Box Turtle Bulletin

Chafee’s inaugural hope

In his inauguration speech today, onetime Republican Senator and newly elected Independent Governor Lincoln Chafee included the following comments:

And I would hope that Rhode Island will catch up to her New England neighbors and pass a bill to establish marriage equality. I urge our general Assembly to quickly consider and adopt this legislation. When marriage equality is the law in Rhode Island, we honor our forefathers who risked their lives and fortune in the pursuit of human equality.

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.

Wyoming Lawmakers Take Aim At Marriage

Same-sex marriage is already illegal in Wyoming, but two GOP state lawmakers, Rep. Owen Petersen Sen. Curt Meier, see an opportunity to make it even more illegaller. They plan on introducing a resolution asking Wyoming voters to amend the state constitution to ban same-sex marriage again. A similar resolution in 2009 failed, but that was before the GOP landslide in November.

Republican Chair Michael Steele: The GOP and NOM Are “On The Same Page”

Republican Party Chairman Michael Steele’s job is up for grabs, even though he very much wants to keep it. And so he’s pulling out the issue that nearly all conservative politicians turn to when they want to shore up a base of support: marriage equality.

During the campaigns for midterm elections, the GOP and the Tea Party embarked on a concerted effort to downplay LGBT-related issues in order to reassure LGBT people and their allies that the GOP was no longer interested in fighting the culture war. But now that the elections are over and there are signs of growing discontent in the GOP over Steele’s numerous gaffs as party chief, Steele agreed to sit down with the National Organization for Marriage’s Frank Cannon for an in depth interview on the party’s plan to fight same-sex marriage.

In particular, Steele celebrated the GOP gains in the governorships and state legislative seats where “the battle is going to be, my friend.” He also praised the GOP’s partnership with NOM “and others in the movement to make very clear that this is a line that we want to draw.” He added:

For us, going forward, we’ll look to the leadership in Washington, yes, for any legislative or federal efforts to address the issue of marriage, between man and woman, traditional marriage. But most especially at the state level where I think the battle is really going to be fought over the next couple years, and we want to be in partnership through our state party organizations working with state legislative leadership to stand firmly and squarely behind the defense of marriage.

But Cannon disputed that marriage was just a state issue, and asked Steele what he would do to  “extend the branding, if you would, of the Republican Party platform’s support of marriage out in the public domain.” Steele answered:

You and I are actually on the same page here. I did not want to give the inference that somehow one side of this fight is less important than the other or less effective than the other. We’re going to have to come at this as a pincer move from the federal and the state level because that’s exactly how it’s being played out nationally. It’s not just what we’re seeing happening at the state level at the state legislatures, but it’s also a national move afoot to block attempts to, for example, to get the Defense of Marriage Act passed [sic] in Congress or to propose some of the legislation at the federal level that weakens the efforts by pro-family movements at state legislatures from being effective. So we’re on the same page there.

My only point was that really is the front line right now because that’s where we see the battle being won and lost, if you will, on a day to day basis.

Steele then goes on to defend his position by saying that not only is it not anti-gay, but it is also not exclusionary. And in incredible Animal Farm fashion, Steele intends to reconcile that fallacy by controling the terms of debate. “How we approach people and how we let others approach us really defines how this debate is going to unfold,” he explained. Which means that it’s alright to talk about marriage, as long as we only talk about marriage on his terms, and no one else’s. So he’s not only being exclusionary in his position on marriage, he also intends to be exclusionary on the very parameters of the debate.

But was terms does Steele want to debate marriage? This is where it gets to be the most insulting.

My father died as a young man from alcoholism. So my family, from a very, very early age when I was four years old, was broken. My father was an alcoholic. He was abusive. I saw what he did to my mother, and I saw  what he did to our family over time. So I have this understanding of family and how it’s held together and why it’s so important. And despite the shortcomings of my father, despite the difficulties and his own personal demons that he had to go through, he was still a very important part of my life. And my mother would share with me that while he may have been difficult with her, he was gentle with me and he understood at least, through some mechanism in his brain, that this child that he was holding was of some value. And so he would then impart to me certain things and tell me certain things about himself. And so the reality of it is, that cohesion is important.

Steele then goes on to say that as Maryland’s Lt. Governor, he met with many young men in jail who did not have “the definitional structure” of a one-man-one-woman family — not even one as dysfunctional as his family. And after having met so many criminals who violated the law,  he believes that it is vitally important for children of LGBT couples to be denied the societal support that families headed by straight families receive. In Steele’s view, if teen gang members and petty criminals who grow up without a father represent some sort of second class existence, then teenage boys and girls who grow up in LGBT families are third class — behind everyone else, including families headed by the gold standard of fathers who drink themselves to death.

And so his fight, then, is to preserve that order, and he is happy to modify the Federal Constitution in the process:

Oh, absolutely. Without hesitation or doubt. In fact we would partner with our leadership in the House and certainly our governors and leadership in the state legislatures to create a very very strong front line if you will, on that issue. I can’t again stress how important that is for how we will lead as a people, and how we will see ourselves as a nation down the road. And again, that is not to the exclusion of anyone, it’s not anti- anyone, or any group. It is just so fundamental and foundational, I think it needs to be protected.

At least three others are vying with Steele for the GOP chairmanship. But before you pin your hopes on Steele’s downfall, consider this: they, too, agreed to interviews with NOM. Former RNC political director Gentry Collins said that same-sex marriage “devalues” his marriage, Wisconsin GOP Chairman Reince Priebus vows to protect “the sanctity of marriage given to us by God,” former Missouri Republican Chairwoman Ann Wagner calls efforts to ban same-sex marriage “a pillar of our Republican party and our platform,” and that the GOP should not shy away from it, and the Tea Party-aligned Save American Jobs Project Chairman Saul Anuzis — you know, he leads the people who really only care about economic issues — says that defending one-man-one-woman marriage is “part of our faith.”

Your relationship recognized in Ireland; Irish couples can start the three month notice

As of January 1, same-sex couples in Ireland may give notice of their intent to join in a civil partnership. As with marriage, there is a three month waiting period before the ceremony can take place. (Irish Examiner)

Justice Minister Dermot Ahern [on Thursday] signed the Commencement Orders for the Civil Partnership and Certain Rights of Cohabitants Act 2010.

Enacted in July, the Act establishes a civil partnership registration scheme for same-sex couples together with a range of rights, obligations and protections including maintenance obligations, protection of a shared home, pension rights and succession.
…
The minister also signed orders which will automatically recognise a wide range of foreign same-sex civil marriages and same-sex civil partnerships as Irish civil partnerships. Same-sex couples who are already married or are civil partners through these recognised foreign relationships will be deemed civil partners in Ireland from early January.

A Good Man Tries and Fails

Ron Sider is a prominent evangelical Christian who opposes marriage equality.  He doesn’t seem to be a hateful bigot at all.  I never sense that he was murmuring perverts, perverts, perverts as he typed his recent article, “Bearing Better Witness.”  He’s shown me two things with that piece: First, a reminder that some people who promote discrimination are decent, well-meaning human beings.  And second, even their best-intentioned arguments can’t withstand scrutiny.

Sider begins by arguing there are secular reasons for opposing marriage equality:

Even a state such as ours, which does not use the law to promote or discourage particular religious beliefs, nevertheless has a huge stake in marriage. It is not simply a religious issue. The law is a moral teacher. Most people assume that if something is legal, it is moral—or at least not immoral. What is legal soon will become normal.

That’s both untrue and dangerous.

Really, most people would brand something like self-serving deceit as immoral.  Even a trivial selfish lie betrays someone’s trust.  But while some lies are illegal — fraud, libel, slander, perjury, and the like — most everyday lies are not.   Sorry, I got caught in traffic.  Or, I wasn’t flirting with him. Or, I don’t know who ate the last piece of pie (that one’s egregious in the extreme!).

In fact, you can create a whole catalog of immoral-but-not-illegal acts: Read the rest of this entry »

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.

Couple recognition, state by state

Upon the governor’s signature, Illinois will become the second state that is currently offering civil unions to same-sex couples. The status of the various recognition mechanisms is as follows:

Marriage on the same terms as heterosexual marriage – 5.1% of US Population:

Massachusetts
Connecticut
Iowa
Vermont
New Hampshire
District of Columbia

Civil Unions – a rights except the name – 7.1% of US Population:

New Jersey
Illinois

Domestic Partnerships will all the rights except the name – 16.3% of US Population

California
Oregon
Washington
Nevada

Limited recognition of same-sex couples – 6.2% of US Population

Hawaii – Reciprocal Benefits
Colorado – Reciprocal Benefits
Wisconsin – Domestic Partnerships
Maine – Domestic Partnerships
Maryland – Domestic Partnerships

In addition, the states of Maryland and New York (6.4% of US Population) will give full recognition to same-sex marriages conducted where legal. Rhode Island may possibly do so also (it’s a bit uncertain) and offers unregistered Domestic Partnerships with a scant handful of rights.

Also, there are dozens of cities offer some form of recognition and protection for same-sex couples.

Illinois Senate votes for Civil Unions

The Illinois State Senate has now voted to enact civil unions, by a bipartisan vote of 32 to 24, following yesterday’s vote in the House. After the signature of Governor Pat Quinn – who has been campaigning for the bill – the following will be law in the state:

Section 20. Protections, obligations, and responsibilities. A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law.

Granted, this does not carry the prestige of marriage, but to those Illinoisans who are now able to access many rights that they could not access before, I offer my joyous congratulations.

Illinois House approves Civil Unions!!

It appears that they did have the votes in the Illinois House of Representatives, after all, and with some one to spare. From Progress Illinois,

UPDATE 12 (6:28 p.m.): And there it is! The civil unions bill passes by a 61-52 margin! Two voted present and three did not vote. Now onto the Senate, where it’s expected to be approved quickly.

The bill passes with bipartisan support (my quick count includes six Republicans voting for civil unions). The bill needed 60 votes to pass.

Today is definitely a day worth celebrating.

Illinois civil unions vote could come today

Rumors and reports suggest that the Illinois legislature could vote on a civil unions bill as early as today. The real battle will be in the House, where vote count is uncertain.

Meanwhile, a Senate committee advanced the bill in that chamber.

A push to legalize civil unions for same-sex couples in Illinois cleared a small hurdle today at the Capitol.

An Illinois Senate committee advanced the measure 6-2 along party lines.

Progress Illinois is liveblogging the debate.