Filed under: Prop 8
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.
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:
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.
Live Q&A on the Supreme Court’s Prop 8 and DOMA decisions featuring attorneys Shannon Minter and Chris Stoll from NCLR
By Scottie Thomaston, Jacob Combs, and Adam Bink
1:06ET: We will be opening the chat about 10 minutes before it starts, which is in about ten minutes from now. Until then, the chat feature will remain closed. Hope to see you all there soon!
Attorneys Shannon Minter and Chris Stoll from the Nation Center for Lesbian Rights (NCLR) join us here today for a live chat on the Supreme Court’s decisions in the challenges to Section 3 of the federal Defense of Marriage Act and California’s Prop 8. They have graciously agreed to be around to answer all questions you may have on what the Court said about marriage equality and federal recognition of same-sex couples. Readers can post your questions into the chat (you won’t need an account) and we will moderate the discussion, posting questions there for Shannon and Chris to answer.
EqualityOnTrial will have more in depth coverage later today on the marriage cases after the live discussion ends. Stay tuned!
By Jacob Combs
Well, today’s the day: after more than three roller-coaster years, it all comes down to this. This site began as Prop8TrialTracker.com in January 2010, covering the Proposition 8 trial–then called Perry v. Schwarzenegger–in a San Francisco district court. We were there when Prop 8 was struck down the first time; we were there when the Ninth Circuit held oral arguments; we were there when Prop 8 was struck down a second time; we were there when the Supreme Court heard arguments on Prop 8 and the Defense of Marriage Act. And of course, we’re here to report on whatever the Supreme Court’s decisions may be today.
As I’ve said before, it’s a privilege to be a part of this community and this movement, especially as a gay Californian. We’re hopeful that today will bring good news, and if it doesn’t, I know that my home state and our community will rally together and continue striving for equal treatment under the law for all Americans.
Here’s the EqualityOnTrial plan for today. We’ll be publishing a liveblog post about 10-15 minutes before 10 a.m. Eastern time, when the Supreme Court is scheduled to convene. That post will be the place to stay tuned throughout the morning–we’ll have news of the rulings as soon as they’re announced, as well as quick analysis from me and Scottie and reactions from around the web. We’ll also post a brief breaking news post devoted to each ruling, but the place for up-to-the-minute news will be the liveblog.
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.
As always, please join us in the comments sections! And of course, you should follow the entire EOT team on Twitter: the site’s handle is @EqualityOnTrial, mine is @jacobdcombs, Scottie’s is @indiemcemopants and Adam’s is @adamjbink. We’re looking forward to an exciting day!
By Scottie Thomaston
Today, the Court released all opinions except for the two marriage cases, and one other outstanding case. After the Justices finished speaking from the bench, the Chief Justice announced that tomorrow morning at 10AM ET, the Court will convene for its last day of the Term, in which it will release all remaining opinions. After that, they’ll adjourn for the summer and won’t appear in Court again until October. No one can say with absolute certainty that any of the cases due to be released tomorrow won’t be rescheduled for a rehearing next Term, but it seems highly unlikely. Tomorrow, those who want to know what the Court decided in the Prop 8 and DOMA cases should tune in, as EqualityOnTrial will cover the final day as we have the past few weeks.
Significantly, this means that the two marriage equality decisions will be handed down on June, 26, 2013, the ten year anniversary of the Supreme Court’s landmark decision in Lawrence v. Texas in 2003, striking down bans on same-sex intimacy as a violation of the Due Process Clause of the 14th Amendment. (The anniversary of the Stonewall Riots in 1969 is a few days after that.) In his opinion for the Court, Justice Kennedy wrote:
[T]he Court [has] reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.
Now the Court faces the question of just how much autonomy LGBT people have in matters related to marriage and procreation. Will they hold that the state can deny them this autonomy to enter into a marriage they wish? Will they say the federal government can channel people into heterosexual relationships by refusing to recognize their same-sex marriages? We’ll know more tomorrow, but it is just worth noting that the Court isn’t issuing the two marriage decisions in a vacuum.
Importantly, the Court decided a landmark case today that affects people of color and LGBT people, and those who share both identities. The Court issued its opinion in Shelby County v. Holder, the challenge to the constitutionality of the 1965 Voting Rights Act, which is seen as the most successful civil rights law in our nation’s history. The Act was passed to prohibit racial discrimination in voting, because after the 15th Amendment, states and local jurisdictions got more and more creative about discriminating on the basis of race to prevent non-white people from exercising their right to vote. Section 5 of the Act authorizes the Justice Department to “preclear” any change to elections in several jurisdictions covered by a formula which is a part of the Act. This means that wherever there is a long history of noted discrimination in voting, any tampering with election procedures is viewed as suspect and possibly related to racial discrimination, so the federal government has to review it. Most changes are allowed to go forward; only a small number are challenged.
Section 4 is the actual formula to determine which jurisdictions should seek preclearance. The Court today struck down Section 4 as unconstitutional, partly because it was written in the 1960s and the Court suggests that Congress should come up with an updated formula.
This decision is momentous and groundbreaking; it eliminates a bedrock of election law that was incredibly successful in preventing states from keeping non-whites from voting. The decision also affects LGBT people in a lot of ways. First, and most obviously, it affects LGBT people who aren’t white and it affects LGBT disabled people. It will be harder for LGBT people of color and those with mobility issues to get to the polls, or to seek valid photo IDs, or to comply with whatever election laws are written and imposed in the future. (The Justice Department recently began challenging photo ID laws under the Voting Rights Act.)
The Court’s decision impacts people who are transgender in an even more drastic way. Since it eliminates the formula for coverage, people who are transgender who live in formerly covered jurisdictions will have a harder time challenging odious voter ID restrictions. And in some places, like Tennessee, state law says your gender is what was determined at birth and can’t be changed on your ID. Without the federal government’s ability to challenge voting restrictions in this way, individuals would be expected to bring their own challenges, and poorer, disabled, and elderly people may have a more difficult time doing so. Generally speaking, statistics have shown that LGBT people, and especially LGBT people of color, are poorer than most others and have less recourse when their rights are violated. The Court’s decision exacerbates these issues.
Congress can, of course, fix the formula anytime they want to take it up. There will likely be a major push to do so at some point by minority rights organizations.
Tomorrow, we’ll have the remainder of the decisions and we’ll know what the Court plans to do with Prop 8 and DOMA. As usual, EqualityOnTrial will be reporting back as soon as we have news.