Same-Sex Marriage Update

[iamkeri1]

MsT
You are always such a good source of info on this subject. Thanks so much. I am heartened by this vote in the Senate. I do not believe it will pass in the House. BUT I am also heartened by the fact that voting results this week have all opposed reducing rights for people. I feel hopeful that this trend will continue in next years elections. I hope that the Republicans will be held responsible for their total obstructionism in both houses of Congress, and that the Democrats achieve a majority in both houses so we can get DOMA repealed. Another Liberal Supreme Court Justice would be helpful as well, LOL. 14th amendment people!!!!

I am disappointed by the decision in Oregon. The only argument against putting marriage equality to a vote that makes any sense at all is is the lack of money to wage a campaign, and its not a very good answer either.

Waiting has never helped a civil rights movement. PUSHING hard is what works. Putting the issue in people's face over and over again. Forcing them to re-think their positions over and over again until they see the injustice in the current state of affairs. As for the lack of money, look what was accomplished in Ohio by people with very little money (They overturned the anti-union law passed by the republican run state legislature earlier this year) and in Mississippi. (They voted down a bill declaring life to start at the moment of conception) Both of these measueres were accomplised by word of mouth, by people speaking their minds to each other, by door to door campaigns, and with very little money. I think marriage equality (and civil rights in ALL areas for LGBTQ people) should be put on the ballot EVERY year in EVERY state until we have torn down the walls of anti-us laws that keep us from our dreams.
I quote the words of Martin Luther King Jr, spoken in an earlier and yet still ongoing struggle ...

Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself,

Smooches,
Keri

[MsTinkerbelly]

Originally Posted by iamkeri1

MsT
You are always such a good source of info on this subject. Thanks so much. I am heartened by this vote in the Senate. I do not believe it will pass in the House. BUT I am also heartened by the fact that voting results this week have all opposed reducing rights for people. I feel hopeful that this trend will continue in next years elections. I hope that the Republicans will be held responsible for their total obstructionism in both houses of Congress, and that the Democrats achieve a majority in both houses so we can get DOMA repealed. Another Liberal Supreme Court Justice would be helpful as well, LOL. 14th amendment people!!!!

I am disappointed by the decision in Oregon. The only argument against putting marriage equality to a vote that makes any sense at all is is the lack of money to wage a campaign, and its not a very good answer either.

Waiting has never helped a civil rights movement. PUSHING hard is what works. Putting the issue in people's face over and over again. Forcing them to re-think their positions over and over again until they see the injustice in the current state of affairs. As for the lack of money, look what was accomplished in Ohio by people with very little money (They overturned the anti-union law passed by the republican run state legislature earlier this year) and in Mississippi. (They voted down a bill declaring life to start at the moment of conception) Both of these measueres were accomplised by word of mouth, by people speaking their minds to each other, by door to door campaigns, and with very little money. I think marriage equality (and civil rights in ALL areas for LGBTQ people) should be put on the ballot EVERY year in EVERY state until we have torn down the walls of anti-us laws that keep us from our dreams.
I quote the words of Martin Luther King Jr, spoken in an earlier and yet still ongoing struggle ...

Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself,

Smooches,
Keri

Very well said!

[MsTinkerbelly]

BREAKING: CA Supreme Court to issue opinion on Prop 8/standing tomorrow Will be today the 17th!!!!!!By Adam Bink

The California Supreme Court just announced it will issue its opinion tomorrow, November 17th at 10 AM PST regarding whether the proponents of ballot initiatives have authority to represent the state of California when the state’s public officials (governor and attorney general) decline to do so. From the court’s release:

The court granted the request of the United States Court of Appeals for the Ninth Circuit to address the following question: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

Opinion(s) in the above case(s) will be filed on:

Thursday, November 17, 2011 at 10:00 a.m.

For those not familiar with the timeline of the case, this is not a binding decision on the case. That rests with the 9th Circuit Court of Appeals. Some background: in December of last year, the 9th Circuit heard the appeal of Judge Walker’s ruling, which struck down Prop 8. The court heard arguments on the constitutionality of Prop 8, and arguments on whether the proponents of Prop 8 (ProtectMarriage.com, et al) even have standing to represent the state of California in the case as defendant when Gov. Brown and Attorney General Harris decline to do so. For the live-blogging of those arguments, click here.

Rather than immediately rule on those arguments, the 9th Circuit decided to kick the ball over to the California Supreme Court on the issue of standing, asking an important question: do proponents of ballot initiatives in California — in this case, those who collected signatures and raised money and helped pass the initiative — have the authority to represent the state when the state’s public officials decline to defend the initiative? If ultimately not, then Prop 8 goes without a defendant, our side (the plaintiffs) wins and Prop 8 ends.

The California Supreme Court accepted the question, heard arguments (for live-blogging of those arguments at the hearing, click here), and tomorrow will issue its opinion. From there, the 9th Circuit 3-judge panel which heard the appeal of Judge Walker’s decision and kicked the ball over to the California Supreme Court will read the opinion and then issue its own ruling some time after, which actually functions as a decision in the case. It’s important to note that tomorrow’s opinion, while influential, is more of a “hey 9th Circuit, here’s what we think about your question.” It’s not a binding decision per se. That said, many legal observers believe that the 9th Circuit will follow what the California Supreme Court decides on standing. The issue of whether Prop 8 is constitutional is another question.

From there, the ruling can be appealed to the full 9th Circuit en banc, and of course the U.S. Supreme Court, both of which may or may not take up the case.

We’ll have coverage and reaction to the opinion tomorrow here at Prop8TrialTracker.com

[MsTinkerbelly]

Prop 8 trial: Preview of today’s California Supreme Court opinion in Perry v. BrownBy Adam Bink

Today, the California Supreme Court will issue its opinion regarding whether the proponents of ballot initiatives have authority to represent the state of California when the state’s public officials (governor and attorney general) decline to do so. The specific case around which this arises is Perry v. Brown and the proponents being ProtectMarriage.com et al, e.g., the people who filed and helped pass the ballot initiative. It was referred to the California Supreme Court by the 9th Circuit, which will take the California Supreme Court’s opinion and then issue a ruling in the case down the road.

Some background and links:

•You can read more about how we got to this point in the case and why today’s opinion is important in yesterday’s preview post.
•The decision will come down at 10 AM PST/1 PM EST today. Jacob Combs, Prop8TrialTracker.com’s writing intern, will have the decision up as soon as it comes in, and update that post with coverage and reaction throughout the rest of the day. Be sure to refresh the post for updates when it goes up. We’ll also have legal commentary from Shannon Minter of the National Center for Lesbian Rights, who led the legal team for the In re Marriage Cases decision before the California Supreme Court in 2008, among others.
•Meanwhile, on the preview side of things, many questions have come in on how long it would take for the 9th Circuit to turn around a decision in Perry v. Brown after today’s opinion is issued, and the timeline from there. Lyle at SCOTUSBlog has a thought on the timeline for the case:
Although both sides in the historic lawsuit over the gay marriage ban have expected their dispute ultimately to reach the Supreme Court, it now seems quite unlikely that the case will move fast enough in federal court from here on to reach the Justices in time for a decision during the current Term. A case must be ready for the Justices to consider by no later than the end of January in order for it to be decided in the current Term, which is likely to end late next June. The Circuit Court is considering the Proposition 8 case on an expedited basis, but it is doubtful that it could act quickly enough, and that preliminary filings in the Supreme Court could be made soon enough, for the case to be ready within the next two and a half months.

•Elsewhere, Ari Ezra Waldman has an interesting meta piece at Towleroad on the implications of the Perry case overall.
•If you’d like to read the live-blogging transcript of arguments before the 9th Circuit Court of Appeals on this issue, you can find it here. If you’d like to read the arguments before the California Supreme Court back in September, you can find them here. From a legal point of view on whether people should be allowed to stand in for duly elected officials in court (and for the sake of trying to divine how the Court will rule today), they are fascinating.
•Many folks in the comments yesterday opined on whether the California Supreme Court will rule that state law allows for ballot proponents to have standing to represent the state. What’s your prediction of today?
•There’s also a robust debate being had over whether the case should be decided on the merits (e.g. whether Prop 8 is constitutional or not) versus standing (which many people refer to as a more technical issue). Remember that if the proponents of Prop 8 are found to not have standing and that is held up on appeal, the case is dismissed for lack of jurisdiction and Prop 8 ends. On the one hand, many hope the California Supreme Court decides in favor of standing for ballot proponents and the 9th Circuit ultimately grants standing for the Prop 8 backers to represent the state in court so that a final decision can be had on the constitutionality of Prop 8 and perhaps even marriage equality nationwide, e.g. whether laws and constitutions across many states that limit marriage to opposite-sex couples are in violation of the U.S. Constitution. On the other hand, many others wish to see Prop 8 end however it can. Aside from the serious implications of whether ballot proponents can represent the state in California instead of elected officials, one way to view this is that there are two bites at the apple to take down Prop 8: constitutionality and standing. For the sake of allowing couples who desperately wish to wed — some, like Ed and Derence in Palm Springs, with serious medical conditions like Alzheimer’s threatening their right to the pursuit of happiness — many just want Prop 8 to end however it can end, standing or otherwise. There is also a concern on the merits side that 5 Justices cannot be had on the U.S. Supreme Court who find Prop 8 to be unconstitutional. What do you think?
•We’ll see you when the ruling comes down later today

[Jess]

Moving to same sex marriage state. Next... DOMA...

[MsTinkerbelly]

BREAKING: CA Supreme Court rules Prop 8 proponents do have standing to appeal
By Jacob Combs

This morning, the CA Supreme Court ruled that the proponents of Prop 8 do have standing under state law to appeal the decision in Perry v. Brown:

…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.

For background on how we came to this point, what today’s opinion means and where we go from here, Prop 8 was declared unconstitutional by a California district court in August 2010. Both the duly elected governor and attorney general at the time (Arnold Schwarzenegger and Jerry Brown, respectively) as well as the governor and attorney general elected in the 2010 elections (Jerry Brown and Kamala Harris, respectively) have declined to represent the state in the case, believing Prop 8 to be unconstitutional. So the proponents of Prop 8 (ProtectMarriage.com et al, who put the measure on the ballot and worked to pass it in the first place) stepped forward to do so.

The case was appealed to the 9th Circuit, which not only heard arguments on whether Prop 8 is constitutional or not, but whether the proponents — unelected, unaccountable ProtectMarriage.com et al — even have standing to defend Prop 8 in the first place. The 9th Circuit decided to ask the California Supreme Court whether or not proponents of ballot initiatives have standing under California law to represent the entire state when the state’s elected officials refuse to do so. Today, the Court responded to that question. The CA Supreme Court’s decision is not binding on the 9th Circuit: it’s really more of an advisory opinion. However, it is a very influential opinion that the 9th Circuit will take very seriously.

Why is this all important? Because there are essentially two bites at the apple to take down Prop 8: constitutionality and standing. Whether the courts find Prop 8 to be constitutional is critically important for obvious reasons. But if the 9th Circuit rules that the proponents of Prop 8 do not have standing and we win on appeal, Prop 8 will end. Beyond that, it has critical implications for the ballot initiative process in California and who represents the state.

As for next steps, many legal observers believe the 9th Circuit is likely to adopt the CA Supreme Court’s opinion and say Prop 8′s proponents do have standing to appeal. That’s not for certain, however, since the proponents could have standing under California law but not in federal court (i.e., a federal appeals court). It’s uncertain when the 9th Circuit will issue its ruling, though many legal observers believe it will be sometime in the next few months, and it may even hold another hearing for additional arguments.

The full ruling can be found here. Check back throughout the day for updates and analysis.

Update 8: Some more notes from the AFER press call:

Olson and Boies expressed hope that there would be no need for further hearings at the 9th Circuit, since both sides made detailed arguments at last year’s hearing and nothing has changed regarding the facts of the case. Furthermore, they stressed that both the district court and the 9th Circuit have agreed several times to expedite the case in the past, and predicted that it would do so again moving forward.

One reporter asked whether AFER’s team could drop the standing issue and just ask the court to consider the case on the merits. Both Olson and Boies made it very clear that every court has to determine whether a specific case is in its jurisdiction, and that therefore the issue of standing is one that is brought up by the court itself, not the litigants. Parties can’t waive this discussion—if the court asks them to argue about standing, they must. They also predicted that the if the case ended up before the US Supreme Court, they believe that court would ask them to address the issue of standing just like the 9th Circuit did.

Update 7: I was on a press call with AFER, which is sponsoring the case. Some notes:

Ted Olson, David Boies and Chad Griffin spoke on the call. They hope the 9th Circuit will proceed without further argument, although in some cases, they want one more briefing. They do not want to predict a day or month, however. Further, as we’ve explained here at P8TT, either side can seek review of the case to the 9th Circuit or the US Supreme Court. If petitions are filed in the Supreme Court after the panel decision, they’d be filed this spring. No prediction on when the US Supreme Court would take the case — it could be in June, or in October.

Update 6: NCLR’s Executive Director Kate Kendell also weighs in:

“We disagree profoundly with the California Supreme Court’s holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state’s elected executive officers. Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the Ninth Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-sex couples in California have lived under the shadow of this unfair law for far too long.”

Update 5: Statement from Lambda Legal’s Legal Director, Jon Davidson:

While today’s ruling from the California Supreme Court is disappointing, the good news is that the Perry case is now back in federal court, where we expect a quick victory. It’s important to keep in mind, though, that today’s ruling addresses only a procedural legal question. The key issue in this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right. A federal court has already ruled that the federal Constitution prohibits the voters from doing that and that Prop. 8 therefore is unconstitutional. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry.
In addition, today’s ruling does not settle the federal law question of whether Prop 8 proponents have standing in federal court. It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don’t. Regardless of today’s decision, we at Lambda Legal believe that the U.S. Supreme Court has made clear that initiative proponents don’t have that right.

In the end, the proponents of Prop. 8 are just people with an opinion. That does not make them entitled to stand in for the government when they don’t agree with its decisions. We believe the U.S. Court of Appeals for the Ninth Circuit should rule that Prop. 8′s proponents lack standing under federal law and, if the judges who originally heard the appeal rule otherwise, that the full Ninth Circuit or the U.S. Supreme Court should rule that initiative proponents are not entitled to take over the government’s role.

Even if the federal courts find that the proponents have the right to appeal, we continue to believe that Prop. 8 is unconstitutional and that the appellate courts will agree. As Judge Walker ruled, there is not even a legitimate government interest in denying same-sex couples access to the title and status of marriage when the state provides them all of the rights, benefits, and duties afforded different-sex couples through marriage. Prop. 8′s only purpose was to send the message that the same-sex couples don’t deserve to be seen as equal to different-sex couples and that message is one the federal Constitution prohibits. That is especially so when, as here, the state supreme court has ruled that denial of access to marriage violated the state’s guarantee of equal protection. What Prop. 8 did was amend the California Constitution’s equal protection clause to create a gay exception and provide that all people in the state have equal rights except for lesbians, gay men, and bisexuals. That too is something the U.S. Constitution does not allow.

We therefore remain very optimistic that, one way or another, Prop. 8 will eventually be overturned.

Update 4: Attorney Adam Bonin over at DailyKos adds his take.

Update 3: More from Shannon on timing:

It is likely the Ninth Circuit will issue a ruling fairly quickly, since they agreed to hear the case on an expedited basis. But even if they do, it likely will not be soon enough to permit the Supreme Court to hear the case during its current term. It is also possible that the Ninth Circuit may ask for supplemental briefing, which would delay things further.

Update 2: Shannon Minter, Legal Director at National Center for Lesbian Rights who led the legal team to win In re Marriage Cases at the California Supreme Court in 2008, sent his reaction in over e-mail:

This is a terrible decision in terms of its impact on California law. The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come. That said, the Court’s ruling means that the Ninth Circuit will almost certainly find that the proponents of Prop 8 have standing to pursue the appeal, which means that the Ninth Circuit will now decide whether to affirm or reverse Judge Walker’s decision finding that Prop 8 is unconstitutional. If the Ninth Circuit agrees with Judge Walker, the Supreme Court is very likely to take the case. In the bigger picture, this is good news for same-sex couples in California. Prop 8 is blatantly unconstitutional for many reasons—not only because it deprives same-sex couples of a basic right, but because it was enacted for the sole purpose of targeting a particular group in order to deny them equal protection of the laws.

Update 1: Statement from Courage Campaign

California Supreme Court Rules Prop 8 Proponents Have Legal Standing to Appeal Judge Walker’s Decision Regarding Prop 8

Statement from Rick Jacobs, Chair and Founder of the Courage Campaign

“While we respect the recommendations that the California Supreme Court made to the 9th Circuit Court of Appeals– that they grant standing to the proponents of the so-called ProtectMarriage.com — it is only a recommendation,” said Rick Jacobs, chair and founder of the 750,000 member Courage Campaign. “Allowing the Prop 8 proponents to have special rights in Court may open the floodgates to wealthy special interests to do the same. The judges of the 9th Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court. Regardless, we are confident that justice and love will prevail.”

Throughout the Perry v Schwarzenegger (now Perry v Brown) Prop 8 trial, Jacobs live-blogged daily from the courthouse and documented all of the latest motions and court rulings. Prop 8 Trial Tracker (www.Prop8TrialTracker.com), a project of the Courage Campaign Institute, has logged over 4 million page views, 110,000 comments and is the #1 Google search result for “Prop 8 Trial.” The highly-popular blog has followed every aspect of the Prop 8 trial, in addition to its NOM Tour Tracker that followed the National Organization for Marriage on three tours across the country

[iamkeri1]

OK This sucks. One f-ing delay after another by these people who have no skin in the game. So now I see the wisdom of placing same sex marriage on the ballot again in 2012. Peoples opinions have changed over the last couple of years and we can at least hope it will pass.

I wonder if passage of a new law would make this case moot in the opinion of the court, and result in it perhaps being thrown out? If so, then that will delay federal court exploration as to the constitutionality of any marriage law that descriminates against a specific group, since the new CA law will apply to CA only.

Thanks for the updates, Ms T.
Smooches.
Keri