Box Turtle Bulletin

CA Supremes to play role in Prop 8’s federal court case

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.

Reinhardt to NOMmies: women have their own minds

The National Organization for Marriage’s Maggie Gallagher was not happy when Justice Reinhardt was selected as part of the panel to hear the Perry v. Schwarzenegger appeal. She insisted that he recuse himself because his wife, Ramona Ripston, heads the ACLU in Southern California and supports marriage equality:

The entity that Ripston heads took part as counsel to an amicus in this very case in the district court.
According to media reports including those in the Los Angeles Times and respected legal blog Volokh.com, Reinhardt has a policy of recusing himself from cases involving the ACLU of Southern California.

In addition to the clear legal reasons that Judge Reinhardt is required to disqualify himself from this case, there are other circumstances that clearly call his impartiality into question:

· Ripston, Reinhardt’s wife, contributed money to the NO on Proposition 8 campaign. It is not known if these funds were joint or separate funds.
· Ripston publicly cheered the decision by the District Court to declare Proposition 8 unconstitutional. In a media statement, she said, “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

Reinhardt declined. And yesterday he clarified his reasoning:

My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female.

Gosh, I guess the Little Lady has views of her own.

Naturally, conservatives like Ed Whelan don’t find Reinhardt’s explanations to be adequate. For me, I’ll wait until the case reaches the Supreme Court to judge the integrity of Whelan’s complaint. Should he demand that Scalia recuse himself due to his son’s advocacy on this issue then I’ll believe that Whelan is a man of integrity; otherwise this is but more results-driven posturing masquerading as principle.

Imperial County denied standing

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?

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

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:

CALIFORNIA CONSTITUTION
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

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

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.

Standing

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.

Constitutionality

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.

Prop 8 appeal today

At 10:00 am (Pacific Time), three judges of the Ninth Circuit Court of Appeals will hear oral argument about whether Proposition 8 is a violation of the equal protections and due process clauses of the US Constitution. But first, they will hear argument about whether there is anyone who is legally entitled to defend Proposition 8, now that the Governor and Attorney General have chosen not to appeal Judge Walker’s decision.

You can follow the case on CSPAN.

Courage Campaign is liveblogging. I’ll provide my thoughts and opinions later.

The Prop 8 Appeals Court Panel: Bad In The Long Run?

As we reported earlier today, the Ninth Circuit Court of Appeals has announced the panel of judges that will will hear an appeal to Judge Walker’s decision in Perry v. Schwarzenegger that Proposition 8 is in violation of the US Constitution. That panel will consist of Judges Stephen Roy Reinhardt, Michael Daly Hawkins, and Norman Randy Smith. Many believe that the panel will be inclined to uphold Judge Walker’s decision. Focus On the Family went so far as to call the panel “stacked against marriage protection.”

The Ninth Circuit however is just a way-station on the way to the ultimate stop, the Supreme Court. Orin Kerr, posting on the Volokh Conspiracy, worries about Judge Reinhardt’s presence on the panel:

Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in.

Perry appellant judges announced

Next Monday at 10:00 am, a panel from the Ninth Circuit Court of Appeals will hear an appeal to Judge Walker’s decision in Perry v. Schwarzenegger that Proposition 8 is in violation of the US Constitution. That panel will consist of Judges Stephen Roy Reinhardt, Michael Daly Hawkins, and Norman Randy Smith.

The general consensus (from supporters and opponents of marriage equality) is that Reinhardt and Hawkins are likely to be sympathetic to the merits of the case, while Smith – a Republican whose entire education has been in Mormon institutions – may be less inclined to find that gay people are a class of people who were, in this instance, targeted for unconstitutional discrimination by (among others) the church to which he belongs.

The trial proceedings have also been amended. The first hour will be as previously announced, but the second hour will be:

• 30 minutes for the Proponents
• 20 minutes for the Perry plaintiffs-appellees, and
• 10 minutes for the plaintiff-intervenor-appellee City and County of San Francisco.

Perry appeal will be televised

The Ninth Circuit has ruled that the appeal in Perry v. Schwarzenegger will be aired live:

C-SPAN applied to televise live the case captioned above, scheduled to be heard in San Francisco, on December 6, 2010 at 10:00 a.m. C-SPAN’s request to televise live is GRANTED. A maximum of two (2) video cameras will be permitted in the courtroom. C-SPAN will serve as the pool-feed for all media organizations that submit an application.

I’m sure the anti-gays aren’t happy about this.

Rules for oral appeal layed out for Perry

These shall be the rules for the oral arguments in the appeal of Perry v. Schwarzenegger:

The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.

During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.

During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.

No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.

Prop 8 Proponents’ Response Filed

Yesterday was the due date for the filing of the response of the Proponents of Proposition 8 to Ted Olson’s rebuttal of their appeal. And, interestingly, for their premise they took a page out of NOM’s book and cried, “Don’t call us bigots!”

The response went something like this: Good and decent people differ over who should be allowed to marry; these people are not bigots; therefor they have a reasonable basis for their gendered definition of marriage other than just to harm gay people; and thus Proposition 8 meets constitutional review.

But the overwhelming majority of people on both sides of the same-sex marriage debate, in California and throughout the country, are good and decent Americans, coming from all walks of life, all political parties, all races and creeds. Their opinions on this issue are motivated by nothing more than “a sincere desire to do what’s best for their marriages, their children, their society,” ER517 (Rauch), and are entitled to consideration and respect. And their opinions on this issue are not static, but rather are constantly evolving and changing as the debate and experience matures.See Jonathan Capehart, Obama Begins Shift on Gay Marriage,THEWASHINGTONPOST, Oct. 28, 2010 (President Obama quoted as saying that attitudes on same-sex marriage evolve, “including mine.”).

People of good will can and do differ in good faith on the issue of same-sex marriage, and their differences should be resolved through the political process, not here.

All of which is fine and good and none of which addresses whether the intent and purpose of this particular proposition was to single out gay people and remove from them a fundamental right shared by all others. And that is why the trial of fact was so important; it found that regardless of after-the-fact purportedly lofty ideals, this proposition was prepared, packaged, and sold based on anti-gay animus.

The rest of the brief is a recitation of their argument (with lots of use of the phrase “procreative purpose”): gay people can’t be identified or defined, they are politically powerful, they can become heterosexual, and thus discrimination targeting them is not subject to heightened review; banning marriage between gay people does not deny their fundamental right to marriage; children are better in heterosexual families, deference should be given to bald bigotry (or “instinctive, deeply ingrained beliefs”), and the court should ignore the campaign materials and believe that Proposition 8 was all about channeling heterosexual procreation instead of protecting little girls from hearing in school that they could marry a princess too. In other words, a barrage of opinion, lies, misstatements, and misdirection, none of which had anything to do with Proposition 8 and all of which is contrary to the findings in Judge Walker’s court.

The amicus briefs that we’ve all waited for

In September the Proponents of Proposition 8 filed an appeal (along with their argument for being granted standing to appeal) and several anti-gay activist groups filed amicus (friend of the court) briefs to support their position. At the time it felt a bit lonely.

But last month the Plaintiffs in Perry v. Schwarzenegger filed their rebuttal and it was turn for advocates for equality and constitutional law to let their opinions be known. And a great many did so.

Kathleen Perrin has loaded all of the filings in this case on her Scribed site so you can read each one there. Some are well worth the time. I’ll not provide a synopsis here for each amicus brief, but rather will group them in category and provide a few of the better quotes

The numbers refer to the court document filing. In some instances some of the entities who filed together in a joint brief fit in different categories so you’ll see the number more than once. In in few cases I was completely baffled as to what these organizations had in common.

THE PROFESSIONALS

163 – American Psychological Association, The California Psychological Association, The American Psychiatric Association, and The American Association for Marriage and Family Therapy – representing nearly 250,000 mental health professionals, this very dry brief calmly lays out the methods by which one should evaluate studies, and presented “an accurate and balanced summary of the current state of scientific and professional knowledge concerning sexual orientation and the family relevant to this case.”

193 – American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, National Association of Social Workers, California Chapter, American Sociological Association, and American Academy of Pediatrics, California – wrote in to share “the psychological and social ramifications of discrimination.”

THE LEGAL FIELD

150 – Justice Donald B. King and the American Academy of Matrimonial Lawyers (N. Cal) – King is a sort of super-judge on family law issues who claims to have “authored more published opinions in family law cases than any appellate justice in California’s history”.

To assess the rationality of Proposition 8, the proper comparison is whether legal recognition of a supposedly “sub-optimal” environment would be better for the child than what the actual alternative would be. And here, the alternative is not that a child being reared by parents in a same-sex relationship is suddenly going to be swooped up and deposited into the “optimal” environment of the home of an opposite-sex married couple. The alternative is that, rather than having that child’s household environment (two loving same-sex parents) being accorded full and legitimate status in the eyes of the law, that child instead will be reared in the very same home, but with Proposition 8’s mark and brand of inferiority.

152 – Bay Area Lawyers for Individual Freedom – this is a collection of 42 organizations, including national, metropolitan, local, and minority bar associations and national and local non-profit organizations. They range in size and focus from the Los Angeles County Bar Association, with 27,000 members, to the much smaller Bay Area Association of Muslim Lawyers.

201 – Another nine groups signed on to BALIF’s arguments.

167 – California Professors of Family Law – these 26 professors teach law at USC, Stanford, UCLA, California Western, UC Davis, Santa Clara, Loyola Marymount, University of San Francisco, Whittier, Berkeley, McGeorge, Pepperdine, Hastings, and Golden Gate University.

172 – Howard University School of Law Civil Rights Clinic – Howard is among the oldest and most revered of the traditionally black universities. They spoke from a history of civil rights and made comparisons that the gay community on its own dare not claim. Read this brief. The conclusion is truly touching:

In the final analysis, there is nothing new in the arguments against same-sex couples having the freedom to marry. However much opponents of marriage for same-sex couples may insist “this time it is different,” there remains an appalling familiarity to the refrain that allowing same-sex couples the same human dignity as everyone else will threaten social order, degrade individuals, and harm children. We suffered through the same awful dirge when slave owners sought to preserve the ban against slave marriage and segregationists opposed interracial marriage. Then, as now, some claimed with all sincerity and unwavering conviction that, if African-Americans were accorded full human dignity, our society, our morality, and our faith would come to grief and lay in ruins.

But the certainty and monotony with which some will always sound the death knell for society, morality, and faith, just because two adults choose to marry cannot obscure the reality that we heard virtually the same arguments for almost three hundred years to justify preventing two black people from marrying and then a black man from marrying a white woman. Nor, when all is said and done, can these jeremiads about how marriage equality for same-sex couples will lead to our final slouching toward Gomorrah obscure the reality recognized long ago by the great African-American gay writer, James Baldwin, that it is “an inexorable law that one cannot deny the humanity of another without diminishing one’s own.”

175 – National LGBT Bar Association – an umbrella group for other local LGBT bar associations which has since 1992 been an affiliate of the American Bar Association.

187 – Professors William N. Eskridge, Jr., Rebecca L. Brown, Bruce A. Ackerman, Daniel A. Farber, Kenneth L. Karst, and Andrew Kippelman – professors of constitutional law at Yale, USC, Berkeley, UCLA, and Northwestern.

188 – Constitutional Law and Civil Procedure Professors Erwin Chemerinsky, Pamela Karlan, Arther Miller, and Judith Resnik, et al. – The “et al.” includes Bryan Adamson, Janet Cooper Alexander, Barbara A. Atwood, Barbara Babcock, Joshua P. Davis, David L. Faigman, Toni M. Massaro, David Oppenheimer, Fred Smith, and Larry Yackle. Chemerinski is the founding dean of UC Irvine School of Law. Also represented are Yale, Stanford, Seattle, University of Arizona, University of San Francisco, Hastings, Berkeley, NYU, and Boston University.

197 – ACLU Foundation of Northern California, Gay and Lesbian Advocates and Defenders, Lambda Legal Defense and Education Fund, Inc., and National Center for Lesbian Rights – these guys fought the good fight before Olson and Boies. Together, the ACLU-NC, Lambda Legal, and NCLR were counsel in In re Marriage Cases, the lawsuit which brought marriage equality to California for the summer of 2008, and GLAD was counsel in Goodridge v. Dept. of Pub. Health and Kerrigan v. Comm’r of Pub. Health, which won marriage equality for Massachusetts and Connecticut.

Proposition 8 constitutes a per se violation of the Equal Protection Clause—i.e., a law that serves no purpose other than to mark one class of citizens as inferior to others—and is unconstitutional regardless of the applicable level of scrutiny

THE STATES

158 – Legislators from the United States Jurisdictions that have legalized same-sex marriage – These politicians – prominent and obscure, local and state-wide – from Vermont, Connecticut, New Hampshire, Iowa, and the District of Columbia submitted numerical evidence that the “parade of horribles” which anti-gay activists fear have no basis in reality.

Since the legalization of same-sex marriage in their jurisdictions, these legislators have witnessed none of the harm to marriage and families claimed by opponents of marriage equality. They submit this brief to document the absence of any ill effects of legalizing same-sex marriage in their jurisdictions, in order to refute the argument made by the proponents of Proposition 8 and their amici that legalizing same-sex marriage results in a series of deleterious effects on heterosexual couples, the institution of marriage, and children reared in jurisdictions where same-sex couples are permitted to marry. This brief is being filed with the consent of the parties

176 – The Commonwealth of Massachusetts – not only have they not had problems, marriages have become more stable.

Since same-sex couples began marrying here in 2004, Massachusetts’ marriage rate has remained stable, its divorce rate has declined, and its nonmarital birth rate has remained well below the national average. Marriage equality has also led to greater acceptance of gays, lesbians, and their children, increased stability for gay and lesbian families, and improved public health outcomes.

THE PEOPLE OF FAITH

198 – California Faith for Equality, California Council of Churches, General Synod of the United Church of Christ, Univeral Fellowship of Metropolitan Community Churches, The Episcopal Bishops of California and Los Angeles, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association, and Unitarian Universalist Legislative Ministry California – Interestingly, the Unitarians, Episcopalians, and Pilgrims (UCC) trace their roots to the earliest foundation of our nation.

Though Proponents’ amici suggest that Proposition 8’s demolition of same-sex couples’ right to marry was designed to protect Californians’ religious liberty, quite the opposite is true. The real threat to religious liberty comes from enforcing as law the religious doctrines of some sects, to outlaw marriages that others both recognize and sanctify. Clergy and congregations of the Unitarian Universalist Association, the United Church of Christ, the Universal Fellowship of Metropolitan Community Churches, Reform and Reconstructionist Rabbis, and others, proudly solemnized the legal marriages of same-sex couples – until Proposition 8 adopted other sects’ religious doctrine to outlaw those marriages. They should be free to do so again.

THE ORGANIZATIONS

151 – Constitutional Accountability Center – a progressive think tank

162 – National Gay and Lesbian Task Force, Human Rights Campaign, American Humanist Association, and Courage Campaign Institute – basically Gay, Inc. … and the humanists.

172 – Americans United for the Separation of Church and State – they signed on to Howard University’s amazing brief.

181 – California Teachers Association – on behalf of their 300,000 members and 1,000 school districts in the state, they corrected the lies spread by the Proposition 8 campaign.

182 – Anti-Defamation League – perhaps drawing on the “you can blend in” experiences of Jews in our history this ardent opponent of anti-Semitism made an odd but interesting argument.

Discrimination and hate crimes against gays and lesbians are all too prevalent in our society and the segregated system required by Proposition 8 puts gays and lesbians who wish to enter state-recognized committed relationships at risk because it forces them to disclose their sexual orientation in situations where it is completely irrelevant and potentially unsafe to do so. Extending the right to marry to same-sex couples would remedy the constitutional infirmities of the segregated system and also leave the decision of when and where to disclose one’s sexual orientation to the discretion of the individual.

183 – NAACP Legal Defense & Education Fund, Inc. – as with Howard University, they draw on the history of marriage discrimination. Mildred Loving would be proud.

Over 40 years ago, in Loving v. Virginia—a case in which LDF participated as amicus—the Supreme Court was confronted with the constitutionality of prohibitions on interracial marriage, which persisted in sixteen states nearly one hundred years after the Fourteenth Amendment was adopted in 1868. In a significant step forward in our nation’s progress toward a “more perfect Union”—one that was the subject of bitter controversy, but now seems obvious—the Supreme Court tore down this lasting and notorious form of discrimination, holding that anti-miscegenation laws violate the Constitutional guarantees of Equal Protection and Due Process.

The basic Fourteenth Amendment principles addressed in Loving are not limited to race, but must be universally applied to any state action that denies a person the right to marry the person that he or she loves.

196 – The Southern Poverty Law Center – this civil rights icon added to the voices unashamed to discuss marriage in terms of the continuum of forms that discrimination has taken.

199 – Asian American Justice Center, Asian Law Caucus, Asian American Institute, Asian Pacific American Legal Center, Asian Pacific American Women Lawyers Alliance, Asian Pacific Islander Legal Outreach, API Equality, California Conference of the NAACP, Chinese for Affirmative Action, Coalition for Humane Immigrant Rights of Los Angeles, Korematsu Center at Seattle University, Mexican American Legal Defense and Education Fund, and the Zuna Institute – remind the court that all minorities are threatened when the majority is unlimited in its ability to deny fundamental rights.

Amici are concerned that enactment of Proposition 8’s ban on same-sex marriage allows a bare political majority to enshrine discrimination into the California Constitution against a class of persons otherwise accorded heightened judicial scrutiny under California law. Amici believe the use of the referendum process to deprive gay men and lesbians of a fundamental right without the protection of heightened scrutiny raises the likelihood that other classes protected under California law—including classes defined by race, ethnicity, national origin or gender—may be similarly deprived of long established civil rights. Amici share a common interest in ensuring that the fundamental right of protected classes to be free from discrimination is not at the mercy of an electoral majority’s whims.

200 – Equality California – Gay California, Inc.

THE COLORFUL CHARACTERS

166 – Jon B. Eisenberg – submitted an argument that the whole initiative and proposition process is in violation of the California Constitution because it was incorrectly implemented in 1911.

Looking back to the list of notable amici who argued for the right of the people to take away fundamental rights from an unfavored minority, they just don’t look so impressive any more.

Perry: the rebuttal to the appeal

Perry v. Schwarzenegger is about whether California’s Proposition 8 was in violation of the US Constitution… but not really. That’s just the issue. Perry is about something much larger. And it is in the opening paragraphs of the plaintiffs’ rebuttal to appeal (pdf) that this is so eloquently made clear:

This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

Perry is a question about marriage, but the real question, the one that drives the motivations behind Proposition 8 and all of the anti-gay activists, is whether the US Constitution also covers gay people or whether the words “any person” contains an invisible asterisk that references a special exclusion.

This battle, like that over DADT, adoption, and all of the other areas in which gays are segregated and excluded is a battle over whether gay people will be seen as full citizens, or whether the “normalization of homosexuality” is so great a threat that the equality principles enshrined in our founding documents have to be discarded or ignored.

Ted Olson’s response to appeal is as much a stirring call to uphold our values as a people as it is a legal argument. Yes, his logic is sound and his legal reasoning is beyond reproach (and amazingly easy for a lay person to understand); but it is his reminder of why we believe what we believe that makes this document such a great read.

The purpose of the Proponents is not, as they suppose, to protect some idealized institution of marriage. Rather, it is to further and support the culture of disapproval of homosexuality and to do so by carving out an exclusion from the protections afforded by the Constitution. But this is not just a “social discussion” or a “moral position” without direct and dire consequences. As Olson concludes:

Last month, in a widely publicized tragedy, a young Rutgers student jumped to his death from the George Washington Bridge after being outed on the Internet as gay. A few days later, across the Hudson River in the Bronx, two 17-year-old young men were beaten and tortured to the brink of death by a gang of nine because they were suspected of being gay. Incidents such as these are all too familiar to our society.

And it is too plain for argument that discrimination written into our constitutional charters inexorably leads to shame, humiliation, ostracism, fear, and hostility. The consequences are all too often very, very tragic.