Same-Sex Marriage Update

[MsTinkerbelly]

The similarities and differences between the Prop 8 and DOMA cases
by Adam Bink

In last night’s thread, Eden posted some thoughts from UPenn law professor Tobias Wolff:

A victory in this appeal on the jurisdiction / standing issue would be phenomenal. Although the principles established in Judge Walker’s ruling would only result in the striking down of Proposition 8, rather than the establishment of marriage equality nationwide, dismissal of the appeal would eliminate the risk associated with bringing these claims before the Supreme Court of the United States — the most conservative Court that we have had in the last fifty years, in many respects — and Judge Walker’s devastating analysis of the factual record and the utter lack of evidence supporting any reason for excluding same-sex couples from marriage would remain on the books and be available for us to cite in all our future efforts at litigation and legislative reform.

Over the last few weeks an interesting debate has emerged over whether equality advocates should hope that the case is not struck down over the standing issue, so as for the case to make it to the Supreme Court where it has a chance of playing a role in enacting equality for the entire nation, rather than just California.

What I’ve noticed is that the debate is very similar to the discussion around the lawsuit challenging DOMA in Massachusetts. I examined these arguments in depth in a piece at my home blog, OpenLeft.com, titled “The question of whether to hope for a DOJ appeal“. For those unfamiliar with the case, some background from the lede:

The strategy and legal question that has been buzzing around LGBT circles, and articulated here at OpenLeft by Mark Matson, is whether or not advocates for equality between same-sex and opposite-sex couples should actually be hoping for the Department of Justice to appeal the case to the First Circuit and then the Supreme Court. The reason is because these cases are limited in their effects to the married, same-sex couples residing within Massachusetts borders only, while if the case is appealed and won at the First Circuit, same-sex couples in other states (most notably New Hampshire, which has legalized same-sex marriage, but also a few other states and Puerto Rico) would benefit. And of course, if won at the Supreme Court, it would affect the country.

Very interesting similarities to our debate around a Prop 8 appeal. In the end for the DOMA lawsuit, it appears likely that one way or another, the case will end up before the Supreme Court. I wrote:

Aside from it being unlikely for one of the three situations to come true, it appears unlikely that the SCOTUS will not hear this case, sooner or later.

I say that for three reasons Gary [Buseck, the Legal Director at Gay and Lesbian Advocates and Defenders] and I worked through. One, it’s not likely that one by one, a lawsuit or lawsuits will work its way through each of this country’s twelve circuits (not including the Federal Circuit, which only does patent law) over the next few decades, and every single time the federal government declines to appeal. Nor is it likely that if the government does, that every single time the SCOTUS declines to hear them. If we lose at one, it’s also not likely to happen for a second reason, which Gary pointed out to me- where there is a conflict in circuit court rulings- e.g., we win at the 1st Circuit but the 9th Circuit decides differently- that is often where the SCOTUS decides to step in. A third reason it’s also not likely is because if our side prevails, I’m told it’s more likely the SCOTUS will hear the case than if we lose.

So, when it comes to advocates for equality, there are definitely downsides to the government not appealing. On the other hand, this seems to be a road that has an end at the SCOTUS anyway, sooner or later. With that point of view, what would matter in determining whether or not to hope for appeal is your view of how friendly the SCOTUS is, now versus in the future. Which may be the better question to ask.

In the Prop 8 case, this question- the likelihood of the SCOTUS coming down on the side of equality- is, too, burning on all of our minds, and has been since the Olson/Boies lawsuit was announced. “Do you really think there are 5 votes on the Supreme Court for this?” is the most common question I hear asked of the two attorneys in interviews.

But the difference in the case here, as I see it, is that there is far more good news if the Prop 8 case is struck down on standing. I am always a little surprised when friends and colleagues lament that the ruling would be limited to California, the 8th largest economy in the world- large enough to be a country on its own, large enough to be bigger than some entire countries that already have legalized the freedom to marry for same-sex couples. Having thousands of more same-sex couples marry if the case is struck down on standing alone should not be a disappointment. It will help create a favorable environment to a future court ruling. It will help move public opinion and create visibility. It could (potentially) mean saving tens of millions of dollars and countless other resources from a future Prop 8 repeal effort that could be channeled towards advancing equality in other states, like Oregon. I also believe it will help us in efforts to repeal the anti-equality constitutional amendment in Oregon in 2012. And of course, it will make many more same-sex couples a great deal more equal. It is no small deal.

So while I agree with Tobias that a victory on the standing issue would be phenomenal, it is less out of fear or caution regarding the composition of the Supreme Court. I believe, as Olson and Boies do, that we can win there, and that too would be incredible. It is out of a hope for fairness to come sooner rather than later to same-sex couples, and for the sake and usefulness of advancing our movement down the road via other avenues that could even further build our chances of winning at the Supreme Court one day

[Soon]

Originally Posted by MsTinkerbelly

But the difference in the case here, as I see it, is that there is far more good news if the Prop 8 case is struck down on standing. I am always a little surprised when friends and colleagues lament that the ruling would be limited to California, the 8th largest economy in the world- large enough to be a country on its own, large enough to be bigger than some entire countries that already have legalized the freedom to marry for same-sex couples. Having thousands of more same-sex couples marry if the case is struck down on standing alone should not be a disappointment. It will help create a favorable environment to a future court ruling. It will help move public opinion and create visibility. It could (potentially) mean saving tens of millions of dollars and countless other resources from a future Prop 8 repeal effort that could be channeled towards advancing equality in other states, like Oregon. I also believe it will help us in efforts to repeal the anti-equality constitutional amendment in Oregon in 2012. And of course, it will make many more same-sex couples a great deal more equal. It is no small deal.

So while I agree with Tobias that a victory on the standing issue would be phenomenal, it is less out of fear or caution regarding the composition of the Supreme Court. I believe, as Olson and Boies do, that we can win there, and that too would be incredible. It is out of a hope for fairness to come sooner rather than later to same-sex couples, and for the sake and usefulness of advancing our movement down the road via other avenues that could even further build our chances of winning at the Supreme Court one day

I'm one of the ones who want it to go to the SCJ. Probably no surprise there.

I think they have a great case and, of course, a California win--although I'd be happy for all out there--does nothing for other States (some that have rock solid state amendments banning equal marriage) and DOMA still being applied to same sex couples who lack over 1000 benefits.

I also don't think a win in California would do much to change the public opinion of the States around here (that will take generations) where we are located (FL).

Canada has had marriage equality since 2005 and now same sex marriages in Mexico City must be acknowledged by the other 31 states in that country (with a 91 percent Roman Catholic population no less!).

Both of those locations didn't wait until public opinion favoured marriage equality. Both Mexican and Canadian governments, court cases and and/or Supreme Courts took care of it in the name of justice and fairness for all...without a nod to public opinion.

What do you think? Would you consider it a success if the win stays in California and it isn't taken to the SCJ?

Do people still advise patience to those in other States and the issue of Federal rights?

curious.

[UofMfan]

Originally Posted by HowSoonIsNow

I'm one of the ones who want it to go to the SCJ. Probably no surprise there.

I think they have a great case and, of course, a California win--although I'd be happy for all out there--does nothing for other States (some that have rock solid state amendments banning equal marriage) and DOMA still being applied to same sex couples who lack over 1000 benefits.

I also don't think a win in California would do much to change the public opinion of the States around here (that will take generations) where we are located (FL).

Canada has had marriage equality since 2005 and now same sex marriages in Mexico City must be acknowledged by the other 31 states in that country (with a 91 percent Roman Catholic population no less!).

Both of those locations didn't wait until public opinion favoured marriage equality. Both Mexican and Canadian governments, court cases and and/or Supreme Courts took care of it in the name of justice and fairness for all...without a nod to public opinion.

What do you think? Would you consider it a success if the win stays in California and it isn't taken to the SCJ?

Do people still advise patience to those in other States and the issue of Federal rights?

curious.

It is no surprise that I agree with you.

Trickle down Equal Rights?

[MsTinkerbelly]

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9th Circuit Ruling on Motion for Stay Pending Appeal
AUGUST 16, 2010
“Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.
The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.”

[JustJo]

As several have pointed out here...the government is highly involved in marriage, and at the national level. Marriage conveys a host of legal rights (and obligations) as well as tax status, etc. Some of that's good, some of it isn't...but marriage is not solely a religious issue, it's a legal status.

Until the federal government protects that right nationally, it's going to be an ongoing mish-mash of give and take away again, depending on the public's mood of the day and the whims of the states. That's no way to live.

I'm with you HSIN...I'd like to see this go to the Supreme Court.

[MsTinkerbelly]

Originally Posted by HowSoonIsNow

I'm one of the ones who want it to go to the SCJ. Probably no surprise there.

I think they have a great case and, of course, a California win--although I'd be happy for all out there--does nothing for other States (some that have rock solid state amendments banning equal marriage) and DOMA still being applied to same sex couples who lack over 1000 benefits.

I also don't think a win in California would do much to change the public opinion of the States around here (that will take generations) where we are located (FL).

Canada has had marriage equality since 2005 and now same sex marriages in Mexico City must be acknowledged by the other 31 states in that country (with a 91 percent Roman Catholic population no less!).

Both of those locations didn't wait until public opinion favoured marriage equality. Both Mexican and Canadian governments, court cases and and/or Supreme Courts took care of it in the name of justice and fairness for all...without a nod to public opinion.

What do you think? Would you consider it a success if the win stays in California and it isn't taken to the SCJ?

Do people still advise patience to those in other States and the issue of Federal rights?

curious.

Sometimes I bold things just to point them out, not because I agree with them. That being said, I am legally married in the State of California. I am not legally married in Florida (for example), nor do I have the other 1000 rights that are supposed to come with a marriage. Rights, responsibilities, obligations, privileges....my God damn rights!!!!

I will not be happy until we are all equal, and anybody that "settles" for one State at a time is not representing me. We have to get out of that mentality of not wanting to push too hard...because we will only get what we by rights should have always had if we push, and fight, and scream for what is ours.

I have a lot more to say, but I have to get back to work.

Blessings,

Cindy

[MsTinkerbelly]

Originally Posted by MsTinkerbelly

Sometimes I bold things just to point them out, not because I agree with them. That being said, I am legally married in the State of California. I am not legally married in Florida (for example), nor do I have the other 1000 rights that are supposed to come with a marriage. Rights, responsibilities, obligations, privileges....my God damn rights!!!!

I will not be happy until we are all equal, and anybody that "settles" for one State at a time is not representing me. We have to get out of that mentality of not wanting to push too hard...because we will only get what we by rights should have always had if we push, and fight, and scream for what is ours.

I have a lot more to say, but I have to get back to work.

Blessings,

Cindy

I came off kind of....well, kind of like me on my soap box! Sorry, I get very passionate about things I really believe in.

I grieved for weeks after Prop 8 passed because I firmly believe that everyone should have the same joy I have found.

[Cyclopea]

Originally Posted by HowSoonIsNow

I'm one of the ones who want it to go to the SCJ. Probably no surprise there.

I think they have a great case and, of course, a California win--although I'd be happy for all out there--does nothing for other States (some that have rock solid state amendments banning equal marriage) and DOMA still being applied to same sex couples who lack over 1000 benefits.

I also don't think a win in California would do much to change the public opinion of the States around here (that will take generations) where we are located (FL).

Canada has had marriage equality since 2005 and now same sex marriages in Mexico City must be acknowledged by the other 31 states in that country (with a 91 percent Roman Catholic population no less!).

Both of those locations didn't wait until public opinion favoured marriage equality. Both Mexican and Canadian governments, court cases and and/or Supreme Courts took care of it in the name of justice and fairness for all...without a nod to public opinion.

What do you think? Would you consider it a success if the win stays in California and it isn't taken to the SCJ?

Do people still advise patience to those in other States and the issue of Federal rights?

curious.

I think it's a win either way. It doesn't seem like a very good attempt at an appeal- I don't think they are really trying.

I wouldn't mind seeing the massachusetts DOMA case reach the SCOTUS first.
But either way it's a precedent setting win as long as Walker stands. I'm more interested in the recent national poll that shows increasing public support- now an even split: http://politicalticker.blogs.cnn.com...lit-evenly-on-
gay-marriage/

I am very attached to the idea of boise and olsen arguing before SCOTUS, (because they are so experienced and have such a good track record) and hope that they will continue to litigate on our behalf.

As long as the issue is decided before 2012 (when a public vote by californians for marriage equality could completely void the whole case) I'll be happy. Although that's not exactly a loss either.

I can't say I advocate for "patience", because if it wasn't for boise and olsen ignoring the gay establishment's cries for "patience" this trial would not have even occurred. I guess I advocate for steadfastness and celebrating the inevitability of marriage equality in the USA.

[Cyclopea]

On a different topic....

Can anyone find any proof that Maggie Gallagher is actually married?

I can't seem to locate that info and would really appreciate it if someone could post that info for me. I know she claims to be married but can't actually find any info supporting that. Thanks for your time.

[Soon]

Originally Posted by Cyclopea

On a different topic....

Can anyone find any proof that Maggie Gallagher is actually married?

I can't seem to locate that info and would really appreciate it if someone could post that info for me. I know she claims to be married but can't actually find any info supporting that. Thanks for your time.

It was hard to find. I thought she was divorced b/c I know she goes by her original name but I was wrong; it was another *sin* I was confusing it with...unwed motherhood!




A former unwed mother, she married Raman Srivastav in 1993 [4] and has two children. [5] [6]


http://wapedia.mobi/en/Maggie_Gallagher <--not sure if this is proof enough! You sure don't see her husband and children around much (at all?).

[Cyclopea]

Originally Posted by HowSoonIsNow

It was hard to find. I thought she was divorced b/c I know she goes by her original name but I was wrong; it was another *sin* I was confusing it with...unwed motherhood!




A former unwed mother, she married Raman Srivastav in 1993 [4] and has two children. [5] [6]


http://wapedia.mobi/en/Maggie_Gallagher <--not sure if this is proof enough! You sure don't see her husband and children around much (at all?).

Thank you for trying! I saw the wiki entry but it is unsubstantiated. No one has ever seen her "husband" and she does not even wear a ring. I'm looking for any proof whatsoever that she is actually married. Hopefully someone can find that. Thanks!

[Soon]

Originally Posted by Cyclopea

Thank you for trying! I saw the wiki entry but it is unsubstantiated. No one has ever seen her "husband" and she does not even wear a ring. I'm looking for any proof whatsoever that she is actually married. Hopefully someone can find that. Thanks!

Ok. Daniel just walked in and was like, "She's divorced!"

I had typed that out first but had no proof!

He's convinced she is divorced.

I'm getting him on the case.

[Jess]

Originally Posted by Cyclopea

Thank you for trying! I saw the wiki entry but it is unsubstantiated. No one has ever seen her "husband" and she does not even wear a ring. I'm looking for any proof whatsoever that she is actually married. Hopefully someone can find that. Thanks!

If she isn't married... according to NOM supporters, hers is only "half a family". I guess she must get her comfort from her loving God since her friends only consider her a fraction.