Partial Victory in Prop 8 and DOMA – Early Analysis

marriage-equality

My predictions have turned out to be correct — gay marriage will now be federally recognized and legal in California, but not universally legalized.

DOMA IS UNCONSTITUTIONAL at least partly thanks to equal protection and not just states rights, that’s a big victory.  The opinion is here.  This is huge news for immigration and taxes and other federal jurisdiction issues.

“There is a “careful consideration” standard: In determining whether a law is motivated by improper animus or purpose, discriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles.”

Also this: “Bottom of 25-26: The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others. ”

This means that there’s some sort of heightened scrutiny now applied to gays as a class, though it does not appear to be full strict scrutiny.  This is good for any future gay marriage cases that are less complicated than Prop 8.

PROP 8 IS DISMISSED ON STANDING

The opinion is here.  What this basically means is that the lower court decision stands and Prop 8 is legalized in California, but not elsewhere.  The majority on this case is the weird combo of Roberts with Scalia, Ginsburg, Breyer, and Kagan.  I’m guessing this means that there was a lot of negotiation behind the scenes?

I believe that this mean Judge Vaughn Walker’s amazing opinion stands, but only as it applies to California.  It’s one of the most beautifully written things I’ve ever read, so I highly recommend it.

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I stayed up far too late last night watching the drama unfold in the Texas senate, where Wendy Davis and several other amazing people fought for women’s rights and the GOP there tried to cheat and swindle their way to a victory, only to be stopped by the raucous crowd.  It was truly amazing.

But it was back to watching a livefeed only a few hours later — this time SCOTUSBlog in hopes of a victory in DOMA and Prop 8.  Man the internet is necessary for news these days.

Infographic here helps explain possibilities.  This is my previous analysis of possibilities.

It has been a long journey with Prop 8 — over 5 years.  I wish it had been a more robust victory, and it’s a shame it happened on the same day as DOMA.  Still, the percentage of Americans who have access to gay marriage has just grown tremendously by the inclusion of California.  That can only be good news.

Prop 8 Media Appearances Round Up (UPDATED)

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Two hours of sleep in freezing rain, mixed with joy of being the last one in

NEW: Me on Politico video where you can see just how terrible the conditions were.

NEW: Same photo in galleries at the LA Times and Politico.  You can see how creepy the statue is in the LA Times version.

Me on the NYTimes video talking about waiting to get in.

Me talking to CBS Los Angeles about the line.

Me on WUSA9 about people who are paid to hold lines for others.

Me on Red Alert Politics about hoping to get in.

Talk Radio News Service decides my name is Ashley Madison when interviewing me after the case lets out.

I also gave an interview for WCIV in Charleston, SC, but I don’t have anything for that.

High school friend Crista Cuccaro on the news for WSOCTV

Neverending thanks to Emmett for all the supplies, dry clothes, and many pictures.

Prop 8 at scotus , in line

It’s cold and snowing. I’m 51st in line. Interesting people, mostly pro equality.

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Chilling under my tarp

Edit: more pics

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What Prop 8 and DOMA rulings from SCOTUS could mean

Today SCOTUS agreed to hear two of the gay marriage cases that had been submitted to them, and they were the two big ones — Proposition 8, California’s anti-gay marriage constitutional amendment, and DOMA, a law passed by Congress to prevent the federal government from granting federal benefits to those who are gay married.

The gay marriage court cases are a bit complicated because they are dealing with a few different issues.  I’ve noticed a couple people on Facebook confused about what exactly the court will be ruling on and I thought I would explain it a bit.

It should be noted that I am not a lawyer nor have I been to law school, I’m just really interested in constitutional law and prop 8.  I covered it somewhat obsessively when I lived in California.  I haven’t covered DOMA as obsessively.

PROP 8

Officially known as: HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

In 2008, California legalized gay marriage through the court system and began performing gay marriages in the state.  That fall, a constitutional amendment saying marriage was one man and one woman was passed by the general population, making gay marriage illegal again.  Immediately, the state was sued by several gay couples who wanted to be able to get married.

The original ruling, by Judge Vaughn Walker decided that the amendment was unconstitutional for several reasons, some narrow and some quite broad.  He declared gay people to be a population that had been historically discriminated against and deserving of heightened scrutiny when laws applied to them.  What that means is that, if you make a law concerning creating a “separate but equal” status or targeting a minority group in particular, the government must have a compelling interest in doing so that cannot be served by other means.  In this case, civil unions were not the same as marriage — historically we know “separate but equal” is not equal — and any denial of gay marriage was unconstitutional.

The district court issued a much more narrow ruling, saying that none of the broader things mattered to the case, but the fact that California allowed some gay people to get married during a specific period of time and then REVOKED access to that, the very specific case of Prop 8 meant that only California’s anti-gay marriage amendment was unconstitutional, but other states with anti-gay marriage amendments would not be affected by the decision.

As the decision is written, if the Court simply upholds the district court’s decision, gay marriage will become legal in California and nowhere else.  Historically, the court has tended towards narrow decisions, but because of the amount of cases it has been given and the complications of some states allowing gay marriage and others not and the general wave of public opinion it is possible that SCOTUS will write a broader opinion that will legalize gay marriage in general.

The other complication is that there is a suit also to determine whether the people participating in the suit have the right to do so, and if they don’t it can mean that none of the courts had the right to make decisions.  Basically, the government in California was like “I want nothing to do with standing on the wrong side of history, I’m not defending the amendment, it’s toxic” so other people stepped in.  California ruled that this was fine, but it’s still being brought before SCOTUS.  According to the release, SCOTUS is also considering the problem of “standing” so there is also a chance that the case will be more or less thrown out.

THREE POSSIBILITIES

1. Gay marriage is made legal in all states (Broadest ruling)

2. Gay marriage is made legal in California (What I think will happen)

3. The entire case is thrown out and who knows what happens then, it’s complicated, probably gay marriage would be legalized in California but I’m not entirely sure

DOMA

Officially known as: UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

This case is a little more straightforward than Prop 8, if only because it’s not dealing with the minutiae of state law in addition to the question of gay rights.  DOMA states that people who are gay married do not have access to federal marriage benefits.  This has been ruled unconstitutional and, like in Judge Walker’s opinion, gay people have been declared a minority deserving of special consideration.

Like Prop 8, however, SCOTUS has to consider the issue of standing and could decide that the people participating in the suit don’t have the right to do so and could then throw the thing out entirely.

I think it most likely, however, that the court will be unable to find a constitutional justification for treating some marriages granted by states as federally acceptable while others are not.  I also think that, if California will have gay marriage, it will be incredibly difficult to justify not recognizing them federally, simply because California represents such a large portion of the US population.

DOMA is not my area of expertise, though, so I’m happy to hear other feedback.

Prop 8 Update: on the SCOTUS conference docket

The first SCOTUS conference of the session is today and both DOMA (multiple cases) and Prop 8 are on the docket, meaning the Court will (probably) decide whether to take one or the other up in the next term. The votes of four justices are required for a case to be heard by the Court.

Although they are on the docket, it’s not uncommon for cases to be rescheduled, so it’s possible for the day to end without any information on whether the Supreme Court is planning on hearing the cases.

So what do we want?

Well, because of the extremely narrow ruling in the Prop 8 trial, it would probably be better for the court to decline to hear it. As I understand it, this would make gay marriage legal in California, effective immediately. It would also mean that the court would not be ruling for universal gay marriage, but they are somewhat unlikely to do that off of the Prop 8 decision — again, because of the narrow ruling in previous courts.

DOMA, on the other hand, looks like it could be fully destroyed by the court if it is picked up.

Gay marriage might resume in California very, very soon.  We shall see.

Prop 8 Comics Presents: Too Gay for the Bench

The Prologue

Meet the Defense and Prosecution

The Trial Tapes

Thank the proponents for their inadvertent support of gay marriage

Lawyering is Hard

Why doesn't everyone get it? Gaaaayyyyy

Celibate Gays are Welcome to our Church/Country

Prop 8 Trial Today: Is Walker Too Gay to Judge?

This will be brief because I’m on my lunch break, but today in California they are deciding whether Judge Walker’s decision on Prop 8 should be thrown out because he’s gay and therefore can’t be a judge on gay rights as well as determining whether the tapes of the trial should be locked up from view or allowed to be released.

The gay rights crowd is arguing that of course you don’t throw out a decision because a judge has human traits — wouldn’t a straight man be biased for straight people?  It would never end.  They are also arguing that there is no possible harm in releasing the tapes and keeping them under lock and key is absurd and retarded.  They probably won’t say it precisely like that.

The anti-gays crowd, who KNEW THAT WALKER WAS GAY BEFORE THE TRIAL AND NEVER ASKED HIM TO RECUSE HIMSELF, are arguing that the gays can’t make legal decisions if they’re in a relationship and releasing the tapes would make their side look like complete idiots the proponent’s witnesses uncomfortable.

Prop 8 Trial Tracker has got you covered with live updates, AFER with Tweets.

I’ll write a shorthand version of whatever happens today later this evening.

Releasing the Prop 8 Videos

 

People in an open society do not demand infallibility in their institutions, but it is difficult for them to accept what they are prohibited from observing – Chief Justice Berger

Former Chief Judge Vaughn Walker, who presided over the Prop 8 trial, recently used some of the video that was taken during the case as part of a lecture.  The Proponents, aka supporters of Prop 8/opposers of gay marriage, immediately took great offense and sent what was essentially a cease and desist order that demanded the return of all the copies of the tapes, Walker's and anyone else who had them.

 
In response, Ted Olson and David Boies, the legal tour de force trying to lift the gay marriage ban, filed a request that the tapes be unsealed and released to the public.  After all, the trial is a matter of public record and the transcripts are freely available.
 
Originally, the trial was going to be broadcast live, but the Proponents felt like this might scare some of their witnesses away, and so they demanded that it not be broadcast.  Judge Walker taped it, but didn't release the tapes, to the great disappointment of the men and women across the country who wanted to see the greatest trial of the greatest civil rights battle of our time.

No one can really blame the Proponents for not wanting to have video footage of just how appallingly awful their defense of Prop 8 was.  They want to continue to play the victim here — they want to sell the idea that gay marriage is somehow a violation of religious liberty, rather than being completely the other way round.  The video of their disastrous performance would only reveal that they are driven solely by religion and bigotry — and that they aren't even capable of hiding that fact.

Some things that they don't want you to see on television, things that their own anti-equality witnesses did: a witness saying that DADT and DOMA were "Official Discrimination"; that same witness then saying Prop 8 was also discriminatory; Mr. Blankenhorn, their chief witness saying, "I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children"; Blankenhorn also saying, "We would be more American on the day we legalized gay marriage than the day before".

Well, I mean, no wonder, right?  But that's exactly why these things need to be released.  People need the opportunity to see how feeble the defense was and to really understand how motivated by religion the campaign against equality was.  Not everyone is as nerdy as me and reads trial transcripts because they find them so compelling — video is the medium of our lives, and well do the religious know that since it is the medium through which they sold their hate.

The vast majority of the money and on-the-ground support for the Prop 8 campaign came from the Mormon church, supplemented by the Catholic church.  This isn't even money from California, and it's certainly money that ought to take away their tax exempt status.  People need to be shown the kind of lies they were telling to get people to vote against marriage equality, the emotional manipulation about children and families, things so blatantly false they might be defended with the disclaimer: "not intended to be a factual statement."

Gay marriage doesn't destroy families, it doesn't destroy children, it really doesn't do much except make some people very happy and give them access to rights that the rest of us take for granted.  The trial provided an overwhelming amount of evidence that refusing marriage rights not only hurt gay people, but also hurt the thousands of children of LGBT parents.  It hurts these children irreparably, immeasurably, forever.  This wasn't in question, gay marriage opponents agreed.

These tapes shouldn't just be released, they should be broadcast on every news channel for weeks to expose just how rotten the argument is against gay marriage.  If you've ever questioned why church-state separation is so important, this is why.  If conservative Christians (and I include the LDS) hadn't funded the gay marriage ban, it wouldn't be in place, and even they couldn't create enough money to make credible witnesses or a real argument against gay marriage.  The monstrous unfairness of the church taking over, infiltrating, and outright buying the political process only to then lie to the public to get their way has got to stop.  Not only is it immoral, it is un-American.

Proponents motion for return of videos http://www.scribd.com/doc/52945974/CA9Doc-338
Vaughn Walker's response: http://www.scribd.com/doc/53041973/CA9Doc-339-Letter-from-Vaughn-R-Walker
Olson and Boies request for unsealing of videos: http://www.scribd.com/doc/52945974/CA9Doc-340
San Francisco's feisty response: http://www.scribd.com/doc/52945974/CA9Doc-341

 

The Long Road to a Final Opinion on Prop 8

Yesterday was the presentation of the case to the 9th circuit.  Now, it’s not the full 9th circuit, which means that whatever these three judges decide, they may well have to reconvene with the rest of the 9th circuit if whoever loses this round decides to appeal.  It’s sort of a weird situation but it appears that, whatever they rule, the loser can then appeal either to the full 9th or to the Supreme Court.  If they appeal to the full 9th, they will probably then appeal to the Supreme Court anyway.  It all feels a bit futile when you know that it’s going to get appealed all the way up.

The three judges on the panel are, from most liberal to most conservative, Stephen Reinhardt, Michael Hawkins and Randy Smith.  Both Reinhardt and Hawkins seemed to agree with Judge Walker’s logic, while Smith seemed to be a bit more on the fence.  Even he, a fairly conservative republican, had a hard time with the idea that California had given a right and then taken it away — this led to one of the better lines of the day, in which a judge asked if it would be OK for California voters to reinstitute segregation.  Smith did, however, think that promoting procreation and a biological mom and dad family environment was a reasonable rational basis for excluding homosexuals from the instituion.

His biggest problem with the prosecutorial case came with the question of standing.  For those not following, the official defendants named in the case refused to defend the law, so several other people joined the lawsuit as Defendant Intervenors.  The DI aren’t people who would normally even be allowed to participate, but because no one was defending Prop 8 in California, they were allowed to join the case.  The question now is whether they are qualified to be DIs in a federal court.

The answer basically appears to be no, especially since SCOTUS has been tightening restrictions on who can be a DI in federal court over the last couple of decades.  The problem Judge Smith has, and I actually agree with him here, is that California has a process that says that the Governor cannot veto something voted on by the people and that, by refusing to defend Prop 8, he’s nullifying what the people want.

So, I don’t think that any of the DI actually deserve standing, but in the absence of an official Defendant, I feel like to respect the legislative process in California, it might be necessary for the 9th court to recognize the DIs in this case.

I posted a flow chart yesterday that explains exactly how convoluted all of this is, but if the 9th Court determines that the DI don’t have standing, and SCOTUS agrees, then Walker’s ruling stands and gay marriage is legal in CA.  If it’s determined that the DI do have standing, then it’s a much longer road to a final opinion, but there’s a chance that that opinion will legalize gay marriage nationwide.

By a longer road, I mean a wait for the 3 judges to rule on the constitutionality of Prop 8, then an optional wait for the full 9th court to rule on it, then a wait on SCOTUS to see if 4 judges want to have a hearing, and then finally a wait for SCOTUS to make a final ruling.

Now, in terms of argument, it has never been clearer that the DI simply don’t have one that goes beyond “gay people can have children, but they can’t do it accidentally and, even though there are no fertility requirements on straight people, we think that calling an institution marriage promotes responsible child-rearing, and we don’t think encouraging gays to responsibly procreate is something that marriage should do because they do it anyway.”  And, revealingly, the judges asked how wide a ruling that agreed with Walker would have to be — in other words, if they agree that Prop 8 isn’t constitutional, do they then have to say that gay marriage is a right in their jurisdiction?  Olson wiggled a bit, saying that that’s what he’s asking for without trying to bind their hands.

Being able to watch this all on live video just underlined how bad the lawyers on the DI side are and how good Boies and Olson are.  I know that sounds like a biased opinion, but even ignoring the strength of argument, the DI lawyers stuttered, stammered, and weaseled their way through their arguments, only to be repeatedly called on it by the judges who threw out such gems as:

“Is there anything  in the record to indicatate that she has any authority whatsoever?”

“You’re repeating yourself now.”

“If you don’t know the answer, say you don’t know.”

It was painful, but since it was televised, I really hope that some people who weren’t as familiar with the trial got the chance to see just how illogical the DI position is and how eloquent, intelligent and prepared the prosecution is.  If you get the opportunity, I urge you to watch it, I will probably watch it again myself.  http://www.youtube.com/watch?v=TA_vFjjd3yM

The DI also continue to shoot themselves in the foot by saying things like “the word is the institution,” which just underlines that even if gays had access to everything but the word, they wouldn’t have access to the institution itself.  I’ll let Therese Stewart end this, because she is amazing(paraphrase from here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.