California Supreme Court will rule on question from 9th Circuit regarding standing

by Brian Leubitz

A quick public service announcement here. A ruling from the California Supreme Court is due tomorrow on the question of standing for the Prop 8 proponents:

The California Supreme Court will decide Thursday whether to allow supporters of Proposition 8 to defend California’s ban on same-sex marriage.

Based on the tenor of the justices’ questions during arguments in September, it appeared likely the Supreme Court would permit Proposition 8’s legal team to defend the voter-approved law, which would push the ongoing legal battle forward in a federal appeals court.

The Supreme Court is addressing the narrow question of whether Proposition 8 sponsors have a right to appeal a federal judge’s ruling declaring the law unconstitutional when the governor and attorney general refuse to do so. The 9th U.S. Circuit Court of Appeals asked the state’s high court to rule on that issue before addressing the central questions in the legal challenge to the same-sex marriage ban. (SJ Merc)

As a reminder, this question has nothing whatsoever to do with the merits of the case.  And while I’m not that big of a fan of reading the tea leaves, the fact remains that the Court did seem sympathetic to the Proponent’s standing claim.  And while a denial of standing would seemingly end the case and allow Californians to marry, as Chad Griffin of AFER points out, we really can win either way.

Here’s the great news: No matter what happens, we win. Either the Federal District Court ruling that declared Prop. 8 unconstitutional stands, or our case proceeds on its merits with the strong likelihood of reaching the U.S. Supreme Court. Because there is no reason to justify discrimination against gay and lesbian Americans, we are confident that the higher courts will affirm our District Court victory.

So, I guess we’ll just wait a few more hours, or a few more months, or a few more years, but time is on our side.  The clock is ticking towards full marriage equality.

California Leaders Lobby Congress to End Discriminatory Law

by Brian Leubitz

There are a few facts that should probably come up first here.  DOMA is unconstitutional.  It violates the full faith and credit clause in addition to equal protection and due process claims.  And that will be decided at some point soon, as the case is now at the appellate court level.  However, for the time being the law is on the books, and we need to eliminate it.

Sen. Feinstein has been pushing DOMA repeal this legislative session, and got the bill out of the Judiciary Committee on a party line vote last week.  Now Governor Brown and several California Mayors are pressing Congressional leaders to repeal as well.

The 1996 Defense of Marriage Act “is a stain on our common values,” Lee and 14 other mayors and governors from around the nation said in a letter to the Senate Judiciary Committee, which voted last week to repeal the law.

In a separate letter, Brown noted that 18,000 gay and lesbian couples were legally wed in California in the five months before November 2008, when voters reinstated the ban on same-sex marriage by passing Proposition 8. Those marriages remain valid despite a state Supreme Court ruling upholding Prop. 8, which is now being challenged in federal court.

“Californians in these marriages deserve to be treated the same by the federal government and other states as Californians in other legal marriages,” Brown told the Senate committee. (SF Chronicle)

Other California signatories to the Mayoral letter were Mayors Villaraigosa of LA and Sanders of San Diego.

You can view both online

by Brian Leubitz

UPDATE: The good folks at Prop 8 Trial Tracker have liveblogged the Prop 8 hearing.  Check it out, and then begin waiting for the ruling…

Well, not that they really have anything to do with each other, with the exception of the fact that Lynn Woolsey has supported marriage equality from way back in the day.  Woolsey voted against DOMA in 1996, as did many California Democrats. In fact of the 67 House no votes on DOMA, my quick counting showed at least 16 Californians, or nearly double the percentage of Californians in the House.

Anyway, as you probably know, Woolsey is retiring after this term, and she is sitting down with Michael Krasny of KQED’s forum to talk about her career right about now.  You can listen in the Bay Area on 88.5FM or stream it live online.  The program starts at 9AM, but you can catch the podcast later this afternoon as well.

No, the Prop 8 case is also up today.  The Supreme Court will consider whether the proponents of Prop 8 have standing to appeal Judge Vaughn Walker’s decision.  

The California Supreme Court will hear arguments Tuesday on whether conservatives who sponsored Proposition 8 are entitled to appeal last year’s federal ruling that overturned the 2008 same-sex marriage ban.

The court’s ruling, due 90 days after argument, will determine whether all initiative sponsors in California are legally entitled to defend their measures in state court when the governor and the attorney general refuse. (LA Times)

To be sure, it is far from clear which way this decision will go.  Prior case law, from my reading, seems to lean in the favor of no, they can’t appeal and do not have standing.  However, the issue is a little gray, and that’s why the question was certified to the CA Supreme Court.  Unfortunately, the Court did not choose to expedite the process, but we should have a decision before December or so.

However, you can also watch the argument live on CalChannel, either on your cable provider or online at calchannel.com.  The hearing starts at 10AM.

In a ruling that will surprise exactly nobody, the Prop 8 legal team’s hail mary pass fell incomplete nowhere near the closest receiver:

A federal judge on Tuesday refused to invalidate last year’s ruling against Proposition 8, deciding the gay jurist who overturned the same-sex marriage ban had no obligation to step aside because of a possible conflict of interest.

The decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by retired Judge Vaughn R. Walker in place. Walker’s decision remains on hold pending a separate appeal to the U.S. 9th Circuit Court of Appeals. (LA Times)

I suppose this means that we’ll not need to probe the minds of every individual judge on every civil rights case to determine who is the most “unbiased.”  I’m thinking they could have hired Spock to mind meld with every judge upon confirmation.

UPDATE: Check the full decision here: Denial of Motion to Vacate 06-14-2011, but suffice it to say that Judge Ware didn’t find too much of the proponents argument convincing.

I suppose I shouldn’t be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this.  No, I’m not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren’t all that bad.  Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.

I was unable to make it to the courthouse like I had hoped to cover the hearings today, but thanks to both Arisha and Rick at P8TT and the good folks on the AFER twitter feed, I was able to keep pretty good tabs on the argument.  In short, the proponents wanted to wipe out the first trial because Judge Walker was in a long-term same-sex relationship and “might want to get married.”  They also discussed the question of who controls the video tape from the trial.  And as I was reading the information coming in minute by minute, on both the video and the motion to vacate, one idea came to mind:

Hail Mary.

Before the hearing today, if you asked most any attorney of note, bringing up the old “he’s gay!” argument was something of a sign of discomfort with the way they put on the original case.  Pugno and friends essentially acknowledged that perhaps they could have done it better.

If you look at it legally, they still have a lot of appellate options remaining.  And much of the case boils down to “questions of law” to which appellate courts review de novo, that is they look at them completely fresh.  Judge Walker’s determinations are essentially given no deference there.  However, Judge Walker also listed a slew of “findings of fact.”  These are not reviewed fresh, but are only overturned if they are “clearly erroneous.”  (I’ll leave the question about whether those are really findings of fact for another day.)

So, if you take that his findings of fact are really that, then sure, you’d really, really want a new trial.  But there are several very important questions of law that much of the case turns upon in Judge Walker’s decision.  Those are reviewed fresh, and Team Prop 8 doesn’t seem to like their hand on that one.

So, they brought this motion to vacate, hoping to get a do-over for that rancid lemonade they made last year.  Who knows what their rationale was, but it all stunk of desperation.

Judge Ware’s questioning cut right to the heart of the issue.  What is a judge really obligated to disclose, and what are they allowed to take upon themselves to determine their own bias (or lack thereof)?  Judge Ware brought up a series of hypotheticals that really put the lie to the Prop 8 team’s argument.  I’ll let you go back to the live-blogging this morning to catch those, but suffice it to say, Mr. Cooper was not in an enviable position.

Surely the Prop 8 attorneys thought this through enough to figure out that this wasn’t going anywhere.  After all, vacating that decision would have had profound impacts on cases going far beyond the issue of LGBT rights.  It was, at best, a long shot.  But perhaps a long shot with rewards that were worth the risk for them.

In theory, perception shouldn’t really make a difference in a legal proceeding.  That is extraneous, and shouldn’t be taken into account by the jurists reviewing the case.  And I have confidence in our judiciary that it won’t be.  But, I’m pretty sure if you were able to ask the participants in the Scopes Monkey Trial if perception matters, you would get a very different response. In cases of historical import, perception matters, and I can’t imagine that today did anything for those who wish to hold back the arc of history as it wends its way toward justice.

Well, the rumors that Judge Vaughn Walker were out there for a long time, and he never really denied it.  The Chronicle, among others, published that information during the trial, and it was basically an known fact.  However, Judge Walker has now acknowledged that he has been in a long term relationship with a man, and that apparently is entirely different.   He might, you know, be interested in marrying some day, and so the thought processes of the Prop 8 attorneys goes, he should have recused himself from the case.  They’ve filed a motion saying just that and asking for a new trial.

Eight months later, Proposition 8’s proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s historic ruling, a move they said was prompted by the now-retired jurist’s recent disclosure that he is in a long-term relationship with another man.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.(Sac Bee (AP))

This is really rather incredible.  First, they are essentially arguing that only those who are unaffected by civil rights cases can hear those cases.  So…diversity, yeah, that’s a waste of time.  Our bench should just be white straight men (WSM) so that they can hear all the cases. Never mind that we all bring a perspective to our daily life, only WSMs are unbiased enough to hear civil rights cases.  And really, we should be looking into some of those WSMs as well.  Gender discrimination case? Well, that WSM has a daughter who might have been excluded, better eliminate him too.  You know, maybe we should just go to a court judged entirely by people locked up in a room, so that they don’t have any other interests.  We can raise children from the age of 5 in a state of unattached freedom, so that they never care about anything, and then they can grow up to be our judges.  How does that sound?

Of course, it is pretty hard to imagine that this will actually go anywhere:

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge’s same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

“It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn’t want to be married,” he said. “I don’t see that as advancing their cause.”(SacBee (AP))

In the end, Prop 8 isn’t about stable relationships, or encouraging the reasonable public policy of rewarding that stability.  No, it is a punitive measure against those that they don’t like.  It is simply homophobia, and it doesn’t belong in California, and it doesn’t belong in our nation.

UPDATE: I’m a big fan of the dean of UC-Irvine’s nascent law school, Erwin Chemerinsky.  He really knows how to get to the nub of an argument, and explain it to you in a very real way.  Here is an example of that:

“I know of no instance in which a judge has been disqualified because of his or her race, religion, sexual orientation or gender,” Chemerinsky told TIME. “This would mean that no African-American judge could have heard a challenge to segregation laws or no woman judge a challenge to a law discriminating based on sex. No court ever has suggested any such thing, nor will it. This is simply a personal attack on Judge Walker in an effort to embarrass him. As was said in another context long ago, Have they no shame?” (Time Magazine)

A while back, the Prop 8 plaintiffs asked the 9th Circuit to lift their stay that continued enforcement of that odious legislation.  Given the situation at the time, with the changed facts of the lengthy California Supreme Court delay and the President’s determination that DOMA was unconstitutional, you’d think that maybe now would be the time to act on the District Court’s decision and let the marriages continue.

However, today they announced that they would not be doing that.

Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time. (h/t Poliglot)

I’m not sure I have any words to describe this, save one: heartless.  Perhaps the Court should tell that directly to Ed and Derrence.

Last week, the plaintiffs in the Prop 8 litigation asked the 9th Circuit to lift the stay against enforcement of Judge Walker’s decision.  With the President’s decision to stop defending DOMA’s constitutionality, the legal team fighting Prop 8 felt that situations had changed enough to reconsider the stay.

The bigger issue seems to be in the way that the Supreme Court has defined the standard for these types of stays.  Traditionally, the party seeking the stay has to show not only a likelihood of prevailing on the merits but also that nobody will face undue prejudice due to the stay.  Of course, as we know, same-sex couples are facing unnecessary and painful delays.

But the issue that I found most intriguing, and that the City and County of San Francisco focused on in their brief (PDF) was the question of jurisdiction.  The 9th Circuit has already questioned whether the proponents of Prop 8 have standing to appeal, and the threshhold for a stay is fairly high. So, should there really be a stay?

As the Supreme Court has held, when jurisdiction is unsettled a stay of judgment cannot be maintained.  Here, this Court’s certification order makes plain that Proponents have not, to date, met their burden. The stay should be lifted unless  and until Proponents establish that this Court has the power to hear their appeal. (SF Brief)

Well, today, the LA Times joined the act, calling for marriages to resume in a speedy manner.

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system. (LAT)

Amen.

Today, US Attorney General Eric Holder and President Obama announced that they would no longer be defending the odious Defense of Marriage Act:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.  

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.(US DOJ)

For now, DOMA has not been struck in the 9th District, so it technically still applies here, but for how long? With this non-defense pledge outstanding, we can expect DOMA to be challenged facially (on its merits) very soon in California.

Hidden within the statement is the important sentence that indicates the President and his team believe that rational basis scrutiny is simply not enough. This is a potential game changer for employment discrimination (either formalized as ENDA, or just a de facto enforcement of other non-discrimination provisions), housing discrimination, and other provisions.  So, this is important for marriage, but it goes far beyond that.

Press release after the flip.

UPDATE: After the administration’s announcement, Sen. Dianne Feinstein has announced a bill to repeal DOMA. More details pending …

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.  

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.   We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.   I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.   The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.  

Furthermore, pursuant to the President ‘ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.   At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one.   Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.  

Much of the legal landscape has changed in the 15 years since Congress passed DOMA.   The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional.   Congress has repealed the military’s Don’t Ask, Don’t Tell policy.   Several lower courts have ruled DOMA itself to be unconstitutional.   Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law.   But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Yeah, you heard that right. September 2011.  So, we’ll be waiting for a while. Here’s what the Court said:

 The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted. For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively “Proponents”) are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).) In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows: The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18. Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011. The court does not contemplate any extension of the above deadlines. Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

We will likely have a decision by the end of the year on standing.  If the Supreme Court rules that the proponents have standing, then we’ll be talking about another few months.  If they say there isn’t standing, then in all likelihood Judge Walker’s decision will stand for California.

I’ll save you from another discussion of the general standing question, as there are many such blog posts around the internet, some of which I’ve written myself. Just google “Prop 8 standing” for more information, and you’ll be flooded with information.

The Courage Campaign launched a campaign asking same-sex couples who are waiting to tell their stories.  You can find more info about that here.

One final comment.  The continued dragging on of this case means that real families are still denied equal rights.  It is a tragedy and a travesty. I’m a political hack, but at some point, we need to win this one at the ballot.