It is never wise to predict U.S. Supreme Court decisions on oral arguments, or else Obamacare would have been repealed.  Based on the Justices’ line of questioning, however, it appears that they will overrule Proposition 8 – but on narrow grounds that will only affect California.  The Justices spent a significant chunk of time on “standing,” but they will likely consider the Prop 8 supporters as proper litigants.  But Justices Anthony Kennedy and John Roberts had clear problems with finding a “right” to same-sex marriage that would apply nationwide – and the “nine-state” compromise was widely panned.  I predict they will rule Prop 8 unconstitutional by applying the Romer precedent and sustaining the Ninth Circuit decision, i.e., Prop 8 was unique because it “took away” a right that same-sex couples already had.

Today, the Court will hear oral arguments on the federal Defense of Marriage Act – a case whose outcome should be more favorable.  A state can grant marriage to same-sex couples, but we still don’t have equality because DOMA denies them all federal benefits.  I also expect that the standing question in DOMA to be clearer.

Note by Brian: Amy Howe at SCOTUSBlog has a “plain English” review of the DOMA Case. It’s worth a read, as it covers some of the standing issues in that case as well as the merits of the case.

As I reported yesterday, there are five ways the Supreme Court could rule on Prop 8: (1) deny standing to Prop 8 supporters and make us win by default, (2) uphold Prop 8 and deny marriage to California couples, (3) sustain the Ninth Circuit decision that overruled Prop 8, but only in California, (4) overrule Prop 8 in a way that extends same-sex marriage to nine states or (5) extend marriage equality to all 50 states.

Standing Dominates Oral Arguments, But Court Likely to Rule on Merits

Unlike today’s DOMA arguments, the Supreme Court did not set aside time for the Prop 8 litigants to discuss “standing” – but Chief Justice John Roberts made all 3 lawyers yesterday explain their position at the outset.  This led to a robust back-and-forth, and many commentators now predict the Court will “punt” on Prop 8 – allowing same-sex marriage in California because the appeal was improper.

Here’s why I don’t believe that will happen.  The conservatives will vote to grant standing, as Samuel Alito argued that the whole point of an initiative process is to allow citizens to bypass elected officials.  But “swing” vote Anthony Kennedy also expressed concern that dismissing a case because the Governor & Attorney General refused to defend Prop 8 would result in a “one-way ratchet.”  Even liberal Sonia Sotomayor added that Ted Olson was not answering the “fundamental fear” of such a precedent.  The Justices asked about standing, but the votes are there to grant it.

Justices Not Likely to Determine Same-Sex Marriage a ‘Fundamental Right’

It was clear from the oral arguments that the 4 liberal Justices – Sonia Sotomayor, Elana Kagan, Stephen Breyer & Ruth Bader Ginsburg – believe that Prop 8 is unconstitutional, and probably that same-sex marriage is a fundamental right.  But while Anthony Kennedy – and even John Roberts – made some favorable comments, both were uncomfortable with the idea of expanding gay marriage to all 50 states.

The Obama Administration argued that Prop 8 is unconstitutional, wherever states grant civil unions or domestic partnerships to same-sex couples – but denied the right to marry.  Dubbed the “nine-state solution,” this ruling would have extended marriage equality to nine states including California – which sounded like a good political compromise.  But Justices from both sides of the spectrum blasted it for being legally and logistically inconsistent.  As the Huffington Post wrote, it probably just confused them.

Will Kennedy (and Roberts?) Vote to Uphold the Ninth Circuit Decision?

This leaves us with two possible outcomes: upholding Prop 8 (thereby putting the Court on the wrong side of history), or repealing Prop 8 in a narrow enough way that it only affects California.  Justices Kagan, Ginsburg and Sotomayor all asked questions that zeroed in on that option – perhaps as a means of getting a fifth vote.

Last year, the Ninth Circuit overruled Prop 8 because it actually repealed a right to same-sex marriage that the state had granted.  This makes Prop 8 unique among all other anti-gay marriage amendments because, applying the Romer precedent, it was malicious.

At one point, Justice Kennedy was uncomfortable with making same-sex marriage a fundamental right – calling it a “broad argument” that was far more extensive than the Ninth Circuit’s ruling.  But he then went on to call the Ninth Circuit’s ruling on Prop 8 a “very odd rationale” – which is disturbing.  However, it’s clear from reading the transcript (relevant passage is on page 42) that Kennedy was confusing what the Ninth Circuit had said on Prop 8.

Kennedy wrote the Romer decision in 1996, which overruled a Colorado state initiative that repealed non-discrimination ordinances.  The Ninth Circuit decision on Prop 8 heavily relied on Kennedy’s reasoning in Romer.  As a friend of mine said yesterday, “hopefully, his clerks will clear up the confusion.”

Would Roberts be a sixth vote to repeal Prop 8 on these narrow grounds?  At some points in the oral arguments, Roberts seemed amenable to the idea that Prop 8 not only denied same-sex marriage in California – it did so after the state Court found it was a right.  While less likely to do so than Kennedy, Roberts may do the right thing.

DOMA More Likely to Be Repealed, Paving Way for Full Marriage Equality

As I wrote when the California Supreme Court first granted same-sex marriage in 2008, we will never get real marriage equality until we repeal the Defense of Marriage Act.  

Even in states where gay couples can get married, DOMA denies them any and all federal benefits – such as joint tax returns, Social Security benefits, immigration or military benefits.  Don’t Ask Don’t Tell may be gone, but gays in the military don’t get benefits for their spouse or partner.  If your husband is an immigrant, they can still get deported – even if you live in a state like Connecticut with same-sex marriage.

And in the case of Edith Windsor, who married her wife in Canada and then moved to New York, she was hit with $363,000 in federal estate taxes after her wife died.  If they had been a straight married couple, she would have been exempt from that.

Unlike the Prop 8 lawsuit, which was filed over serious objections by civil rights lawyers, the federal case against DOMA has been painstakingly planned for years.  The plaintiffs are legally married (no one disputes that), but the federal government is violating equal protection.  The strategy was to file several DOMA lawsuits across the country in various circuits, so by the time the Supreme Court hears it today we will have had multiple cases with a consistent string of victories.

DOMA, which President Clinton signed in 1996, does two things: (a) it denies all federal benefits to same-sex couples, regardless of their marital status and (b) it allows states to block recognition of gay marriages performed in other states.  Today’s lawsuit only challenges the former, but a Supreme Court victory would bring tangible benefits to thousands of married gay couples in America – not to mention the economic impact on states that have granted marriage equality.

Just like Prop 8, the federal government has refused to defend DOMA – forcing House Republicans to intervene as third parties.  The Supreme Court will rule on whether they have standing, and it’s clear that our odds are better than in Prop 8.  

Because Prop 8 was a citizen initiative, it can be argued that – in the absence of the state government defending it – those who collected signatures to place it on the ballot may “substitute” in to represent the state’s “interest.”  But DOMA was an Act of Congress, signed into law by the President.  Both Bob Barr (who wrote DOMA as a Congressman) and Bill Clinton (who signed it into law) have disavowed DOMA, and argue that it should be repealed.  An amicus brief has been filed by four U.S. Senators who voted for DOMA – and now argue that it was a mistake, and must be overruled.

Stay tuned for tomorrow, as I assess how the oral arguments on DOMA went.

Paul Hogarth has a J.D. from Golden Gate University Law School, and is licensed to practice law in California.  He was a legal intern at Equality California in the summer of 2005, was active in Bloggers Against Prop 8, organized volunteers in 2009 who traveled to Maine for the marriage campaign, live-blogged the Prop 8 trial for the Courage Campaign in January 2010 and in 2012 worked as a Campaign Consultant for United for Marriage – a project that sent volunteers to Maine, Maryland, Minnesota & Washington to supplement campaign field efforts.  Follow him on Twitter at @paulhogarth.

This is an article written by Matthew Fleischer for Frying Pan News. Check Frying Pan News for regular in-depth coverage of Prop 32, its funders, and how it will impact working Californians.

Brothers David and Charles Koch, and other libertarian billionaire backers of Proposition 32, including Charles Munger Jr., like to wrap themselves in the toga of individual freedom. However, despite their supposed ideological fervor for personal liberties, they have allied themselves with some of the nation’s most vociferously anti-gay religious activists – all for a campaign to outlaw the use of automatic payroll deductions from union members and corporations for political purposes. Although it is not widely seen as a “gay issue,” Prop. 32’s passage could have far-reaching consequences for California’s gays and lesbians.

“If we lose organized labor as a funded political ally in California, the LGBT movement is in big trouble,” says Courage Campaign founder and LGBT activist Rick Jacobs.  “Would you rather have Howard Ahmanson thinking about your rights in the workplace, or organized labor? That’s what this is about. Mark my words, people like the Kochs and Ahmanson are not thinking about how LGBT people are welcome in the workplace and not discriminated against.”

Howard Ahmanson, the Prop. 32 supporter to whom Jacobs refers, is a wealthy heir who once told the Orange County Register his political aspirations for the country embraced “the total integration of biblical law into our lives.”

In 2008 Ahmanson was one of the leading backers of the successful Proposition 8, which banned gay marriage in California where, briefly, it had been legal. He donated nearly $1.4 million to fight against marriage equality. That sum is even greater than the $1 million he donated to the American Anglican Council, a religious advocacy organization, in the early aughts-ostensibly to help undermine the tide of tolerance growing in the church towards LGBT participation. The Episcopal Church, which falls under the Anglican umbrella and to which Ahmanson belongs, was the first major Protestant denomination to allow the ordination of openly gay bishops.

It’s telling that for a bill advertised as a campaign finance reform measure, Prop. 32 wouldn’t have put the slightest dent in Prop. 8’s funding, had Prop. 32 been law in 2008. It would have, though, prevented more than $2 million in union donations from flowing to the marriage equality side.

Ahmanson isn’t the only Prop. 32 backer looking to stifle LGBT rights in California. Despite his fundamentalist politics, he may not even be the most anti-gay. That honor likely belongs to real estate investment magnate Larry T. Smith, who thus far has given $255,000 to Prop. 32.

A strong supporter of Prop. 8, Smith was recently among the fiercest critics of SB 1172-the California legislative effort to ban gay-to-straight conversion therapy for minors – which passed in September.

Smith fundamentally rejects the notion that parents forcing their underage children to endure conversion therapy could be psychologically harmful. On the contrary, he feels it’s a “parental right.”

“It in fact appears most of the evidence supports the thesis or the concept that that lifestyle is the result of early childhood experiences,” Smith told the Christian news site Onenewsnow.com. “If early childhood experiences tend to motivate a person in that particular direction, then it would seem reasonable … that proper therapy would help them get out of that particular lifestyle, which I don’t care where you stand – there’s no question that it’s unhealthy.”

In other words, there’s no question that being LGBT is “unhealthy” and a lifestyle choice, and that all you need is some behavior modification at a young age and everything will be good-like curing bedwetting.

Smith isn’t merely opining. He’s the billionaire founder of the religious-right political action committee Family Action-which, with the help of fellow Prop. 32 backer and Family Action board member Mark W. Bucher, helped qualify and pass Proposition 22, a 2000 law amending California’s Family Code to effectively ban same-sex marriage.

For more than a decade, the Family Action PAC has routinely funneled money to anti-gay conservative politicians across the state of California, including Orange County State Assemblyman Allan Mansoor, whom Smith recently praised as “an effective voice for conservative values.”

Mansoor caught the attention of LGBT activists when he ran for a Costa Mesa city council seat in 2002 by posting homophobic comments and articles on the message boards of the website Concerned Costa Mesa Citizens. He also supports the claim that homosexual men commit acts of sexual child molestation at a disproportionately high rate.

Recently, Smith came out as an opponent of this year’s Assembly Joint Resolution 43 – otherwise known as the LGBTQ Bill of Rights. Proposed by Bell Gardens Assemblyman Ricardo Lara, the resolution urged Congress and President Obama to extend California’s robust LBGT civil rights protections against bullying, harassment in the workplace, and discrimination in pay, loan opportunities, housing, hiring and family leave, to gay and lesbians across the country.

“The California Legislature spends their time on trivia instead of dealing with the major problems that the state has,” Smith complained of AJR 43 to Onenewsnow.com. “And it also tells you how the special interests control the California Legislature.”

Smith’s definition of gay rights as a “special interest” should tell LGBT-rights supporters all they need to know about Prop. 32-whose website explicitly advocates “taking back California by reducing the influence of Special Interests across the board.”

LGBT activist Robin Tyler, an original plaintiff in the California Marriage Equality case and a member of the first lesbian couple to be legally married in California, sees Prop. 32 in the same vein as Prop. 8, and thinks its passage would have disastrous effects on the marriage equality movement in California.

“Prop. 32 is another glaring example of why Californians are being fooled into thinking that if they voted for stopping ‘special interests,’ they will be voting in their own favor,” she says. “Like Prop. 8, which misled the public who voted ‘Yes’ into thinking they were protecting their children, Prop. 32 once again misleads the public into thinking they are protecting themselves.”

Reached by phone, Larry T. Smith had “no comment at this time” on Tyler’s remarks or anything having to do with Prop. 32.

Should Prop. 32 pass, Smith, Ahmanson and their compatriots will undoubtedly continue pushing their religious, anti-gay agenda on the state of California and beyond.

“This is not just about California,” says the Courage Campaign’s Jacobs. “Labor communities have been very supportive of LGBT rights in the workplace and in the political space. They are reliable allies. If 32 passes, California’s 2.5 million unionized workers won’t be able to contribute their money for political purposes out of state either. The next time there’s a fight in Washington over the Defense of Marriage Act, for instance, labor has less capacity to join us. California is a donor state. The whole chain is interrupted.”

Cross-posted to the Courage Campaign's Prop 8 Trial Tracker.

As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker's bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil's advocate. Sometimes you can get a read, and sometimes you can't.  Also, I haven't really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.

So let's take a look at the meat of the issues, and see what we learned today over the flip

Imperial County

The attorney for Imperial County, and Isabel Vargas, the deputy clerk of the county, took a real beating in the courtroom. Robert Tyler, of the Advocates for Faith and Freedom, a right wing anti-equality non-profit, came to the podium in front of a skeptical panel.

First, the court had an issue with the fact that the actual clerk of Imperial County was not a party to the attempt to intervene. Rather, Mr. Tyler represented Ms. Vargas, who only really has authority to act as an agent of her elected boss, Dolores Provencio. Erwin Chemerinksy, the Dean of UC-Irvine's new law school, had this to say about the oral arguments:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state — only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene. (LA Times)

Of course, the question of Imperial County really only becomes important if the Court decides that the proponents do not have standing. But the Imperial County claim looks like something of a long shot at this point, or at least not something you would want to be pinning your hopes on.

Standing of the Proponents

This is where some unexpected wrinkles came up in the oral arguments. Namely the possibility of the “certification” of a question to the Supreme Court of California. But let's back up a step.

In the questioning of David Boies, Judge Smith (the lone Republican appointee on the panel), asked him whether the failure to defend Prop 8 was a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders. Of course, a veto of an initiative is not allowed under the Constitution. So,.conflict? (Here's where I'm hearing an ominous duh-duh-duh in my head.)

Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the “Pacific Justice Institute” exactly that question. PJI was first denied by the the 3^rd District, and later by the California Supreme Court.

There is a process for appelate courts to ask state courts a question about state law, called certification. Basically, they “certify” a question, and the state supreme court can answer it. It would delay the process substantially, and given the quick dismissal of the PJI attempt to get Brown to appeal, doesn't really seem either necessary or worthwhile. Essentially, the state supreme court has spoken on this issue by failing to force the appeal.

However, if the panel really felt strongly on this subject, they could go to the State Supreme Court. We would probably here about that fairly soon. But, really, don't expect that.

Returning to the main issue, the ball game was essentially played on the field of Arizonans for Official English, with various cases modifying it. The court was essentially trying to figure out if there a) had ever been a case where a proponent was deemed to have standing and b) if this should be that first case.

Charles Cooper, the attorney for ProtectMarriage.com, eventually relented that there was not such a case. However, he then went on to say that the Strauss decision, where the state Supreme Court upheld Prop 8 was an example of just that in the state court. There, Brown and Schwarzenegger once again refused to defend, but the proponents had standing as defined by the California Supreme Court.

Now, Article III standing isn't the same thing as California standing, there is different jurisprudence on that. However, the admission that there was no case makes the proponents request a question of novel law. Now, that's not to say that they can't win on this question, but it does underscore the big question mark on this issue.

The Substance

After all the process of the first hour (plus 15 minutes), it was on to the meat and potatoes of the due process and equal protection claims. One interesting initial point was that both sides seemingly dropped the question of intermediate or strict scrutiny. Ted Olson briefly mentioned that he think that it could apply, but the substance of his remarks all stuck to the question of whether there was a “rational basis” for Prop 8.

I think there were a couple of specific points that attracted most of the attention, the Romer case, and this question of the “word”.

The “Word”

Judge Smith focused a couple times on whether the State of California was in a worse position for having passed Prop 8 because it has given all of the same rights and privileges under the auspices of the domestic partnership statute. In other words, if we are only fighting over a word, and no substantive differences at the state level, aren't we essentially creating a subclass? And roughly transcribed, here's what Cooper said:

Cooper: The word is the institution. If you redefine the word, you change the institution.

I actually think this was a big moment of the oral argument. It said that yes, the anti-equality forces were there only to “put down” gays and lesbians, or as San Francisco Deputy City Attorney Therese Stewart said (again, this is my rough notes here)

If the word is the institution, then the argument is just that gays and lesbians would “Stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren't as good, or as worthy as other couples, then isn't the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren't as good as me. And frankly, nanny-boo-boo isn't a valid use of state authority.

Roemer

Romer v Evans struck down Colorado's Amendment 2, which barred local governments from recognizing gays and lesbians as a protected class, as the City of Denver had done earlier in the decade. In the decision, Justice Kennedy said that the law denied LGBT Coloradans the protection of the law in an impermissible way. It was so broad as to “confound” judicial review and that Amendement 2 was raised of animus. Or as Kennedy put it:

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected…

Cooper argued that the legislation at issue in Romer was so broad that it couldn't be constitutional, whereas this was just one issue, the word “marriage.” Judge Hawkins pressed Cooper, saying that the removal of rights, especially this right, put it back in the Romer territory. This issue of the removal of rights looks likely to come up in the decision, if the court does reach past the question of standing.  The question just seems to large, and too conflicting with prior law, to not be a major part of the decision.  And generally, that's a good thing for equality.

Who wins?

So, can we predict a winner from the argument today? Well, I go back to my initial statement, it is hard to tell from an oral argument alone. If you really pushed me, I would say that the plaintiffs would be the favorite at this point. The duel questions of standing and whether the court could really find a rational basis hang in the air. And I'm not sure that Cooper satisfactorily answered either.

The Prop 8 is scheduled for oral argument today at 10AM, and it will be televised live for the world to see.  You will be able to catch it on C-SPAN live here and/or get it archived here in case you miss the live coverage).  It will also be covered live on several local tv channels, including KRON 4 in San Francisco. (AFER has full broadcast information here.)

I’ll be covering the comments live here and at the Courage Campaign’s Prop 8 Trial Tracker.  You know the basic facts here, so I won’t drill down too much.  However, it is worth noting now that the hearing will be broken down into two parts, standing and Constitutionality:

In the first hour, a three-judge panel will consider if the group that put Proposition 8 on the ballot two years ago is eligible to appeal the lower court decision since its members are not responsible for enforcing the state’s marriage laws.

Outgoing Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to challenge the ruling.

In the second hour, the panel will hear arguments on the constitutionality of Proposition 8. (AP)

Expect most of the fireworks to come out of that second hour, but in terms of how the case goes down, the first hour might be the more telling.  There is a strong argument that the proponents of Prop 8 have no standing to appeal the case.  Brown and Schwarzenegger chose not to appeal, and that certainly isn’t going to change under Harris and Brown.  But a decision may very well be made on the question of standing, skirting the constitutionality question entirely.  While this would mean that we here in California will have marriage equality, it does not help create the national rule that many have been looking for in this case.

Note that standing would not have been a significantly different question if Cooley had won at this point, as he couldn’t have interceded for another month.  While the appeal deadline has obviously come and gone, the question about whether he could have appealed beyond the 9th Circuit will remain open.  However, I suppose a Cooley victory is a mere hypothetical at this point.  

In the end this case is about one basic, core value: separate is never equal.  Yet the government under Prop. 8 violates Americans’ constitutional rights by creating separate classes of people with different laws for each.  The state sanctioned discrimination leads directly to a hostile environment for children and the possibility of hate crimes.

In short, discrimination shouldn’t be allowed to stand in California’s constitution. My live blogs over the flip…

11:00.

Cooper: Reinhardt nailed distingushing Karchner and Arizonans.  Nobody in Arizonans found any law that showed proponents could appeal.  Cooper brings a State Court Supreme Court, the Strauss case.  The proponents were allowed to intervene in Strauss.  You should ask California Supreme Court case before you allow the district court to stand.  10 min recess for 2nd hour.

10:50

Boies: CA Supreme Court gave a one sentence denial as to forcing the AG to appeal, there was no rationale provided.

No clerks are technically bound by the injunction, save Alameda or LA. However, the remainder of the state, the power to execute the laws go to AG and Governor. The deputy clerks will be required to act by the AG and Governor. Clerks are ministerial, as defined by Lockyer case. They are required to act as the Governor and/or AG tells them. Thus, the deputy clerk of Imperial County should not be allowed.

Nullification Question: Does AG and Governor not defending nullify the people’s decision in the form of Prop 8? Boies says no, because they have seen the district court’s decision and are not bound under California law to seek further decision. The Supreme Court could have required AG action, but did not do so.

Scope of the injunction:

Boies: If the court concluded that the district court exceeded subject matter jurisdiction, but Boies is not aware of any precedent to edit the injunction. He is relying on AG to affect the injunction. The injunction goes to those who are controlled by the defendants, in this case the AG.

10:30 Robert Tyler: Attorney for Imperial County, actual client is a deputy clerk.  Their client is Ms. Vargas, a deputy clerk.  Judge Hawkins is grilling him on whether Imperial County even has the right client.

Judge Smith: “All political functions remain vested in an officer.” Imperial County doesn’t have authority to act without the clerk. Here, the clerk has not given power to the deputy clerk. Deputy is a mere agent, and cannot act without the clerk.

The judges are looking at whether the deputy clerk is bound as a state officer. But the bigger issue seems to be that the Imperial County intervention doesn’t actually have the clerk here.

“When you are asked a question, and you don’t know the answer, say so.” Highlight of the day.

10:14:

Cooper: Looking at two standing issues. First, the big issue of whether the 9th Circuit, the standing issues that we’ve been talking about for a while now.  However, Cooper is interested in looking at the district court jurisdiction as well.

On the 9th Circuit: Cooper is looking at a New Jersey case that was decided before Arizonans for Official English.  The big question here is whether proponents of a measure have standing, and Cooper is asked as much.  His response is rather stunning:  “I don’t have a case to show Article 3 standing for proponents.”

Now, in Arizonans, Justice Ginsburg says that proponents do not have Article III standing, that is to say whether they have standing under the judiciary article of the Constitution.  Cooper is trying to avoid that comparison, by pointing to the prior New Jersey case (Karcher).  In Karcher, the Legislative officers were given standing.  As noted, Karcher was before Arizonans, so it must be read in context of Arizonans.

Cooper is pointing to the Strauss case in state court, where the proponents successfully defended Prop 8 in state court.  The California Supreme Court allowed proponents to defend Prop 8, but blocked other anti-equality groups from intervening, showing that proponents have special standing.

When the Prop 8 trial goes for its oral arguments at the Ninth Circuit, they will be televised by C-SPAN and heard on local and nationwide radio:

A federal appeals court Wednesday authorized the televising of a Dec. 6 hearing on whether Proposition 8, the 2008 ballot measure that banned same-sex marriage, should be struck down.

The U.S. 9th Circuit Court of Appeals granted a request by C-SPAN to broadcast the two-hour hearing, which is scheduled to start at 10 a.m. The court said C-SPAN would provide its tape to other broadcast media that receive court permission to televise the hearing. (LA Times)

Now, the thing about the Prop 8 litigation, as somebody who sat in on several days of it, is that the defense really had no case whatsoever.  They relied completely on the high burden of proof that the opponents of the measure have to prove to get it struck down.  Now, that’s not an entirely untenable legal position. After all, the standard is quite high.  However, in this situation, with the world watching, you would think that they would have attempted to put on a bit more of a case.

Unfortunately for them, there just wasn’t any “there” there. Nobody was willing to be cross-examined by Boies, and the two “experts” that did testify a) weren’t really experts and b) did more help for the opponents to the measure.

Televising the oral arguments certainly isn’t as good as had the state and nation been able to see the actual trial.  Trust me, it was good.  However, this should be seen by the world for what it is.  Discrimination should not be allowed to stand, whether a slight majority wants it stand or not.  There are certain rights that just should not go to a plebiscite.

Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I'll not go back over them, but when I read it I was, quite literally, laughing out loud.  I had to read it a couple of times, and Brian didn't really believe me that they were really making the jurisdiction argument.  Make it they did though.

The brief is long.  Very long.  134 pages including the tables, 113 pages from introduction to conclusion.  The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn't seem to have been a big issue for the Prop 8 Crew.  Nonetheless, let's take a  look at the argument on the merits over the flip

Whistling Past the Trial

From a 30,000 foot view, there is one theme to their substantive arguments: the trial didn't happen.  Oh, sure they acknowledge that it physically happened, but the evidence that was presented there, wasn't convincing, the decisions all wrong.  You think there was evidence that Prop 8 was discriminatory? No, not really.  You think there was evidence that showed Prop 8 harmed gays and lesbians? No, not really. That it harmed the children of gays and lesbians? Nope.  That it didn't harm straight marriages? No, didn't happen.

Generally, findings of fact are due deference.  In many trials, these are the decisions that the jury will  make. But, as this was a bench trial, the judge was the fact-finder.  He determines credibility, and what he found believable.  However, Cooper, Pugno, and the gang dispose of that pretty quickly:

Although the district court ruled that Proposition 8 is irrational, that court neither complied with established principles of rational basis review nor meaningfully engaged the legal authorities and evidence before it. Furthermore, the purported findings on which its decision turns involve issues of legislative fact. For all of these reasons, the district court’s findings are entitled to no deference from this court. (Intervenor Brief at 32)

Now, this is a pretty huge simplification, and really, not true so much.  Findings of legislative fact are not sacrosanct, no matter who makes them.  While judges' findings of fact are, in practice, given a little less deference, they are still given considerable deference.  They aren't so casually disregarded, and they have to be clearly erroneous to be tossed aside.

Moving beyond the finding of facts, as we discussed during the trial, the first question is what standard of review will be used.  Judge Walker ended up going with two different standards of review. For the due process claim, which goes to the issue of the fundamental right to marry, Judge Walker said that Prop 8 was subject to strict scrutiny. However, the intervenors argue that the right to marry is fundamental only between members of the opposite sex.  So, you know, no strict scrutiny for you.

This is sure to be an issue of considerable disagreement come our sides' brief. The right to marry has been determined to be fundamental under the due process under Loving v. Virginia.  However, describing this as not applying to same-sex marriage is just as bizarre as saying that practicing Worship of the Spaghetti Monster isn't protected under the right to free exercise of religion. It may not be the norm, but rights aren't defined for simply the majority, but also to protect minorities.

Equal Protection

Now, this is where the heart of Judge Walker's decision lies.  By saying that it doesn't pass rational basis review, the question of due process strict scrutiny, or even the equal protection level of scrutiny, becomes a lot less important. As we've mentioned in the past, rational basis review is the lowest level of review, and means that the state need only a rational basis to enact the law, and that the law need only a rational connection to the stated “rational” goal.  In the decision, Judge Walker states that he believes legislation based upon orientation should be subject to strict scrutiny, but that because he found that Prop 8 didn't stand up to rational basis, it didn't really matter all that much. (Decision at p. 122)

Here, the Proponents argue once again that any “debate” whatsoever means that there is a rational basis.  The proponents have highlighted 6 “interests” that give the state a rational basis.  But, a plethora of evidence at the trial showed these reasons simply to be based in prejudice an innuendo, without any basis in fact.  As Judge Walker stated, “Tradition alone, however, cannot form a rational basis for a law,” citing Williams v Illinois, a 1970 Supreme Court decision. Reason after reason are simply thinly veiled forms of prejudice.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. (Decision at 132.)

Throughout the entirety of their brief, all we see is an attempt at replaying the trial, as if it never really occurred.  Unfortunately for the proponents, the trial did occur.  In the end, this is where we are likely to see the real action of the appellate decisions, but there isn't a lot of new information for the court in this brief.

It will be an another anxious month as we wait to hear from the AFER attorneys next month in the reply brief.

cross posted from the Prop 8 Trial Tracker

The Prop 8 Proponents filed their response to the Plaintiff’s brief opposing the motion for emergency stay.  The whole thing can be summarized thusly:

Nuh-Uh

As was mentioned in the comments, the brief is essentially a revising of history trying to ignore the fact that the trial took place.  But they get the whole party started off right: by using italics!

But when Plaintiffs’ distortions, cariatures, and straw men are cleared away, their constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history – from the ancients to the American states – for no good reason.

So, there you have it. The entire case boiled down to one easy sentence courtesy of Chris Cooper and the Prop 8 legal team.  You can all go home now, because this thing is all wrapped up into a tidy box with a shiny bow of discrimination.

In real life however, such quick rejections in legal documents aren’t really going to change any minds, or win any stays.  So, they do waste 22 perfectly good pieces of paper to write some other startling pieces of legally questionable arguments.  Matty Matt pointed this one out in the comments of the previous thread, and it is definitely worth addressing:

Because Plaintiffs have no concrete  plans to marry, not only will a stay not harm them, but their standing  to maintain this action is doubtful.  At any rate, Plaintiffs’ claims of harm to themselves, like their claims regarding the public interest, depend entirely on their claim that Proposition 8 is unconstitutional. (Brief at page 15)

This is another standing issue, but it brings up different questions than the question of the proponents ability to pursue appeal.  Under the jurisprudence on standing, the plaintiff must have a concrete injury.  Now, that is not to say that the emotional harm isn’t necessarily enough to pursue the case, because that would be a question that is on the fuzzy side that we wouldn’t really want to mess with.  The two couples who serve as the plaintiffs surely want to marry, but they want their legal case to be settled.  If they were to marry during the stay, their ability to continue the case could be called into question.  Out of an abundance of caution, they are waiting until the case if finally resolved, but that doesn’t mean that Cooper and the gang won’t try to use it.

That being said, this is fundamentally a weak argument.  The case cited, Lujan v. Defenders of Wildlife, is a very different question.  In that case, some environmentalists sued the government over a couple of development projects on other continents would possibly harm some habitat of some endangered species.  The plaintiffs claimed their injury was that they wouldn’t be able to see the animals on some as-yet defined trip to the regions.  The court said that was insufficient, with Justice Scalia saying that a plane ticket to the region would have been sufficient for standing. Now, there was debate at the time of that decision as to its legal basis, but that is the law of the land as it stands.

It really is not that hard to distinguish the Prop 8 case from Lujan. First, if you even just go by Justice Scalia, the plaintiffs engagement should be their “plane ticket” to satisfy standing requirements. Many couples take years to plan weddings, and these couples should not be forced to plan a wedding at some undetermined date simply because there is a “window.”  The plaintiffs want to marry, and they want the right to marry at a time of their own choosing.  Furthermore, these couples have a much more tangible right at question here than the simple good feeling from knowing a species is alive on the other side of the world.

With these sorts of winning arguments, I almost expect Andy Pugno to ask the Court “I know you are, but what am I?”

Late yesterday, the legal team behind the Prop 8 Challenge filed their response to the Motion for Emergency Stay.. You can see the full document over the flip. Nothing too surprising here. The plaintiffs basically went through the four factors for a stay, and showed that the burden has not been met.

The Plaintiffs’ motion specifically argues that:

·      Proponents cannot possibly make a “strong showing” that they are likely to prevail in their appeal.

·      There is significant question as to whether Proponents even have standing to pursue an appeal.

·      Proponents have failed to establish that they will likely suffer irreparable injury in the absence of a stay.

·      A stay will cause substantial irreparable harm to Plaintiffs.

·      The public interest favors immediate enforcement of the judgment.

The deadline, as you probably recall, is August 18 at 5pm.  If the 9th Circuit declines to issue a stay or simply does not do anything by then, counties will be able to issue marriage licenses to same sex-couples.

CA9Doc 9

This is cross-posted from the Prop 8 Trial Tracker

That’s exactly what the American “Family” Association wants to do. In an email to their supporter list, the AFA called for Congress to impeach Judge Walker for failing to conduct himself with “good Behaviour”:

Yesterday (August 4), U.S. District Chief Judge Vaughn Walker  single-handedly overturned California’s Prop. 8, which elevated  protection for one-man, one-woman marriage to its state constitution.

In doing so, he frustrated the expressed will of seven million  Californians who went to the polls to shape their state’s public policy  on marriage. …

Fortunately, the Founders provided checks and balances for every  branch of government, including the judicial branch. Federal judges hold  office only “during good Behaviour,” and if they violate that standard  can be removed from the bench. Judge Walker’s ruling is not “good Behaviour.” He has exceeded his constitutional authority and engaged in judicial tyranny.

Judges are not, in fact, unaccountable. They are accountable to Congress, which can remove them from office. Impeachment proceedings, according to the Constitution, begin in the  House of Representatives. It’s time for you to put your congressman on  record regarding the possible impeachment of Judge Walker.

Where to begin? There’s just so much crazy that is genuinely difficult to choose just one nugget. Let’s first start with the popular vote issue.  I’m hesitant to bring  this up again, because really? Really people?

Let’s talk about this.  Do we really want everything up for a popular vote? I guess it’s easy to criticize when you are the one putting up other people’s rights for a vote. But, flip the script, and what does the AFA say about it when somebody puts an initiative on the ballot limiting the number of kids you can have. I mean, limited resources and all. It worked for China, right? Right, AFA?

The larger point is that some rights are sacrosanct. They are not privileges that are earned or that should be put for a plebiscite.  My relationship should not be disfavored because a majority of California voters get squirmish, or are fearful, or are baited into fear through a $40 million scare campaign.

This of course ties directly into the question of impeachment.  “good Behaviour” wasn’t intended to be some sort of generic “the majority doesn’t like you” catch-all.  After all, there are decisions made all the time that the majority disagrees with. Yet, we don’t impeach those judges.  Heck, the entire point of the judiciary was for judges to be a check on the tyranny of the majority.  If we go around impeaching our judges because they apply the constitution simply in a way we don’t like, the entire Article III power of the judiciary will be wiped away.

Of course, this isn’t all that the AFA has said on the matter. In a right-wing online publication, they suggested that this was all in self-interest. Because, you know, Walker is gay (and doesn’t have the good grace to hide it back like those pleasant closeted gays of generations past). I’ll point them to my earlier post, “Did They Know Justice Alito is Male?” Back then, I pointed out the irony that nobody was complaining when Justice Alito was writing a ridiculously sexist opinion in Lilly Ledbetter’s case:

We all have some mix of racial, geographical, socioeconomic and other  backgrounds. And they are all mixed up with who we are. We can’t take  those labels off no matter how independent or fair you are.  Yet some  will still see this as sort of bias.

So, did anybody comment about Justice Alito’s gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180  days from the discriminatory decision, even if they didn’t know about  the decision for years? The decision that ultimately spurred the passage  of the Lilly Ledbetter Act because it was so egregious.

Can an African-American judge not rule an issue of race? A female judge not rule on issues of gender? These ideas, of course, are patently absurd, as is the charge that Walker should have recused himself.

Yet, AFA and their allies will continue to push for the impeachment of Judge Walker and of any 9th Circuit Judges that concur with the district court’s decision, and probably for any Supreme Court Justice who dares to do the same. For the time being, their aren’t enough right-wing zealots to really push this through Congress. But elections are right around the corner, and their are quite a few of said zealots lining up to enter the halls of power.

Will Congress really take the time, even with a Republican majority in the House, to impeach Judge Walker? It’s doubtful at best. After all, “good Behaviour” was never intended to reflect a merely unpopular decision, rather to serious personal failings that would compromise his ability to be a judge. Things like taking bribes, that sort of thing. In our history, only 14 judges have been impeached, with only 6 of them being convicted.  This is not to be done lightly, or for mere disagreements on issues for which reasonable minds can disagree.

But the AFA and their friends are on a rampage. They want blood, and they are going to demand that right-wing Representatives in Congress pick away for it.  I suppose this just reiterates the importance of our involvement in not just the judicial process, but always being mindful that we can never forget about the political process.

Well, today is the day.  Sometime this afternoon, we’ll get our decision in what will go down as one of the most anticipated decisions around these parts since…well…last year when the California Supreme Court upheld Prop 8 but allowed the existing marriages to survive. In many ways, these are amazing days to be alive.  No matter which way Judge Walker goes, this is history in the making.  It’s a small curve in the arc of history bending towards justice (hopefully more obviously, but perhaps only taking the long view.)

So, with that as background, what are we looking for today?  How do we win? How do we lose? And what defines a win?  Well, I said yesterday that I’m optimistic, but there’s more than one way to skin the cat here.  So, let’s just go through them, and I’m sure to miss something, so be sure to throw all my mistakes in my face in the comments. Let’s start with the downers.

1. LOSE – Prop 8 is a permissible act of the people acting legislatively.
   
   Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us.  In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest.  This is the so-called “rational basis” test.  Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
   
   Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
2. Win – The implementation of Prop 8 is unconstitutional.
   
   This is how we win, without getting everything we really want.  This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states.  The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed.  This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs.  It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality.  And it further muddies the underlying issues when what we really need is clarity.  Could it happen? Yes, it very well might.  But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
3. WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
   
   This would be our ultimate victory, and really, what Olson and Boies are going for in this case.  As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8.  However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8.  In other words, don’t make wedding plans just yet.

I shouldn’t quite leave that logic of our win hanging in the breeze quite so much, so I’ll pull a quote from Loving v Virginia to show you the Supreme Court’s logic in that case.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Loving is from an era when the Due Process Clause, especially substantive due process, was a bit more in vogue in the law.  If you’ve read much of the history of the era, you’ll know that the substantive due process clause was used to strike down restrictions on birth control in Griswold v Conn, and, ultimately, protected the right of women to choose in Roe v. Wade.  Though in recent history conservatives have made the infamous (and incorrectly decided) Dred Scott case the poster boy for substantive due process, its effects (as correctly applied) were to push America in the direction of tolerance.  

I’ll not give you the whole wikipedia version of substantive due process, but long story short, it protects fundamental rights generally.  But, as I said, it has fallen out of favor of late, and courts generally try to rely on the more stable equal protection clauses of the Constitution to provide a more concrete footing for their legal argument.  As we have discussed in these virtual pages on a number of occasions, there are three levels of equal protection scrutiny, rational basis, intermediate, and strict scrutiny. I went over those tests back in January, so I won’t rehash all of that now. But, I will say that a strict scrutiny of Prop 8 would hold ramifications for future challenges of other laws.  We would be able to more forcefully argue the case that states must show a compelling interest to discriminate based upon orientation, and that would mean a lot more in the way of wins for our side.

But, for now, this is just speculation.  The real thing is just around the corner.