Appeal lifted on Bankruptcy Court’s marriage ruling
July 7th, 2011
After the judges in Los Angeles branch of the Federal Bankruptcy Court nearly unanimously signed on to a ruling finding that DOMA Section 3 was unconstitutional, the US Trustee appealed. The Trustee’s Office seemed to be under the impression that the President’s direction to federal departments to abide by the law until it was overturned required them to appeal the decision.
Now the confusion seems to have lifted. The Department of Justice declined interest in defending the DOMA in this case and passed the Trustee along to John Boehner’s House defense. (MetroWeekly)
Following consultation with the House Bipartisan Legal Advisory Group (BLAG), the U.S. Trustee asked to withdraw its appeal in its challenge to the attempted joint bankruptcy petition filed by Gene Douglas Balas and Carlos Morales, a married gay couple who live in California — a move a Department of Justice spokeswoman says represents the DOJ’s new policy on all such bankruptcy filings.
So as no one intends to take up the case and the US Trustee has better things to do with his time and budget, same-sex married couples in California (and, based on the DOJ statement, presumably other states in which marriage is recognized) are henceforth recognized by the Federal Government as married. Broke, but married.
It’s an odd milestone, but an important one nonetheless. For the first time, albeit in a very limited situation, the United States Federal Government has officially recognized a same-sex marriage.
LA Times joins “gay panic” smear of Lawrence King
July 5th, 2011
From the beginning, reporters covering the murder of Lawrence King have had difficulty in finding the right tone and delivery. Few stories are more challenging than that of a 14 year old boy shooting his schoolmate in the back of the head at point blank range in the middle of his classroom.
Two young lives have been destroyed. Lawrence King is dead, and Brandon McInerney will spend much of his life behind bars. And reporters have sought to make that point rather than just tell the tale of a murderer and his victim. Sadly, this effort has evolved in some media from telling both stories to a cover-up of the facts and a retelling in which King was the culprit and McInerney an innocent who defended himself in the only way he knew how.
I will concede that it is difficult for a reporter to tell the victim’s side of the story. While defense lawyers invariable seek to influence public opinion (and a jury pool) with press conferences full of alternative possibilities, prosecutors are generally more circumspect. And while Ventura County senior deputy district attorney Maeve Fox did finally release information about McInerney to counter the defense’s fairy tale, it is not her job to defend King’s reputation.
That role is often filled by family of the victim. But Lawrence King’s adoptive parents were estranged and more interested in trying to find a way to make a buck off of King’s murder. They had no interest in defending the reputation of the weird kid who had “never bonded with them” and whom had been shipped off to a youth facility. Which leaves no one – no one at all – speaking for Lawrence.
But that is no excuse for shoddy journalism, deceptive reporting, and homophobic insinuation.
Perhaps the worst example was the hit piece on Lawrence King penned by Ramin Setoodah, a celebrity interviewer, for Newsweek. Setoodeh’s piece was the first to characterizate King as a bully and sexual aggressor who tormented Brandon McInerney. Parroting McInerney’s attorneys, Setoodeh laid out the gay panic defense, tossing in stereotypes and insinuations and “a lesbian vice principal with a political agenda.”
But while Newsweek’s article was unforgivable, one expects that hard news media will avoid such tactics. So it is even more disturbing to see the LA Times join in on the character assassination of Lawrence King.
But today’s article by Catherine Saillant about the start of the trial does just that. It seeks to minimize Brandon McInerney’s crime by diminishing the value of the life of his victim. Saillant does not see one child shooting another in the back of the head in his classroom but rather a sexual abuse victim acting in self defense against a sexual aggressor, a tormentor, a homosexual menace.
I don’t claim that Saillant has an anti-gay bias. Her use of the somewhat ominous phrase “young homosexuals on school campuses” instead of “gay youth” may be accidental or out of ignorance. For all I know, she is an ardent supporter of equality.
But her article is a textbook example of journalistic gay panic: the presumption that heterosexuals are entitled to live a life free of gay people, and that a gay person acknowledging their own existence is such a threat to heterosexuals that it justifies murder (or, at least, is a mitigating circumstance).
In the presumptions of journalistic gay panic, it is relevant to their murder whether a child was or was not effeminate or sometimes wore “women’s accessories”. In the presumptions of journalistic gay panic, the flirtations of a girl to a boy are very very different from the flirtations of a boy to a boy.
Take this paragraph from the article:
Fellow students say the two had clashed for days over King’s expressing his attraction to McInerney. King, who was living in a children’s shelter because of problems at home, had recently gone to school wearing eye makeup and women’s accessories.
The first sentence is a false presentation of the issue. “Fellow students” may have said just about anything, but based on the fuller coverage we know that King had been picked on by McInerny for a long time, long before the “flirting” began, and this eventually became his way of fighting back. But Saillant presents this as though it was out of the blue. She sets up King as the unprovoked aggressor.
And this cannot be chalked up to a lack of information. In a February 2009 Times article written by Saillant herself:
“Witnesses said King was usually not the aggressor. But after months of teasing by McInerney and other male students who called him “faggot,” he had began to retort, according to prosecutors.”
But it is in the second sentence that Saillant steps from being a reporter of a one-sided version of the story to active manipulator. Here she introduces an irrelevant comment to tie two separate ideas together. She’s reporting (not repeating what “fellow students” say) that King went to school in makeup. And – without any reason to mention it – she also says he was “living in a children’s shelter because of problems at home.”
Tying the two unrelated comments into a single sentence, Saillant has achieved the presentation of King who was so out of control with his crazy cross-dressing that he couldn’t even get along with his parents.
But the worst was just previous:
…provoked by King’s repeated sexual advances.
Screech… slam on the brakes.
Ask yourself – outside of this case, just in conversation – when you hear the term “repeated sexual advances”, what do you think of? Is is, oh say, “Will you be my valentine?”
Or is it perhaps an advance that is sexual in nature and repeated?
And again, this is not unfamiliar territory to Saillant. From that 2009 article:
In her statement of facts, Fox contends that King and McInerney had an acrimonious relationship for months prior to the shooting. They sparred with “typical 8th grade, back-and-forth insults; some sexual, some not,” she wrote.
But today, those “back and forth insults, some sexual, some not,” have become one-way “repeated sexual advances”. If Saillant is going to just parrot the accusations of McInerney’s defense, she has an obligation to inform that King’s “advances” consisted of flirting, at most, and did not consist of acts of adult sexual aggression. On the other hand, King’s “death” consisted of death.
This is not journalistic balance. This is advocacy for the defense’s gay panic strategy.
And look at how McInerney is discussed:
The defense could face a challenge in portraying McInerney as a naive youth. At the time of the shooting, he looked young and sweet-faced. In court recently, the defendant was a tall, lanky young man dressed in crisp Oxford shirts and khaki pants.
Salliant doesn’t talk about the difficulty of his defense having to deal with Nazi materials, racist symbols, or McInerney’s long history of terrorizing King. No, no, it’s his current age that is a problem.
I don’t know Saillant’s motivations. It may be that she is among those who think 14 is too young to be tried for murder. Maybe she wants to look at “all the circumstances” and see McInerney as “a victim too”. Perhaps wants to “present both sides”.
And the easiest way to do that – as McInerney is a pretty nasty neo-Nazi with white supremacist connections who ran in a pack of bullies – is to paint King as some sort of monster, a horrifying gay drag queen monster – worse even than McInerney. Besides, who is going to complain?
Generally character assassination of the victim is left to the defense team. But it seems to me that Saillant, has joined the cause.
Now, there is a legitimate case to be made that McInerney was too young and immature to be fully cognizant of the consequences of his actions. But it is unethical and immoral to take the shortcut of bashing King to exonerate McInerney.
Lawrence King Trial Set to Begin Today
July 5th, 2011
It’s been three years since Brandon McInerney walked into an Oxnard classroom, pulled a .22-caliber handgun out of his backpack and shot Lawrence King point blank in the head. From the very beginning, McInerney’s lawyer has trotted out the “gay panic” defense, saying that McInerney was furious that King was flirting with him. Today, McInerney’s trial is set to begin finally, and the defense will make “gay panic” the centerpiece of their case:
McInerney’s lawyers, Scott Wippert and Robyn Bramson, say their client doesn’t deny the killing. But they argue it was voluntary manslaughter because the adolescent was provoked by King’s repeated sexual advances.
Fellow students say the two had clashed for days over King’s expressing his attraction to McInerney. King, who was living in a children’s shelter because of problems at home, had recently gone to school wearing eye makeup and women’s accessories.
McInerney was humiliated by King’s advances, his attorneys said. He came from a violent home and decided to end his misery in a way that made sense to him — with a gun. He shot King “in the heat of passion caused by the intense emotional state between these two boys at school,” Bramson said last week outside the courthouse, where jury selection was underway.
McInerney is being tried for murder with a hate crime enhancement. His defense team argue that McInerney’s age (he was fourteen at the time of the murder) should be a factor:
The defense will stress McInerney’s age at the time of the crime, and may summon a psychologist to talk about the maturity and critical-thinking abilities of a 14-year-old. In essence, they will argue that McInerney didn’t have the maturity to deal with King’s schoolyard taunts.
“Age will explain his behavior and his response,” Wippert said. “How a 14-year-old reacts is different than how an older person would react.”
Judge Walker’s day (not) in court
June 13th, 2011
Perry v. Schwarzenegger’s retired Judge Vaughn Walker was not physically in court today. However, he was the only topic of debate.
Today Judge James Ware, Walker’s replacement, listened to arguments on two issues: First, should all copies of the trial tapes be rounded up and put under lock and key? Second, should the results of Perry v. Schwarzenegger be thrown out because Walker, a gay man in a relationship, should have recused himself?
Courage Campaign’s Prop8TrialTracker was there again to provide us with sometimes-almost-transcripts of the arguments. And it did not go well for the Proponents of Proposition 8.
The supporters of Proposition 8 were irate that Judge Walker had removed the tapes of the trial from his chambers and shown them on national TV!! (Actually this was a three minute clip used during a lecture which CSPAN filmed from across the room – without zoom – at an angle. I honestly couldn’t make out the person’s age, race or gender, much less who they were. It might have been Alf, for all I could tell –was Alf one of their witnesses?). But as part of their “we’re afraid of marauding gays” tactic, they sought to discredit Judge Walker as not being respectful of the danger to their witnesses.
In a fascinating turn of events, Judge Ware cleared up just how Walker had the trial tapes in his personal possession for sampling in lectures: it seems that he had given them to Walker during a gavel-passing ceremony when he retired. And then the discussion quickly became an agreement that this really wasn’t an issue after all.
The second question was even more interesting. Judge Ware started off by disclosing that he had conducted same-sex weddings, and commented that a reversal would only be a delay as whoever was the new judge would come to the same conclusion. Dinner is not going to be a happy meal at Maggie Gallagher’s tonight.
The legal question of whether Judge Walker should have recused himself goes a bit like this:
First, was there any financial component? If Walker could have made a cent one way or the other, then he HAD to recuse himself. That one went no where.
Secondly, was Perry a case that would effect Walker personally. If a reasonable person, knowing the facts, would think that the judge might be impartial, there is an argument for recusal.
This is a touchy one for the Proponents. Ware is a black man married to a white woman. Not only was yesterday’s 44th anniversary of the Loving decision still a fresh reminder, but Ware could recall the days when racists argued that a black judge couldn’t be unbiased in a civil rights case. And Ware was not hesitant to make such comparisons.
Charles Cooper, for the Proponents, agreed that there was no reason a gay man could not judge a case involving, say, some issue that would not effect him personally. No, no, no. It’s not because Walker is gay (it really is) but because he’s in a relationship. And here’s where it got interesting.
Judge Ware is not all that fond of the reasonableness test. He thinks that reasonable people have all sorts of biases and bigotries they carry around with them, but that doesn’t make them constitutional. (And he’s right. Just because one can reason, doesn’t mean that they are right. Plenty of very reasonable people hold prejudices. Of course, over time – being reasonable people – many think, educate themselves, grow, and evolve.)
And there was also the problem about “knowing the facts”. Cooper kept asserting that because Walker has been in a relationship for ten years, then therefore this equates to being “similarly situated to the plaintiffs.” Judge Ware had to remind him repeatedly that it was not a “fact” that Walker intended, wanted, or even considered marrying his partner. It was only speculation, not a fact, that Cooper has to support his claim.
Cooper, unable to assert that Walker truly wanted to marry, focused on Walker’s failure to disclose his relationship. Ware wasn’t easy on that issue. He posed some other questions about disclosure and recusal:
You’ve raised the disclosure question many times. You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because obvious. We are bound by our past which is largely irrelevant. If a female judge has suffered rape or sexual assault and is hearing a case on rape/assault, must she disclose?
Ware wasn’t all that pleased with the argument that a judge is presumed to be biased and must disclose all the details of their history. He seemed resistant to Cooper’s idea that if Walker didn’t have an interest in marrying, he should have announced his relationship along with his disinclination to marry and let “reasonable people” decide whether to ask for recusal.
Ted Boutrous, for the Plaintiffs, took a rather aggressive position. He asserted that in cases of race, ethnicity, religion, members of a minority group can act without bias, even if they themselves are in a position to benefit from a civil rights case. He argued that gay people get in relationships – that’s what people do. And do insist that ‘gay in a relationship’ was inherently biased is really to argue that gay judges are incapable of judging a case fairly.
Courts do not presume that a judge is biased. Rather, they presume the opposite – that a judge, who has gone through appointment, vetting, and approval is capable of performing his job without bias. To presume that Walker is biased, is to make the special presumption that gay judges (and by implication all minority judges) are unlike other judges.
Ware did not ready to agree that Walker should have presided over a marriage case if he, himself, intended to marry. And he was not without some questions for Ted Boutrous.
He noted that race is often obvious and need no disclosure, while orientation is often not. So he questioned whether Boutrous believed that the judge in Perry v. Schwarzenegger should disclose religious affiliation? What if he were Mormon?
Boutrous responded that regardless of a judge’s religious affiliation “we presume that judge is able to live up to his duty of impartiality.” (This is an interesting direction, considering that both Judge Walker and Judge Ware are Republicans, another non-obvious attribute that clearly didn’t direct their judgement on marriages).
Judge Ware noted that while race, religion, and gender issues had been addressed in the past, this was the first time that the question has been raised about the impartiality of gay people and that it had to given due seriousness. Nevertheless, he indicated that he will make his judgement promptly, probably within 24 hours.
We have reason to be cautiously optimistic.
San Francisco Giants: “It Gets Better”
June 1st, 2011
There’s hardly a gay male alive who wasn’t tormented by jocks while in school, which is why this video by the San Francisco Giants so incredibly moving. The video features four current players — pitchers Matt Cain and Sergio Romo, outfielder Andres Torres and Cy Young Award winning pitcher Barry Zito — and Giants hitting coach Hensley “Bam Bam” Muelens.
Crystal Cathedral Founder Denounces Anti-Gay “Covenant”
March 17th, 2011
Rev. Robert H. Schuller, who began his ministry by preaching a positive message at a 1950s drive-in theater, and who ultimately commissioned gay architect Phillip Johnson to build his Crystal Cathedral, has issued a statement denouncing an anti-gay covenant that his daughter and current Crystal Cathedral pastor, Sheila Schuller Coleman, is requiring all choir members to sign. The elder Schuller, who retired in 2006, contacted the Orange County Register to say that he didn’t know about the covenant and would not have approved it:
“I have a reputation worldwide of being tolerant of all people and their views,” he said. “I’m too well-educated to criticize a certain religion or group of people for what they believe in. It’s called freedom.”
The covenant calls for signers to “understand that Crystal Cathedral Ministries teaches that sexual intimacy is intended by God to only be within the bonds of marriage, between one man and one woman.” Schuller says that theologically he agrees with the message of the covenant. However:
“That doesn’t mean that we are going to start a crusade against homosexuals,” he said. “But if my church members required covenants, they would no longer live up to the principles of being positive that marks the history of the ministry of Robert H. Schuller.”
…”We have never been for covenants or definitions,” Robert Schuller said. “We don’t test anyone who comes to our ministry. We don’t require them to be Christian. We would not demand that they be born-again Christians.”
Schuller’s daughter dismissed her father’s stance. Her response, I think, is telling, and goes to the root of some of the problems at Crystal Cathedral (and many of the megachurches generally):
There are going to be times when he might have done something differently,” she said. “As he is less and less involved in management, this is going to happen more. His personal views may not coincide with the management’s view.”
Management? That’s business talk, not ministry talk.
Crystal Cathedral Choir Asked to Sign Anti-Gay Statement
March 16th, 2011
There’s an old saying: If it weren’t for gays in the choir, church would get pretty quiet. Crystal Cathedral is about to put that to the test:
The “Crystal Cathedral Worship Choir and Worship Team Covenant,” recently handed out to members, states that members should commit to being Christians by following the Bible in every way.
Former and current choir members say they are particularly offended by a statement in the document that refers to homosexuality. Long-time church members say this is the first time they have seen the cathedral take a firm stand against homosexuality and are disturbed by it.
The covenant states: “I understand that in an era where images of family relationship and personal sexuality are often confused, Crystal Cathedral Ministries believes that it is important to teach and model the biblical view. I understand that Crystal Cathedral Ministries teaches that sexual intimacy is intended by God to only be within the bonds of marriage, between one man and one woman.”
Ann Moore Waltz, a long-time church member and the Cathedral’s first soloist to stand and sing on top the snack shack in Robert H. Schuller community church at the Orange drive-in said, she does not agree with the statement in the covenant. “If I were still in the choir and if that was presented to me, and if a gay person had walked out, I would have walked out with him or her,” she said. “If you are a Christian group and people come to you, you should be a good servant, love them and shine the light of Jesus on them – regardless of who they are.”
Longtime choir director Don Neuen resigned last October over earlier steps toward a purge of the choir:
But things ended on a sour note for the choir director. He said the “last straw” for him was when Gretchen Schuller Penner, who directs the “Hour of Power” programs, told him that she would be “vetting choir members” going forward and that she would make sure that they were “emotionally and spiritually fit for the Crystal Cathedral.”
“I found that to be terribly judgmental and couldn’t accept it,” Neuen said.
Crystal Cathedral founder Robert Schuller retired in 2006, placing his son, Robert A. Schuller at the helm. The younger Schuller was removed two years later due to a “lack of shared vision” — and amid controversy over salaries and housing allowances for family members. In 2009, the elder Schuller’s daughter, Sheila Schuller Coleman, was named pastor. Last year, Schuller Coleman announced that the church was going into bankruptcy after donations fell by 29% in 2009. It’s congregation has already shrunk in half over the past two years.
Olson asks for Prop 8 stay to be lifted – references Obama’s DOMA decision
February 23rd, 2011
Ted Olson has filed a motion that the Ninth Circuit Court of Appeals lift the stay on Judge Walker’s decision overturning Proposition 8.
Olson notes that the Ninth Circuit indicated a desire to expedite the case but that the California Supreme Court’s timetable for addressing the issue of standing for the Proponents delays the case by at least nine months and thus greatly harms gay Californians.
On February 16, 2011, the Supreme Court of California granted the request for certification but set a schedule for briefing and argument that will permit the case to be heard “as early as September, 2011,” meaning that this case will be extended from the December argument date in this Court for at least nine additional months, and per- haps longer, just for oral argument, and perhaps up to three additional months for a decision from the California Supreme Court, after which the case would presumably return to this Court for yet further deliberations.
He further notes that the Administration’s new position on the level of scrutiny to be assigned to anti-gay discrimination is a game-changer.
Recent events have confirmed that, even if they could establish standing to appeal, proponents would not have a likelihood of success on the merits of plaintiffs’ constitutional challenge to Proposition 8. Today, the Attorney General of the United States announced that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny” and that “Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.” Attorney General Letter at 5. The President has therefore instructed the Department of Justice “not to defend the statute.”
The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious attempt to defend Proposition 8 under that exacting standard.
Even though the federal government is not a party to this case, today’s decision surely carries a great deal of weight with the justices. They will not likely wish to measure the merits of Proposition 8 on a rational basis only to have the CALPERS case appear before them with the defendant being an administration that is on record as supporting enhanced scrutiny.
CA Supremes to play role in Prop 8’s federal court case
February 18th, 2011
The California Supreme Court has now answered a number of questions about the legality of same-sex marriage in California.
- In 2004, it put a halt to the City and County of San Francisco and its efforts to issue and certify marriages between same-sex couples.
- In 2008, it determined (4 to 3) that the Constitution of the state of California did not allow the state to deny recognition of marriage to same-sex couples.
- In 2009, it determined (6 to 1) that Proposition 8 was an amendment to the Constitution (rather than a revision) and that the amended Constitution now banned the issuance and certification of same-sex marriage licenses. However, the 18,000 or so marriages already conducted would be recognized by the state.
Now it will answer one more.
As part of Perry v. Schwarzenegger, the Ninth Circuit Court of Appeals found no provision by which the authors of a proposition could appeal a federal decision if the elected representatives of the state chose not to do so. However, as the State of California is the entity which determines who will represent its interests, it asked the California Supreme Court to determine if California law had some provision by which non-elected representatives could step into the shoes of elected officials and appeal on behalf of the state.
Last week the State Supremes took up the challenge. Opening briefs are due March 14, 2011.
If the CA court finds that there are no substitute-appellant provisions in California law, then the Ninth Circuit is likely to accept that finding and, as there is no one to appeal the decision, uphold Judge Walker’s finding that Proposition 8 violates the equal protections and due process clauses of the US Constitution. This ruling would likely trigger challenges in other states in the Ninth Circuit that are banned by constitutional amendment from recognizing same-sex marriages, particularly the ‘all but the name’ states of Oregon and Nevada.
The Proposition 8 Proponents will, of course, appeal to the US Supreme Court to get standing, but that is unlikely to be granted.
Should the CA Supremes determine that the Proponents can appeal the ruling, then the Ninth Circuit will determine whether Judge Walker’s ruling is correct on its merits.
A quiet little very important victory
January 30th, 2011
A little over a week ago our community gained a significant step forward in our quest for marriage equality, and few noted it. The briefs filed in the challenge to DOMA in Massachusetts caught attention, but there is also a DOMA challenge in California. (Chronicle)
In a victory for gay rights advocates, a federal judge has ruled that state employees in California can sue for discrimination over the federal government’s exclusion of their same-sex spouses from a long-term health care program.
U.S. District Judge Claudia Wilken of Oakland denied an Obama administration request to dismiss the suit Tuesday and signaled that she is likely to overturn provisions of the 1996 Defense of Marriage Act, which denies federal benefits to same-sex couples.
Wilken has rejected, in advance, the notions usually put forward by anti-gay activists.
She also rejected arguments that the law’s sponsors put forth in 1996, that the legislation was necessary to promote procreation and preserve heterosexual marriage.
“Marriage has never been contingent on having children,” Wilken said, and denying federal benefits to same-sex couples “does not encourage heterosexual marriage.”
Wilken has not indicated whether she will allow her suit to cover domestic partners as well as spouses. If she does not, then this could have a significant impact on the Perry v. Schwarzenegger case. It would create a very significant difference between domestic partnerships and marriages (the possibility of federal recognition) and could torpedo the opposition.
Imperial County denied standing
January 4th, 2011
The Ninth Circuit Court of Appeals has denied the standing of the deputy clerk of Imperial County to appeal Judge Walker’s decision in Perry v. Schwarzenegger.
The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing.
Perry appeal: what now?
January 4th, 2011
It appears to me that the Ninth Circuit has found no standing – at least under federal law – and is covering its butt by allowing the state Supreme Court to weigh in:
Having considered the parties’ briefs and arguments, we are now convinced that Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court.
As I see it, here is the likely process by which Perry v. Schwarzenegger will proceed:
The California Supreme Court will rule on whether California state law allows the proponents to defend Proposition 8. Regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in relying on the state supremes.
If the SCOTUS agrees that the CA Supremes were the appropriate determinants of the issue of standing, then either the appeal is dead and marriage equality returns (assuming that CA Supremes find no standing) or the case moves on to the second question as to the merits of the ruling.
If the SCOTUS disagrees and finds that the Ninth erred in relying on the state, then the Ninth will have to rule on standing. The Ninth seems unlikely to find standing, but regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in finding or not finding standing.
Should the SCOTUS determine that there is no standing, then the appeal is dead and marriage equality returns. Should they find standing, then the case moves on to the second question as to the merits of the ruling.
Perry appeal: Ninth Circuit asks CA Supreme Court about standing
January 4th, 2011
Before the Ninth Circuit Court of Appeals can determine whether to uphold or overturn Judge Walker’s decision invalidating Proposition 8, it must determine whether anyone has standing to appeal the judge’s ruling. And rather than make that determination itself, the Ninth Circuit is now requesting that the California Supreme Court rule on whether state law allows the sponsors of a proposition to step in whenever the State of California declines to appeal a ruling.
Specifically, they ask:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
UPDATE: Here is Article II, Section 8:
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.
(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.
(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.
(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.
(e) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.
(f) An initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.
The question is whether this language includes any authority on the part of the Proponents to replace the State as a defendant or whether this language assigns the Proponents with a particularized interest.
Additional thoughts on Prop 8 appeal
December 7th, 2010
Last night I had the opportunity to watch the full debate in detail and to digest what I saw. This has given me a few additional thoughts about the way the arguments went. These were my impressions:
The judges would like to address the issue. They are reluctant to let the Governor and Attorney General nullify the proposition simply by refusing to repeal; it seems too much like an illegal veto. On the other hand, they are finding it difficult to identify any parties with standing that have any interest in appealing Judge Walker’s decision.
The Proponents pretty much are, by legal precedent, unable to have standing. The Arizonans case is just too similar and the US Supreme Court determined that there was no standing for the initiative’s proponents. Interestingly, two of the three justices were on that case and they were “on the wrong side” in granting the Arizonans proponents standing before being reversed.
But there was some discussion about how ‘filling in for state officials who won’t appeal’ may be different from state to state. There may be enough question to allow for some small measure of uncertainty.
The judges were also extremely hostile to Isabel Vargas’ claim of standing. Vargas, the deputy clerk of Imperial County, is a bit player in the drama, so insignificant that most news stories don’t even include her name. And clearly the judges thought that
The first question asked in the hearing was, “Where is Dolores Provencio?”
Provencio, the Imperial County Clerk, has not participated in the case at all, not even providing a deposition. Vargas’ attorney was left arguing that Provencio wasn’t opposed to Vargas’ action, to which the judge responded, “Well, we really don’t know that, do we?”
But, on the other hand, Boies presented an argument that seemed to be both technical and preposterous. He claimed that the clerk of Imperial County was not bound by Judge Walker’s order because he only bound the named defendants: the Governor, Attorney General, Recorder, and clerks of Alameda and Los Angeles counties.
Under questioning, he went so far as to say that clerks of other counties could deny same-sex marriages until such time as the Attorney General went to state court to compel the other counties to observe Judge Walker’s ruling. This seemed to be an argument that was rather contrived and, frankly, convinced no one, especially not Judge Reinhardt.
Based on my impression, standing will be determined by two factors: 1) the panel may inquire with the CA Supreme Court whether CA law allows Proponents, or 2) the judges may convince themselves that Vargas was in conflict between the constitution and the order and thereby harmed. They will rally have to stretch to get there, but may do so in order to rule on the case. Smith may be the least receptive to Vargas’ appeal for standing, as he sees her role as purely ministerial.
I think that the Proponents erred big-time back in January when they brought Vargas rather than a real clerk. I think that the clerk of a county may well have been given standing.
Interestingly, none of the judges were impressed with the claims of the Proponents. Hawkins, at one point, mocked Accidental Pregnancy Theory and he simply would not let go of the comparisons between Proposition 8 and the Romer case. Reinhardt seemed completely unconvinced with anything that Cooper had to say and interrupted him continuously.
The judges, Reinhardt and Hawkins in particular, seemed to agree with Olson that there’s quite a difference between refusing to grant a right and taking it away once it has been enjoyed. This seems to be supported by some direct language from the SCOTUS and intuitively feels right.
Smith seemed to be in a bit of a bind. It appeared that he was searching – fishing, almost – for a rational basis on which to hang his opinion. And he couldn’t get one out of Cooper. So he finally made one up himself: that the state thought that children were best raised by their father and mother. He got a bit sharp when Olson pointed out that this contradicted the evidence presented in court.
Olson’s strongest point was when he noted that the case isn’t about state’s rights or the rights of voters. The 14th Amendment protects the rights of individuals. And if a class was to be established against which harmful discrimination was to be enacted, such discrimination couldn’t be justified by illogical reasons that fall from the sky. The reason really had to be strong enough, rational enough, and closely enough directed towards “remedying the ill” that it was worth the damage it inflicted.
I think that we won the argument. I don’t know if we won the case. If I were to bet on the result, I’d find it likely that Judge Walker’s decision will be upheld by this panel, and possibly with a 3-0 vote.
Prop 8 Appeal
December 6th, 2010
Today the Ninth Circuit Court of Appeals heard arguments as to the constitutionality of Proposition 8 and arguments as to whether there is anyone with standing to defend the proposition. We do not know the eventual outcome, but here are my general impressions.
When the Proponents for Proposition 8 filed their appeal, they seemed to admit that their claim of standing was shaky. And they put a lot of reliance on the ability of the deputy clerk of Imperial County to provide standing for them.
Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.
It appeared that their entire hopes of arguing the constitutionality of Proposition 8 lay in, get this, the deputy clerk of one county. At the time I wondered at the wisdom of arguing that the deputy clerk was injured by the case; surely her job is not to make determinations as to whether anyone can marry, but rather to follow the instructions of those who do have authority, in this case either the State Registrar or perhaps even the County Clerk. And this was a point that was not lost on the appellate judges.
Adding to the difficulties for the County, Robert Tyler, the attorney arguing on their behalf was inept. At one point the judges told him that if he didn’t know the answer to a question that he should just say so.
The case for standing for the Proponents was given by Charles Cooper, who based his arguments on Karcher v. May, a New Jersey case which predated Arizonans for Official English. Arizonans was the closest in case law and it seems to suggest that Proponents do not have standing.
The law wasn’t really there for them, so it seems that the supporters of Proposition 8 are arguing mostly that it just isn’t fair for the Governor and Attorney General to “nullify” the vote of the people by refusing to appeal the Trial Judge’s decision, a plea that seems to have found sympathy with Judge Smith.
Coopers arguments that the state has a rational cause to discriminate against same-sex couples was not received with open arms. All three judges seemed aware that discrimination was occurring, was intentional, and that a basis for the discrimination required some ‘splaining. It remains to be seen if Cooper was adequately credible.
Judge Hawkins questioned whether Prop 8 would not be subjected to the same standard as Colorado’s Amendment 2 which was thrown out. Cooper argued that Amendment 2 was too broad and sweeping where Prop 8 only takes away one right. Hawkins seemed unconvinced that constitutionality was determined by the number of rights that were denied.
And the ol’ “responsible procreation” argument didn’t really stand up well. Judge Reinhardt noted that Cooper’s arguments were stronger for banning divorce than for banning same-sex marriage.
And when it was noted that California did nothing whatsoever in the realm of “encouraging responsible procreation” by discouraging civil unions, Cooper was left arguing that it’s only the word “marriage” that has to be protected to encourage responsible procreation of heterosexuals that may accidentally become pregnant if they have sex while not married. “To redefine the word is to change the institution.”
The soul of Cooper’s argument is to ignore the impact that the word used to describe the recognition given to same-sex couples will have on those same-sex couples, and to instead insist that it will most seriously impact heterosexuals who are not in committed relationships.
That is, on its face, rather difficult to treat credibly.
All in all, marriage equality held its own in the courtroom today. Animus did not fare so well. It’s impossible to predict such things, but I think that today gave us much to be hopeful for.