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.

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.

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.

Before I delve into this, I’d like to say that while I’m an attorney, I am by no means an expert in discovery. However, I’ll try to explain it as best I can.

To start, discovery runs on good faith backed by a big old stick. The normal process is for each side to ask questions (“interrogatories”) and respond to the opposing counsel’s questions with responses, and eventually documents.  Document review is typically the domain of first year lawyers, who get to spend hours upon hours hunting for the smoking gun amidst heaps and heaps of meaningless paper.  In fact, one discovery strategy is to bury the opposing counsel in so much paper that the good stuff remains hidden.  A judge can control this sort of gamesmanship if it gets out of hand.

Now, in this particular case, the defendant-intervenors asked for a bunch of documents from the No on 8 Coalition.  It was a similar request as the Yes on 8, protectmarriage.com, organization had received.  Eventually, Judge Walker’s order was slightly limited to exclude completely internal documents within a “core group” of campaign insiders. But, they ended up turning over a bunch of useful documents, which I won’t go through now. But, go back over the old posts from the trial, and you’ll stumble across them.

In return, the Yes on 8 asked for similar documents.  Now, at first blush, you’d think, well, fair’s fair. But, not really though.  The only actions in question here are the actions of the Yes on 8 team and whether the campaign was seeking to deny equal protection of the law.  On the flip side, the No on 8 coalition clearly had no such motives, and the constitutionality was never in question.

The relevant rules here are the Federal Rules of Civil Procedure, particularly Rule 26, which states, in part:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense – including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

The key part of this is relevancy. There are a number of different standards for relevancy, but they are all generally lenient, or at least far more lenient that standards for evidence at trial. That being said, even by these more lenient standards, this is a big reach.  And frankly, all of the parties know that, but the Yes on 8 team is trying its best to get as much information as possible for future campaigns.  Sure, they won’t say that, but that’s what is going on here.  But, to the issue at trial, I’ll let Judge Walker sum it up:

This objection has three parts: first, that the magistrate applied the FRCP 26 relevance standard when a more searching standard was appropriate; second, that the subpoenas do not seek relevant documents under any standard of relevance; and third, that the magistrate failed to weigh the marginal relevance of the documents against the heavy burden production of the documents would impose.

Under the FRCP 26, the court, in this case Magistrate Spero, is to weigh the burden of disclosing the documents against the relevancy of the documents to the case at hand. After all, we don’t want our courts to just be a big fishing pond, be it for corporations, individual litigants, or for campaigns, as we have in this case.  These issues are all somewhat subjective, that is the judge has to look at evidence and weigh relative merits.  Unlike what Justice Roberts would have you believe, this isn’t about balls and strikes, it’s more like judging a boxing match.  Each side has relative merits, and the judge has to use his legal training and experience to end up with the best result.  

Now, on the Yes on 8 side, the 9th Circuit ruled that Judge Walker allowed too broad of discovery, a loss for our side.  However, the ACLU and EQCA argue that Judge Walker once again allowed for too broad of discovery. This time focusing on relevancy rather than any notion of privilege of free communication within a campaign.  The importance of this distinction is critical.  There is a bright line for why the Yes on 8 materials were discoverable. However, if the ACLU and EQCA documents are discoverable, any body associated with a campaign that is involved in litigation is discoverable.  As Geoff Kors of EQCA points out, that is simply not something that we can allow to go unchallenged:

“Protect Marriage has not subpoenaed Equality for All, the organization that led the No on 8 campaign. Instead, it singled out two allied civil rights organizations that are not parties to the case to intimidate and dissuade all LGBT organizations and our allies from participating in future campaigns to defeat anti-LGBT measures. We want nothing more than for this case to proceed as quickly as possible. But if this ruling is allowed to stand it will set a harmful precedent that will have a chilling effect on all non-profits working in coalitions on social justice issues. They will fear harassment and the threat of being forced to spend precious, limited resources on responding to costly litigation and subpoenas rather than to do the critical work at hand.”

I know people are anxious for some resolution on this case, but folks, it’s going to be a while.  There are still a lot of appeals to go; it’s likely to be years before we see a resolution.  Even if Judge Walker overturns Prop 8, he’s likely to put a stay pending appeal.  That’s why it is critical that we not take our eyes off the ball, which is the ballot box. In my mind, Prop 8 is clearly unconstitutional for several reasons. That being said, sometimes you have to fight when you shouldn’t have to. It’s not right, but it’s the way it is.  We’ll win both in the legal arena and the ballot box.

Cross-posted from Prop 8 Trial Tracker.

Today, Love Honor Cherish, the leader of the Repeal Prop 8 2010 organization sent out a press release announcing that they had failed to get enough signatures on the ballot. (The full release is available in the full post.)

Love Honor Cherish, which spearheaded an effort to place an initiative on the November 2010 ballot to repeal Proposition 8 and restore equal marriage rights for same-sex couples, announced today that the proponents did not gather the 694,354 signatures necessary to place the proposed initiative on the ballot.  The group vowed to work toward the repeal of Prop 8 at the next general election in November 2012.

“This is a heartbreaking moment,” said John Henning, Executive Director of Love Honor Cherish.  “Despite the dogged efforts of  hundreds of volunteers across California, we did not get the signatures we needed within the 150-day window set by the state.”

Under California law, it is too late to mount a new effort to repeal Prop 8 in 2010.  “Regrettably, Prop 8 will remain as a stain on our constitution until at least 2012, and perhaps later,” said Henning.  He challenged activists statewide to rededicate themselves and unify behind a 2012 repeal effort.

While this isn’t a surprise, it does end a trying divide within the LGBT community.  I do not speak for the courage campaign or anybody other than myself here, but generally, I’m inclined to believe gubernatorial elections have a better electorate for our side. That is 2010 would have been better than 2008, and 2014 will be better than 2012.   During off year elections, you get better educated electorates, and that correlates fairly well with those who aren’t really bothered by marriage equality.  I have done some analysis looking at that, but also have spoken to a few huge voter number nerds who agree with that hypothesis.  It’s still an open question, however.

That being said, time matters as well, probably even more than presidential or gubernatorial year. As more millenials spill into the voting ranks, more pro-equality votes are stacking up on our side.  While 2 years won’t make a huge difference, many number nerds think it is just under 2 percent per year that the electorate moves toward equality. Obviously, that’s far from a precise number, but 4 percent would be enough to flip the Prop 8 vote around.

That being said, this time we would be running a Yes campaign, which is always more challenging.  Given this news and the rumblings coming out of major LGBT organizations, it looks we are headed like a laser beam towards a 2012 confrontation for our marriage rights.

It’s a shame that Prop 8 still stands, and it is my sincere hope that Judge Walker and the federal courts strike it down.  However, I am very cognizant of the fact that we are likely headed to the ballot.  Get your door-knocking shoes all polished up, we have work to do.

INITIATIVE TO REPEAL PROP 8 WILL NOT BE ON THE BALLOT IN 2010

All-Volunteer Petition Drive Triggered Conversations Across California

(LOS ANGELES – April 12, 2010)

Love Honor Cherish, which spearheaded an effort to place an initiative on the November 2010 ballot to repeal Proposition 8 and restore equal marriage rights for same-sex couples, announced today that the proponents did not gather the 694,354 signatures necessary to place the proposed initiative on the ballot.  The group vowed to work toward the repeal of Prop 8 at the next general election in November 2012.

“This is a heartbreaking moment,” said John Henning, Executive Director of Love Honor Cherish.  “Despite the dogged efforts of  hundreds of volunteers across California, we did not get the signatures we needed within the 150-day window set by the state.”

Under California law, it is too late to mount a new effort to repeal Prop 8 in 2010.  “Regrettably, Prop 8 will remain as a stain on our constitution until at least 2012, and perhaps later,” said Henning.  He challenged activists statewide to rededicate themselves and unify behind a 2012 repeal effort.

Prop 8 passed by a margin of 52 to 48 percent.  However, polls taken since the vote have shown that a majority of Californians now support the right of same-sex couples to marry, indicating that a new ballot proposition to repeal Prop 8 would be likely to pass in November 2010.  In March, a poll by the Public Policy Institute of California showed a 6 percent increase in support for equal marriage rights in just the last year.

The proponents of the repeal initiative sought to seize the momentum unleashed by the passage of Prop 8 and parlay it into a victory at the polls.  “This signature campaign was the right thing to do in the wake of Prop 8,” said Love Honor Cherish board member Lester Aponte.  “We were determined to act affirmatively to achieve equality and we will continue to do that until Prop 8 has been finally repealed.  We had hundreds of thousands of conversations with California voters about the right to marry and we know that we have moved hearts and minds.  In the process, we have set the foundation  for a future repeal effort and brought hope to thousands whose hearts were broken by the passage of Prop 8.”

Love Honor Cherish was one of more than 40 groups supporting the repeal of Prop 8 in November 2010, and was part of the Restore Equality 2010 coalition.  The campaign utilized a unique web-based social networking tool, located at www.SignForEquality.com, which enabled volunteers to download the petition form, watch training videos and join teams.