Box Turtle Bulletin

Prop8ers appeal to the Supremes

Timothy Kincaid

July 31st, 2012

After the Ninth Circuit Court of Appeals repackaged the rejection of Proposition 8′s constitutionality so as to limit its impact to California, there was some possibility that the supporters of Proposition 8 would cut their losses and not appeal to the Supreme Court. However, yesterday they went the expected route and petitioned for a writ of certiorari (a request that the court hear the case).

The court will decide whether to hear the case, making that announcement probably in the first week of October. The possible results (in the order of my best guess) are:

• the court hears the case and upholds the decision that Proposition 8 is unconstitutional based on the unique circumstances in California
• the court refuses to hear the case and the decision stands, but only for California
• the court hears the case and determines that the Ninth’s limitations do not hold and returns the case to the Ninth to decide if Prop 8 is unconstitutional on its merits rather than on the unique circumstances.
• the court hears the case and invalidates all of the constitutional amendments which enshrined anti-gay discrimination. The court simultaneously establishes that anti-gay laws must meet a more strict level of scrutiny than most.
• the court hears the case and reverses the Ninth Circuit’s decision and reinstates Proposition 8. This becomes known as one of the three or four most shameful decisions ever made by the Supreme Court.

Prop 8′s key witness endorses marriage equality

Timothy Kincaid

June 22nd, 2012

I’ve always had compassion for David Blankenhorn. He’s a man with strong convictions and good intentions who struggled with two contradictory beliefs:

1. gay people are entitled to equality and a society that fully includes gay people is made better by it

2. same-sex marriage would be a negative contributor to heterosexual marriage, and that heterosexual marriage is essential to a healthy society and is in the best interest of children

And it is the second belief that placed Blankenhorn as the primary (virtually only) witness in defense of Proposition 8, California’s ban on same-sex marriage.

It can be tempting to write off people who do not support equality as being motivated by hate or intellectually incapacitated.

But Blankenhorn’s arguments are not irrational. These are beliefs that are held by many intelligent people who are not motivated by hatred or malice, just long-held unproven presumption. Having “always” believed this to be true, they are prejudiced in their approach to the marriage issue and filter arguments in its favor through the presumptions of harm.

But this does not mean that they are happy with their conclusions. Blankenhorn was not at all happy that he hurt gay people (and even less happy that many people assumed that he wished to) nor was he overjoyed to be politically lumped in with people with whom he shared no other positions.

And I suspect that he discovered that while the anti-gay collective talks about family and children in their advertisements, in reality he was the only one who really cared about the children. He actually wanted to “protect marriage” so that “children could have a mother and a father” while his allies (of a sort) wanted to rail against the Homosexual Agenda.

Well, he’s had enough. So Blankenhorn is, somewhat grudgingly, reversing course.

He still believes that gay marriage could be a bad thing for marriage, but the anti-gay culture war mentality is even worse. In a NYTimes Op-Ed:

I had hoped that the gay marriage debate would be mostly about marriage’s relationship to parenthood. But it hasn’t been. Or perhaps it’s fairer to say that I and others have made that argument, and that we have largely failed to persuade. In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens. And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

I had also hoped that debating gay marriage might help to lead heterosexual America to a broader and more positive recommitment to marriage as an institution. But it hasn’t happened. With each passing year, we see higher and higher levels of unwed childbearing, nonmarital cohabitation and family fragmentation among heterosexuals. Perhaps some of this can be attributed to the reconceptualization of marriage as a private ordering that is so central to the idea of gay marriage. But either way, if fighting gay marriage was going to help marriage overall, I think we’d have seen some signs of it by now.

So my intention is to try something new. Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same. For example, once we accept gay marriage, might we also agree that getting married before having children is a vital cultural value that all of us should do more to embrace? Can we agree that, for all lovers who want their love to last, marriage is preferable to cohabitation? Can we discuss whether both gays and straight people should think twice before denying children born through artificial reproductive technology the right to know and be known by their biological parents?

I welcome his support on the issue of marriage.

I am not unequivocal in my endorsement of this new position. I’m troubled by the implications of to gay couples of assigning rights based on from whom the DNA strains originated. But I can accept that there are valid arguments that can be made for this position and many same-sex couples not only accommodate biological contributors but insist upon their being a part of the child’s life.

And I am happy that David is evolving to a place where his contradictory views are less contradictory. His is a process that we will continue to see on a grander scale. I hope we are gracious when it happens to people we know.

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

Timothy Kincaid

June 4th, 2012

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

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

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

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

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

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

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

Watching the culture shift

Timothy Kincaid

April 3rd, 2012

Culture is shared perspectives and assumption. It’s the stories so familiar that you don’t need the details. It’s the following overheard statement from the postal agent who delivers our office mail (black man probably in his forties) to our office manager (white woman, early 50′s). The topic was taxes:

“…and churches don’t pay taxes at all and they go and use it on, on, well like that church in Utah, the one Romney goes to, they spent all that money on the thing against the gays, and that’s not right!”

Prop 8 Supporters To Petition for En Banc Review

Jim Burroway

February 21st, 2012

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

They’ve Always Held That View?

Jim Burroway

February 7th, 2012

The LDS Church has responded to the Prop 8 ruling:

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

Ahem.

Presidential Candidates React

Jim Burroway

February 7th, 2012

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

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

Newt Gingrich, via Twitter:

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

Rick Santorum, also via Twitter:

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

Ron Paul:

“…”

Press Secretary Jay Carney on behalf of President Obama:

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

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

“Prop 8 – Sometimes a Court gets it right”

Ninth Circuit decision: the basics

Timothy Kincaid

February 7th, 2012

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

Standing and Recusal

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

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

These decisions were unanimous.

Impact on marriages

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

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

The scope

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

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

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

What the case is about

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

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

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

The most important statement of what marriage is:

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

The logic

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

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

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

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

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

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

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

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

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

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

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

Dissent

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

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

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

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

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

The question he seeks to answer is

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

Smith answers it this way:

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

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

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

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

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

But that is what Smith presents.

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

Other interesting items of note

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

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

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

NOM Fleeces Its Followers with Falsehoods (again)

Rob Tisinai

February 7th, 2012

Today NOM once again asked its supporters for money by lying to them.

You know, they do this so often I should just create a template for this kind of response.

Anyway, they’re panicking about Prop 8 being declared unconstitutional. As paid professionals they ought to realize the 9th Circuit ruling could only apply to states that:

• Withdraw same-sex marriage rights after they’ve been grants, and
• Have a domestic partnership law that grants same-sex couples all the state-level benefits and responsibilities of marriage.

That’s a tiny number of states. But the paid professionals at NOM want to sound a more urgent note in their fundraising appeal, which contains three DONATE NOW buttons:

A Supreme Court victory would preserve the marriage laws of 44 states, denying same-sex marriage radicals in their campaign to force gay marriage on the entire nation in one fell swoop.

But if we lose at the Supreme Court, marriage will be jeopardized not just in California, but in all 50 states.

No. As much as it pains me to say it, a victory (for us, not NOM) at the Supreme Court couldn’t possibly “force gay marriage on the entire nation in one fell swoop.”  It would have no impact on most states.

There’s an old quote: “Never attribute to malice that which is adequately explained by stupidity.” Maybe NOM president Brian Brown just isn’t capable of understanding the 9th Circuit decision.

Or maybe he understands it very well — exactly as well as he understands the concept of cash flow.

In any case, feel free to go over there  and point out the dishonesty. It was kind of fun swamping their comments last time — let’s start the party again.

Affirmed: Appeals Court Upholds Decision Striking Down Prop 8

Jim Burroway

February 7th, 2012

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

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

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

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

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

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

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

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

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

Prop 8 ruling tomorrow

Timothy Kincaid

February 6th, 2012

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

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

Ninth: Prop 8 recordings sealed

Timothy Kincaid

February 2nd, 2012

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

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

We will see whether Olson/Boies seeks to appeal.

9th announces Prop 8 videotape ruling tomorrow

Timothy Kincaid

February 1st, 2012

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

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

Full Prop 8 Court Videos of Thursday’s Hearings

Jim Burroway

December 10th, 2011

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

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

Liberal activist (Republican) judges

Timothy Kincaid

December 8th, 2011

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

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

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

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

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

We submit to you that Judge Ware abused his discretion.

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

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

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

The Daily Agenda for Thursday, December 8

Jim Burroway

December 8th, 2011

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

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

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

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

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

A commentary

Jim Burroway

November 17th, 2011

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

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

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

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

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

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

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

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

CA Supremes get it wrong on representing the state

Timothy Kincaid

November 17th, 2011

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

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

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

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

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

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

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

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

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

CA Supreme Court: Prop 8 Supporters Can Appeal

Jim Burroway

November 17th, 2011

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

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

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

The Daily Agenda for Thursday, November 17

Jim Burroway

November 17th, 2011

TODAY’S AGENDA:
CA Supreme Court To Issue Ruling on Prop 8 Appeals Standing: San Francisco, CA. There is a slim chance (in my opinion, at least), that tomorrow might be the day when marriage equality effectively returns to California. To see how that might happen, let’s review: On August 4, 2010, Federal District Judge Walker Vaughn found Prop 8 unconstitutional because, as the lawyers arguing against Prop 8 put it, junk science, fear and prejudice were put in trial and lost. Conservatives tried to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to file an appeal, but the California Supreme Court said they didn’t have to if they didn’t want to. Which they didn’t. That was kind of important because it wasn’t clear that anyone besides the governor and attorney general had standing for appeal. Since this involved California law, the Federal Appeals Court asked the California Supreme Court to perform one of the roles that state supreme courts are supposed to do and Federal courts are not qualified to do: interpret California law and tell the Feds whether the authors of Prop 8 had standing to defend Prop 8 on appeals.

While that was going on, Judge Walker decided to come out of the closet, which sent Prop 8 supporters in a tizzy. So Prop 8 supporters sued to overturn Walker’s ruling because gay judges can’t rule on gay issues, just like women judges can’t rule on women’s issues and black judges can’t rule on black issues. Oh, wait. It was a black judge they got to hear the case. Good thing that wasn’t really their argument, but the one they did try to use wasn’t any better.  The new judge upheld Walker’s ruling, so now we’re back to waiting on the California Supreme Court to decide whether Prop 8 supports have standing to appeal.

And that wait ends tomorrow at 10:00 a.m. PST. If the California Supremes advise the Ninth Circuit Court of Appeals that Prop 8 supporters don’t have standing to appeal, then the Appeals Court is likely to accept that advice and rule the case over with Judge Walker’s ruling intact. If that happens, then it’s a crap shoot as to whether the U.S. Supreme Court would even accept an appeal of the Ninth Circuit Court’s ruling, although that remains a possibility. It’s also possible though that the Appeals Court may still want to hear more briefs and more arguments before they are prepared to rule on the issue of standing for Federal Court.

However, if the California Supremes say that Prop 8 supports do have standing to appeal, then we have another long schedule before the Ninth Circuit Court of Appeals for briefs, argument, and ruling on the appeal itself. And then, almost certainly, it goes to the U.S. Supreme Court.

If I were a betting man, I’d bet that the CA Supremes rule that Prop 8 supporters have standing. I doubt that for a question this important they’d be willing to effectively stop the process in its tracks right now on what many would see as a technicality. I really don’t see nondiscriminatory California marriage licenses showing up anytime in the near future. But hey, I’m not a lawyer. What’s your bet? Betting closes at 10:00 a.m. PST.

Transgender Day of Remembrance Several locations. While Sunday is officially the day set aside to remember those who have been murdered as a result of transphobia, some TDoR events are taking place today and through the weekend. TDoR began in reaction to the brutal murder of Rita Hester, who was killed on November 28, 1998. Her murder resulted in the creation of the Remembering Our Dead web site and a candlelight vigil in 1999. Observances typically consist of the reading of the names of those who have died because of their gender identity, expression, presentation or perception of gender variance. Observances are being held in cities all around the world. Click here to find an observance near you.

Transgender Day of Action: Washington, D.C. The nation’s capital has been the scene for several violent attacks against transgender and gender variant people, including LaShai McClean on July 20, and Gaurav Gopalan on September 10 (Golpan was a gay man dressed in drag when he was attacked). Beginning at 1:00 p.m. today, a broad coalition of organizations and concerned DC residents will be hand-delivering written goals, demands, and deadlines aimed at stemming the escalation of violent crimes against Transgender people in the District. Starting with Metropolitan Police Department Chief Cathy Lanier and U.S. District Attorney for Washington, DC (DA USAO) Ron Machen, who oversees the city’s federally-administered justice system, the activists will continue with Mayor Vincent Gray, and all 13 City DC Councilmembers. Click here for more details.

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

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