Decision makes marriage equality the law of the land across the nation.

by Brian Leubitz

You can find many words on the marriage decision plastered all over the interwebs. But I wanted to point out the closing of Justice Kennedy’s decision in the 5-4 Obergefell decision.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered. (Obergefell v Hodges)

As many have stated, marriage equality isn’t the end of the fight for LGBT rights or civil rights more broadly, there isn’t such thing as the end of that fight. We’ve seen too much over the past weeks and months to think that is the case. Even within the LGBT community, there are a litany of lines that are arbitrarily drawn, yet the results are all too real.

Yet, for one day, love wins. And that makes this a good day. And for my fellow San Franciscans, what a happy #SFPride this will be.

California Supreme Court rejects bid to enforce marriage ban

by Brian Leubitz

Andy Pugno and his ProtectMarriage.com crew are seemingly out of options in their increasingly quixotic quest to defend Prop 8. Everybody else in the world saw the writing on the wall when the Supreme Court dismissed the case on standing grounds, but they held out hope. It is over now:

The justices unanimously denied review of a suit by conservative Christians who put Proposition 8 on the ballot and argued that it remains in effect statewide, despite a federal judge’s 2010 ruling in San Francisco that declared it unconstitutional. (SF Chronicle)

But don’t worry, Pugno is taking it well. In a statement, he had this to say:

“The California Supreme Court’s choice not to address the merits of our case, like the U.S. Supreme Court’s choice to avoid the merits, leaves grave doubts about the future of the initiative process in our state. Now, voters will be less confident than ever that their votes will mean something. When politicians disregard the law, and the courts refuse to get involved, what are we left with?”

Oh, so much to work with here. First, Prop 8 was ruled unconstitutional by a federal district court judge, and then by a 9th Circuit panel. You are upset that your votes don’t count? Tough, it is the purpose of the courts to protect minorities from the abuse of the majority. That isn’t a bug, that is a feature of our Constitution.

But, on another level, Pugno and his crew should be happy to just have kept the game up for as long as they did. The writing was on the wall. It probably would have involved wasting a lot of money, but Prop 8 wasn’t going to last long. In the most recent Field Poll (PDF), 61% of Californians support marriage equality. That’s up from their 2008 poll, when 51% supported it. Had this gone to the ballot, marriage equality supporters would have won easily.

Perhaps Pugno should be thanking the courts for saving him a lot of embarassment (and cash). But for a guy who reaches at “increasingly absurd” legal challenges, as SF City Attorney Dennis Herrera called ProtectMarriage’s remaining options,  perhaps a thank you letter won’t be forthcoming.

Andy Pugno goes back to the well

by Brian Leubitz

The Prop 8 proponents aren’t giving up. Just because they were told that they don’t have standing doesn’t mean they won’t try to find some way to fight the tide of history. This seems to be what they think is their best hope:

ProtectMarriage, the group that sponsored the 2008 ballot measure banning gay marriage, urged the state high court to act under a California constitutional provision that prohibits officials from refusing to enforce a law unless an appellate court has first determined the law is unconstitutional. There is no binding appellate ruling that says Proposition 8 is unconstitutional.

Legal experts predicted the California court would reject the challenge. Lawyers for the gay couples who fought Proposition 8 in federal court said they anticipated such an action and were prepared to respond to it. They said a state court may not interfere with a federal court’s decision.(Maura Dolan / LAT)

You can read Mr. Pugno’s handiwork here (Full Petition PDF). The petition alleges that since there was no appellate court ruling against Prop 8, the state actors violated Article III, Sec. 3.5 of the California Constitution.  Under that section, state actors are not allowed to ignore state laws on their own finding of unconstitutionality barring an appellate ruling against the law. Now, that’s all well and good, but in reality, a federal court has struck down Prop 8.

Judge Walker’s opinion in the district court level has been left as the last court case in the matter. And as the stay against marriages has been lifted, that is a valid federal court matter. Whether Pugno and his gang like it, federal law is supreme over state law. Prof. Vic Amar of the UC Davis Law School said this of the petition:

“The California Supreme Court will likely stay out of this and say the scope of Judge Walker’s order is a matter for the federal courts to determine,” Amar said. “State courts generally won’t get into the business of construing federal court orders. They leave that to the federal courts.”(Maura Dolan / LAT)

It’s not likely to go anywhere, but apparently Pugno has nothing better to do than spit into the wind of history.

“Super-Pride” celebrates marriages going on now

by Brian Leubitz

In case you haven’t noticed, same-sex weddings began on Friday afternoon with a one sentence order from the 9th circuit lifting the stay. In San Francisco, marriages will be going on at City along side Pride festivities.

I don’t think there’s much more to say than: Happy Pride!

A look at dates

by Brian Leubitz

A few folks have asked the all-important question of when will the weddings start. When, indeed?

It is a relatively simple question with a somewhat complicated response. With some help from the press office of the SF City Attorney’s office, I’ve dug out that information so you don’t have to. To start from the beginning, after any US Supreme Court decision, there is generally a 25-day period for parties to file a petition for rehearing of a U.S. Supreme Court decision. Once that period expires, the high court issues its final judgment.  U.S. Supreme Court Rule 44 provides the following:

Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time.

In this case, the Ninth Circuit has a stay-pending-appeal in place, and traditionally the appellate court will not lift them until the final judgment is entered after the 25 day period. However, a party could still petition the appellate court to vacate its stay, and nothing would prevent the 9th Cir from acting on the petition.  It is tradition to wait for the rehearing period to expire, but it is merely a judicial prerogative. The Ninth Circuit could decide to dissolve its stay even in before the rehearing period elapses, and before the final judgment.  However, that is up to the Ninth Circuit in all their judicial wisdom.

All that being said, in today’s press conference, Attorney General Kamala Harris very politely asked the court to lift the stay.

“There could potentially be that delay of 25 days,” Harris acknowledged. “Our point is the Ninth Circuit Court of Appeals has within its power an ability to lift the stay before the judgment comes down, so what I am asking specifically is that the Ninth Circuit lift its stay.

How that request actually gets handled will be sorted out later this week, and the 9th Circuit will probably consider it shortly. The proponents of Prop 8 will likely be none too pleased, but the ship has sailed at this point. The highest Court in the land has ruled, and Prop 8 is not long for this world.

So, I can’t give an exact date. In a perfect world, the 9th circuit would lift the stay right away and we would be able to start in a few days. But in the “worst case scenario”, we are looking at a delay of 25 days, with weddings beginning in late July. Sounds like a lovely time for a few thousand weddings.

by Brian Leubitz

I’m currently awaiting the decisions that the Supreme Court is going to release. In the meantime, you should check out the websites of Americans for Equal Rights, who supported the Prop 8 case. SCOUTUSBlog will be liveblogging, and will likely have some of solid analysis very quickly. There will be a bunch of press releases and the like, and I’ll try to sort through some of that as well. Stay tuned.

7:03AM: DOMA Went down. Here’s the link to the decision. Here’s a post by Adam Bonin of Daily Kos analyzing the decision.

7:16AM: From the last paragraph of Justice Roberts dissent in the DOMA case, it looks like the Prop 8 case will be dismissed on standing grounds. “We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry.”

7:30AM: Yup, 9th Cir appellate ruling was vacated, meaning Judge Walker’s ruling stands.  From Amy Howe at SCOTUSBlog:

Here’s a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California’s Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.

UPDATE: Attorney General Kamala Harris is holding a press conference at 10:30 this morning. It will be live-streamed on the AG’s website here. Here’s her June 3 letter to the Governor stating that the Walker decision applies to all 58 counties.

In the press conference, AG Harris called for the 9th Circuit to live the stay, and to apply the permanent injunction against Prop 8. “We cannot delay or deny Californians their civil rights.”

She also strongly supported the Equal Protection decision on DOMA. “We as Californians should be very proud. Californians now support these couples’ right to marry. … Hopefully the children of these couples will understand that they are equal to all, and inferior to none.”

The stay could be as long as 25 days, but she is asking the 9th Circuit to lift the stay early. As soon as the stay is lifted, marriages can begin.

UPDATE: I’m still looking for clarity on when marriages will begin, but Gov. Brown has directed all counties to begin issuing licenses when the court lifts the stay. When that will happen will be up to the 9th Circuit and probably Judge Ware, who last had the case at the District Court level. At 9:40, I got an email from SF Assessor/Recorder that she expects the marriages to begin in mid-to-late July.

CapitolAlert is posting the press statements from California leaders. Read them here.

I’ve just updated the post with a map of events to celebrate tonight. You can see the whole thing from United for Marriage site.View United for Marriage: Decision Day in a larger map.

More from Adam Bonin. Long story short, good result, bad path. The problem with winning on standing means that we get a crappy precedent going forward. Maybe it will never matter in California, but now the Court has said that only the state Executive can defend legislation. And if they fail to do so, then the law just doesn’t get the same protection as laws the Executive likes.

This was the outcome which I wasn’t the only one to predict, but I will confess that while it ends in the right place (Prop 8: dead) I am not at all crazy about the route. As I’ve suggested before, I think there’s something constitutionally hinky about having an initiative system designed to allow The People to bypass elected officials which allows those elected officials to thwart a full airing of the constitutional issues involved in a referendum. I can too-easily imagine a counterexample which a Republican administration would refuse to defend a liberal initiative in court, such as a hypothetical effort to overturn Prop 209 and instead require California’s universities to employ affirmative action practices in admissions, or an initiative imposing new limits on campaign financing, and for which the initiative’s supporters would be similarly out-of-constitutional luck. (Adam Bonin)

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DOMA faces skeptical Kennedy

The audio of the DOMA Oral Arguments is now available online, and all signs are positive for the LGBT community. I’ll post some snips to this post shortly. At any rate, Justice Kennedy seemed very skeptical of the federal government’s right to ignore state definition of marriages. (Here is the Transcript of the Oral Arguments.)

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence.  That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail.   The only barrier to such a ruling, it appeared, was the chance – an outside one, though – that the Court majority might conclude that there is no live case before it at this point. (Lyle Denniston/SCOTUSBlog)

Now, a ruling based on federalism (aka states rights) would be a much more narrow decision than something based on the equal protection clause of the 5th Amendment. In other words, the federalism argument says nothing about the inherent right to marriage equality, it would simply say that the federal government cannot ignore the duly granted marriages of each state.

The first hour of the argument dealt with the question of whether the House Republicans (through the Bipartisan Legal Advisory Group) are an appropriate party for the case, and whether this is a case that the Supreme Court can now hear. The Court seemed generally comfortable with exercising jurisdiction on the case, but it is a highly technical question of law.

After a break, the argument moved on to the merits of the case, and Paul Clement, the House’s attorney, got beat up for a while by Justices Sotomayor and Kagan. (Check out the “skim milk” audio clip.) Furthermore, Justice Kagan quoted from the findings in the legislative history (see the 74minute mark of the main clip):

I’m going to quote from the House Report  here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

That quote resulted an audible mumble from the gallery. Clement argued that the House report had other rational basis points to support the statute. He didn’t argue that there was animus against the LGBT community, just that the animus wasn’t enough to strike down the law.

On the flip side, the government, and Ms. Windsor’s attorney, got some grilling on their position that DOMA violated equal protection. The question of what the standard should be, (strict, intermediate, or rational basis), didn’t seem to be going the government’s way either. In fact, if Justice Kennedy gets his way, and decides the case on federalism, we may not get to that question at all in this case.

In the end, if Kennedy is leaning the way he seemed to be in the oral argument, DOMA seems unlikely to survive. However, a broad decision in either this case or the Prop 8 case seems increasingly unlikely.

Also, check out AfJ’s audio analysis of the case.

Court looks unprepared to make a sweeping decision for marriage equality

by Brian Leubitz

UPDATE: I have updated the post with the complete audio from the oral arguments. I also included some snips that the LA Times posted as well. You can select any of the clips to listen to it directly, or click down to the bottom to listen to the whole argument.

Any decision is still months away, but today’s oral argument did give some strong clues that the Court, and Justice Anthony Kennedy particularly, is not ready to make any big decisions one way or another. From Tom Goldstein at SCOTUSBlog:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have “standing” to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit’s decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

Any ruling would likely end up with the 9th Circuit’s decision being vacated and Judge Vaughn Walker’s District Court decision striking down Prop 8 as being the last word on this case. The practical effect of such a muddled ruling would be marriage equality in California, but the rest of the country having to wait a few more years.

Despite 58% of Americans supporting marriage equality is not enough, the Court has learned to be a bit timid on these dramatic issues. Perhaps there will be a case in a few years that eventually ends marriage discrimination in all 50 states, but it might not be this one. At any rate, the current dramatic upsurge in support for gay rights will eventually make this issue quaint. But for now, perhaps we’ll end up with a few more years of the fight.

Lyle Denniston, also at SCOTUSBlog, has a good recap of the argument.

Additional Links:

Curated Audio Explanation from Alliance for Justice

Tom Goldstein, SCOTUSBlog, Getting to five might be difficult

Kate Kendall, Executive Director of National Center for Lesbian Rights

Makes argument for marriage as a “fundamental right”

by Brian Leubitz

Attorney General Kamala Harris (disclosure: I worked on her 2010 campaign) has always been a stalwart defender of marriage equality, and has appeared in many forums on the issue. Her appearance on CNN’s morning show with Candy Crowley was much the same. You can view that segment to the right.

The Prop 8 case can go a number of ways. The Court can strike down Prop 8 for California alone, along the same lines as the 9th Circuit. They could strike down bans on same-sex marriage more generally. Or they could reject the case on “standing” grounds, which would mean that the Prop 8 proponents did not have the right to appeal the decision. That would mean that Judge Walker’s decision at the district court level would stand. What that would mean for same-sex marriage bans more generally would be up for interpretation.

And of course, the Court could simply decide that marriage equality is not a matter of equal protection. But, as our Attorney General argued so forcefully here, the Court has called marriage a fundamental right nearly 20 times in its history. And to uphold Prop 8 would mean that Equal Protection simply does not apply to one class of citizens.

Now, there is much more to the case than that. I’d recommend the Equality on Trial team, as they’ve already got some good stuff online, and will be following the case from DC all this week as we get the oral argument.

Over the flip, you’ll find the other CNN segment with AG Harris, where they discussed gun control and immigration.

San Francisco has been there from day one

By Brian Leubitz

Back in 2004, Gavin Newsom was not a popular dude in Democratic circles. Well, scratch that, he was an enormously popular dude in almost all circles in San Francisco, with approval ratings over 80%. But, take a few steps out of the SF bubble, and Democrats were seething over what many saw as the reason for John Kerry’s loss in 2004. From the New York Times in 2004:

Some in the party were suggesting even before the election that Mr. Newsom had played into President Bush’s game plan by inviting a showdown on the divisive same-sex-marriage issue.

Most of the talk has been behind closed doors. But when Senator Dianne Feinstein, a fellow Democrat and Newsom supporter, answered a question about the subject at a news conference outside her San Francisco home on Wednesday, the prickly discussion spilled into the open.

“I believe it did energize a very conservative vote,” Ms. Feinstein said of the same-sex marriages here. “I think it gave them a position to rally around. I’m not casting a value judgment. I’m just saying I do believe that’s what happened.”(NYT)

My oh my, have times changed. John Kerry had more than just one reason for his loss in 2004, but looking back, Gavin Newsom just looks like a leader who took a step that, while perhaps one step ahead of the institutional leadership of his party, was just leading where the country was already heading. To this day, Newsom’s marriage activism has given him credibility with the LGBT community, as well as the general Democratic base. It made him a national name, even if it made him a bit unpopular with some big names at the time.

But through all that, San Francisco’s work for marriage equality was about more than just the ceremonies at our beautiful City Hall. The City also directly took on the injustice in court. And for the better part of a decade, the City Attorney and his staff have been in on every legal case about California’s marriage inequality.

Nine years ago, city officials here sued to strike down a state ban on same-sex marriage. It was the first government challenge to such a law, and it set in motion a legal chain reaction that gave rise to a momentous Supreme Court case to be argued next Tuesday. …

“We’re defense lawyers,” Dennis J. Herrera, the city attorney, said in his office in San Francisco’s palatial City Hall. “We defend laws that are on the books. And we got a lot of heat at the time for stepping out of that traditional defense role.”

In the years that followed, Mr. Herrera’s office – which now includes five former Supreme Court law clerks, more than some major law firms – has been involved in every phase of the legal war over same-sex marriage in California.

Since that time, the California Attorneys General, Brown and Harris, have followed the City’s lead in calling for the reversal of Prop 8. And President Obama’s “evolution” on marriage equality has recently extended to the Solicitor General filing a brief with the Supreme Court against Prop 8. Would that have happened without the San Francisco leadership? Maybe, but SF gave the rest of the nation a kick in the pants and the motivation for the rapid change on the question of marriage equality that we are at now.

In the most recent polls, support for marriage equality hit 58%. And Republican elected leaders are jumping as far away as possible from NOM’s sinking ship. Apparently with all of the GOP introspection these days, that is supposed to make them hip, or cutting-edge or something.

But real leadership involves real risks. San Francisco’s leaders took those risks from Day one, and have been there ever since.