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Posts for May, 2014

Do they even listen to what they say?

Timothy Kincaid

May 13th, 2014

Dean Nelson

Today the Fourth Circuit Court of Appeals heard arguments for and against overturning Judge Arenda L. Wright Allen ruling that Virginia’s gay marriage ban was in violation of the US Constitution (the Olson-Boies case). There were, as expected, protesters on either side.

The anti-gay side made some interesting remarks.

Dean Nelson, chairman of the Frederick Douglass Foundation, told the crowd, “Things have gotten so bad that even when you’re watching ESPN on Mother’s Day we have the kisses of homosexuals forced down our throats.”

Sometimes it’s just too easy.

SCOTUS issues Utah stay (Updated)

Timothy Kincaid

January 6th, 2014

NYTimes

The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.

The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.

UPDATE from Jim B: Here’s the U.S. Supreme Court order (PDF: 27KB/1 page):

HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Marriages entered into thus far are still in effect. There just won’t be any new ones for a while. Lyle Denniston at SCOTUSblog speculates that “The order appeared to have the support of the full Court, since there were no noted dissents,” but “The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.”

The Tenth Circuit Court of Appeals will continue with its expidited review of the lower court decision. Brief submittals occur between January 27 and February 25. No date has been set for oral arguments.

No DOMA or Prop 8 rulings today

Timothy Kincaid

June 20th, 2013

The Supreme Court did not deliver rulings on the constitutionality of the federal Defense of Marriage Act or California’s Proposition 8 today. The next date for the announcement of rulings is Monday, June 24.

Monday is the last scheduled day of this year’s calendar, though the Supreme Court could schedule another day of their choosing. And while such an additional day would be expected to be within the week, as SCOTUS has neither a boss nor any constitutional restrictions, they could drag this out as long as they wish.

Marriage equality unlike Roe

Timothy Kincaid

June 10th, 2013

Some anti-gay activists have warned that a broad decision on marriage equality would have the same sort of cultural division and long-term social protest that has been the result of the decision on Roe v. Wade. James Richardson, a GOP “conservative communications strategist”, writes in the Christian Science Monitor on why that is not so.

The evolution of public opinion concerning the right to marry for gays and lesbians, too, follows a divergent track from abortion. Whereas the public sentiment on abortion has remained largely static since the Roe ruling 40 years ago, an uncommonly decisive shift in attitudes in recent years concerning gay marriage has radically reorganized the political landscape.

The support for same-sex marriage recently reached a record high, at 58 percent in a March survey by ABC News and The Washington Post. That number represents a 26-percentage-point growth over the span of just nine years. And in those 12 states where same-sex marriage is already legal, the support trend line is even more pronounced. In the few months since the Supreme Court heard oral arguments on gay marriage, three states changed their laws to afford equal rights and protections for gay marriage.

I’ll tell you when, Justice Scalia

Timothy Kincaid

March 26th, 2013

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future.

We — we decide what the law is. I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

Scalia rants as though there is no date, as though this is all arbitrary and subjective and up to some whimsical liberal social ‘living constitution’ interpretation of law. He is mistaken.

There is a date, a specific date, upon which it became unconstitutional under the provisions of the US Constitution to exclude homosexual couples from marriage.

On the day, the very first day, that a same-sex couple decided that they would avail themselves of the equal provisions of their governmental contract and seek the protections afforded by marriage, and on the very first day that this same-sex couple was told that, no, they were excluded – explicitly excluded – from the protections offered by the state because they were an unfavored people, on that specific day, Justice Scolia, the state acted in an unconstitutional manner.

Yes, the Supreme Court of the United States “decides what the law is”. But the wording of our contract – our agreement with the Federal Government that they may govern us and patrol our liberties and, at times, curtail our freedoms when necessary – is not decided by the Supreme Court of the United States. And that wording, that guarantee, allows the Federal Government to serve as our representative government only within certain confines, among which are that all citizens are provided with the same rights.

That provision exists either with or without social recognition. It exists whether or not a Supreme Court “decides” that it is the law.

It is inevitable that some day the Court will recognize – not decide – that gay citizens are equal citizens and that arbitrary animus-based discrimination such as that which Justice Scalia defends is a violation of our national contract. And some day, a Supreme Court will decide that the law is such that discrimination based on sexual orientation is a gross violation of the clear provisions of the US Constitution.

But that will not be the day in which such discrimination becomes unconstitutional. That day has passed.

NOM Rallied Today

Timothy Kincaid

March 26th, 2013

After their march, the National Organization for Marriage – along with their various supporting organizations – rallied to protect marriage from being equally applied to all citizens.

The Red Caped Loons of the Catholic organization, Tradition, Values & Property, were present

The rally surrounded the bandbox.

And they certainly had plenty of space in which to congregate.

But it’s nice to see that not much grass was damaged.

NOM Marched today

Timothy Kincaid

March 26th, 2013

The National Organization for Marriage has been declaring that they were going to turn out busloads of people to march on the Supreme Court to protect traditional marriage (in the fine old tradition of keeping rights limited to the people who they think are better than you). And they have posted pictures on their NOMblog showing their glorious march.

For Example: (NOMblog)

But NOM’s pics tend to be close up and don’t give much of a sense of size. That’s not to say there aren’t any large group pics in their photostream, but those tend to be problematic; they have rainbow flags and “Equality Now” signs in them.

Fortunately, a BTB reader had a birds eye view of NOM’s march and has offered to share some pictures that give some perspective to their “busloads”. Here they start marching past:

There they go, banners unfurled.

And the middle of the pack.

And finally, the last of the saints go straggling by.

And after months of preparation and “busloads” of support, that was their march, pretty much in total.

No, it’s not exactly pathetic; thirty or forty people would be pathetic. At what looks to me to be a few thousand people, this was … well, let’s just say Brian Brown probably found it to be a bit of a disappointing turnout.

But I fully expect NOM to claim “hundreds of thousands”.

A profile on Edie Windsor

Timothy Kincaid

December 13th, 2012

Perhaps the best profile I’ve seen to date on the plaintiff in the upcoming Supreme Court challenge comes from USAToday:

“People asked,’What could be different? You’ve lived together for over 40 years – what could be different about marriage?’” Windsor said. “And it turned out that marriage could be different.”

Do read it.

Just in: Scalia finds objecting to homosexuality is like objecting to murder

Timothy Kincaid

December 11th, 2012

Okay, that’s not news. It’s not even all that interesting.

Unless you consider that a Supreme Court justice is so extremely biased against one segment of the US population that he is incapable of viewing them as having rights at all.

Antonin Scalia was at Princeton (he has a new book to push) where he was introduced by anti-gay activist Robert George:

When questioned by Duncan Hosie ’16, who identified as gay, on his dissent in Lawrence v. Texas — which struck down a Texas anti-sodomy law — Scalia stood behind his decision. Hosie questioned Scalia’s comparison between having a moral objection to sodomy and having a moral objection toward things like bestiality or murder. Scalia defended his comparison as a form of argument.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” Scalia asked, explaining his dissent. “It’s a reduction to the absurd … I don’t think it’s necessary but I think it’s effective,” Scalia said, adding dryly, “I’m surprised you weren’t persuaded.”

But the thing about “reductio ad absurdum” is that it is but a hairs breadth from a strawman argument, an argument that argues against what is falsely presented as the opponents position.

At no point have supporters of marriage argued that no moral feelings should be considered. Rather, we assert that not all moral feelings are comparable. For example, it is perfectly possible to have moral feelings against murder (which does actual harm to actual people) and to still find that moral feelings against other people’s religions are not an acceptable basis for law.

A better comparison would have been “If we cannot have moral feelings against homosexuality, can we have it against Catholicism?” But being the Pope’s proxy on the Supreme Court, I dare say that Scalia does not see anti-Catholic sentiment in the same light as anti-gay sentiment.

So, if there were any question, we have our answer. Tony will be voting against us on the rights of gay people to marriage. Or the right of gay people to adoption. Or the right of gay people to inheritance tax equality. Or the right of gay people to to eat oatmeal if it were to appear before him.

Because of his moral objections to murder, you see.

(Do you ever get the feeling that his grandchildren will change their names?)

UPDATE: Log Cabin does a good job analyzing the impact of Scalia’s views.

Prop 8 to be heard by SCOTUS

Timothy Kincaid

December 7th, 2012

The Supreme Court of the United States has granted a writ of certiorari to the appellants of Hollingsworth v. Perry, the Proposition 8 case.

On May 15, 2008, the California Supreme Court found that denying same-sex couples equal access to marriage recognition was a violation of the California Constitution. Chief Justice Ronald George wrote a stirring opinion which was inspired, he told reporters, by recollections from a childhood trip through the South and the “No Negro” signs he saw there.

At 5 pm on June 16, 2008, marriage licenses became available to same-sex couples. Marriage was legal in California.

However, an initiative had been circulated and had already qualified for the ballot. And on November 4, 2008, 52.2% of California voters chose to support Proposition 8 and thus cease the issuance of marriage licenses to same-sex couples. This unexpected result led to protests across the globe.

Supporters of equality went back to the California Supreme Court to argue that the proposition was improper under several different theories. The Court did not accept the logic.

But on May 23, 2009, three days before the California Supreme Court found Prop 8 to be valid, the newly created American Foundation for Equal Rights sued in federal court, asserting that Proposition 8 runs counter to protections granted by the US Constitution. And the attorney team behind the challenge was Ted Olson and David Boies, the two attorneys who had argued both sides of the election result dispute between George W Bush and Al Gore.

This federal judge assigned to the case, Judge Vaughn Walker, did something unusual; he ordered that a trial of fact would occur. This meant that attorneys could not simply come into the courtroom and make whatever claims they chose; rather, they would need to provide evidence for their assertions.

The lead plaintiffs were Kristin Perry and Sandra Steir and the lead defendant was Governor Arnold Schwarzenegger (whose defense consisted of “here, your honor”), so the case became Perry v. Schwarzenegger.

Because the Governor and the California Attorney General (currently Governor) Jerry Brown offered no argument in favor of discrimination, supporters of the proposition were granted standing to defend the law.

The case began in January, 2010. After a lengthy trial in which the proponents pulled all but a few witnesses (David Blankenhorn was virtually the only person on the stand for the proponents) and in which the motivations of the supporters of discrimination was the topic of newspapers and television news coverage, on August 4, Judge Walker issued a decision.

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

At this point the state of California, through its Governor and Attorney General, accepted the ruling of the court. And that would have been that, but the proponents of Prop 8 demanded that the case be appealed. And the Ninth Circuit Court of Appeals ruled that the proponents could have standing to appeal the decision of Judge Walker.

The decision was stayed pending the decision of the Ninth Circuit Court of Appeals.

In December 2011, the Ninth Circuit hear argument about the constitutionality of Proposition 8. And on February 7th of this year, the Ninth Circuit found that indeed Proposition 8 violated the US Contitution, however on a narrower position. The found that having once granted marriage rights equally, a state cannot choose a single demographic from which to withdraw those rights. The left open the bigger picture of whether marriage rights, in and of themselves, cannot be subject to discrimination based on animus.

Again the proponent of discrimination appealed and again the decision was stayed.

Today, the Supreme Court of the United States has announced that it will hear Hollingsworth v. Perry (the current name of the case, reflecting the challengers – headed by Hollingsworth).

FRIDAY, DECEMBER 7, 2012
CERTIORARI GRANTED
12-144
HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

Many pundits expected a different answer. We thought that the court would allow the ruling of the Ninth Circuit to stand, thus allowing marriage under the unique circumstances in California (rights revoked) and avoid the question of marriage equality until public opinion had solidified.

And that may still be their decision. By questioning standing, they may be signaling that they will find that the Ninth Circuit hearing was not valid and that they have no path through which to even hear the challenge to Judge Walker’s ruling. (If no one other than legally elected representatives of the people had the right to appeal, then there was no appeal).

Argument before the court will be given next year and by June 2013 it is expected that the fate of Proposition 8 will be resolved.

SCOTUS deliberates

Timothy Kincaid

November 30th, 2012

Today the Supreme Court of the United States will meet and discuss a number of cases of importance to our community. The two highest profile cases are California’s Proposition 8 (currently called Hollingsworth v. Perry), and the collective challenges to the Third Clause of the Defense of Marriage Act.

Today they will decide whether to hear challenges in those cases or to let them stand. For a case to be heard, four justices must agree that they wish to deliberate the appeal. Their decisions will be announced Monday.

It’s all guesswork at this time, but my prediction (a common one) is that the judges will refuse to hear the appeal to the overturn of Proosition 8, agreeing with the Ninth Circuit Court of Appeals that once a right has been granted to citizens, it then cannot be taken away from one group of people based on dislike or disapproval, thus returning marriage equality to California. Thus the Court can, for now, delay a decision on the larger question about the constitutionality of anti-gay marriage bans.

Should they decide to hear Perry, it may mean that the court is prepared to decide whether heterosexual and homosexual citizens have equal standing under the law.

As for DOMA3, that is clearly unconstitutional. It is almost certain to get a writ of certiorari. The cases will probably be clumped, but common wisdom suggests that the Edie Windsor case will be the vehicle through which the challenge is argued. On the face of it “gay couples should pay higher taxes than straight couples” is and argument that does not sit comfortably with pro-gay liberals or anti-tax conservatives. Also going against DOMA3 is that it is a federal usurpation of an area of law that has traditionally been left to the states.

Of course, there is a chance that the court will not even hear DOMA3 but will simply agree that this is an unconstitutional law and let it be stricken next week. Monday will be exciting no matter the decisions made today.

Another Republican judge weighs in on marriage

Timothy Kincaid

October 19th, 2012

One of the things one regularly hears during election season are “Don’t vote for that Democrat, he’ll appoint pro-homosexual judges” and “Don’t vote for that Republican, she’ll appoint anti-gay judges.” But such simplistic assumptions are seldom accurate.

And in the fight for marriage rights in the courts, more often than not the judges finding that gay people are entitled to equal treatment under the law have been appointed by a Republican president or are themselves Republicans, sometimes quite conservative ones. And in this latest ruling – one that goes further than any to date – this pattern holds (LATimes)

“Homosexuals have suffered a history of discrimination,” Chief Judge Dennis Jacobs said for a 2-1 majority. And while gays have been winning political victories, he said, they are still subject to many discriminatory laws. Jacobs said courts should view all laws that discriminate based on sexual orientation with the same skepticism accorded to laws that discriminate based on gender.

Jacobs, who has a generally conservative reputation, was appointed to the court by former President George H.W. Bush. He was joined by Judge Christopher Droney, an appointee of President Clinton. In dissent, Judge Chester Straub, another Clinton appointee, said judges should not change the traditional definition of marriage. If it is to be changed, he wrote, “I believe it is for the American people to do so.”

It isn’t just disabusing us of silly memes that makes me appreciate this trend; I also think that it provides us with both a stronger position and greater hope. For one thing, it silences the screams about “liberal activist judges” and gives our neighbors assurance that our victories aren’t being awarded because of partisan legislation from the bench. Bipartisanship goes a long way towards cultural acceptance of judicial decisions.

But an even more important reason is the message it send to the Supreme Court. As Republican judges address this issue, they do so from a particular perspective with particular viewpoints on what the Constitution means. And when they write opinions, they do so utilizing language that reflects these perspectives and viewpoints. And as it is believed that the Supreme Court justices which will need to be swayed in our favor are all Republicans, these opinions can speak to them in the terms which best plead our case.

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.

No en banc hearing; Prop 8 case’s next stop: Supreme Court

Timothy Kincaid

June 5th, 2012

As many predicted, the full Ninth Circuit Court of Appeals has denied an en banc hearing to the Proponents of Proposition 8, California’s ban on same-sex marriage. They continued the stay on the decision for 90 days so that the Proponents may appeal to the Supreme Court of the United States for a writ of certiorari. Jim’s excellent commentary lays out the timing of the next steps.

The most interesting aspect of today’s filing was not the announcement that en banc was denied. Rather, the most fascinating aspect was in the dissent to the decision and the response to the dissent.

Dissent:

Judges O’Scannlain, Bybee and Bea, the most conservative judges on the circuit bench, wrote a terse objection to the decision not to grant en banc. Both what was included and what was not included are odd selections and will have pundits pontificating. They chose to quote President Obama’s call for the conversation to coninue in a respectful way (they think it disrespectful not to have en banc hearing). Yet the President’s views have no bearing on constitutionality, nor are they directors for the tenor or tone of judicial determination.

What was not included was much discussion of the merits of the appeal or the legal rulings. They declare that the majority’s reading of Romer “would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it”, but still stop short of actually stating that the ruling was incorrect.

Instead, the three paragraph dissent concludes with an endorsement of “Judge N.R. Smith’s excellent dissenting opinion in this momentous case.” But Judge N.R. Smith’s “excellent dissenting opinion” was anything but forceful. In short it could be summarized as “well, it’s possible that this wasn’t entirely based in animus and I’m just not yet fully convinced that there isn’t some possible legitimate reason for this discrimination, yet.”

Also interesting is that the ruling notes that “Judge N.R. Smith would grant the petition” but Smith did not join OB&B’s dissent.

Response:

In response, Judges Reinhardt and Hawkins – the two justices who upheld Judge Walker’s ruling – reiterated the narrowness of their opinion: “We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid.”

What it means:

The Proponents took a bit of a gamble in asking for en banc. Considering the makeup of the Ninth Circuit, they had almost no chance of having the ruling reversed. In fact, depending on the panel, they could have resulted in an even more lopsided loss.

But what they could have achieved was a stronger dissent. They could have approached the SCOTUS with a scathing and biting dismissal of the court’s crazy, liberal, extremist views. And even without en banc, the dissent given by OB&B could have been a scathing and biting dismissal of the court’s crazy, liberal, extremist views.

They did not get that. They got a indignant objection to not giving the case the benefit of a hearing by the en banc panel (“at least discussing this unparalleled decision as an en banc court”) but as for the case, all detailed objections are limited to Judge Smith’s polite, somewhat reluctant and hesitant suggestion that, well, he’s not convinced. A cynical mind might even believe that the judges in objection would prefer that SCOTUS not give their objections too much mind.

Thus, the en banc attempt was a gamble and a loss for the Proponents. But, all in all, probably not a big loss.

The one thing that they might have preferred not come from the process was Reinhardt and Hawkins’ reminder about the narrowness of the decision. “Oh no,” they said, “this isn’t about the constitutionality of gay marriage bans, but only about the constitutionality of whether they can be banned after they have been granted.”

Going into the certiorari process, the case is situated such that the Supremes have every reason not to hear it and few reasons to do so. It only impacts one state, it only speaks to a very peculiar set of circumstances, and it gives the court the opportunity to delay dealing with the unconstitutionality of restricting civil marriage for an unpopular minority for another few years at least.

It is impossible to predict the actions of the Supreme Court, but I think it at least somewhat likely that SCOTUS will opt not to hear this case.

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.

The Solicitor General impact

Timothy Kincaid

February 8th, 2012

If you are like me, you have but the vaguest idea of what the US Solicitor General does and probably can’t name who currently holds the office.

The Solicitor General is a member of the Department of Justice and answers to the Attorney General. But the Solicitor General’s role is specific: he is the person appointed to represent the federal government of the United States before the Supreme Court of the United States.

Outside the beltway, this is not a position that is situated to get much press, nor is it one in which the issue of same-sex marriage would seem – yet – to be of interest. But the nation’s solicitor generals have been integral players in the marriage equality fight and it is, to a large extent, a fight between Republicans.

Charles Fried – Reagan 85-89 – Currently teaching at Harvard Law. Though his contribution has been limited to opining, he has certainly done his share. An advocate for civil unions, in 2007 he argued that marriage (the status) should be determined by the people not the courts. His argument is the counterpoint to our insistence that the government should not deny the social benefits of the marriage designation; he asserts that a legal body should not grant sociatal benefits. In August of 2011, he wrote denouncing DOMA and advising that the Congress should revoke it rather than have the courts broaden the question.

Same-sex marriage is allowed in six states and the District of Columbia. DOMA spells an impediment to what is a legal arrangement in those states. If on no other grounds, federalism concerns militate strongly against it. There is also a strong equal protection claim that some persons legally married in one state should not be denied federal benefits granted to others married there. Ideally, Congress would repeal DOMA before the case reaches the Court, but with the dysfunctional Congress we enjoy today that is most unlikely to happen. Thus a ruling is unavoidable and its outcome is very likely to be invalidation of DOMA. That leaves the question of how the Court will reach the result. Will it rule broadly in favor of a constitutional right to same-sex marriage, or narrowly against the federal discrimination entailed by DOMA? The latter, preferable form of ruling would leave messy Full Faith and Credit issues to be sorted out. I guess that over time, those would become less acute and disappear altogether.

It was Fried’s comments to Bloomberg News that caught my interest.

“I think it’s hard to avoid,” he said in a phone interview, adding he could see five justices finding in favor of it. Still, such a ruling may be so narrowly drawn that it applies only to the California referendum at issue rather than becoming the law of the land.

“The result is that opponents of gay marriage could keep the issue alive forever,” said Fried, who served as U.S. Solicitor General under Republican President Ronald Reagan.

Ken Starr – GHW Bush 89-93 – Best known for the Starr Report, a sensational summary of his investigation into the Clinton scandals as Independent Counsel, Starr is currently the president of Baylor University, a Baptist affiliated school in Texas.

Starr was the lead counsel in defending Proposition 8 before the California Supreme Court in the debate over whether Prop 8 was an amendment or a revision (which requires 2/3 legislative approval). Starr succeeded in having the proposition held as an amendment, but was not successful in getting the 18,000 marriages that had occurred in the marriage window to be deemed invalid.

John Roberts
– GHW Bush 90 – just as acting Solicitor General for one case. Roberts is one of nine people who will ultimately determine the constitutionality of anti-gay discrimination. But he has already some history here. In March 2010, anti-gay activists sued to have the District’s marriage law put to a referendum. They asked the presiding judge to stay the law until their case was heard. Roberts declined and marriage went into effect. But even more interesting and relevant is that Roberts, while an attorney with Hogan & Hartson, did pro-bono work on Romer v. Evans, advising gay attorneys on strategy before the Supreme Court and holding moot court sessions. The Ninth Circuit ruling on Proposition 8 is significantly based on Romer.

Clinton’s three Solicitors General, Drew Days, Walter Dellinger, and Seth Waxman, do not seem to have been significantly involved.

Ted Olson
– GW Bush 01-04 – Ted Olson came to the nation’s attention when he squared off with David Boies before the Supreme Court to determine whether George W. Bush or Al Gore had won the presidency. The legislative effort which resulted in this week’s Ninth Circuit ruling that Prop 8 is unconstitutional was born when Olson picked up the phone and called Boies and suggested they join forces to have anti-gay discrimination be subjected to the constitutional scrutiny which it violates. Olson and Boies share chief counsel.

Paul Clement – GW Bush 04-08 – Clement, currently a Georgetown professor, is the special counsel hired by the Republican House Majority Leader Boehner to defend the Defense of Marriage Act in court after the Justice Department refused to do so on the grounds that it is unconstitutional. So far, Clement has not had much success, has declined to offer defense in some matters, and seems to be presenting as low-key a defense as can be made.

Frankly, I’m not sure what to make of Clement’s efforts. Perhaps he is aware that DOMA has no legal leg to stand on, is an offense to federalist minded judges and an affront to civil rights minded jurists, and has few legal minds who make any attempt to defend it on anything other than ‘don’t like them gays’ grounds. But for an attorney with such a high profile, his DOMA efforts are surprisingly silent.

Gregory Garre – GW Bush 08-09 – Garre has not, to my knowledge, been directly involved in the marriage debate. However, he has made a tangential contribution. When the Christian Legal Society sued Hastings Legal College over school rules which banned anti-gay discrimination in school groups, it placed the question of religious-based objections to homosexuality before the Supreme Court. In a ruling that delighted our community, but with which I had some misgivings, the court ruled that Hastings was justified in refusing to consider religious objections to the policy. This case gives insight to the feeling of the justices as well as grounds for strategy. Garre was the attorney who successfully defended Hastings.

Elena Kagan
– Obama 09-10 – Ms. Kagan will also be one of the nine jurist who determine the eventual outcome. She is considered to be a vote and a voice of support, among other things.

And the current Solicitor General is Donald Verrilli, by the way.

Rick Santorum’s delusional response to the Ninth Circuit ruling

Timothy Kincaid

February 8th, 2012

Those who are losing the battle to keep gay citizens relegated to second class status and denied civil equality have a new mantra: “they called me a bigot!”

And, as Rick Santorum illustrated in his comments about yesterday’s Ninth Circuit ruling upholding Judge Walker’s finding that Proposition 8 is a violation of the US Constitution, this claim need not have even the flimsiest of filaments of truth for the martyr’s song to be played.

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The Ninth Circuit decision yesterday said that marriage, if you believe in traditional marriage, between a man and a woman and exclusively that, you are in fact, the only reason you could possibly believe that, is because you are a bigot. That there is no rational basis for you to have marriage as an institution between a man and a woman. There, there’s no, no rational basis. Your belief of marriage between a man and a woman is purely irrational based on hatred and bigotry. That’s what they just wrote.

No. That’s not what they wrote. Not even close.

What the court said was that the State of California could not discriminate in the providing of services to gays and lesbians without a rational basis. And that a rational basis needed to be tied to a legitimate government goal. They didn’t say that any person who opposes equality is irrational, just that there was no legitimate goal which could be rationally tied to the proposition.

But even assuming that Santorum has forgotten anything that he may have incidentally picked up at law school (yeah, he actually went to law school) about rational basis and is every bit as stupid as he appears to be, he simply cannot justify the “hatred and bigotry” claim.

Actually, what the court said was:

Ultimately, the “inevitable inference” we must draw in this circumstance is not one of ill will, but rather one of disapproval of gays and lesbians as a class. “[L]aws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” Romer, 517 Ë.Í. at 633. Under Romer, we must infer from Proposition 8′s effect on California law that the People took away from gays and lesbians the right to use the official designation of ‘marriage’—and the societal status that accompanies it—because they disapproved of these individuals as a class and did not wish them to receive the same official recognition and societal approval of their committed relationships that the State makes available to opposite-sex couples.

This is an accurate assessment. Disapproval and a desire not to give the same official recognition. No reference to hatred or bigotry and no name calling at all.

Either Santorum is astonishingly stupid, an unabashed liar, or accidentally let slip his own personal motivations.

Prop 8 Appeal

Timothy Kincaid

December 6th, 2010

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

Timothy Kincaid

December 6th, 2010

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.

Log Cabin appeals to Supremes

Timothy Kincaid

November 5th, 2010

Earlier this week, the Ninth Circuit Court of Appeals granted the Administration’s request to put a permanent stay on Judge Phillips’ ruling which found the Don’t Ask, Don’t Tell policy to violate the US Constitution. The Military will be able to continue to discharge gay and lesbian servicemembers until such time as the Appeal is determined.

Log Cabin Republicans didn’t accept that decision as final and have instead filed an emergency request to have the stay lifted. (CNN)

The Log Cabin Republicans filed an emergency request with the nation’s highest court to reverse the Ninth Circuit Court of Appeal decision to allow the military to continue with “don’t ask, don’t tell,” while the government appeals the lower court ruling that the law is unconstitutional.

The high court appeal– “called an “application” — is now in the hands of Justice Anthony Kennedy. He will likely ask his eight colleagues to help him decide and order the federal government to weigh in with its views before a decision is made.

Alternately, Kennedy could decide on his own. In any case, while continuing the stay may say nothing about the ultimate position of Supreme Court Justices, a lifting of the stay could tell us a great deal.

Filing after the break

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