California Supreme Court rejects bid to enforce marriage ban

by Brian Leubitz

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

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

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

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

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

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

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

Andy Pugno goes back to the well

by Brian Leubitz

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

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

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

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

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

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

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

A look at dates

by Brian Leubitz

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

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

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

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

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

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

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

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

by Brian Leubitz

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

Court looks unprepared to make a sweeping decision for marriage equality

by Brian Leubitz

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

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

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

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

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

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

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

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

Additional Links:

Curated Audio Explanation from Alliance for Justice

Tom Goldstein, SCOTUSBlog, Getting to five might be difficult

Kate Kendall, Executive Director of National Center for Lesbian Rights

61% of Californians support marriage equality

by Brian Leubitz

In the continuing data trickle from the good folks at the Field poll, the first covers the subject of marriage equality. As we’ve seen nationally, the numbers continue to shift towards the freedom to marry.

By a nearly two-to-one margin (61% to 32%), California voters approve of allowing same-sex  couples to marry. This represents a complete reversal in views about the issue from 1977, when The Field Poll conducted its first survey on this topic, and is the highest level of support ever measured by the poll. (Field)

No matter what the Supreme Court does on Prop 8, that odious measure is not long for this world. It will either be overturned in the courts or at the ballot before we get a new president.

In today’s data, we get the voters take on the status of the economy. In short, people are still gloomy:

Greater than seven in ten voters (72%) currently describe California’s economy as being in bad times. In addition, six in ten (61%) describe unemployment as very serious in the state, and just  36% expect job opportunities to improve in the coming year.  While this represents a slight improvement in the extremely bleak assessments of the state’s  economy that voters have offered over the past five years, the views of Californians remain gloomy.

In addition, when asked to describe their own financial situation, nearly half (44%) say they are  worse off now than they were last year, while fewer (30%) are better off. This is the sixth  consecutive year in which more voters report being financially worse off than better off. (Field)

Now, the economic indicators show that the economy is slowly improving, but the results are just too modest for the time being. If the sequester can be cleared out in Washington, we should expect to see continued growth. If not, we could see an unfortunate downturn.

Upcoming brief expected to argue that marriage equality should be law of the land

by Brian Leubitz

There has been a lot of discussion over the past few days as to whether the president will file a brief at the Supreme Court about Prop 8. The answer, apparently, is yes.

The Obama administration will endorse same-sex marriage today by telling the Supreme Court that California should not be permitted to ban gays and lesbians from tying the knot.

The highly anticipated legal brief was expected later in the day, just hours before the deadline, the Associated Press reported.

UPDATE: Here’s the brief, my take coming this evening. You can also find it over the flip.

The underlying argument of the brief is relatively simple. Namely, laws prohibiting members of the LGBT community from doing something, in this case getting married, should be subject to “heightened scrutiny.” That is to say, government needs something more than merest rational basis for the discriminatory law. The administration’s brief then goes on to say that the purported reasons given by the Prop 8 proponents do not meet that heightened scrutiny.

You’ve heard all the reasons they came up with why Prop 8 was valid: teh kidz, teh judges, and teh traditions. The government dismisses these with the one bullet that goes to the heart of the issue: California grants all the rights and privileges of marriage to gay and lesbian couples through domestic partnership. So, it can’t be merely to protect children. Denying the word “marriage” is simply done for impermissible purposes. Or, in the solicitor general’s words:

Private respondents, committed gay and lesbian cou-ples, seek the full benefits, obligations, and social recog-nition conferred by the institution of marriage. California law provides to same-sex couples registered as do-mestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.

In other briefing news, NFL players Chris Kluwe (Minnesota’s punter) and Brendon Ayanbadejo (Ravens linebacker) filed their own brief, available here. Not sure it will carry similar weight to the solicitor general’s, but their effort is sincerely appreciated.