Prop 8 supporters can appeal

David Boies, one of the attorneys that won a ruling against Prop 8 in district court

The California Supreme Court today issued an advisory ruling indicating that does have standing to appeal a trial court ruling that Proposition 8, the 2008 amendment to the state’s constitution that banned same-sex marriage.

The Supreme Court issued the decision after being asked to do so earlier this year by the 9th Circuit Court of Appeals. The Supreme Court’s opinion is an advisory ruling only, which means that the appellate court is not bound by its findings. The 9th Circuit judges, however, have previously indicated they would follow the Supreme Court’s decision.

Prop 8, approved by California voters the same year that Barack Obama was elected president, was ruled unconstitutional in the summer of 2010 by District Judge Vaughn Walker, who has since retired. The amendment was defended in court by, the primary backer of the Prop 8 referendum, after California Attorney General Jerry Brown refused to defend it in court. Gov. Arnold Schwarzenegger also failed to defend the amendment in court.

When appealed Walker’s ruling to the appellate court, the three-judge panel chosen to hear the case heard oral arguments in early December 2010 and a month later asked the state Supreme Court to weigh in on the question of standing.

In its ruling issued today, the Supreme Court wrote:

“In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …”

Now the wait begins to see if the 9th Circuit abides by the Supreme Court’s ruling on standing, and how the appellate court will rule on the merits of the case. Regardless of the outcome, the case is likely to be appealed again, first to the full 9th Circuit, and then to the U.S. Supreme Court.

Since Prop 8 was voted on in 2008, more than twice as many people are covered by marriage equality laws in the United States. New York legalized same-sex marriage in June, 2011. Several states including Illinois have new domestic partnership laws and several countries have also recognized marriages between gay and lesbian couples.


—  David Taffet

How CA Sen. Roy Ashburn Scored a $100K+ Gig From Gov. Schwarzenegger

It so totally, absolutely, couldn't be, no way in heck constitute a thank you from the just-exited Gov. Arnold Schwarzenegger, but Roy Ashburn, the anti-gay gay Republican state lawmaker who just termed out of office, has been appointed to the California Unemployment Insurance Appeals Board, where he'll earn 8,109 a year responding to disability and unemployment claims. Ashburn was among a limited number of Republicans who backed the then-governor's temporary sales tax increase, despite signing a "no new taxes" promise during his campaign. But this cushy gig couldn't be Schwarzenegger's way of showing gratitude, right? (Flip-flopping isn't so surprising for a guy who voted against LGBT equality so he could hide his sexuality, but then came out and promised to do better.) Not that Ashburn's appointment is entirely unique: the entire board is now filled with termed-out lawmakers.

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NCLR Analysis: Ninth Circuit Court Of Appeals Hearing On Perry v. Schwarzenegger

BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights (NCLR) Attorney Shannon Minter.

By Shannon Minter, Esq.

National Center for Lesbian Rights Legal Director

Today was the long-awaited oral argument at the Ninth Circuit Court of Appeals in Perry v. Schwarzenegger, the federal court challenge to Proposition 8. Thumbnail Link: NCLR's Legal Director Shannon MinterThe Ninth Circuit is the federal appeals court that covers California. Today’s argument was heard by a panel of three judges, who will decide whether to uphold District Court Judge Vaughn Walker’s August ruling that Prop 8 is unconstitutional.

The argument ran for almost two and a half hours, covering two basic questions:

• Do the proponents of Prop 8-and Imperial County, which is seeking to intervene in the case-have the right to appeal Judge Walker’s ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have “standing” to appeal.

• Second, is Prop 8 unconstitutional?

It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today’s argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue.  In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing.  

Some of the panel’s questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry.  

In the second hour, on the constitutionality of Prop 8, the panel’s questions focused on two general areas: the unique circumstances under which Prop 8 was passed in California — where same-sex couples had the right to marry before Prop 8 stripped that right away; and the principle established by the U.S. Supreme Court in their 1996 decision, Romer v. Evans, that a state cannot deliberately discriminate against gay people just to send a message that they are inferior.  

At least two judges seemed critical of the argument that Prop 8 can be justified based on arguments relating to procreation-which was the central defense offered by the proponents’ attorney Charles Cooper.  Repeatedly, the judges pressed Cooper on how procreation could possibly justify Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples, and has affirmatively embraced same-sex couples as equally good parents.  

Arguing on behalf of the plaintiffs, former U.S. Solicitor General Ted Olson urged the court to reach the broad question of whether same-sex couples have a fundamental right to marry under the U.S. Constitution.  In an argument that complemented Olson’s, Therese Stewart, Chief Deputy City Attorney  for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is “okay.”

Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is “animus,” or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on “animus” does not have to mean that the voters intentionally sought to harm gay people.  Rather, unconstitutional “animus” can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.

Together, Boies, Olson and Stewart were a great team and did a phenomenal job of presenting the most powerful arguments for upholding Judge Walker’s decision. There is no specific timeline for the Ninth Circuit panel to issue a ruling, but they have expedited the case up to this point, and we may see a decision with a few months.  In the meantime, unfortunately, same-sex couples in California will have to continue to live under the state’s separate-but-equal system that designates our families as second-class.



* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 10

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 11

* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 12

* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial

* NCLR Analysis: Closing Arguments For Perry v. Schwarzenegger

* NCLR Analysis: Perry v. Schwarzenegger Ruling
Pam’s House Blend – Front Page

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Latest: Nobody’s gonna forcibly tie Brown, Schwarzenegger to an appeals court chair

From the SF Chronicle:

(09-08) 16:53 PDT SAN FRANCISCO — The state Supreme Court dealt a setback to California’s ban on same-sex marriage today, refusing to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a federal judge’s ruling striking down the voter-approved measure.

A state appeals court dismissed the [Pacific Justice Institute] suit without a hearing, and the state’s high court denied review today without comment.

*Read more: High court won’t order state to defend Prop. 8 [SF Chron]

The social conservatives will now resort to Plan D: Making sock puppet versions of the AG and governor, placing them on their arms, and pretending like the two showed up in court anyway.


**EARLIER: Jerry Brown’s sound reasoning for not appealing

Good As You

—  John Wright

Gov. Arnold Schwarzenegger Won’t Have to Put Down Cigar to Defend Prop 8 In Court

And I was soo looking forward to another round of appeals and counter-motions: "A California court has refused to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a ruling that overturned the state's gay marriage ban. The 3rd District Court of Appeal in Sacramento on Wednesday denied a conservative legal group's request to force the officials to defend Proposition 8 in court. The court did not give a reason why it turned down the request by the Pacific Justice Institute." Things would be so much easier if Meg Whitman was governor. [AP]

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—  John Wright

California Appeals Court Rejects Attempt to Force Schwarzenegger and Brown to Defend Prop 8


A conservative group called the Pacific Justice Institute petitioned the 3rd District Court of Appeal on Monday, seeking to force California Governor Arnold Schwarzenegger and Attorney General Jerry Brown to defend Prop 8 in court, something both have said they will not do.

According to a notice posted to the court's website, that petition has been denied. Presiding Justice Arthur Scotland rejected the petition without comment.

Towleroad News #gay

—  John Wright

Inalienable Rights: Perry V Schwarzenegger

There is a lot of discussion going on about the recent decision in the Perry Vs. Schwarzenegger case, and the related issues surrounding it.
Let's take a moment and look at some facts, some of the arguments being used, and the realities of Law in America.
One of the current memes being circulated with a lot of fervor is, in the law, literally without any basis or merit. This is the idea that Judge Walker's sexual orientation (which Judge Walker has never publicly discussed, ever) has bearing on his decision.
If Judge Walker's sexual orientation had a bearing on the case, then the sexual orientation of any judge who would rule on the issue will equally have bearing on the matter. Which means one would have to find someone without any sexual orientation (ergo, no gay, not straight, and not bisexual) to decide the case — and there are no publicly asexual judges currently sitting in the Northern Court that walker sits in.
People who use this argument are, therefore, essentially saying something that suggests that gay people are less than straight people — less trustworthy. This is established by the fact that if you mention the above to the people saying this, they say no, that's not the case, a straight person wouldn't benefit or be biased, when the basis of the argument most widely spoken against allowing gay people to marry is that they are “protecting traditional marriage” which would be, logically, a benefit to a straight person.
One cannot have it both ways, and so that shows a logical, reasonable failure of understanding, and demonstrates an irrational ideation that gay people are something to be avoided, or intensely disliked, or fearful of (in this case, the fear involved is that they will cause damage to the idea of traditional marriage).
When one is irrationally driven to aversion (avoiding, disgust), intense dislike (literally, hate), or fearful reaction to something, that's called a phobia. IN this case, Homophobia, which makes the statement regarding Judge Walker homophobic.
Now, the statement being homophobic doesn't mean the person is — they could, for example, merely be parroting the stuff said by the absolutely homophobic leadership of various organizations.

The case that Walker decided on, as well, was not about “gay marriage” as something distinct and separate from “traditional marriage”. In Law, it's all just “marriage”.
Marriage, under the Constitution, is a civil right. It has been, as well, of rover a hundred years, reaffirmed by 14 different rulings on the matter. This is why convicted mass murderers and child rapists can get married, even while on Death Row or in prison. Indeed, those weddings often take place in prisons, and the states and counties have to pay the cost of providing security and so forth for those weddings.
Now, one can argue that marriage shouldn't be a civil right, but that's just like arguing that the sky isn't blue — it's a fun little mental exercise, perhaps, but has little effect or bearing on the reality of the situation. It is, basically, a waste of time.
Indeed, it is an inalienable right. It is not a right of men to marry women or women to marry men. It is, simply and basically, a right to marry. And that's the word that is used: marriage.
How would those opposed to people exercising that right feel if someone passed a law that said they couldn't speak out against gay people. They probably wouldn't like it. In fact, it's a certainty they wouldn't, since that's what they say allowing gay to engage in marriage is going to do, it's what they saying passing ENDA is going to do, and it's what they say that passing DADT is going to do.
Its part of the fears they use, and what they are talking about when they say that is a State or Government passing a law that deny's them access to exercise their right to free speech.
Now, the government *can* do that. As one of the Family Research Council's leaders recently said, there are limits on marriage. This is true. He also said that the public should be able to put limits on marriage. That's true, too.
Now, here's the thing. In order to put limits on someone's ability to exercise a fundamental right, under the constitution, you have to pass a test that's generally called strict scrutiny. Sometimes its a lesser charge, but it depends on the way the question in court is phrased.
In this case, the question is based on two parts of the 14th Amendment; two parts which basically say that the States have to honor the bill of Rights (because the Bill of Rights is strictly speaking only applicable to the actions of the federal government, not the States).
One of these is due process, and under a due process claim, the standard in situations like this one — and free speech, and free press, and all the rest of the “big deal' rights — is strict scrutiny.
The other section is called Equal protection, and that one can be rational basis (the lowest standard) or intermediate basis (the middle one, with strict being the highest).
Strict scrutiny has three sections that have to be proven, and this is what Judge Walker did. He looked at the facts of the case — and note carefully that the only facts he can look at are those facts that are shown to him in the case itself. The same will apply in each of the appeals courts.
Now, strict scrutiny is a seriously hard test. And when you are arguing with them, you should point out that it exists specifically to protect rights.
First, there's gotta be a compelling governmental interest. That means something necessary or crucial, not merely something folks would like, but seriously important to protecting stuff like life and limb. Stuff like national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
Next, it has to be narrowly tailored — which means that it has to follow a strict semantic meaning and go for strictly the specific thing that meets the above part. It can't just be an across the board deal. If it goes too far or doesn't deal, specifically, with the aspects that the government has an interest in stopping, then it's not a narrow enough rule or law, and fails this test.
And, lastly, because it is dealing with a critical right, it has to be the least restrictive means for stopping that exercise of that right. This is why you can yell “Fire!” in a park, but not in a crowded movie theater. Now, there can be a couple of ways to do it, and if they are equally the least restrictive, then it doesn't matter, but if one is more restrictive than the other, then the least must be used.
Now, anything that happens has to pass all three of those things to be considered “ok”. This is why Corporations get freedom of speech and that means you can't just say across the board that they cannot donate. They are thought of as people (and, therefore, it is conceivable that two of them could get married), just like marriage is a right, and as a result of that, they have freedom of speech.
In law, the judges have to look at the facts that are determined in the process of the trial. That's why judges need so much time to go over the trial record and all that. Once those facts are known (findings of fact) they are pretty much there permanently for that case.
For any other case, though, they have to be done again. From scratch. So, anyone planning to file in federal court against the unlawful restriction on their right to marry (and yes, all citizens of the US have a right to marry) best get a copy not merely of the ruling, but of the transcripts and filings as well.
Now, why's that, if one case can be cited in another? Because when you cite a case in a different trial, all that anyone is really allowed to look at is the conclusions of law — the part where they say this is what X does. The rest of it — the law that was challenged, the reasons why it was challenged, all of that stuff, is called “dicta”, and no longer matters. So, for example, when someone cites Loving V Virginia in a court of law, what they are doing is saying that at a different time in a similar case, the judges said that a law that stops people from exercising their inalienable rights was wrong.
In this case, Prop 8 was found to not meet a governmental interest (procreation is not a government interest in times of overpopulation), was not narrowly tailored (it prevented tens of thousands of citizens from exercising their right at all), and was not the least restrictive way of achieving the oft stated goal of protecting traditional marriage.
Which is why it failed the due process challenge.
And it's important to note that the questions Judge walker was asked were very simply stated: Does a specific law prevent citizens of the United States from exercising their inalienable rights in an unconstitutional manner?
There's no mention of marriage in that.
And that's why it isn't about marriage. It could be about freedom of speech, or the right of privacy, or freedom from search and seizure, or any of the other rights that we have. And that's critical to understand.
So ask yourself a simple question:
Do you want to grant to the States the right to take away *your* civil rights with a popular vote?
Because that is, in fact, what this case is about, and the Constitution of the United States says that they cannot.
So those who are trying to deny gay people the right to marry (and that right doesn't mean limiting it to someone of the opposite sex as that does not meet the test described earlier), are, literally, saying that they want to give the states the power to take away their rights under the law without any good reason.

Pam’s House Blend – Front Page

—  John Wright

Why Perry v. Schwarzenegger is unlikely to reach the US Supreme Court if we win

For a few months now, I have known about the potential that Perry v. Schwazennegger may not reach the US Supreme Court due to a standing problem that only the sharpest of the legal eagles picked up on, but I was not certain until Judge Walker denied a particular motion.

The good news is: Prop 8 will be struck down and marriages will be resuming if not next week, than in the next few months.   The bad news is, SCOTUS will likely not take the case if we win (not that that is neccesarily a bad thing, as we can still hit SCOTUS if Perry/AFER wins).

Here is why….

Plaintiff's Opposition to Motion for a stay

Read pages 5, 6, and 7.  Under Diamond v. Charles and Arizonans for Official English v. Arizona, the Proposition 8 Proponents (the Defendant-Intervenors) have do not have what is called “Article III” beyond the trial court.  Only GOVERNMENT intervenors have the ability to appeal.

San Francisco's Motion to Intervene Response

Imperial County's attempt to Intervene

You see, The Proposition 8 Proponents realized that they screwed up royally.   They didn't realize until months after AFER filed their case that they had no standing to appeal the case because they were not governmental intervenors under the Diamond and Arizonans for Official English Supreme Court cases.  

That is why they called up the Imperial County Board of Supervisors and asked them intervene.  Judge Walker finally ruled the day he released the Perry decision to deny Imperial County's motion.

You can see the entire Perry docket here.

By filing the motion to the court today to point out the elephant in the room, that the Proposition 8 Proponents have no standing on appeal by themselves without a governmental entity appealing on their behalf, AFER and San Francisco just publicly decapitated Yes On Eight's standing.

Yes there will be appeals, and yes AFER should get ready to take it to SCOTUS and should not rest on it's laurels and make the best case possible for equality as high as it will go, but the chances of this getting to SCOTUS just went from 100 percent certainty to less than 20 percent as soon as they filed that motion.  Remember, AFER's job with suing over Prop 8 was to get the plaintiffs (as well as anyone similarly situated who resides or visits California) marriage licenses.  As attorneys, not pointing out that the Yes on 8 doesn't have appellate standing would be a dereliction of their duty as the attorneys for the two couples.  They want to win for them, as well as striking down Article 1 Section 7.5 of the California Constitution so that everyone in California can enjoy the right that was taken from them bigoted voting majority in November 2008….

Never fear, however. AFER can always file in another state.   This goes to show that AFER plays three dimensional chess while the opponents to our equality play checkers.  I hear Washington and Oregon is nice this time of year…..

Pam’s House Blend – Front Page

—  John Wright

California AG Jerry Brown + Gov. Arnold Schwarzenegger: Don’t Delay Prop 8’s Extermination

California Attorney General Jerry Brown and Gov. Arnold Schwarzenegger both asked the Ninth District Court not to issue a stay order and immediately abolish Prop 8, despite the defense team's motion to hold off on the ruling taking effect until it exhausts appeals. The American Foundation for Equal Rights' Chad Griffin agrees: "The time for the court's ruling to go into effect is now. We welcome Governor Schwarzenegger's and Attorney General Brown's opposition to a stay after their thoughtful analysis of the evidence, the court's ruling and the law." All parties involved want the gay marriages to begin stat.

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—  John Wright

Schwarzenegger, California AG Jerry Brown File Motions Urging Judge Walker to Allow Same-Sex Marriages to Resume

UPDATE: Governor Schwarzenegger wants same-sex marriages to resume immediately!

"The Republican governor filed his brief with U.S. District Court Judge Vaughn R. Walker before a Friday deadline to submit arguments on whether to continue a stay of Walker's decision against Proposition 8.
'The Administration believes the public interest is best served by permitting the Court's judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,' wrote Kenneth C. Mennemeier, an attorney representing Schwarzenegger, in the brief. 'Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect.'"

California Attorney General Jerry Brown has filed a motion opposing a stay of Judge Walker's decision striking down Proposition 8:

Brown "Brown told U.S. District Chief Judge Vaughn R. Walker that his historic ruling that overturned Proposition 8 probably will be upheld by higher courts. He said his office last year opposed a pretrial request to block Proposition 8 only because the legal and factual issues had not then been explored.

'That has now occurred,' Brown's office said. 'And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional.'

Gov. Arnold Schwarzenegger is also expected to oppose a hold on the ruling."

Written arguments were due today regarding the stay. Walker has said he'll decide after reviewing them.

Read Brown's motion, AFTER THE JUMP

2010.08.06 AG. Opp to Def Mtn for Stay

Towleroad News #gay

—  John Wright