Argue that Prop 8 denies equal protection, proponents do not have standing

by Brian Leubitz

A busy day in the Prop 8 case today, as the City of San Francisco filed their brief, and the original plaintiffs filed their reply brief. The links will take you to Scribd to read them.

The Supreme Court asked two questions, one on the merits of the case, the other on whether the Prop 8 proponents have standing to appeal the case. After discussing why they don’t think there is standing, both move quickly on to the merits. The arguments are two-fold, that Prop 8 violates due process of the law, and that it is a violation of the equal protection clauses of the fifth and fourteenth amendments.

As the March 26 hearing approaches, I’ll dig into all of the briefs and summarize what to watch for at oral argument. You can peruse all of the various filings at AfER’s website.  

Supreme Court takes on marriage equality, Prop 8 and DOMA

by Brian Leubitz

Mark your calendars for June 2013. That’s the close of the current Supreme Court session, and by that time we should have a decision on marriage equality. On Friday, the Court announced that it would hear cases on both Prop 8 and the so-called “Defense of Marriage” Act. But there is a caveat in the Supreme Court’s order:

About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider – but not necessarily to decide – some of the most important constitutional issues at the heart of that national controversy.  Each side gained the opportunity to make sweeping arguments, for or against such marriages.  But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so. (ScotuBlog)

With respect to that open question of whether the Court has standing, it is a question that was at the center of much speculation before the 9th Circuit’s decision. Ultimately, the Ninth Circuit determined that the proponents of the law, ProtectMarriage.com, had standing to defend it. If the Court decides that it doesn’t have standing, Judge Walker’s original decision will hold and marriages will resume in California.

Now, as a matter of scheduling, we should have oral argument for both cases early next year. The cases will likely be scheduled for the same day, but that is not definite at this point.

Turning to the merits, well, you can find many reasonable predictions. But the Dean of UC-Irvine Law is both esteemed and usually pretty accurate at this game. His take:

“I believe the court will find that Prop. 8 and (the Defense Of Marriage Act) are unconstitutional,” Chemerinsky said. “The court decision will be 5-4 and I predict Justice Kennedy will write it. The court will say that the government has no legitimate interest in denying gays and lesbians the right to marry. …

“Justice Kennedy wants to write the next Brown v. Board of Education, not the next Plessy v. Ferguson,” Chemerinsky said.

Kennedy has actually been pretty good on LGBT rights issues, having written Lawrence v Texas and Romer v Evans, two of the most noteworthy gay rights cases.

For further discussion of possible options on how the Court goes on these cases, check out the Same Sex Marriage Section of ScotusBlog. NYU Law Professor Kenji Yoshino has a particularly interesting take on the three main ways that the Court could strike down Prop 8 without requiring nationwide marriage equality.

Supreme Court to decide on future of Prop 8 litigation

by Brian Leubitz

It has been over four years since Prop 8 passed in November 2008. Though it would now appear as pro-equality forces are on the march nationally, and could have flipped the 2008 final tally this year, we are still waiting for news from the Supreme Court.

In theory, that should come today. While the court could possibly hold over a final decision, that’s the luxury of being the nation’s highest court, I suppose. However, the justices were to discuss the case and announce a decision on whether to grant review of the decision today. So, what are we looking at?

If they decline to review the decision, Prop 8 remains dead in California. Marriages would likely begin once the Ninth Circuit lifts the stay and clears the last few procedural hurdles. Unfortunately, due to the narrow decision of the panel, the case only directly impacts California.  However, you would certainly have to think that marriage inequality amendments in other 9th Circuit states will be looked at skeptically until there is a Supreme Court decision.

If they take the case, a decision would likely come in the batch of decisions released in June after oral arguments. The Court also will decide whether to look at the constitutionality of the Defense of Marriage Act.  With DOMA have being ruled unconstitutional in several states, it seems at least better than a 50-50 call that the Court will deal with at least one of the LGBT rights issues.

And, so the waiting continues…

UPDATE: Well, as soon as I post this, it seems that they may be pushing it off. Not official yet, but ScotusBlog has a good track record. Their rumor  is that the Court is determining which marriage equality cases to take, especially with regards to the DOMA cases.

#scotus did not act today on #ssm petitions.Could issue orders Mon, but Dec 7 more likely.2 other grants, including gene patents.

— SCOTUSblog (@SCOTUSblog) November 30, 2012

UPDATE: Well, the time has come and gone on Monday now too. It looks like Friday is the next best guess. More from ScotusBlog.

Blankenhorn testified at Prop 8 Trial, Now says we should work for marriage equality

by Brian Leubitz

In many ways, it was actually better for David Blankenhorn to be on the other side. He was something of a comic figure. He testified on behalf of the ProtectMarriage.com crew, and ultimately got so twisted around that his testimony likely did them more harm than good. In fact, he ended up saying that we would be “more American” on the day that we allowed marriage equality.

So it shouldn’t be all that shocking that he’s decided to write an op-ed in the New York Times calling for an end to the discrimination against same-sex couples. (h/t P8TT) Now, I’m not trying to be too cynical here, but how else was David Blankenhorn going to get an op-ed in the New York Times?

But, I digress, here’s a snippet on his change of heart:

But there are more good things under heaven than these beliefs. For me, the most important is the equal dignity of homosexual love. I don’t believe that opposite-sex and same-sex relationships are the same, but I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.

*** **** ***

And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

So, is he saying that he is just now figuring out that much of the opposition to marriage equality is/was animus? Or, was his faith in his position strong enough that he could look past that. Either way, either he’s insensitive or kind of slow.

But, there is value in the symbolic import of having somebody who testified in favor of Prop 8 changing their position, for whatever reason. If Blankenhorn can truly persuade a few folks to change their minds too, then perhaps his decades arguing vociferously against marriage equality can be forgiven.

Marriage equality case looks set for the Supreme Court

by Brian Leubitz

Today the 9th Circuit denied the motion for en banc rehearing of the case. The Yes on 8 supporters had sought review from an 11-judge panel, but the denial means that their only recourse at this point is the Supreme Court.

Interestingly, this puts the case on a similar time schedule as the Defense of Marriage Act (DOMA) case that was just decided at the 1st Circuit. We could potentially see the future of marriage equality firmly established (or severely set back) within the very near future.

You can get all the documents from the Prop 8 case at the 9th Circuit’s case page.

Somewhat interestingly, the dissenting judges, O’SCANNLAIN, BYBEE and BEA, went off on the President’s statement on marriage equality, suggesting that we should have a “greater conversation” and that blocking the en banc hearing cuts off the conversation.  Judges Hawkins and Reinhardt respond:

We are puzzled by  our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

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

By Brian Leubitz

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

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

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

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

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

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

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

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

Court strikes down Prop 8 on narrow equal protection grounds

by Brian Leubitz

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

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

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

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

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

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

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

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

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

9th Cir Prop 8 decision

9th Circuit Announces Decision at 10AM tomorrow

by Brian Leubitz

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

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

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

Support for marriage equality continues to grow

By Brian Leubitz

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

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

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

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

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

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

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

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

by Brian Leubitz

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

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

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

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

More updates on this later today.

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

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

See my twitter feed for more updates.