Houston’s State Rep. Garnet Coleman applauds Prop. 8 decision

State Rep. Garnet Coleman

Rep. Garnet Coleman, D-Houston, took to his blog today to applaud yesterday’s decision by the United States Ninth Circuit Court of Appeals declaring Proposition 8  unconstitutional (Prop. 8, passed in 2008, prohibited marriage equality in California):

“Yesterday’s 9th Circuit decision, just like the decision in Lawrence v. Texas, is a stepping stone on the path to marriage equality for all. As Judge Stephen R. Reinhardt of the 9th Circuit Court of Appeals wrote in the opinion, ‘Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.’ The same holds true for the marriage equality ban in Texas. That is why I continue to fight for marriage equality and continue to file the repeal of the ban of same sex marriage. Denying gay couples the right to marry is unconstitutional and a blatant denial of human rights. “

Coleman has a long history of filing pro-LGBT legislation in the Texas House. Last year he introduced historic legislation that, had it passed, would have called for a state-wide vote to repeal the section of Texas’ constitution prohibiting same-sex marriage, so he’s no stranger to the battle for marriage equality.

Coleman is seeking re-election to his District 147 seat. He will face long-time local LGBT activist Ray Hill in the Democratic Primary. No republican candidate has filed for the seat.

Read Coleman’s full statement on his blog.

—  admin

Elton John to Play Concert to Benefit Challenge of Proposition 8

Elton John is set to play a concert at the "Green Acres" estate of Ron Burkle in Beverly Hills to benefit the American Foundation for Equal Rights.

Elton_john

Said Chad Griffin, Board President of AFER: “We are deeply honored to have the support of Sir Elton John. The American Foundation for Equal Rights stands for the enduring principle that all Americans are created equal, and believes that ending state-sanctioned discrimination is a critical step we must take toward ending the hate crimes and suicides that continue to claim the lives of young Americans.”

The concert is set to take place on January 19th. All proceeds will support the American Foundation for Equal Rights, the sole sponsor of the Perry case, which is being argued by the Foundation's legal team headed by Theodore Olson and David Boies, the opposing attorneys in the Bush v Gore case that decided the presidency. The American Foundation for Equal Rights is a 501c3 non-profit organization.

Ticket information is available by contacting events@afer.org.

Perry v. Schwarzenegger, the federal challenge that AFER is pursuing against Proposition 8, goes before the 9th Circuit Court of Appeals on December 6.


Towleroad News #gay

—  admin

Ken Mehlman, Peter Thiel, and Paul Singer Host Manhattan Fundraiser for Team Challenging Proposition 8

Guestblogger COREY JOHNSON

Tonight I attended a highly anticipated fundraiser for the American Foundation for Equal Rights (AFER) in New York City at the Mandarin Oriental in the Time Warner Center. The fundraiser was co-chaired by former Republican National Committee Chair Ken Mehlman, Paypal Co-Founder Peter Thiel and Elliott Management hedge fund CEO Paul Singer.

Mehlman The fundraiser was initially supposed to be held at Singer's home but had to be moved to accommodate a crowd of over 120 people. It was announced by Mehlman that more than 1.2 million dollars was raised tonight. The energy in the room was hopeful, enthusiastic and celebratory even in the face of yesterday's setback on Don't Ask, Don't Tell.

The crowd was a diverse mix of Wall Street titans, Republican establishment figures, LGBT community advocates and politicos (partial list below after the jump). Barbara Bush, President George W. Bush's daughter attended the event — which was a surprise to people in the room.

Mehlman opened the event by speaking about the importance of achieving marriage equality and explained how he came to be involved with AFER. He acknowledged and thanked people who helped raise money for the fundraiser and also different members of the LGBT community. Mehlman said that this is just the beginning of his involvement and that he regretted that he hadn't gotten to this place sooner.

Said Mehlman: "As someone who regrets very much not being involved, and not being on the right side of this important effort until recently, let me just say this. This will be my first but not my last event and I hope you will stay involved too."

Video, AFTER THE JUMP

Aferinvite Mehlman introduced Peter Thiel, a gay conservative who is hosting an event for GOProud at his New York home this fall. Thiel was brief and spoke about how marriage equality should not be a partisan issue.

Mehlman then introduced Paul Singer, a titan in finance and former Chair of the Giuliani for President Campaign in 2008. Singer gave a very moving speech about why equality for gay and lesbian people mattered so much to him. He spoke about his openly gay son and his son-in-law and how personal the issue was to him. He received a loud, standing ovation after his remarks.

A video was played that showed all of the media coverage from the very beginning of the Proposition 8 lawsuit, chronicling all of the events leading up to Chief Judge Vaughn Walker's decision declaring Proposition 8 unconsitutional. The video was inspirational and uplifting, serving as a crescendo to the introduction of Ted Olson and Chad Griffin.

AFER_panel CNN's Campbell Brown then came on stage with Olson, one of the lead attorneys' in the case, along with Griffin, the President and Founder of AFER. Brown interviewed Olson and Griffin on topics ranging from how they came to meet each other, what the next steps are in the appeal process, whether or not Olson was optimistic about the outcome and how this case fit into past marriage decision at the Supreme Court.

Olson's clear and unvarnished optimism was outwardly apparent in all of his remarks and answers to questions from Brown and also from the audience.

OlsonOlson said that he was confident with the case, plaintiffs, witnesses and evidence that opponents of Proposition 8 provided during the trial last January and that he believes that the case will ultimately land at the Supreme Court of the United States with a successful result.

Chad Griffin said this about tonight's fundraiser: "Tonight represented much more than .2 million to fight Proposition 8 in the 9th Circuit and the Supreme Court. This unprecedented gathering of bipartisan political leaders and Wall Street titans demonstrates the shift of momentum that's possible when it becomes clear that marriage equality isn't a special interest issue, but rather one of fundamental American values. That has been the focus of the American Foundation for Equal Rights, and while there is certainly a tremendous amount of work to be done, it is gratifying to see such progress."

After a difficult and painful day in the United States Senate yesterday, the palpable optimism at the fundraiser was unmistakable and welcome for the attendees.

Watch VIDEO of Mehlman, Thiel, and Singer (apologies, we were only able to grab a partial portion of Singer's speech), AFTER THE JUMP


PARTIAL LIST OF ATTENDEES

WALL STREET FIGURES and FIRMS

Kohlberg Kravis & Roberts (KKR)
Henry Kravis
Sir Deryck Maughan (former Vice Chairman of Citibank and Salomon Brothers)
Alex Navab
Scott Nuttall
John Pfeffer
Lewis Eisenberg
David Sorkin

Blackstone 
Garrett Moran

Third Point Capital
Daniel Loeb

Carlyle
Jay Sammons

Elliot Management
Paul Singer
Sundar Srinivasan
Dan Senor
Terry Kassel

Evercore Partners 
Charles Myers

Clarium Capital 

Peter Thiel

Goldman Sachs
Todd Malan

Lincoln Park Capital
Mark Cozzi

TPG
Nick Stone

POLITICAL

Former Republican Governor William Weld from Massachusetts
Former Republican Governor Christie Todd Whitman from New Jersey
Former Clinton White House Chief of Staff, Obama Advisor and head of Center for American Progress John Podesta
Former Republican National Committee and McCain finance chairman Lew Eisenberg
Former McCain for President Chief Strategist Steve Schmidt
Former House Majority Leader Dick Gephardt (Democrat)
Former Bush Federal Election Commission Chairman Michael Toner
Chairman of the Manhattan Institute and former Chairman of the Giuliani Presidential campaign Paul Singer
Former Bush White House Communications Director Nicolle Wallace
Former Bush Deputy Ambassador to the United Nations Mark Wallace
Former RNC Chairman and Bush Campaign Manager Ken Mehlman
Former Advisor to Presidents Nixon, Ford, Reagan and Clinton David Gergen

LGBT Community Members

Activist and Author David Mixner
Freedom to Marry Executive Director Evan Wolfson
Gay and Lesbian Alliance Against Defamation President Jarrett Barrios
Board Chair of the Empire State Pride Agenda Frank Selvaggi
Human Rights Campaign New York Marriage Director Brian Ellner
Former Chief of Staff to Minority Leader Dick Gephardt and Deputy Campaign Manager to John Kerry for President Steve Elmendorf
Senior Vice President for External Affairs at the Center for American Progress Winnie Stachelberg
Democratic National Committee Treasurer Andy Tobias
Former Clinton White House Advisor Richard Socarides
Academy Award Winning Producer and AFER Board Member Bruce Cohen
Gill Action Fund Executive Director Patrick Guerrero
Gill Action Fund Deputy Executive Director Bill Smith


Towleroad News #gay

—  John Wright

Dear Proposition 8 supporters – You lost because you lied

crossposted on Holy Bullies and Headless Monsters

Dear supporters of Proposition 8,

Please do not take my words as gloating but rather a clear and concise analysis of why you may be feeling dejected now over the overturning of Proposition 8.

In 2008, when you won, many of you stood with your arms raised in defiance of the bitter tears you caused in the lgbt community.

What a difference two years makes indeed.

But let me explain to you why you lost today. It’s not complicated, but rather simple.

Your side lost because you lied.

Oh I know that folks on your side will whine about “activist judges who make laws rather than interpret them,” but let’s be real here.

Your entire narrative has been a lie from the beginning.

Folks on your side, such as Maggie Gallagher of the National Organization for Marriage, the Family Research Council, and the rest of the pseudo defenders of morality will probably whine about how you all have been unfairly labeled as “bigots.” And I am sure that they will point out that every time there has been a public vote on marriage equality, the lgbt community has always lost.

But they will conveniently omit how these victories were attained. You won’t hear about how they invoked images of gay boogeymen molesting children in false ads nor will they admit to telling lies about children supposedly being taught about gay sex. 

You won’t hear them admit to exploiting people’s unconscious fears and ignorance of the lgbt community in order to spin outrageous scenarios of what could happen should lgbts be allowed to marry.

And don’t be surprised by this. Those like Gallagher will never admit to the depths they stooped to win not only in California but other places like Maine.

But there is a reason why this country has checks and balances. And there is a reason why people can’t arbitrarily vote on the rights of others without having to defend this vote in the logical arena of courts, where you can’t invoke panic by proverbially yelling fire in a crowded theatre.

In the courts, you must defend your position. And in the long run, you couldn’t. Or rather many of you wouldn’t. Again, the specters of gay bogeymen were invoked as your leaders spun false images of avenging hordes for their reluctance to be questioned in the courts about the unprovoked lies they said in pulpits, in speeches, and on commercials.

This time, it didn’t work. The court saw through the phony claims and realized something, which I hope that many of you now do – you have no logical reason to either deny us the right to love or to deny us the ability to protect the ones whom we love.

But please don’t think that even though we are celebrating, the lgbt community is naive to think that this ends the struggle for marriage equality.

We know this is just the beginning of a long fight to attain something that should have been ours from the beginning.

But that’s okay.

We are a community who learn from our past mistakes. At times we lose, but we learn to adapt and we eventually win.

So bring it on. We are not afraid.

Related post:

Message to the religious right – this isn't just about marriage, it's about history

Pam’s House Blend – Front Page

—  John Wright

BIG WIN FOR EQUAL MARRIAGE: Federal Court Declares California’s Proposition 8 Unconstitutional

In a historic decision for equal marriage, today a federal court ruled Proposition 8 — California’s ban on marriage for same-sex couples — to be unconsitutional. Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California in Perry v. Schwarzenegger, declared that the amendment to the California Constitution adopted in November 2008, violates the U.S. Constitution’s guarantees of equal protection and due process.

The real heroes here are the plaintiff couples Paul Katami and Jeff Zarrillo & Kristin Perry and Sandy Stier. These two committed couples decided they would not be silent while Proposition 8 declared their relationships unworthy of a marriage license.

Please take a moment to thank them for all that they’ve done.

HRC President Joe Solmonese released the following statement:

“After hearing extensive evidence in support of marriage equality, and essentially no defense of the discrimination wrought by Prop 8, Judge Walker reached the same conclusion we have always known to be true – the Constitution’s protections are for all Americans, including the lesbian, gay, bisexual and transgender community. We thank the courageous plaintiff couples, the American Foundation for Equal Rights, and attorneys Ted Olson and David Boies for their tremendous efforts leading to today’s decision and their ongoing commitment as the case moves forward on appeal.  The battle for marriage equality continues, and we must all continue our work – in courthouses and statehouses, in church pews and living rooms – until equality is reality for LGBT people and our families everywhere.”       

In response to a 2008 decision by the California Supreme Court ending marriage discrimination in the state, anti-equality forces succeeded in placing a constitutional amendment on the November ballot.  Despite over 18,000 same-sex couples having married, California voters adopted the amendment, known as Proposition 8.  After the California Supreme Court determined in 2009 that the adoption of Prop 8 did not itself violate the California Constitution, two plaintiff couples — Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo – filed suit against the State of California in federal court, represented by attorneys Ted Olson and David Boies and supported by the American Foundation for Equal Rights.  The proponents of Prop 8 intervened in the case to defend the constitutionality of the amendment.  Judge Walker held a historic trial in January, in which the plaintiffs presented substantial testimony and evidence to show that Prop 8’s only purpose is to discriminate against same-sex couples.  Both sides have previously indicated that they would appeal Judge Walker’s decision to the U.S. Court of Appeals for the Ninth Circuit, and the case may ultimately be heard by the U.S. Supreme Court.


Human Rights Campaign | HRC Back Story

—  John Wright

It’s In: An Analysis of the Proposition 8 Ruling

Guestblogger ARI EZRA WALDMAN

Ari is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.

Olson_boies Proposition 8 is a violation of due process and equal protection. Judge Vaughn Walker has made that abundantly clear.

But what is the immediate result of this ruling? Judge Walker concluded his Order by stating that "California is able to issues marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result." And, I just checked. My sister's heterosexual marriage has not been destroyed either.

That said, it is highly unlikely that any same-sex marriages will be conducted tomorrow.  As posted here earlier, Proposition 8 supporters have already filed a pre-emptive motion to stay Judge Walker's order pending their appeal to the Ninth Circuit Court of Appeals.

This should not dampen our elation.  This decision is momentous and a giant step forward toward legal recognition of our equal rights.

THERE WILL BE UPDATES TO THIS POST…REFRESH THIS POST FOR FURTHER ANALYSIS AS I CONTINUE TO GO THROUGH THE RULING…

UPDATE:  The Devil is in the Details

Judge Walker's decision runs 138 pages.  It is well-reasoned, exhaustively cited and drafted with one eye on its Main Street ramifications and another eye on the judges of the Ninth Circuit Court of Appeals.  In other words, this Order establishes a comprehensive factual record for review.  And that, as any appellate lawyer knows, is going to be the source of our salvation or the harbinger of our defeat.

When the decision of a trial judge like Judge Walker goes up on appeal, his legal conclusions are reviewed by the appellate court de novo, or "from the beginning."  That means that Judge Walker can conclude that Prop 8 violated the Equal Protection clause and the Due Process clause for this or that reason, but appellate judges are not bound by his conclusions.  However, Judge Walker's factual findings — such as the effect of same-sex marriage in Massachusetts or statistics on thriving children of same-sex couples — must be accepted by the appellate court unless they are "clearly erroneous."  A clearly erroneous finding of fact is looking up at the sky, seeing it is blue and having a weatherman tell you it's blue, but concluding that the sky is, indeed, red.  We do this because it was Judge Walker who heard the evidence and evaluated the trustworthiness of the witnesses with his own two eyes.

Judge Walker's factual findings are breathtaking, if only for their sheer depth.  From page 54 to 109, Judge Walker lays out his findings, eviscerates the testimony of anti-marriage equality experts and emphasizes the long list of statements where Prop 8 opponents conceded their factual case.  In my years as an appellate litigator, I have never seen a factual record as detailed and well-documented as this.  My compliments to Judge Walker and his clerks. 

Let me highlight a few striking points here:

1.  This case is about civil marriage.  Religious belief has no place here.

Right off the bat, Judge Walker found that "[m]arriage in the United States has always been a civil matter" (p. 60, para. 19).  The pen is indeed mightier than the sword.  We watched with dismay, anger and frustration as Prop 8 supporters screamed that marriage equality laws would forces churches and synagogues to consecrate relationships contrary to their liturgy.  In one line, Judge Walker does away with this nonsense.  What we are dealing with here, he states, is civil marriage.  After all, it is the "[c]ivil authorities [who] may permit religious leaders to solemnize marriages but not to determine who may enter to leave a civil marriage." (p. 60, para 19).  The supremacy of civil marriage takes this conversation out of the church and onto the town square.

2.  Marriage is a state of commitment, not a construct in which to have children.

Just as important is Judge Walker's findings about the nature of marriage. "Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents" (p. 67, para. 34).  Absent from this definition, based on extensive citations to evidence offered at trial, is marriage based on procreation or gender-specific roles.  A marriage is a partnership based on deeply held emotional love and, as an institution, channels benefits to the married couple, their dependents and society at large.  What's more, each of those benefits — facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors — exists irrespective of the gender and sexual orientation of the married couple (pp 67-71).

3.  Same-sex couples are just like opposite-sex couples.

The entree to these appetizers came later.  Judge Walker found that "[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.  Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners.  Standardized measures of relationship satisfaction, relationship adjustment and love to do not differ depending on whether a couple is same-sex or opposite-sex" (p. 77, para. 48). 

And on the seventh day, he rested.

Seriously, though, this profound description of equality is at the heart of the marriage equality movement.  Judge Walker cites Prop 8 supporters' admissions at trial that gay partnerships are loving and commitment and that the capacity to commit and love "does not depend on the individual's sexual orientation" (p. 77, para. 48(d)).  We are all the same and we all deserve to be treated as such.

4.  Domestic partnerships insufficiently recognize those relationships.

Since marriage is not merely an economic union, or a procreative one, for that matter, domestic partnerships that assign certain economic benefits of marriage to nonmarried cohabitants is a separate, unequal and insufficient substitute.  "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States" (p. 80, para. 52).

Judge Walker recognizes that we do not want to marry the loves of our lives for the joint tax return or the prospect of doubling our wardrobes.  That might be part of it, but it's not the whole story.  Citing expert testimony about the cultural importance tied to marriage, Judge Walker finds that marriage is greater than the sum of the economic rights associated with it.  And, since same-sex couples are no different in their love and commitment than opposite-sex couples, there seems to be no reason to exclude them from this institution.

In the end, it is hard to accept these facts and not conclude as Judge Walker did.  Nothing here is clearly erroneous and any appellate court will be hard-pressed to upset any of these factual findings.

UPDATE:  The Law Likes Equality

The United States Constitution has an annoying habit of defaulting to equality.  There are times when unequal treatment is legitimate; we don't allow 14-year-olds to vote, for example.  But, for the most part, the Fourteenth Amendment sets the foundation for treating each other the same, regardless of race, religion or gender.  Now, with all cautious optimism aside, Judge Walker's decision allows us to add sexual orientation to that list.

Judge Walker's legal conclusions are simple.  Proposition 8 violates the Equal Protection clause and the Due Process clause because in denying a homosexual's right to marry a person of the same sex as he or she sees fit, Prop 8 classifies and discriminates against a particular class of people for no legitimate reason.  It's a little more complicated than that, so let's go through it step by step.

Due Process.  As previewed earlier, Judge Walker was faced with the notion that the freedom to marry has previously been considered a fundamental right and abridgments of fundamental rights must pass strict scrutiny to pass constitutional muster.  But, the issue is not whether the right to marry is fundamental — no one disputes that (p. 110); rather, the question is whether same-sex couples are seeking to exercise that right to marry or are they trying to establish a new right.  Prop 8 proponents argued that the right to marry someone of your same sex is a new right and, thus, not fundamental.  Judge Walker disagreed.  The only factor distinguishing same-sex and opposite-sex couples is the natural ability to procreate, but "[n]ever has the state inquired into procreative capacity or intent before issuing a marriage license" (p. 111).  Instead, what has remained constant about marriage is not the parties to a marriage — it was not long ago that blacks and whites could not marry each other — but that two individuals freely commit to one another.  The true shibboleth of marriage, then, is love and commitment, not procreation.  As such, this is a fundamental right.

So, the plaintiffs simply want California to recognize their fundamental right to marry whomever they choose.  That itself does not mean Prop 8 is unconstitutional.  Laws can interfere with fundamental rights and not run afoul of the Due Process clause as long as they pass strict scrutiny, that high hurdle that, in legal lingo, requires the law to be "narrowly tailored to a compelling government interest."  In other words, the law has to be specific, engulf as few people as absolutely necessary in order to do something the government really must do.

Prop 8 comes nowhere close to that standard.  Once again, the facts offered into evidence at trial play an important role.  Unfortunately for Prop 8 proponents, they offered no facts.  When Judge Walker asked for their evidence, Prop 8 proponents declined to prove the compelling need, relying instead on "the nature of traditional marriage."  On that "minimal evidentiary presentation," Prop 8 could not pass strict scrutiny.

One down.

Equal Protection.  Judge Walker held that even under the much lower rational basis test, Prop 8 does not pass muster.  He was thorough enough, however, to include a strict scrutiny analysis just for good measure.

Under rational basis review, a law can discriminate as long as it does not target a specific suspect class or impairs a fundamental right and is "rationally related to some legitimate government interest."  That sounds complicated, but it's really pretty easy to jump that hurdle.  Most laws will make it because there are plenty of rational reasons to do things.  But a reviewing court cannot rubber stamp a law simply because someone says their justification is rational.  Not every justification is rational.  In particular, discriminating against a particular group of people simply because you don't like that group is neither rational nor related to a legitimate government motive.

The trial evidence, however, suggests that gay people are a suspect class because they have "experience[d]iscrimination based on unfair stereotypes and prejudices specific to sexual orientation."  They have "historically been targeted for discrimination because of their sexual orientation" and that discrimination is ongoing.  And Prop 8 falls into that category.  Proponents argued that it couldn't discriminate against gay people because Prop 8 never mentioned the word gay.  That's being too cute by half.  By defining marriage in terms of opposite sex, those who would choose to marry someone of the same sex — only homosexuals fit that category — have had their rights taken away.

But that is what lawyers call "dicta", or, conclusions of law in an opinion that do not bear directly on the ultimate decision.  Judge Walker included it for a reason, though.  By saying that Prop 8 merits strict scrutiny because it targets a class of people that should be considered a suspect classification, Judge Walker is setting the stage for arguments on appeal and emphasizing how ill-conceived and irrational Prop 8 really is.  It's like losing two baseball games 1-0 and 20-0.  You still lost both, but in the second game, you embarrassed yourself.

Under a rational basis review, Prop 8 could not even advance a single rational government interest.  Whatever marriage might have been "traditionally," tradition alone cannot be a rational basis.  Judge Walker cited precedent for that.  He also found that the "tradition" of restricting marriage to opposite sex couples does, in fact, harm the state's interest in equality, stable households, property distribution and caregiving, to name just a few.  Nor is it rational to uphold Prop 8 because same-sex marriage would amount to sweeping social upheaval.  There was no evidence for that.  Massachusetts and Connecticut, after all, have not fallen into the Atlantic Ocean.  And, banning same-sex marriage does not nothing for the state's interest in encouraging sex within marriage.  If anything, by prohibiting certain couples from marrying, Prop 8 encourages extra-marital sex.  Nor can moral objection to same-sex relationships or same-sex conduct justify discrimination.  Pure animus is irrational and certainly not a legitimate state interest.

UPDATE:  What Now? And What Does It All Mean?

Logistics

You might be wondering how Judge Walker's well-reasoned and thorough opinion might impact our world tomorrow.  In a word, it won't.  While the Order allowed California to start issuing marriage licenses to same-sex couples, the relief has been stayed pending appeal to the Ninth Circuit.

The parties will prepare their briefs in the coming months and deliver oral argument before a 3-judge panel on the Circuit.  Due to the high profile nature of the case, any decision by the panel will likely result in "en banc consdieration" by the entire Ninth Circuit.  That means that after one round of appellate hearings before three judges, another round in front of every Ninth Circuit judge will likely take place.  Then the case may be fast-tracked to the Supreme Court.

That is, unless the issue becomes moot.  How?  Marriage equality supporters are already gearing up for a push to overturn Prop 8 on the 2012 ballot.  If current polling is accurate in suggesting that a majority of Californians now support marriage equality, a pro-equality victory at the ballot box before the Supreme Court takes the case may obviate the need for a Supreme Court hearing.

Some Substantive Questions

This decision is momentous.  Do not forget that.  Never before as a federal court declared that the gay community warrants special protection and never before has a federal court declared so clearly that marriage discrimination is so irrational.

But there is a legal mine field awaiting marriage equality lawyers going forward.  For one thing, the Supreme Court, as currently constituted, is a conservative institution and among the most conservative Supreme Courts in our history.  It is more than a little unnerving to realize that our rights might ultimately rest in the hands of Bush appointees.

More specifically, strict scrutiny is a tough sell.  Supreme Courts since the 1970s have moved away from strict scrutiny jurisprudence with some zeal even to the point of contorting themselves into pretzels to create a new type of standard of review — so-called "intermediate scrutiny" — for gender classifications simply because the Court could not muster a majority for expanding the list of Warren Court era "suspect classifications."  Whether the Court will be willing to do today what it would not do decades ago is an open question.

Therein lies the genius of Judge Walker's opinion.  He touches on strict scrutiny but doesn't need it.  His strategy may prove to be our saving grace in the end.


Towleroad News #gay

—  John Wright

LA Times: There is no rational reason for Proposition 8

LA Times: There is no rational reason for Proposition 8
PageOneQ.com Latest

—  John Wright