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Posts for April, 2014

Prop 8 defender plans daughter’s wedding

Timothy Kincaid

April 17th, 2014

Proposition 8, California’s 2008 ban on marriage equality, has suffered much indignity. Not only was it pilloried at trial, condemned in appeal, and pronounced dead at the Supreme Court, but it became an international rallying moment and a watershed in the struggle for marriage equality.

The 2010 trial of Proposition 8 – though not televised or even radio broadcast – was one of the more captivating media events of the year. Social media and websites gave snippets of testimony which collectively provided a tale of drama. Local and national television recounted the day’s events.

And the presumptions and prejudices underlying anti-gay bills were placed in the harsh light of scrutiny. A watching nation realized, many for the first time, that opposition was based not in morality, truth, or tradition, but on animus and a desire to diminish the dignity and honor of gay citizens.

In the subsequent years, greater embarrassment has attached itself to the Proposition and its legacy. Perhaps one of the sharpest cuts came in June of 2012 when David Blankenhorn, the chief – and virtually only – witness in defense of the proposition reversed position and announced that he supports marriage equality.

And now the proposition has yet another disgrace to bear: (WaPo)

The conservative lawyer who defended California’s ban on gay marriage at the Supreme Court is at work on another project: planning his daughter’s upcoming same-sex wedding ceremony.

Charles J. Cooper, a former top official in the Reagan Justice Department and onetime “Republican lawyer of the year,” learned of his daughter’s sexual orientation during the legal battle over California’s Proposition 8, according to journalist Jo Becker’s soon-to-be-released book chronicling the movement to legalize same-sex marriage.

“My family is typical of families all across America. We love each other; we stand up for each other; and we pray for, and rejoice in, each other’s happiness. My daughter Ashley’s path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey’s family are looking forward to celebrating their marriage in just a few weeks.”

Dear Prop 8 Proponents, it’s over

Timothy Kincaid

August 14th, 2013

The California State Supreme Court has spoken and Proposition 8 has gasped its last. The ridiculous claims about the ruling only impacting two couples, or two counties, or only those county clerks who don’t have their head up their butt, have all finally been given the respect they deserve: (LA Times)

The California Supreme Court refused Wednesday to revive Proposition 8, ending the last remaining legal challenge to same-sex marriage in the state.

Meeting in closed session, the state high court rejected arguments by ProtectMarriage, Proposition 8’s sponsors, that only an appellate court could overturn a statewide law.

SCOTUS to ADF: Go Away

Jim Burroway

June 30th, 2013

The Alliance Defending Freedom, the Phoenix-based anti-gay legal group that had been supporting ProtectMarriage’s fight to support California’s Proposition 8, had filed an emergency motion yesterday in a last desperate attempt to put a stop to same-sex weddings taking place in California. ADF had complained that the Ninth Circuit had lifted its stay on marriages before the end of the 22-day waiting period during which Prop 8 supporters can still file a separate motion for the Supreme Court to reconsider its position. Justice Anthony Kennedy, who oversees the Ninth Circuit, denied ADF’s emergency motion:

Supreme Court Justice Anthony M. Kennedy turned down at midday Sunday a request to stop same-sex marriages from occurring in California. Without comment, and without seeking views from the other side, Kennedy rejected a challenge to action by the Ninth Circuit Court on Friday implementing a federal judge’s ruling allowing such marriages.

…Although attorneys for the ballot measure’s sponsors have been creative in finding new ways to try to press the challenge, the brief action by Kennedy on Sunday may have removed the final barrier to the full achievement of marriage rights for gays and lesbians in the nation’s most populous state. …If there was some irony in Justice Kennedy’s action, it was that he was among the four dissenting Justices who would have allowed the measure’s backers to press their defense of the same-sex marriage ban. However, they had been out-voted, five to four.

 

Prop 8 Supporters Try Desperation Shot

Jim Burroway

June 29th, 2013

Lawyers for Alliance Defending Freedom (formerly Alliance Defense Fund), which have been found by the U.S. Supreme Court to lack standing to defend California’s Proposition 8 on appeal, is trying one last time to derail marriages in California by filing an emergency motion asking the U.S. Supreme Court to put a stop to those weddings.

“The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay…is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment,” the paperwork states. “Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”

Alliance Defending Freedom Senior Counsel Austin Nimocks said the Supreme Court’s consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.

Legal experts say that the Supreme Court’s 22 day waiting period is not binding on the Ninth Circuit Court. The ADF filed its motion with Justice Anthony Kennedy, who oversees appeals from the Ninth Circuit. Kennedy dissented from the majority opinion which ruled that ADF lacked standing to appeal the Federal District Court ruling striking down Prop 8.

Update: SCOTUSBlog’s Tom Goldstein says ADF isn’t likely to succeed. He also noticed something rather telling:

But it seems unlikely that the Supreme Court will see the situation as sufficiently urgent to require its intervention now. In perhaps a sign of that understanding, the firm of the proponents’ principal Supreme Court counsel — Cooper & Kirk — did not place its name on the emergency application.

If you want to see what desperation looks like in writing, you can see the ADF’s motion here (PDF: 1.7 MB/76 pages!).

Californians Are Marrying and Prop 8′s Legal Supporters Are Thoroughly Pissed

Jim Burroway

June 28th, 2013

Your schadenfreude for the day comes from ProtectMarriage, the official non-standing defenders of Prop 8:

We just received word that the Ninth Circuit, without waiting for the Supreme Court’s decision to become final and depriving us of our right to ask for reconsideration, has rushed forward to order same-sex marriage licenses.

This outrageous act tops off a chronic pattern of lawlessness, throughout this case, by judges and politicians hell-bent on thwarting the vote of the people to redefine marriage by any means, even outright corruption.

Homosexual marriage is not happening because the people changed their mind.  It isn’t happening because the appellate courts declared a new constitutional right.  It’s happening because enemies of the people have abused their power to manipulate the system and render the people voiceless.

The resumption of same-sex marriage this day has been obtained by illegitimate means.  If our opponents rejoice in achieving their goal in a dishonorable fashion, they should be ashamed.

It remains to be seen whether the fight can go on, but either way, it is a disgraceful day for California.

I find every word of that press release fantastically delicious.

Put a Ring on It: California Is Marrying Again!

Jim Burroway

June 28th, 2013

Sandy Stier and Kris Perry, Paul Katami and Jeff Zarrillo (Photos courtesy of American Foundation for Equal Rights)

In the wake of Wednesday’s Supreme Court ruling kicking Hollingsworth v. Perry back to the Ninth Circuit Court of appeals due to the lack of standing for Prop 8 supporters to appeal, the Ninth Circuit has issued a brief one-sentence order reading, “The stay in the above matter is dissolved effective immediately.”

Which means that marriage equality is golden in Golden State. Kris Perry and Sandy Stier, two of the plaintiffs in the original Prop 8 lawsuit have already gotten their marriage license moments ago in San Francisco. They were later joined by the other two plaintiffs, Jeff Zarrillo and Paul Katami, who got theirs in Norwalk. Congratulations!

Update: California Attorney General Kamala Harris has just officiated is about to officiate Sandy and Kris’s wedding. Jeff and Paul are on the way to Los Angeles to be married by Mayor Antonio Villaraigosa.

Update at 4:55 PDT: It’s official. Sandy and Kris are legally married.

Their son watches as Sandy and Kris are married by California AG Kamala Harris in the Rotunda of San Francisco City Hall.

Update at 5:50 PDT: Jeff and Paul’s wedding will be broadcast live on Rachel Maddow, which begins in ten minutes. You can also watch it live here. They are all dressed, boutonniered and ready to go:

Jeff Zarrillo and Paul Katami (Photo via Americans for Equal Rights)

Update at 6:20: It’s official! All of the Prop 8 plaintiffs are married.

Dem Reps. Cheer Marriage Decisions

Jim Burroway

June 26th, 2013

A paraphrase of what they said:

Rep. Nancy Pelosi (D-CA): Oh happy day! Justice was done for thousands of LGBT families nationwide. Forty-four years after Stonewall. Supreme Court bent the arc of history toward justice. Equal protection is a promise kept. More work to be done. Applauds the inspiration of Harvey Milk, the courage of Edie Windsor.

Rep. Steny Hoyer (D-MD): Principles of equal justice under law. Maryland and other states wanted full marriage equality. Now they get it. A good day for every American. Fifty years ago, one of my first votes as state Senator was to repeal the miscegenation law in Maryland. Another step for equality, justice, inclusion.

Rep. Jerrold Nadler (D-NY): History of the U.S. can be read as an expanding of “all men are created equal.” Today is another step in that evolution. Breathes life into constitution’s promise of equal liberty for all. DOMA embodied contempt and animus. Work is not done. DOMA in its entirety must be wiped from the books. Reintroduction of Respect for Marriage Act later today.

Rep. Jared Polis (D-CO): Was on the steps of the Supreme Court when decision was handed down. Not a single anti-equality protester. This is the system working for families like mine. Americans are more than ready for this decision. Battle is far from done. People can still be fired, kids face bullying. Congress still has a critical role.

Rep. David Cicilline (D-RI): Applauds the simplicity of the court’s analysis and power of the decision. DOMA was designed to stigmatize and harm LGBT people. Decision helps to transform the lives of thousands of families. Gives meaning to our values.

Rep. Sean Patrick Maloney (D-NY): Called partner, Randy, of 21 years. Couldn’t get the words out. For families like mine, when I get the kids ready for school, etc., they aren’t growing up in a family that is less than someone else’s. (Holding back tears.) Brown v. Board of Ed., Loving v. Virginia, Lawrence v. Texas, and now we are even more American.

Rep. Mark Pocan (D-WI): 93 million people live in states with marriage equality. WE still face barriers. Make sure every single loving, committed relatinship can be recognized.

Rep. Mark Takano (D-CA): I challenge every California clerk to start issuing marriage licenses to every couple that desires one. “I feel jubilation, I feel fabulous, I feel every gay word I can think of.” Kennedy wrote beautiful sentences and reached for the poetic. Stirring words: DOMA humiliates the children of same-sex couples.

GOP Reps. React To Marriage Decisions

Jim Burroway

June 26th, 2013

In case you don’t want to watch the video, here’s a non-transcript rendition of what they said:

Rep. Steve Scalise (R-LA): Unelected judges.

Rep. John Fleming (R-LA): Popular laws = Constitutional. Unpopular laws = Unconstitutional.

Rep. Joe Pitts (R-PA): Thank you Boehner for defending it. Negative consequences for children.

Rep. Scott Garrett (R-NJ): We the people have final say, not unelected courts. Courts got Federalism wrong.

Rep. Tim Wahlberg (R-MI): Desires of adults not more important than needs of children. “Society itself is at risk and cannot continue.”

Rep. Doug LaMalfa (R-CA): Marriage has been debased. Why vote? It doesn’t stop here. Churches will be forced to do things they are against.

Rep. Randy Weber (R-TX): Court is in collusion with Obama at the expense of children. One more attack on religious institutions.

Rep. Louie Gohmert (R-TX): This is not a hateful group. We love the U.S.A. It’s all Obama’s fault. Holder lied. The Court (“the new holy quintet”) lied. Dishonesty, inconsistency. King Solomon!

Rep. Michele Bachman (R-MN): Limited government. Denied equal protection to every American in the United States. No more co-equal branches, but Supreme Court over all. Oligarchy of five. Limited government. Decision belies the constitution. “The people will have their sway.” Equal protection again. No jurisdiction. Foundational unit of society. Created by God. Supreme Court have not risen to the level of God.

Rep. Tim Huelscamp (R-KS): Narrow radical majority. Think of the children.

Prop 8 Ruling: Case Rejected on Standing, Reverts Back To Broader Lower Court Ruling

Jim Burroway

June 26th, 2013

In a 5-4 decision, the U.S. Supreme Court rejected the challenge to Prop 8, finding that after the state of California decided not to defend the law and Prop 8 proponents stepped in, the Prop 8 supports had no standing to appeal the lower court’s decision. What makes this remarkable is that the narrower Ninth Circuit Court’s decision has been vacated and the broader ruling by Federal District Judge Vaughn Walker prevails (PDF: 173KB/35 pages):

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

The majority opinion represents an unusual lineup: Chief Justice Roberts and Justices Antonin Scalia, Elena Kagan, Ruth Bader Ginsberg and Stephen Breyer. Justice Anthony Kennedy, writing in a dissent joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor argued that Califirnia’s initiative process warranted an exception.

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority,a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.

Because this is a narrow technical ruling, it does not address the broader questions of whether California’s Prop 8 or any other state ban on same-sex marriage is constitutional or not. That decision will await a different court challenge, which makes this one something of a let-down. But this punt at least will allow another 34 million Americans to live in a jurisdiction with marriage equality. We await further word on when that will go into effect.

Part 2 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing

Rob Tisinai

March 26th, 2013

Now I’m going to go through Olson’s attack on Prop 8. As before I simply started typing as I listened so please forgive the many typos.

33:00 Olson starts off by saying this of Prop 8:

It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.

Then the Court directs him talk about standing (i.e., the question of who has the right to defend Prop 8 in court) before he gets to the merits. I’ll skip that because it’s technical legal stuff not specific to marriage equality.

41:30 We get back to the merits. Olson says what I’ve been dying to shout at Cooper and everyone else who demands we justify our rights by showing they’ll benefit the State:

This is a measure that walls off the institution of marriage, which is not society’s right. It’s an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.

And let me say that Olson is one articulate MoFo. I’ve sped up the audio by 40% as a I listen, and it makes everyone’s slow, deliberate, halting legal-speak sound like a normal conversation pace, but not Olson – Olson is so sharp, confident, and prepared that at 140% speed his clear and well-constructed sentences just fly by! Read the rest of this entry »

Part 1 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing

Rob Tisinai

March 26th, 2013

I downloaded the transcript and audio and simply started typing as I listened. I’ve done minimal formatting and proofing so please forgive the many errors. The time codes correspond roughly to the relevant spot in the downloadable audio. Cooper (the anti-same-sex marriage attorney spoke first). I’ll do our side in my next post.

11:00  Cooper begins by saying the Court has to decide whether the Constitution should put  a stop to the ongoing democratic debate and answer this question for all 50 states. Cooper says such a thing can only happen if  “no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.”

Agonizing difficult issue? When did that become the position of our opponents? I thought it was supposed to be perfectly obvious that marriage can only be between one man and one woman.

This is the start of their show of reasonableness, their feigned demonstration of no ill-will against gays. Read the rest of this entry »

Tweets from the Court House

Jim Burroway

March 26th, 2013

It’s looking good so far:

Update: The question of standing has also come up. Proposition 8 is not being defended by the state of California, but by proponents of Prop 8. Kennedy appears uncomfortable with this, which also bodes well:

Update: An important caveat:

Obama admin to argue in opposition to Prop 8

Timothy Kincaid

March 15th, 2013

Washington Blade:

In court orders on Friday, justices announced the U.S. Solicitor General will be allowed speaking time for oral arguments in the case, which are scheduled for March 26.

“The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted,” the orders states.

Obama: If Cal’s Prop 8 Is Unconstitutional, Then All the Other Bans Are Probably Unconstitutional

Jim Burroway

March 1st, 2013

Sequester? What sequester? Something about this thing called a “sequester” was the main topic of President Barack Obama’s press conference earlier today, but the really important thing was what he said when responding to a question about same-sex marriage:

Obama Administration Asks Supreme Court for Permission To Participate In Prop 8 Oral Arguments

Jim Burroway

March 1st, 2013

The blog Equality On Trial noticed this entry on the Supreme Court docket page for Hollingsworth v. Perry:

The docket page for the case has this entry:

Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.

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