No stay on marriage equality in California
July 15th, 2013
The latest emergency injunction requested by the defendants of Proposition 8 has been rejected. However, the California Supreme Court (a better bunch than I) have decided to at least pretend to give due consideration to the latest line of wackadoodle delusion (that the Governor lacks the authority to refuse to enforce the unconstitutional amendment – or some such drivel). AP
The California Supreme Court refused Monday to order the state to immediately stop issuing marriage licenses to same-sex couples.
However, the court still plans to consider whether the governor and attorney general correctly instructed county clerks that a voter-approved ban on gay marriages had become legally invalid statewide.
Without comment, the court denied a request made Friday by backers of the ban for an emergency order that would have required the state to keep enforcing Proposition 8 while they pursue a last-ditch legal effort to preserve it.
And, as per usual, the loons see victory in their defeat. They are joyously looking forward to arguing their case. They would also see it a grand victory if, while being booted down the stairs, no one threw tomatoes.
SCOTUS to ADF: Go Away
June 30th, 2013
The Alliance Defending Freedom, the Phoenix-based anti-gay legal group that had been supporting ProtectMarriage’s fight to support California’s Proposition 8, had filed an emergency motion yesterday in a last desperate attempt to put a stop to same-sex weddings taking place in California. ADF had complained that the Ninth Circuit had lifted its stay on marriages before the end of the 22-day waiting period during which Prop 8 supporters can still file a separate motion for the Supreme Court to reconsider its position. Justice Anthony Kennedy, who oversees the Ninth Circuit, denied ADF’s emergency motion:
Supreme Court Justice Anthony M. Kennedy turned down at midday Sunday a request to stop same-sex marriages from occurring in California. Without comment, and without seeking views from the other side, Kennedy rejected a challenge to action by the Ninth Circuit Court on Friday implementing a federal judge’s ruling allowing such marriages.
…Although attorneys for the ballot measure’s sponsors have been creative in finding new ways to try to press the challenge, the brief action by Kennedy on Sunday may have removed the final barrier to the full achievement of marriage rights for gays and lesbians in the nation’s most populous state. …If there was some irony in Justice Kennedy’s action, it was that he was among the four dissenting Justices who would have allowed the measure’s backers to press their defense of the same-sex marriage ban. However, they had been out-voted, five to four.
Prop 8 Supporters Try Desperation Shot
June 29th, 2013
Lawyers for Alliance Defending Freedom (formerly Alliance Defense Fund), which have been found by the U.S. Supreme Court to lack standing to defend California’s Proposition 8 on appeal, is trying one last time to derail marriages in California by filing an emergency motion asking the U.S. Supreme Court to put a stop to those weddings.
“The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay…is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment,” the paperwork states. “Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”
Alliance Defending Freedom Senior Counsel Austin Nimocks said the Supreme Court’s consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.
Legal experts say that the Supreme Court’s 22 day waiting period is not binding on the Ninth Circuit Court. The ADF filed its motion with Justice Anthony Kennedy, who oversees appeals from the Ninth Circuit. Kennedy dissented from the majority opinion which ruled that ADF lacked standing to appeal the Federal District Court ruling striking down Prop 8.
Update: SCOTUSBlog’s Tom Goldstein says ADF isn’t likely to succeed. He also noticed something rather telling:
But it seems unlikely that the Supreme Court will see the situation as sufficiently urgent to require its intervention now. In perhaps a sign of that understanding, the firm of the proponents’ principal Supreme Court counsel — Cooper & Kirk — did not place its name on the emergency application.
If you want to see what desperation looks like in writing, you can see the ADF’s motion here (PDF: 1.7 MB/76 pages!).
Californians Are Marrying and Prop 8’s Legal Supporters Are Thoroughly Pissed
June 28th, 2013
Your schadenfreude for the day comes from ProtectMarriage, the official non-standing defenders of Prop 8:
We just received word that the Ninth Circuit, without waiting for the Supreme Court’s decision to become final and depriving us of our right to ask for reconsideration, has rushed forward to order same-sex marriage licenses.
This outrageous act tops off a chronic pattern of lawlessness, throughout this case, by judges and politicians hell-bent on thwarting the vote of the people to redefine marriage by any means, even outright corruption.
Homosexual marriage is not happening because the people changed their mind. It isn’t happening because the appellate courts declared a new constitutional right. It’s happening because enemies of the people have abused their power to manipulate the system and render the people voiceless.
The resumption of same-sex marriage this day has been obtained by illegitimate means. If our opponents rejoice in achieving their goal in a dishonorable fashion, they should be ashamed.
It remains to be seen whether the fight can go on, but either way, it is a disgraceful day for California.
I find every word of that press release fantastically delicious.
Put a Ring on It: California Is Marrying Again!
June 28th, 2013
In the wake of Wednesday’s Supreme Court ruling kicking Hollingsworth v. Perry back to the Ninth Circuit Court of appeals due to the lack of standing for Prop 8 supporters to appeal, the Ninth Circuit has issued a brief one-sentence order reading, “The stay in the above matter is dissolved effective immediately.”
Which means that marriage equality is golden in Golden State. Kris Perry and Sandy Stier, two of the plaintiffs in the original Prop 8 lawsuit have already gotten their marriage license moments ago in San Francisco. They were later joined by the other two plaintiffs, Jeff Zarrillo and Paul Katami, who got theirs in Norwalk. Congratulations!
Update: California Attorney General Kamala Harris
has just officiated is about to officiate Sandy and Kris’s wedding. Jeff and Paul are on the way to Los Angeles to be married by Mayor Antonio Villaraigosa.
Update at 4:55 PDT: It’s official. Sandy and Kris are legally married.
Update at 6:20: It’s official! All of the Prop 8 plaintiffs are married.
Dem Reps. Cheer Marriage Decisions
June 26th, 2013
A paraphrase of what they said:
Rep. Nancy Pelosi (D-CA): Oh happy day! Justice was done for thousands of LGBT families nationwide. Forty-four years after Stonewall. Supreme Court bent the arc of history toward justice. Equal protection is a promise kept. More work to be done. Applauds the inspiration of Harvey Milk, the courage of Edie Windsor.
Rep. Steny Hoyer (D-MD): Principles of equal justice under law. Maryland and other states wanted full marriage equality. Now they get it. A good day for every American. Fifty years ago, one of my first votes as state Senator was to repeal the miscegenation law in Maryland. Another step for equality, justice, inclusion.
Rep. Jerrold Nadler (D-NY): History of the U.S. can be read as an expanding of “all men are created equal.” Today is another step in that evolution. Breathes life into constitution’s promise of equal liberty for all. DOMA embodied contempt and animus. Work is not done. DOMA in its entirety must be wiped from the books. Reintroduction of Respect for Marriage Act later today.
Rep. Jared Polis (D-CO): Was on the steps of the Supreme Court when decision was handed down. Not a single anti-equality protester. This is the system working for families like mine. Americans are more than ready for this decision. Battle is far from done. People can still be fired, kids face bullying. Congress still has a critical role.
Rep. David Cicilline (D-RI): Applauds the simplicity of the court’s analysis and power of the decision. DOMA was designed to stigmatize and harm LGBT people. Decision helps to transform the lives of thousands of families. Gives meaning to our values.
Rep. Sean Patrick Maloney (D-NY): Called partner, Randy, of 21 years. Couldn’t get the words out. For families like mine, when I get the kids ready for school, etc., they aren’t growing up in a family that is less than someone else’s. (Holding back tears.) Brown v. Board of Ed., Loving v. Virginia, Lawrence v. Texas, and now we are even more American.
Rep. Mark Pocan (D-WI): 93 million people live in states with marriage equality. WE still face barriers. Make sure every single loving, committed relatinship can be recognized.
Rep. Mark Takano (D-CA): I challenge every California clerk to start issuing marriage licenses to every couple that desires one. “I feel jubilation, I feel fabulous, I feel every gay word I can think of.” Kennedy wrote beautiful sentences and reached for the poetic. Stirring words: DOMA humiliates the children of same-sex couples.
GOP Reps. React To Marriage Decisions
June 26th, 2013
In case you don’t want to watch the video, here’s a non-transcript rendition of what they said:
Rep. Steve Scalise (R-LA): Unelected judges.
Rep. John Fleming (R-LA): Popular laws = Constitutional. Unpopular laws = Unconstitutional.
Rep. Joe Pitts (R-PA): Thank you Boehner for defending it. Negative consequences for children.
Rep. Scott Garrett (R-NJ): We the people have final say, not unelected courts. Courts got Federalism wrong.
Rep. Tim Wahlberg (R-MI): Desires of adults not more important than needs of children. “Society itself is at risk and cannot continue.”
Rep. Doug LaMalfa (R-CA): Marriage has been debased. Why vote? It doesn’t stop here. Churches will be forced to do things they are against.
Rep. Randy Weber (R-TX): Court is in collusion with Obama at the expense of children. One more attack on religious institutions.
Rep. Louie Gohmert (R-TX): This is not a hateful group. We love the U.S.A. It’s all Obama’s fault. Holder lied. The Court (“the new holy quintet”) lied. Dishonesty, inconsistency. King Solomon!
Rep. Michele Bachman (R-MN): Limited government. Denied equal protection to every American in the United States. No more co-equal branches, but Supreme Court over all. Oligarchy of five. Limited government. Decision belies the constitution. “The people will have their sway.” Equal protection again. No jurisdiction. Foundational unit of society. Created by God. Supreme Court have not risen to the level of God.
Rep. Tim Huelscamp (R-KS): Narrow radical majority. Think of the children.
NOM: it’s a staining stench
June 26th, 2013
You already know what the National Organization for Marriage (theirs not yours) has to say, but here’s their message in short.
“… dismay and outrage … illegitimate … will be rejected by tens of millions of Americans … demanded … miscarriage of justice … overturn the perfectly legal action … over 7 million California voters … rewards corrupt politicians … preserve the right of states … refuse to recognize faux marriages … over 52% of the vote … homosexual groups and activists … a homosexual judge in San Francisco … Ninth Circuit Court of Appeals … liberal judge Stephen Reinhardt … stench … stained … corrupt … betray the voters … illegitimate decision … refuse … rogue decision … corruption … so-called gay marriages … vast majority of American voters … marriage as the union of one man and one woman … major victory for those defending Proposition 8, especially Chuck Cooper and his firm, along with the attorneys at the Alliance Defending Freedom, and Andy Pugno of the Prop 8 Legal Defense Fund.”
Clearly there’s a staining stench over there in nomian reality which leads to delusion.
Prop 8 Ruling: Case Rejected on Standing, Reverts Back To Broader Lower Court Ruling
June 26th, 2013
In a 5-4 decision, the U.S. Supreme Court rejected the challenge to Prop 8, finding that after the state of California decided not to defend the law and Prop 8 proponents stepped in, the Prop 8 supports had no standing to appeal the lower court’s decision. What makes this remarkable is that the narrower Ninth Circuit Court’s decision has been vacated and the broader ruling by Federal District Judge Vaughn Walker prevails (PDF: 173KB/35 pages):
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.
The majority opinion represents an unusual lineup: Chief Justice Roberts and Justices Antonin Scalia, Elena Kagan, Ruth Bader Ginsberg and Stephen Breyer. Justice Anthony Kennedy, writing in a dissent joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor argued that Califirnia’s initiative process warranted an exception.
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority,a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.
Because this is a narrow technical ruling, it does not address the broader questions of whether California’s Prop 8 or any other state ban on same-sex marriage is constitutional or not. That decision will await a different court challenge, which makes this one something of a let-down. But this punt at least will allow another 34 million Americans to live in a jurisdiction with marriage equality. We await further word on when that will go into effect.
Part 2 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing
March 26th, 2013
Now I’m going to go through Olson’s attack on Prop 8. As before I simply started typing as I listened so please forgive the many typos.
33:00 Olson starts off by saying this of Prop 8:
It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.
Then the Court directs him talk about standing (i.e., the question of who has the right to defend Prop 8 in court) before he gets to the merits. I’ll skip that because it’s technical legal stuff not specific to marriage equality.
41:30 We get back to the merits. Olson says what I’ve been dying to shout at Cooper and everyone else who demands we justify our rights by showing they’ll benefit the State:
This is a measure that walls off the institution of marriage, which is not society’s right. It’s an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.
And let me say that Olson is one articulate MoFo. I’ve sped up the audio by 40% as a I listen, and it makes everyone’s slow, deliberate, halting legal-speak sound like a normal conversation pace, but not Olson – Olson is so sharp, confident, and prepared that at 140% speed his clear and well-constructed sentences just fly by! Read the rest of this entry »
I’ll tell you when, Justice Scalia
March 26th, 2013
JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future.
We — we decide what the law is. I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
Scalia rants as though there is no date, as though this is all arbitrary and subjective and up to some whimsical liberal social ‘living constitution’ interpretation of law. He is mistaken.
There is a date, a specific date, upon which it became unconstitutional under the provisions of the US Constitution to exclude homosexual couples from marriage.
On the day, the very first day, that a same-sex couple decided that they would avail themselves of the equal provisions of their governmental contract and seek the protections afforded by marriage, and on the very first day that this same-sex couple was told that, no, they were excluded – explicitly excluded – from the protections offered by the state because they were an unfavored people, on that specific day, Justice Scolia, the state acted in an unconstitutional manner.
Yes, the Supreme Court of the United States “decides what the law is”. But the wording of our contract – our agreement with the Federal Government that they may govern us and patrol our liberties and, at times, curtail our freedoms when necessary – is not decided by the Supreme Court of the United States. And that wording, that guarantee, allows the Federal Government to serve as our representative government only within certain confines, among which are that all citizens are provided with the same rights.
That provision exists either with or without social recognition. It exists whether or not a Supreme Court “decides” that it is the law.
It is inevitable that some day the Court will recognize – not decide – that gay citizens are equal citizens and that arbitrary animus-based discrimination such as that which Justice Scalia defends is a violation of our national contract. And some day, a Supreme Court will decide that the law is such that discrimination based on sexual orientation is a gross violation of the clear provisions of the US Constitution.
But that will not be the day in which such discrimination becomes unconstitutional. That day has passed.
Part 1 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing
March 26th, 2013
I downloaded the transcript and audio and simply started typing as I listened. I’ve done minimal formatting and proofing so please forgive the many errors. The time codes correspond roughly to the relevant spot in the downloadable audio. Cooper (the anti-same-sex marriage attorney spoke first). I’ll do our side in my next post.
11:00 Cooper begins by saying the Court has to decide whether the Constitution should put a stop to the ongoing democratic debate and answer this question for all 50 states. Cooper says such a thing can only happen if “no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.”
Agonizing difficult issue? When did that become the position of our opponents? I thought it was supposed to be perfectly obvious that marriage can only be between one man and one woman.
This is the start of their show of reasonableness, their feigned demonstration of no ill-will against gays. Read the rest of this entry »
Prop 8 Oral Arguments Released
March 26th, 2013
Audio and transcript of today’s oral arguments for Hollingsworth v. Perry are available here.
Tweets from the Court House
March 26th, 2013
It’s looking good so far:
Update: The question of standing has also come up. Proposition 8 is not being defended by the state of California, but by proponents of Prop 8. Kennedy appears uncomfortable with this, which also bodes well:
Update: An important caveat:
Obama admin to argue in opposition to Prop 8
March 15th, 2013
In court orders on Friday, justices announced the U.S. Solicitor General will be allowed speaking time for oral arguments in the case, which are scheduled for March 26.
“The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted,” the orders states.