Prop 8 to be heard by SCOTUS
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
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.
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
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
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
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.
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.
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?
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
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
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.
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
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.
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.
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
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
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
Scalia: gays and women not included in “any person”
September 20th, 2010
Supreme Court Justice Antonin Scalia believes that women and gay people are not protected by the constitution from state mandated and enforced discrimination. (SF Chronicle)
The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.
“If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.
Scalia, a proponent of “originalism” believes that it doesn’t matter what the words of the Constitution say or even what a logical and consistent application would yield. Rather, it is what was in the minds of the white men who drafted that wording which matters.
And Scalia believes that when they wrote
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
they clearly did not intend for “any person” to include women or gay persons. So I guess we know how he’ll be voting in the upcoming cases which deal with the equality of gay citizens.
Since the “original intent” is required for Scalia to find that the US Constitution protects women and gay people, perhaps we should provide him with some original intent. Maybe Scalia would find it more convincing if Congress and the States amended the US Constitution to put the words “any person” in bold font.
Court hearing doesn’t go well for Washington anti-gay petition signatories
April 28th, 2010
Last year anti-gay activists in Washington State collected signatures to get a referendum on the ballot challenging the legislature’s domestic partnership laws. The people subsequently voted to keep the laws recognizing gay couples.
But one of the issues that arose from that action was the question as to whether signatures on petitions – specifically anti-gay petitions – were public information or or protected anonymous political speech. Supporters of the petition argued that they were skurrrred of the evil gays who might take their business to a more supportive company or might frown at them in the supermarket.
And so a judge blocked the releasing of the info. The Secretary of State appealed the decision arguing that the State had an interest in open air laws. The decision was overturned, appealed again, and now is being argued in front of the Supreme Court of the United States. Anti-gay activists want all public disclosure laws declared to be unconstitutional and to conduct their animus behind the veil of anonymity.
But today did not go well for them. Justices, including at least one who is inclined to be sympathetic to conservative causes, were not much impressed by their arguments. (AP)
Several justices questioned whether people who voluntarily signed a petition asking for a public referendum could then expect privacy. They were concerned that keeping the names of petitioners private might invalidate other vital open records like voter registration rolls or lists of donors to political candidates.
“Running a democracy takes a certain amount of civic courage,” said Justice Antonin Scalia, who also called the arguments to keep the names private “touchy-feely.”
On the other hand, Justice Alito was there to go to bat for the anti-gays.
But Justice Samuel Alito questioned Washington’s attorney general, Robert McKenna, on whether his office was willing to give out the home address of its lawyers so people could show up and have “uncomfortable conversations” with them after-hours.
McKenna said office addresses and telephone numbers of his lawyers were public.
But Alito appeared to be in the minority (Wall Street Journal)
Justice Ruth Bader Ginsburg questioned the relevance of that precedent. She and Justice Sonia Sotomayor suggested that making public the names of petition signers could allow people to verify whether the signatures were real.
Chief Justice John Roberts suggested the court was unlikely to strike down the law on its face, but might find that in some circumstances names should be withheld if the signers could show they faced a threat.
I would hope that this would be a real threat, not an irrational fear based on imagined concerns.
LA Times’ Oliphant discusses SCOTUS and religion
April 22nd, 2010
A few weeks ago, I noted that with the retirement of Justice John Paul Stevens, the Supreme Court of the United States would no longer have a Protestant Christian as a member. Now James Oliphant, writing for the LA Times discusses the same.
He reports that many observers dismiss the importance of religious diversity. And he quotes one of the few Justices who discuss the matter
Scalia, one of the few justices who have spoken about the role of Catholicism in their deliberations, has done so largely as a means of reconciling his faith with his votes to uphold death sentences. He has said that any Catholic judge who believes the death penalty is immoral should resign.
But he has emphasized that his faith has had little effect on how he views his role as a judge.
“I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic,” he said in a 2007 speech.
How very odd. I could probably identify dozens in which Scalia’s faith-system dictated his position.
Obama’s “Short List” pick for SCOTUS might be anti-gay marriage
April 12th, 2010
ABC News is reporting that President Obama has at least one person on his “short list”:
As speculation swirls about candidates on the president’s list, administration officials have confirmed that at least one of the president’s top picks is a former State Supreme Court justice who would be the first African-American woman to sit on the country’s high court.
Former Georgia Supreme Court Justice Leah Ward Sears, an expert in family law and the first African-American woman to serve as a State Supreme Court chief justice, was on Obama’s short list last year. A member of the left-leaning American Constitution Society, she is also a friend of conservative Justice Clarence Thomas.
While Sears is believed by some to be gay-supportive, her true passion is as an advocate for (heterosexual) marriage. And, as such, she has made statements, built alliances, and contributed to efforts in the past which suggest that she may not completely value equality for our community.
Writing in a Washington Post op-ed in October 2006, Sears made “the case for marriage”. And she identified allies in her quest to have people “get married, stay married”.
I am not alone. For example, “Reconceiving the Family,” a new book published by Cambridge University Press critiquing the ALI’s “principles,” has contributions from 27 family law scholars, including two other state supreme court chief justices. The Institute for American Values recently published a statement, signed by many legal and family scholars, that concluded that “a prime goal of family law should be to identify new ways to support marriage as a social institution so that each year more children are protected by being raised within the marital unions of their parents.” Moreover, the supreme court in my state just established a Commission on Children, Marriage and Family Law with an important goal: to find ways to reduce unnecessary divorce and unmarried childbearing. [emphasis added]
If the Institute for American Values sounds familiar, it is because it is the brainchild of David Blankenhorn, the chief witness on the anti-gay side in Perry v. Schwarzenegger. The book Reconceiving the Family is available at his site, and the following is from the synopsis of the statement that Sears commends:
Unfortunately, the recent trend in family law as a discipline and practice has been just the opposite. Family law as a discipline has increasingly tended to commit two serious errors with regard to marriage: (a) to reduce marriage to a creature of statute, a set of legal benefits created by the law, and (b) to imagine marriage as just one of many equally valid lifestyles. This model of marriage is based on demonstrably false and therefore destructive premises. Adopting it in family law as a practice or as an academic discipline will likely make it harder for civil society in the United States to strengthen marriage as a social institution.
As scholars and as citizens, we recognize a shared moral commitment to the basic human dignity of all our fellow citizens, black or white, straight or gay, married or unmarried, religious and non-religious, as well as a moral duty to care about the well-being of children in all family forms. But sympathy and fairness cannot blind us to the importance of the basic sexual facts that give rise to marriage in virtually every known society: The vast majority of human children are created through acts of passion between men and women. Connecting children to their mother and father requires a social and legal institution called “marriage” with sufficient power, weight, and social support to influence the erotic behavior of young men and women.
We do not all agree on individual issues, from the best way to reform unilateral divorce to whether and how the law should be altered to benefit same-sex couples. We do agree that the conceptual models of marriage used by many advocates are inadequate and thus contribute to the erosion of a marriage culture in the United States. We seek to work together across the divisive issue of gay marriage to affirm the basic importance of marriage to our children and to our society. We call on all the makers of family law—legislators, judges, the family law bar, and legal scholars who create the climate in which other players operate—to develop a deeper understanding of and commitment to marriage as a social institution.
A prime goal of marriage and family law should be to identify new ways to support marriage as a social institution, so that each year more children are protected by the loving marital unions of their mother and father.[Emphasis added]
It is immediately obvious that whatever values are being discussed and whatever disagreement there may be over “whether and how the law should be altered to benefit same-sex couples”, there was absolute agreement that same-sex marriages are “destructive” and “contribute to the erosion of a marriage culture.” In fact, by the time that Sears commended Blankenhorn, he had become best known for his opposition to marriage equality.
Sears has also teamed up with Blankenhorn to sponsor his marriage debates with Jonathan Rouch, and to further the visibility of her own campaign to support heterosexual marriage. (Law.com)
Chief Justice Leah Ward Sears said that the 48-foot-wide, 14-foot-tall billboards are one of the few things a jurist can do to battle high crime rates, high divorce rates and low numbers of fathers raising their kids.
Along with the “Get Married, Stay Married” slogan, each sign shows a happy-looking mother, father and child and one of two messages: “Children do better with parents together” or “For Children’s Sake.”
“We paid $50,000 to get about $500,000 worth of billboard space to send this vital message,” Sears said, noting that the costs of the billboards themselves were paid by the Georgia Bar Foundation and “not state money.” The billboard space was donated by the Outdoor Advertising Association of Georgia, which donates unused billboard space to charitable, civic and governmental organizations.
Sears’ comments came in an interview last week at a more substantive part of her crusade — a two-day conference on marriage for about 250 lawyers, social workers, clergy people and therapists. The event was sponsored by the high court’s commission and the New York-based Institute for American Values, which calls itself a “private, nonprofit, nonpartisan organization that contributes intellectually to strengthening families and civil society in the U.S. and the world.”
While Sears appears to value Blankenhorn and his premises, she has been coy on her own position on the issue. Opponents of Sears claimed that she supported gay marriage in an effort to discredit her elections, but this is not immediately evident from her writing.
Writing in the New York University Law Review in 2007, she said
Finally, before I go any further, I would like to comment briefly on the scope of this Lecture, particularly as it relates to the subject of same-sex marriage. This topic remains a deeply polarizing one for large numbers of Americans, regardless of their sexual orientation. If I were to stake out a legal position on this subject, my comments would hopelessly overshadow anything else I might say about marriage and family fragmentation. More importantly, it would be inappropriate for me, as a sitting judge, to do so. Therefore, this Lecture addresses the more basic question of whether the law should support marriage as an institution at all. The national debate over same-sex marriage raises a host of important issues, and those issues must ultimately be resolved. But as we struggle to work out a consensus, we must not put off the job of reflecting on marriage as we now have it.
Yet one cannot read any of her perspectives on marriage without immediately recognizing that Sears believes that 1) marriage is about children, 2) parents are defined as the natural biological father and the natural biological mother, 3) biological mother/father/child families deserve preference, and 4) other socially recognized structures are destructive to the special status that heterosexual marriage deserves.
We do not, of course, know the extent to which her personal views will color her decisions. But we do know that in 2006, her positions on the constitutional ban on same-sex marriage in the State of Georgia left her on both sides of the issue.
She (and one other justice) opined that the one-sentence amendment was too vague to be put on the ballot because it did not adequately warn voters that civil unions were also being banned. Yet, after the election when a judge struck down the amendment, she voted with the rest of the Georgia Supreme Court to reinstate the ban.
More may come up on Judge Sears which will alleviate my concerns. But until it does, I am troubled by her perspectives on marriage, family, and children and fear that she may prove on the Highest Court to be a life-long opponent to marriage equality.
(hat tip to reader Matt, who brought this to our attention)