
So, they brought this motion to vacate, hoping to get a do-over for that rancid lemonade they made last year. Who knows what their rationale was, but it all stunk of desperation.
Judge Ware’s questioning cut right to the heart of the issue. What is a judge really obligated to disclose, and what are they allowed to take upon themselves to determine their own bias (or lack thereof)? Judge Ware brought up a series of hypotheticals that really put the lie to the Prop 8 team’s argument. I’ll let you go back to the live-blogging yesterday morning to catch those, but suffice it to say, Mr. Cooper was not in an enviable position.
Surely the Prop 8 attorneys thought this through enough to figure out that this wasn’t going anywhere. After all, vacating that decision would have had profound impacts on cases going far beyond the issue of LGBT rights. It was, at best, a long shot. But perhaps a long shot with rewards that were worth the risk for them.
In theory, perception shouldn’t really make a difference in a legal proceeding. That is extraneous, and shouldn’t be taken into account by the jurists reviewing the case. And I have confidence in our judiciary that it won’t be. But, I’m pretty sure if you were able to ask the participants in the Scopes Monkey Trial if perception matters, you would get a very different response. In cases of historical import, perception matters, and I can’t imagine that yesterday did anything for those who wish to hold back the arc of history as it wends its way toward justice.