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Posts for June, 2012

Will Prop 8 get “en banc” hearing by Ninth Circuit?

Timothy Kincaid

June 4th, 2012

Tomorrow the Ninth Circuit Court of Appeals will announce whether it will give an en banc hearing to Perry v. Brown (nee Schwarzenegger), the challenge to California’s Proposition 8.

In February, the Ninth Circuit Court of Appeals released its decision upholding Judge Vaughn Walker’s ruling that Proposition 8 is in violation of the US Constitution. The Appeal was heard and decided by three judges selected at random.

The losing side in an appeal can request that the case be heard “en banc”, or by all of the judges. In the Ninth Circuit, there are too many appellate judges to all hear the case, but a panel of 11 judges would be randomly selected. The Proponents requested an en banc hearing.

The decision whether to hear a case en banc is made by a majority vote of the circuit judges, which in this case requires 13 judges to agree. But if en banc is not granted, a circuit judge can write a dissent to the decision not to hear the case, which can be as useful to the Proponents as if en banc were granted and that judge were a dissenter to a decision. (Thus even if en banc isn’t granted, they may get a stronger dissent than Judge Smith’s vague “well, I’m not exactly completely convinced… yet” dissent.)

Should en banc be granted, the case will be scheduled and heard before the en banc panel. This will be, of course, a considerable delay. But based on the make-up of the court, it is likely that Judge Walker’s ruling will continue to be upheld, perhaps by an even greater percentage.

Should en banc not be granted, the Proponent will request certiorari, or a hearing by the Supreme Court. This is a ways down the road, likely, but this is the big decision. Should certiorari be granted, the question of whether banning some citizens from equal access to civil law based on their orientation is a violation of the US Constitution will be heard by the court of final decision. Should it not be granted, then Proposition 8 would be overturned and marriage would become legal again in California.

But, as the case currently stands, this would apply only to California. Unless, in their denial of certiorari, the court states otherwise. Which they won’t.

Prop 8 Supporters To Petition for En Banc Review

Jim Burroway

February 21st, 2012

Charles Cooper, the lead attorney for the proponents of Proposition 8, told Metro Weekly that they intend to file a petition before today’s end-of-the-day deadline asking that the Ninth Circuit Court of Appeals reviews the decision handed down by a three-judge panel upholding a lower court’s ruling that Prop 8 is unconstitutional. Once the filing is made, the entire 20-member court will vote on whether to hold an en banc review. If they approve the petition, then Judge Alex Kozinski, the circuit’s chief judge, and 10 randomly selected judges from the circuit will hear the en banc appeal. That will involve more briefs, more hearings and more time, virtually guaranteeing that the case won’t reach the U.S. Supreme Court this year.

They’ve Always Held That View?

Jim Burroway

February 7th, 2012

A Mormon family with two wives and nine children, about 1889

The LDS Church has responded to the Prop 8 ruling:

The Church of Jesus Christ of Latter-day Saints regrets today’s decision. California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view. [Emphasis mine.]


Presidential Candidates React

Jim Burroway

February 7th, 2012

Mitt Romney does it old school, via a press relase:

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

Newt Gingrich, via Twitter:

“Court of Appeals overturning CA’s Prop 8 another example of an out of control judiciary. Let’s end judicial supremacy”

Rick Santorum, also via Twitter:

“7M Californians had their rights stripped away today by activist 9th Circuit judges. As president I will work to protect marriage.”

Ron Paul:

Press Secretary Jay Carney on behalf of President Obama:

“I’m not going to comment on litigation particularly as here where we are not party to it, but the president’s positions on these issues writ large are well known, and he’s long opposed divisive and discriminatory efforts to deny right and benefits to same-sex couples.”

On the flip side, former GOP Presidentical candidate, current Libertarian Party Presidentical candidate and former New Mexico Gov. Gary Johnson tweeted:

“Prop 8 – Sometimes a Court gets it right”

Ninth Circuit decision: the basics

Timothy Kincaid

February 7th, 2012

Here are the key points from the decision of the Ninth Circuit Court of Appeals upholding Judge Walker’s finding that Proposition 8 violates the Fourteenth Amendment of the US Constitution.

Standing and Recusal

Because the State of California, via the state Supreme Court, has found that the Proponents have standing then the Ninth will respect that decision.

Judge Walker had no need to recuse himself simply because he is gay and may at some point wish to marry.

These decisions were unanimous.

Impact on marriages

This is a decision that effects California only. The unique circumstances in the state allowed for a narrow focus.

Marriages do not resume. The stay on the ruling remains while the Proponents appeal this decision on up the ladder.

The scope

The decision does not discuss whether denying of marriage violates the Constitution, but only whether taking away marriage is a violation. It notes that “Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question” but does not seek to answer that question.

The court did not look beyond a ‘rational basis’ to determine their decision. No protected class status was considered.

Proposition 8 violated the Equal Protection Clause of the US Contitution.

What the case is about

The only impact of Proposition 8 was to carve out a narrow exception to the constitutional rights of gay people, restricting the designation of the word “marriage”. All sides agree that there is a unique meaning and special value to the designation “marriage”.

The Ninth focused on that very limited exclusion – the nomenclature – not to minimize the impact of Prop 8 but to understand it’s very significant value: “That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults.” The state-enacted incidences of marriage are not it’s defining characteristics; the state applies rules based on marriages but these are only “manifestations of the recognition that the State affords.”

The best line: “Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

The most important statement of what marriage is:

The official, cherished status of ‘marriage’ is distinct from the incidents of marriage, such as those listed in the California Family Code. The incidents are both elements of the institution and manifestations of the recognition that the State affords to those who are in stable and committed lifelong relationships. We allow spouses but not siblings or roommates to file taxes jointly, for example, because we acknowledge the financial interdependence of those who have entered into an “enduring” relationship. The incidents of marriage, standing alone, do not, however, convey the same governmental and societal recognition as does the designation of ‘marriage’ itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.

The logic

There were three arguments presented for establishing the unconstitutionality of Prop 8: 1) Due Process guarantees the fundamental right to marry; 2) excluding same-sex couples but allowing opposite sex couples is a violation of Equal Protections; 3) the Equal Protections Clause protects minority groups from being targeted for the deprivation of existing rights.

The third argument is by far the most narrow. And the Appeals Court held to the principle that if a more narrow decision can resolve the issue, that the broader questions which might apply to more circumstances are left unanswered.

The Ninth found the removal of existing rights to be an important question. “The context matters. Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

And this characteristic made it uniquely applicable to the Romer decision (Colorado’s Amendment 2). This commonality is that it need not be a fundamental right that is selectively taken away (non-discrimination policies are not guaranteed by the constitution); it need only be that an existing privilege be curtailed to harm a politically unpopular group. Having enjoyed an equal status, a group cannot be selected for removal of that status.

The court looked at four possible reasons for the state to remove the rights of gay persons to marry: : (1) furthering California’s interest in childrearing and responsible procreation, (2) proceeding with caution before making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools.

But here is where the actual impact of Proposition 8 comes into play. In order to be rationally related to the [after the fact created] goals of the Proponents, Proposition 8 would have had to had some impact on the laws relating to those goals. It did not. Thus it simply isn’t rational to think that relegating gay people to a lesser status would accomplish responsible procreation.

And as the circumstances are not about allowing marriage but in taking it back, the question of rational reason changes. It may be possible that the state could believe that granting special rights to heterosexuals might add luster to the institution of marriage and thus further the state’s interest in responsible procreation. But to argue that luster is added to the institution by kicking gays out is merely animus, not rational thought.

Proceeding with caution certainly had no relationship to Prop 8. It was not a cautious consideration of whether marriage equality had merit, but a post-haste removal of rights.

Protecting religious freedom has even less reality as a basis; the objections over religious freedom related to non-discrimination laws – which, incidentally, require that domestic partnerships be given the same consideration as marriage. Similarly, what is taught in schools was not impacted by Prop 8; those are education code issues.

Which only leaves disapproval of gay people as a class as the basis for Prop 8′s passing. Which is something that every one of us knows, regardless of what the lawyers say.

And, as Lawrence notes, laws designed to place gay people on a lesser status are an invitation to subject them to public and private discrimination. Such laws enact nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class. Which is not a legitimate government interest.


Judge Randy Smith (Republican, Mormon) agreed on the standing and recusal issue but not on the unconstitutionality of Proposition 8. However, what is most notable in his dissent is that it feels tentative and hesitating and rather than blast the majority for their views, Smith just isn’t ready to agree.

Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest. I must therefore respectfully dissent.

There is not a single sentence that demeans gay people or even suggests that same-sex marriage is in any way an undesirable goal. And he doesn’t put up a fiery defense.

He notes that the circumstances of Proposition 8 are not identical to 1971′s Baker case. He notes that a federal court challenge to the State’s powers to regulate marriage can be appropriate (quoting Loving). And he notes that the question is whether there is any rational foundation for the discrimination.

Interestingly, Smith quotes many of the same passages as the majority. And he seems to agree with many of the terms of the debate: the narrow scope, that animus played a role, that this is a situation of the removal of existing rights. However, he reaches a different conclusion; or, at least, is not brought to the same one.

The question he seeks to answer is

… whether withdrawing from same-sex couples the right to access the designation of marriage, alone, rationally relates to the responsible procreation and optimal parenting rationales.

Smith answers it this way:

Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting.

It doesn’t matter that the assumptions are erroneous, he states, just arguable. He recognizes that the assumptions are based partly in bias, but still gives broad leeway to the presumption of validity.

Smith’s error is, I believe, in applying rules relating to a distinct and measurable body of legislature to a broad nebulous 14 million voter population. They are not the same.

A legislative body may well consider factors such as responsible procreation and the responsibilities of the state. But voters do not consider themselves to be “the state” and pay little attention to its responsibilities. They simply address the culture and their desires to expand or limit their neighbors’ abilities to do things.

To assume that some significant percentage of the voters might have believed that withdrawing from same-sex couples the right to access the designation of marriage would further the interests in promoting responsible procreation and optimal parenting requires a suspension of disbelief that exceeds anything any sci-fi movie promoter might dream of. This is not just unrealistic, but laughably so.

But that is what Smith presents.

In totality, it comes across as, “Well, I see your point, and gosh, but I’m just not sure, guys. Let’s have restraint. Let’s not rock the boat.”

Other interesting items of note

The Ninth confirmed (or noted, perhaps) that because the California voters had passed an amendment to the civil code limiting marriage to one man and one woman, the legislature could not enact equality, thus validating Gov. Schwarzenegger’s position.

They note that prejudice need not be based in animus. It may simply be based in long-standing sincerely held private beliefs. It’s the difference between disapproving of someone and wishing them harm. They concluded that Californians did not enact Proposition 8 out of ill will, simply out of disapproval of gays and lesbians as a class. This is an interesting distinction. It takes the wind out of NOM’s “they call us bigots” claim.

None of them wanted to take on or even discuss the merits of Olson/Boies’ argument that stricter scrutiny is called for in anti-gay discrimination cases.

Affirmed: Appeals Court Upholds Decision Striking Down Prop 8

Jim Burroway

February 7th, 2012

A three judge panel of the Ninth Circuit Court of Appeals has upheld (PDF:741KB/133 pages) Federal District Judge Vaughn Walker’s ruling that found that California’s Proposition 8 was unconstitutional.  The ruling was split 2-1. Judge Stephen Reinhardt wrote for the majority:

Prior to November 4, 2008, the California Constition guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, wihc amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they beleive to be desirable, it requires that there be at least a legitimate reasomn for the passage of a law that treats different classes of people differently. There was no suc hreason that Proposition 8 could have been anacted. Because under California statutory law, same-sex couples had all the rights of opposite sex-couples, regardless of their marital status, all paries agree that Proposition 8 had only one effect. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationship. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, or it had no effect on the rights of same-sex coples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education. It could not have been enacted to safeguard these liberties.

It appears to be the second-class “separate-but-equal” status of California’s domstic partnerships, coupled with the fact that same-sex couples once enjoyed a right that was taken away which together formed the basis of the Appeals Court’s ruling:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort” Romer v. Evans, 517 U.S. 620,633

The Court clarified that their ruling is “unique and strictly limited” to California’s Prop 8. It has no bearing on marriage bans enacted in other states within the Ninth Circuit Court’s jurisdictional area. It should also be noted that the ruling does not answer the question of whether bans on same-sex marraiges are unconstituional. Instead, it says that under these circumstances in which the right was first granted and then withdrawn, and the manner in which it was done, that is what they find unconstitutional

On two other issues before the court, the rulings went as expected. The Appeals Court ruled that Prop 8 supporters do have standing to defend Prop 8 in court when the state of California choses not to do so, and the Court ruled that Federal District Judge Vaughn Walker was not obligated to recuse himself.

The rulings on the questons of standing and recusal were unanimous. However Judge N.R. Smith dissented on the queston of whether Prop 8 was unconstitutional.

The current stay on Judge Walker’s original ruling remains in effect for at least another week. Prop 8 proponents are almost certain to file a motion to extend the stay, and that motion is likely to be granted pending further appeals.

Prop 8 ruling tomorrow

Timothy Kincaid

February 6th, 2012

We have heard that the Ninth Circuit Court of Appeals will release its ruling on the constitutionality of Proposition 8 tomorrow at 10:30. 10:00 a.m.

Update from Jim B: Metro Weekly’s Chris Geidner has a good rundown of what to expect here. There are three questions before the court: Whether Prop 8 supporters have standing, whether Judge Vaughn Walker should have recused himself, and whether Walker ruled correctly that Prop 8 is unconstitutional. Since the Circuit Court’s notice speaks only of the third question, it appears that they have rendered their decision in the first two (supporters have standing, Judge Walker didn’t have to recuse themselves) and are ready to answer the question we’re all really concerned about.

Ninth: Prop 8 recordings sealed

Timothy Kincaid

February 2nd, 2012

The Ninth Circuit Court of Appeals has just ruled that the video recordings of Perry v. Schwarzenegger, the trial in which Proposition 8 was found to be unconstitutional, were made under the premise that they would not be viewed publicly and thus are under seal.

In finding that the trial judge had not made a commitment to deny the public access to the recording, the district court abused its discretion: its finding was “without ‘support in inferences that may be drawn from the facts in the record.’” United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). The district court further abused its discretion by holding that the determinations made by the trial judge regarding the placement of the recording under seal did not bind a different judge presented with a motion to unseal—a conclusion that we regard as an “implausible” and “illogical” application of the law.

We will see whether Olson/Boies seeks to appeal.

The Daily Agenda for Thursday, February 2

Jim Burroway

February 2nd, 2012

Ninth Court of Appeals To Rule On Prop 8 Tapes: San Francisco, CA. The Ninth Circuit Court of Appeals has announced that they will issue their ruling this morning regarding the public release of the video tapes that were made during trial of Perry v. Schwarzenegger, which ultimately led to the court’s ruling that Prop 8 was unconstitutional. Anti-gay supporters of Prop 8 have been fighting to keep the video tapes out of public view over embarrassment over the very poor performance of their star witnesses. The ruling will be released at 10:00 a.m. PST.

GetEQUAL to Protest National Prayer Breakfast: Washington, D.C. According to a press release from GetEQUAL:

“On Thursday, Feb. 2, GetEQUAL will protest “The Family” and their agenda of persecuting LGBT people around the world by demonstrating outside the National Prayer Breakfast. The National Prayer Breakfast is an annual event hosted and attended by members of Congress, business leaders and international heads of state. It is organized by a secretive, shadowy religious group called “The Family” (also known as “The Fellowship Foundation”), which pursues a viciously homophobic agenda in the United States and around the world. GetEQUAL will make the point that attendance at this event helps prop up this fringe group, and implies an endorsement of the anti-LGBT agenda of “The Family.”

The protest will take place from 7:00 to 10:00 a.m. EST outside of the Washington Hilton, 1919 Connecticut Avenue, N.W., Washington, DC.

Havelock Ellis: 1859.When it came time to chose a career, he chose an unorthodox one for a Victorian Englishman: that of a sexologist. To prepare, he studied to be a physician. When he joined the Fellowship of the New Life, a social group influenced by Emerson and Thoreau, he met Edward Carpenter, whose unabashed homosexuality must surely have been a great influence on him. Another influence: his wife, women’s rights activist Edith Lees, who was openly lesbian, and who insisted on an open marriage, an arrangement to which he readily agreed although he himself was impotent until the age of 60. When in 1896 he co-authored the first installment of his six-volume Studies on the Psychology of Sex, that volume, titled Sexual Inversionbecame the first English medical textbook on homosexuality. He originally published it in German, and then translated it into English in 1897 in a bid to avoid British censors. German scholars, by then, had already written several influential works on homosexuality, making German the de facto language of sexology. It was thought that by translating a German work, censors might look the other way. They didn’t. A bookseller was prosecuted for stocking Sexual Inversion, but the charges were eventually thrown out.

Ellis can claim several firsts. He was the first to study what we today recognize as transgender identities as a distinct phenomenon from homosexuality. He is also credited for creating the ideas of narcissism and autoeroticism, concepts which were later adopted by psychoanalysis. He is also often credited for introducing the word “homosexual” into the English language, but in fact he hated the word. Made up of a mixture of Greek and Latin roots, he complained, “‘Homosexual’ is a barbarously hybrid word, and I claim no responsibility for it.” He wrote instead about “sexual inversion,” and in ways that no major English writer had done before: as an objective field of study without characterizing it as a disease, immorality or a crime.

If you know of something that belongs on the agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

And feel free to consider this your open thread for the day. What’s happening in your world?

9th announces Prop 8 videotape ruling tomorrow

Timothy Kincaid

February 1st, 2012

Tomorrow at 10 a.m. the Ninth Circuit will release its ruling on whether the videotapes of the Proposition 8 case (Perry v. Schwarzenegger) can be released.

While we hope for full public disclosure, this ruling will tell us little about the court’s position on the case itself.

Full Prop 8 Court Videos of Thursday’s Hearings

Jim Burroway

December 10th, 2011

Two hearings took place on Thursday before the Ninth Circuit Court of Appeals in San Francisco. The first hearing considered whether the video tapes taken during the Prop 8 trial should be released:

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The second hearing was probably the most entertaining, where judges considered the question of whether being gay and having a partner made Federal District Judge Vaughn Walker ineligible to serve as judge in the case. Because, you know, divorced judges can’t rule in divorce cases, or something.

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Liberal activist (Republican) judges

Timothy Kincaid

December 8th, 2011

In today’s political environment, judicial decisions are praised or derided based on outcome not on the quality of argument or the consistency with the constitution. Conservatives of the dittohead variety not only measure a decision by its outcome but then deride the judges who disagree with them as being liberal activist judges legislating from the bench. Republican politicians regularly appeal for votes claiming that they must be elected so more of these liberal activist judges are not appointed.

Well, the Proponents of Proposition 8 were back in court today over the issue of whether Judge Vaughn Walker was not qualified to rule on Proposition 8 because he is gay. Well, actually, they say that because he was in a gay relationship and may have wanted to marry and therefore should have recused himself. This made him a biased liberal activist judge seeking to legislate from the bench. Or, more specifically, a gay Republican liberal activist judge seeking to legislate from the bench.

(One must assume then – to be consistent – that they think that only atheists should judge on freedom of religion cases. But somehow I doubt it.)

Today’s argument is not really about Judge Walker’s decision. That was a different day in front of a different court.

No, today was dedicated to arguing that Judge Ware was a biased liberal activist judge seeking to legislate from the bench. Or, at least, he was when he found that Judge Walker was perfectly capable of judging in Perry v. Schwarzenegger. More specifically, a black Republican liberal activist judge seeking to legislate from the bench.

We submit to you that Judge Ware abused his discretion.

Because, after all, abusing discretion is what those liberal activist judges are all about. Well that didn’t seem to catch much traction with the panel of three judges, including Justice Smith.

But should the Ninth Circuit determine that Judge Ware did not abuse his discretion, you can expect the usual rhetoric. Oh yes, the Ninth is the most liberal of appellate courts and the most often overturned. Because they are liberal activist judges. And should that decision include Justice Randy Smith, then he will be the Mormon Republican liberal activist judge legislating from the bench.

Gosh, maybe those good conservative folk should stop voting for Republicans.

A continuing public interest

Timothy Kincaid

December 8th, 2011

Today the Ninth Circuit heard the case of whether the tapes that were made during the Perry v. Schwarzenegger (Proposition 8) trial could be made public. This was lawyers and judges discussing whether procedural decisions made during a case that took place nearly two years ago allow or disallow the viewing of testimony made during that trial.

This is not exactly juicy stuff. But KQED radio, which was providing a live-stream broadcast on their website, maxed out viewers. There were more people interested in the arguments over tapes than could be accommodated.

Not many trials – and none about procedural methods – have had this draw. Primarily gay Americans, but truly people of all walks, orientations, and throughout the world know about – and care deeply about – Proposition 8.

There are not that many cultural milestones that divide eras of time. The assassination of President Kennedy, the fall of the Berlin Wall, these divided time into “before then” and “after then”. There are others, but when you think back over your life there are not that many events that separate.

For our community, there have been, so far, two. June 28, 1969 – the first night of the Stonewall riots – changed forever how gay people perceived the role that their sexuality played in their lives. And though it is still too recent to know for certain, I think that November 4, 2008 – the day that Californians voted to bar gay people from equal protection under the law – may have changed forever how gay people perceived their place in society.

The Daily Agenda for Thursday, December 8

Jim Burroway

December 8th, 2011

Ninth Circuit Court Hears Argument on Prop 8 Tapes: San Francisco, CA. Plaintiff in Perry v. Brown (formerly Perry v Schwarzenegger) will argue before the U.S. Court of Appeals for the Ninths Circuit today that the Prop 8 trial tapes should be publicly accessible. The testimony of several of Prop 8′s supporters, it turns out, is deeply embarrassing to anti-gay groups, and they have been fighting tooth and nail to keep the public record out of the public’s reach. Last September, Federal District Judge James Ware ruled that “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence” and ordered the tapes release. That order was stayed while Prop 8 supporters appealed. Oral arguments take place today at 2:30 PST.

Ninth Circuit Court Hears Argument on Whether A Gay Judge Can Rule On Marriage: San Francisco, CA. Yes, it’s a busy day in San Francisco. Immediately following oral arguments on whether the Prop 8 tapes should be made public, the same court will hear oral arguments on Prop 8 supporter’s request that Federal District Judge Vaughn Walker’s decision declaring Prop 8 unconstitutional should be vacated because Judge Walker was gay. Because, you know, women judges shouldn’t be allowed to judge cases involving women’s issues and black judges shouldn’t be allowed to judge cases involving African-American issues. Or something. Prop 8 supporters tried that argument with Federal District Judge James Ware and lost, so they’re appealing to the Ninth Circuit Court. Oral arguments begin at 3:30 PST.

If you know of something that belongs on the Agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).

As always, please consider this your open thread for the day.

Why the California State Supreme Court’s Decision Is A Good Thing

A commentary

Jim Burroway

November 17th, 2011

Of course in my heart I wanted today’s ruling by the California Supreme Court to go differently than it did. But in my head I had little doubt about the outcome. In ruling that Prop 8 proponents have legal standing to defend their handiwork in court, the court established a precedent that upholds the spirit of California’s system of initiative and referendum. It also, if taken to what I believe should be its logical conclusion, can become a starting point for reforming some of the worst abuses of California’s initiative process by holding proposition supporters accountable for the propositions they’ve foisted on the state.

California’s initiative and referendum was initially implemented as part of a broader political reform movement intended to give citizens the ability to make the laws that their elected officials refused to do. In theory, that sounds like a very good idea, I think most of us can agree that its practice in California has been a disaster. The patchwork of accreted propositions over the decades have made the state effectively ungovernable, while the initiative process itself has been hijacked by powerful special interest groups who pump multiple millions of dollars into the campaigns to get their favorite measures approved. Prop 8 alone came with a price tag of more than $83 million. With that kind of money, the citizen-legislator that the initiative and referendum system was supposed to empower hardly matters any more. The obscene sums spent on various propositions by powerful interest groups makes the whole idea of harnessing the collective wisdom of citizen-legislators, well, sad. Look at what all that money got us: a discriminatory law written into California’s Constitution in a process that leveraged prejudices and fear to win votes.

It’s no wonder then that when Americans For Equal Rights sued to overturn Prop 8 on constitutional grounds, the state stepped aside and said they wouldn’t defend it. And why should they? Prop 8 wasn’t Sacramento’s doing. It was the product of anti-gay activists who put the proposition on the ballot and spent millions on a campaign pitting Californians against fellow Californians. Why should the state defend Prop 8 supporter’s pet cause?

In fact, why should the state defend anything they didn’t enact in the first place? And furthermore, in the spirit of citizen initiative and referendum, why would anyone want the state to defend something they had no hand in creating – whether it’s Prop 8 or any other proposition that had passed without the state’s support? The California court examined those questions and observed, “Because of their special relationship to the initiative measure, the official proponents of the measure are the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure…” 

I think they’re on to something, and the Prop 8 case is a great example. When the state stepped aside and said they wouldn’t defend Prop 8, Federal District Judge Vaughn Walker let Prop 8′s supporters defend the law in his court. And look what we got: a mess so embarrassing that the defendants themselves have been fighting hard to keep the trial’s videotapes out of public view. Prop 8 supporters won their electoral campaign by playing on the worse prejudices against LGBT people, only to have to try to deny in court that prejudice played any role in the campaign. That didn’t work. They tried to claim that social science argued against same-sex marriage. That effort completely fell apart. After Prop 8 was ruled unconstitutional, Prop 8 supporters tried to claim that because Judge Walker was gay, his ruling should be overturned. That didn’t work either.

If you ask me, holding Prop 8 supporters accountable for their proposition has been nothing but a big plus for our side. Remember, these are the guys who are “the most obvious and logical private individuals to ably and vigorously defend” Prop 8. Don’t you just love it?

So if I had a complaint against the California State Supreme Court ruling, it would be that it doesn’t go far enough. I think state officials should be prohibited from defending any proposition placed on the ballot via citizen initiative. That burden should be borne by those who campaigned for the proposition’s passage. If they think it’s just a great idea during the campaign, they also ought to be able to explain why it’s a great law in court. And if they can amass the millions of dollars it took to win passage of their pet proposition, then they can stick around after the election to defend the law — and to raise the money for the legal bills — if it lands in court.

This could open the door to some substantive reform in California’s initiative and referendum process. If a campaign knew that they may be called upon to defend their handiwork in court, maybe they’d think twice about their efforts. Maybe they would more carefully consider the ramifications of their proposals before election day if they knew they’d have to defend them after election day. Maybe they would think twice about exploiting irrational fears and prejudices against a minority if they knew they’d have to explain how their law wasn’t irrationally fear-based and prejudiced in court. And yes, maybe monkeys might fly out of my butt. But holding people accountable for their actions has never been a bad thing. It has worked pretty well so far with Prop 8.

CA Supremes get it wrong on representing the state

Timothy Kincaid

November 17th, 2011

The California Supreme Court has weighed in with their opinion as to who can appeal a federal decision in which the State itself is the defendant. Should elected officials which represent the state decide to accept the decision of the federal court rather than appeal, individuals or groups who disagree with the decision of the elected representatives can themselves assume the mantle of “the state” and act as though the electorate had chosen them instead.

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

This is, I believe, an ill conceived decision, and not only because of its impact on Perry v. Schwarzenegger.

In California, initiatives serve a peculiar function. Decades of legislator-crafted districting and closed-structure power building have left the legislature in the control of a small handful of people. It is not infrequent that a large majority of the people of the state have a strong position that is in opposition to that which the oligarchy takes. So, from time to time the electorate will pass some initiative that is intended to serve as a “wake-up” to Sacramento. (1978′s Proposition 13, which limited the extent to which the state could increase spiraling property taxes, is an example.)

But Californians also have an erratic or whimsical approach to initiatives at times. And then we end up with the people placing a ban on eating horse meat.

But whether serious or wacky, initiatives are at times hastily or ignorantly drafted and – if applied literally – could be disastrous to the functioning of the state. So courts step in and toss out extreme provisions and, assuming that the end result addresses the concerns of the voters, the matter is concluded.

But that assumes that responsible parties can weigh the value of appeal, the importance of language, the constitutionality of various proposals and the way in which an initiative impacts other areas of law. And it also assumes that the State, in its official capacity, will conduct itself with honor and present its case based on the constitutions of the nation and the state, legal precedent, honest testimony, and cogent argument. For these purposes, the State of California elects an Attorney General.

But this decision opens the door for extremist wackos – of all political bents – to throw the state into chaos. If a Governor and Attorney General are not entitled to determine which provisions are worth fighting for and which can be conceded, and if we turn that decision over to idealists who believe that every word in their manifesto is of extreme importance, then my state is slated for some very confusing times.

The California Supreme Court, I believe, got caught up in the emotion of Proposition 8 and “the will of the people” and did not carefully consider the bigger question of representation.

CA Supreme Court: Prop 8 Supporters Can Appeal

Jim Burroway

November 17th, 2011

The California Supreme Court has ruled that when state officials decline to defend a proposition, the proposition’s official proponents have legal standing to appeal (PDF: 343KB/72 pages):

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …

So now the appeal of the lower court’s ruling that Prop 8 is unconstitutional goes forward in the Ninth Circuit Court of Appeals.

The purpose of marriage

Timothy Kincaid

November 1st, 2011

Gage Raley, a good ol’ Texas Mennonite studying law in Japan has come up with his most excellent reason for denying civil marriage rights to gay folk. And it’s all based on the marital presumption of paternity.

Or so Mr. Raley informs us in a late-filed amicus brief to Perry v. Schwarzenegger. And Judge Walker’s ruling should be overturned.

Now first I’d like to congratulate Mr. Raley on a most informative essay. The history of the legal and social efforts to ensure that men support their offspring – going back as far as the first human who stood erect on her hind legs – is actually a fascinating read.

But sadly, it seems that young Gage is pursuing the wrong career. He should have chosen history so as to take advantage of his story telling skills. Because law requires logic, a tying of facts to consequences that reflect a process of thinking that can withstand and opponent’s review.

And, sadly…. well, let me just give you his premise.

Mr. Raley tells us that in the American judicial system, there is a maternal presumption of paternity whose purpose is to “provide every child with a legal father.” And, though he probably doesn’t realize it, for some dozens of pages he uses the word “father” in terms of the role he plays, providing for the survival of the child.

Interestingly, a great deal of attention is spent on the argument that a genetic father must be known in order to naturally trigger this provision (a biological imperative for the continuation of his genes). And marriage’s purpose was to tie the care of the child to the continuation of his lineage. The result being that through marriage a man knew who his children were (or, at least, thought he did).

But by page 47, Raley’s evolution of law has come to the point where legal requirements are as much in play as emotional ones. And it is there that he finally tells us what the marital presumption of paternity actually is: “presuming a woman’s husband to be the father of her children”.

Irrespective of biological reality, the legal father of a child, the one responsible for its care and needs, is presumed to be the mother’s husband at the time of the child’s birth. And that is true.

Even if the child is of another race, if the husband is sterile, and if everyone in town knows that they mother is carrying on an affair, that child’s father is presumed to be her husband. Follow me? Even if it is impossible for the man to actually be the genetic father of the child, in the eyes of the law, as long as no one disputes it, he is the father.

And while there are ways to void this presumption, if the father is aware but doesn’t act in a timely manner, then he will remain that child’s father. And if they divorce, he can be legally responsible for child care. Courts have upheld such rulings.

(And this is a presumption that is not entirely unfair to men. More than a few children have been born to fathers who cannot impregnate with the full intention and even participation of men who want to be a dad.)

And it is at his grand “and thus” moment that Mr. Raley beams and presents his smoking gun: in a same-sex marriage, there’s no man to be the presumptive father of the woman’s child. A state has an interest in ensuring that its children are cared for and, it is impossible for both parties in a same-sex marriage to be the genetic parents, then the legal presumption of paternity of a child born in such a union can’t apply and no one can be held liable for that child’s care.

Oh, but what Mr. Raley didn’t notice (the elephant which was not only in the room but tap dancing while playing a trumpet) is that it was for just such a purpose that the presumption of paternity (or, from the state’s perspective, the presumption of a legally obligated provider) came to be. This presumption assigns a provider even when the neighbors scoff at the notion. It’s a legal assumption, not a literal one.

And Mr. Raley apparently is unaware that legal presumption is one of the tools that gay couples use to establish parental rights in states that allow marriage equality. It gives the child a legal parent even when biology fails to do so.

So, Mr. Raley’s argument (like most of the arguments presented to defend Proposition 8) ultimately supports same-sex marriage. But it was a nice history lesson, nonetheless.

UPDATE: 11/3/11

It seems Mr. Raley made an eensie teensie mistake. In filing the brief, he states:

Both parties have granted their consent to the filing of this amicus brief.

Well, no. Not exactly. The Plaintiffs have a quite different perspective:

Plaintiffs-Appellees have not consented to the filing of Mr. Raley’s untimely brief. Rather, Plaintiffs-Appellees informed Mr. Raley that the parties previously had consented to those amicus briefs that complied with this Court’s rules. Because Mr. Raley’s brief is filed long after the deadline established by the Court for the submission of amicus briefs, it does not comply with the Court’s rules and Plaintiffs-Appellees do not consent to its filing.


Prop 8 Proponents: still skurrred

Timothy Kincaid

September 23rd, 2011

As we noted yesterday, no anti-gay activists are actually frightened of gay people. None. Zero.

But they are very very frightened of the idea that clips of them defending anti-gay positions will be used in law schools, history lectures, and the like in the future. No one, not even a dedicated anti-gay activist, wants to have as their legacy the claims made in Perry v. Schwarzenegger. And no one wants to have video evidence of their claims being eviscerated – slowly, carefully, and completely with all the calmness and formality that a courtroom inspires.

“But please don’t let the world see me making a fool of myself” is not exactly the most compelling legal argument. So the Prop 8 Proponents are stuck with, “I’m skurrred of Teh Gheys. They’s out ta get me.”

And that was the argument that they presented to Judge Ware in seeking to keep the digital record sealed.

Defendant-Intervenors contend that “public dissemination of the [digital recording] could have a chilling effect on … expert witnesses’ willingness ‘to cooperate in any future proceeding.’”

Judge Ware didn’t buy it, finding it to be “unsupported hypothesis or conjecture”.

Upon review of the papers and after a hearing conducted on August 29, 2011, the Court concludes that no compelling reasons exist for continued sealing of the digital recording of the trial.

But we also found a few other gems in Ware’s ruling.

For example, we find that the Intervenor-Defendants (the Proponents) yet again failed to recognize the strategic importance of what was going on around them (my impression of lead attorney Charles Cooper has plummeted during this case). They didn’t object to Judge Walker making the video recording of the testimony part of the judicial record. While that is not an odd action, it is out of the ordinary and would have been the logical time to protest.

But once the recording was part of the record, courts must “start with a strong presumption in favor of access to court records”. Ooops. This left the Proponents needing to “articulate compelling reasons supported by specific factual findings”; and we all know that the Proponents don’t have any of those.

And one last item from the Ware ruling that is amusing. It appears that Cooper presented a brand new reason to keep the recordings secret: the Ninth Circuit Court judges might watch them. Yeah, I can see how that might be a problem for the Proponents.

But as for the witnesses and their monstrous fear of Teh Gheys, let’s see how much they are trembling in their boots. Here were the witnesses supporting Proposition 8:

Prof. Kenneth Miller – although Miller’s testimony in the case was first, it was not integral to the defense of Proposition 8 and it seems that he is happily teaching at Claremont McKenna College. As best I can determine he has not gone in hiding nor is he shaking in his books – though considering that he testified under oath that he disagreed with a book he himself had written the year before, perhaps he should be. I’ve inquired with Professor Miller and will inform you if it turns out that he is, in fact, terrified.

David Blankenhorn – David is a nice enough guy who thought that trial testimony just wanted his opinion on things. And as a supporter of gay rights generally, he thought his reasons for not quite going so far as marriage were good. And perhaps they are at a cocktail party, but not in court. He didn’t fare well under cross examination. I’ve inquired with him as well.

Hak-Shing William “Bill” Tam – Mr. Tam started as a witness for the defense and when they Proponents opted not to call him, our side did. Bill Tam was a most unusual witness and, in many ways, more of a victim of the Proponents than an ally. They had convinced poor Mr. Tam that the sky was falling and Teh Gheys were out to get his children.

Tam is one who probably has been impacted by his testimony. While its rather unlikely that any gay people have bothered him in any way, Tam probably feels some emotional consequence of his testimony. And if anyone is going to be living in terror of Teh Gheys, it is Mr. Tam. I wouldn’t be surprised if the fear mongering of the legal team has Mr. Tam taking precautions to protect this horrific (but nonexistent) threat against his life. I have not inquired with Mr. Tam.

Not so skurrred

Timothy Kincaid

September 22nd, 2011

Once it became evident that Perry v. Schwarzenegger – the Proposition 8 trial – would be followed closely by the public and once it was abundantly clear that those supporting Proposition 8 had nothing to offer in its defense but speculation, tradition, and animus, the Proponents knew they had to do something. So they insisted that the case not be shown to the citizens, going so far as the Supreme Court.

But you can’t tell the court (or the public) that your witnesses aren’t going to witness because they will look like fools, so the Proponents came up with a unique explanation. Gays are violent threatening people and the witnesses are terrified of repercussions. (Washington Times)

“Brian Brown, executive director of the National Organization for Marriage, which campaigned for Proposition 8 but isn’t a party to the case, said he is worried about the safety of witnesses, who could include contributors, campaign staff and volunteers.

‘The question is really whether Judge Walker can put people on the stand where they can be threatened,’ said Mr. Brown. ‘It’s a question of people’s safety.’

But Brian Brown and his integrity parted ways long ago. In reality, none of the witnesses – indeed, no anti-gay activists – fear gay people. Our community is one which has been welcoming and a safe place for pretty much anyone.

Surely there is no person in this country more singularly associated with the campaign to deny gay people their civil marriage rights than Maggie Gallagher… the same Maggie Gallagher who went alone to a theatrical production this week where she knew that the overwhelming majority of people around her would be gay.
Because she knew she’d be safe.

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