Hurry up and wait as anti equality litigation team seeks more attractive ruling to Supreme Court

By Brian Leubitz

Given the proposition eight supporters previous statements that they preferred to go to the Supreme Court as quick as possible, the decision to appeal to Ninth Circuit as a whole probably deserves some explanation. But the big problem for the so-called protect marriage team is that the ruling from the Ninth Circuit three-judge panel is more narrow then they would have expected. It leaves open the possibility that the Supreme Court could actually decline to hear the case. And what they’re really looking for is the ability to continue on with their campaign of constitutional amendments against marriage equality.

So, rather than going directly to the Supreme Court, yesterday They decided to appeal the Ninth Circuit 11 judge panel:

ProtectMarriage, the sponsors of Proposition 8, will ask a larger panel of the U.S. 9th Circuit Court of Appeals to review the marriage dispute ruling instead of going straight to the U.S. Supreme Court, according to a spokeswoman.

The 9th Circuit would have to vote on whether to grant the extra layer of review. If a majority favors it, a larger panel will reconsider the constitutionality of the marriage ban and issue a ruling. Such a reconsideration could delay U.S. Supreme Court review by months or more than a year. (LAT)

After all, what do they really have to lose? With the appeal pending, and the previous decision of the three-judge panel stayed, the prop 8 supporters really only have money to lose. But their supporters have really shown no lack of desire to continue funding the litigation.

As it is, no marriages can go forward while litigation is pending in the 9th circuit. And while they risk the country becoming increasingly accepting of marriage equality, assuming there is no change in the composition of the Supreme Ct., the risk is minimal. So they get to delay the possibility of marriages in California for the better part of another year.

The previous, narrow, decision is just a complicating factor for them as they face the Supreme Court. It sill seems unlikely that the Court will not hear the case, but whatever small chance that is becomes greater with the narrow opinion. If they get a worse decision at the 9th, the case will definitely go to the Supreme Court. And heck, there is always the chance that the 11 judge panel would decide against marriage equality.

So, plan on doing a little more hurrying up and a lot more waiting on the final resolution of the Prop 8 litigation.

Court strikes down Prop 8 on narrow equal protection grounds

by Brian Leubitz

It probably isn’t the decision that we would like, but it is sure better than the alternative.  In a narrow decision, Judge Reinhardt held Prop 8 unconstitutional as denying equal protection under the law.  However, this decision does not issue a blanked declaration that marriage bans are inherently unconstitutional in their own right.  You can read the full decision over the flip or at this link.

That being said, the 2-1 decision was mostly positive.  Judge Walker’s findings of fact, which you can read on a footnote on Page 18 of the decision, were not disputed.  The standard for changing these findings of fact is substantially higher than for the legal conclusions, but the maintenance of those facts is nonetheless important and notable.  And of course, there is the fact that the 9th Circuit ruled that Prop 8 was unconstitutional, which is pretty great.  However, I am guessing that AFER and Boies/Olson would have preferred an answer on the broader question of legality of same-sex marriage bans.  But that was not to be today:

Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. We need not and do not answer the broader question in this case.

And so, citizens of other states must wait in line for the time being. Metaphorically, I suppose, because the 9th Circuit also put a stay on the decision, so no marriages will proceed right away.  But the Supreme Court can review this decision in any way they would like to. They could address that broader question if they so decide. Perhaps they’d prefer to rip the band-aid off in one grand gesture, or maybe we’ll wait for that.  The Supreme Court won’t make its decision on whether to hear the case for a few months, so Court watchers will be left guessing.

All that being said, you can’t help but smile when you realize that an appellate court sees the real injustice in this inequality. Check out page 37 and the subsequent pages for a rather heartfelt statement of the importance of marriage in our community.

The designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple designing to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.

Furthmore, when Reinhardt gets to his conclusion, it is stark and simple:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.

Reinhardt ultimately wrote the opinion for an audience of 9.  By limiting his opinion, it has a stronger chance of standing up, and possibly even inspiring Justice Kennedy to end marriage discrimination forever.

9th Cir Prop 8 decision

9th Circuit Announces Decision at 10AM tomorrow

by Brian Leubitz

The 9th Circuit has just announced that they will be releasing their opinion in Perry v Brown, otherwise known as the Prop 8 case, tomorrow. The opinion will be posted on their website.  Given that the 9th Circuit will likely be overwhelmed by traffic, we’ll get links up to alternate sites as soon as we have them.

LGBT leaders will be gathering at the court in San Francisco tomorrow at 10AM for the decision, and then heading over to City Hall where clergy will be standing by to bless couples. (There will likely be a stay if Prop 8 is again ruled unconstitutional, so no real marriages.)

The team behind the lawsuit will, AFER, be llivestreaming their press conference with David Boies and Ted Olson.

The campaign to re-elect Assemblymember Betsy Butler to the California State Assembly today announced the support of Congresswoman Judy Chu and former Congresswoman Diane Watson.

You can read the full release at: http://ruizari.tumblr.com/Butl…

About Betsy:

Betsy currently is a board member of Equality California and previously served as President of the National Women’s Political Caucus (LA Westside Chapter), and as the Director of Development for Consumer Attorneys of California. Assemblymember Butler also has served as an appointed member of the California Film Commission, where she worked to keep the film industry as a driver of the state’s economy.

Mayors officially Announce “Mayors for Marriage” campaign

Last week I mentioned that Jerry Sanders and Antonio Villaraigosa had teamed up with other mayors across the nation to launch an effort to back marriage equality. Freedom to marry has now officially launched the video from that US Conference of Mayors meeting last week:

You can see the full list of mayors that signed up for the campaign include many California mayors, from some of our biggest cities, LA, SD, Oakland and SF and a whole of assortment of interesting names (Redondo Beach, Chico, and San Luis Obispo).  

The two biggest cities not on the list are also headed by Democrats as well.  San Jose Mayor Chuck Reed is opposed to marriage equality, though he didn’t publicly endorse Prop 8. Sacramento’s Kevin Johnson who publicly opposed Prop 8, also, at least at last check, was playing the Obama game of not supporting constitutional amendments but opposing marriage equality.

Republican Mayor continues fight for Marriage Equality

by Brian Leubitz

Jerry Sanders is really your textbook example case for why the LGBT community needs to come out.  Sanders was going about his business as just another Republican in SoCal, opposed to marriage equality. Hardly a radical anti-gay politician or anything like that, but not somebody that you would call an ally.  That is of course, until his daughter came out as a lesbian.

The change wasn’t overnight, but today, Sanders is now one of the most prominent voices for marriage equality.  He testified at the Prop 8 trial, a day I happened to attend, and it was quite moving. If those tapes are released, his testimony will really be worth a watch.  And today Freedom to Marry announced that Mayor Sanders will be leading a new campaign, creatively called “Mayors for Freedom to Marry.”

Sanders hasn’t suddenly become a progressive, but he has put himself in the shoes of somebody being discriminated against.  He can see that his daughter was hurt by Prop 8, and has done something about it.  I wouldn’t vote for him for most offices, but I do think he should be commended for doing what is best for his family, not for what is best for his ability to win some future Republican “primary” battle.

The committee is co-chaired by Mayor Villaraigosa of LA as well as Mayors Bloomberg (NYC) and Menino (Boston). Meanwhile, the numbers continue to drift towards equality and legislatures across the country are passing marriage bills. At some point in the very near future, this is not going to be an issue outside of the right-wing fringe.

Support for marriage equality continues to grow

By Brian Leubitz

My apologies for being away for a while. I’ve been traveling, and is often the case after traveling, I got sick. So, as I try to ward off this nasty head cold, here’s some food for thought on the subject of marriage equality.

As you might remember, we were polling we’ll on prop 8 several months before the election. Then the nasty (and untrue) ads about forcing your kids to get married to a gay, or something like that, started appearing. We had no coordinated response, and ultimately that became the story. But in the marriage debate, time is our friend. And as every year passes, the electorate becomes more favorable.

And California’s great population of Decline to State voters are moving in the same way.  Last week, the CA League of Conservaition voters released a poll focusing on DTS voters, and the results were quite positive.

By a 2-to-1 margin, three out of five (60 percent)” decline-to-state “voters support allowing gay and lesbian couples to marry legally, with a resounding 44 percent who strongly support legal avenues to marriage. In contrast, less than a third (30 percent total oppose) oppose legalizing marriage for gay and lesbian couples and less than one out of ten is undecided.

In a July 2009 poll commissioned by Love Honor Cherish, Equality California, Courage Campaign and more than 30 other organizations to determine when to seek repeal of Prop 8, decline-to-state voters favored marriage by 49% with 18% undecided and 33% opposed.(LoveHonorCherish)

Now, to be clear, this is far from conclusive proof of anything. LHC has a ballot measure submitted in Sacramento, and is trying to rally support. However, as of yet, there hasn’t been any institutional support for the measure while the legal case is outstanding.  With that case expected to drag on for months/years, it seems unlikely that a consensus will be formed around the November 2012 date for a measure. No matter when it goes on, a ballot measure would be extremeley expensive. Now, that isn’t to say that I don’t support the concept, because I think we really need to win one at the ballot at some point to give the Supreme Court some courage.

And all the numbers are there, we can win in 2012. But from where we stand right now, we have a lot of work to do before we are ballot ready.

9^th Circuit panel will hear arguments on releasing the videos and overturning Judge Walker’s decision based on gay bias

by Brian Leubitz

UPDATE: KQED Public Radio intends to livestream audio of the hearing at www.kqednews.org  and www.kqed.org/news/

In just a few hours, Olson and Boies will be back in action, this time on two motions.  First, Plaintiffs’ lead co-counsel Theodore B. Olson will present the oral argument advocating for the release of the trial tapes at 2:30pm PT.  (Court release here) Plaintiffs’ lead co-counsel David Boies will present the oral argument regarding Proponents’ motion to vacate judgment at 3:30pm PT. I’m hoping to be on hand for those, but I expect competition for those seats to be a little tough. You can also check out the Prop 8 Trial Tracker for live coverage if I’m not able to make it.

If the appellate court does not block the video tape release, and there isn’t an emergency Supreme Court intervention, expect the courts to release those tapes shortly.

The motion to vacate is that silly one about Judge Walker not being able to rule fairly on the issue because he is gay.  Judge Ware dismissed it curtly, and as I have written on several occasions (including here and here), it should receive pretty short shrift.  The Prop 8 team is essentially arguing that minorities can not rule on civil rights cases that remotely affect them.  I’m wondering if they would have the temerity to argue that a female judge couldn’t decide a gender case, or an African-American judge couldn’t decide a racial discrimination case.  It should be, and likely will be, rejected almost out of hand.

More updates on this later today.

2:45: I’m at the court now, where the Prop8ers are presenting their case regarding the video. There basic argument is that they are very injured, and that the code of civil procedure trumps the common law right to access materials from the trial.

Judge2: you had two witnesses? Didnt they go on tv?

See my twitter feed for more updates.

In a general opinion, Court favors giving initiative proponents authority to defend measures

By Brian Leubitz

As I mentioned yesterday, today the California Supreme Court has ruled on the certified question from the 9th Circuit regarding standing.  I’ll get into more details in a bit, but here is the general ruling from the court:

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

Here is the full opinion (PDF), more in a bit.

What does this mean? Well, it ends the easy way out of the case.  Standing is a threshold question, that must be resolved before the judge or judges in the case get to the merits of the case. Standing is appealable, but a decision by a lower court in a case as controversial as this to duck the question would hardly give the US Supreme Court any motivation to enter the fray themselves.  In this situation, the question of standing is really a state law question anyway.  The California Supreme Court should really be the body deciding who represents the state.  

In this situation, both the Governor and the Attorney General declined to defend Prop 8, as they both felt it was unconstitutional. The Proponents defended the measure in the trial court as intervenors, but the decision to appeal isn’t one that can typically be done by intervenors.  So, if they were allowed to appeal, they would have to be granted some special standing.  This decision is not specific to Prop 8 at all, rather it just says that when California’s elected officials refuse to defend a ballot measure in court, the Proponents of the measure are “authorized to assert the state’s interest in the initiative’s validity.”

In other words, the 9th Circuit is now on the clock for their decision on the merits.  This is not necessarily a bad thing.  AFER has built up a strong legal team and they constructed a good record at the trial court. They have the money to proceed all the way to the Supreme Court on Perry v Brown, lord knows with all the fundraising AFER has been doing, they have the money. But hey, if you are Chad Griffin, the man behind AFER, why not ask for some more money, because, well, AFER is really, really good at that. In his reaction to the case that seems to have been pre-written, Griffin seems to be relishing the fight (and asking for more money.)

Our federal lawsuit for marriage equality is back on the fast track!

Now that the California Supreme Court has finally issued its advisory opinion that the Prop. 8 Proponents have standing to appeal, we can expect a speedy ruling from the Ninth Circuit Court of Appeals.  We are on the cusp of achieving what we have been fighting for. For countless couples like our plaintiffs, Kris Perry & Sandy Steir and Paul Katami & Jeff Zarrillo, marriage equality cannot come quickly enough.

Help us win the freedom to marry for couples like Kris & Sandy and Paul & Jeff. Make a donation today so we can continue our fight for full federal marriage equality. (donation link)

Look, I know that it is in AFER’s best interest to move forward for this case, but I think celebrating this decision looks kind of silly.  There was much discussion of the possibility of marriages beginning again this year, but that doesn’t seem all that likely at this point.  The 9th Circuit now will rule on the merits of the case, and we’ll wait longer for this case to proceed.

So, no quick way out.  Now, given that this case has taken so long, one of the AFER arguments to bring the litigation over the objection of many LGBT organizations, that we cannot tolerate a measure like this for one day longer now looks rather stark.  The question I have now is given that we’re still looking at many more layers, could we have gotten it done at the ballot box? I suppose we won’t know, as it won’t be on the 2012 vote. I’m pretty sure we would have won, but it would have cost more.  And the impact of a Sup. Ct. win on this case would have an impact for the entire nation.

But, we’re still rolling the dice here, no matter what we do.  So, let it ride!