Posts filed under ‘Prop 8 trial’

Other Prop 8 briefs this week

By Adam Bink

A few briefs this week submitted that I haven’t had a chance to cover:

From the Pacific Justice Institute on behalf of Rev. Joshua Beckley, arguing over the issue of standing:

View this document on Scribd

Judicial Watch, over the same issue:

View this document on Scribd

And a great brief submitted by Equality California, NCLR, and Lambda Legal, which can be found here (PDF):

2011-05-02 EQCA, NCLR, Lambda Legal Amicus Brief

May 6, 2011 at 11:11 am 19 comments

Fit to rule on Prop 8

By Adam Bink

I linked to it in yesterday morning’s roundup, but it’s worth noting the following paragraphs of Tuesday’s NYTimes editorial:

The claim is bogus. It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their “impartiality might reasonably be questioned.”

Our justice system relies on trusting members of the nation’s diverse bench to put aside their personal characteristics and abide by their duty of even-handedness. Any other approach would invite foolish and unacceptable results — female judges being kept from hearing rape or sexual discrimination cases, or black judges from hearing cases involving racial bias or civil rights.

Indeed, following the open-ended logic of Proposition 8’s lawyers, it is hard to think who, if anyone, is qualified to rule on this case. Certainly not wedded heterosexual judges whose marriages stand to be somehow diminished, according to the antimarriage crowd, if Judge Walker’s ruling survives appeal in federal circuit court.

Some ethics experts say the ruling might have triggered credible conflict-of-interest concerns if Judge Walker were intending to marry in California. But that is misguided, too. There is no basis to think Judge Walker’s personal relationship played a role in his ruling on the evidence and on whether a constitutional reason exists to limit anyone’s freedom to marry.

The idea that a seasoned, Republican-appointed jurist was unfit to hear the case, and that his decision should be set aside on flimsy ethics grounds, is preposterous.

More of this, please. Even if the proponents of Prop 8 lose their argument, the goal is to plant doubt, to make the public believe that the referees were biased on this one. Respected, independent news sources stepping in to play the role of judging the merits of such an argument is very important.

May 5, 2011 at 6:00 am 35 comments

California bill to give Prop. 8 proponents legal standing dies in committee

By Adam Bink

Excellent news. The bill may have even been unconstitutional anyway:

A bill to give initiative proponents the right to defend voter-approved ballot measures against legal challenges was rejected by a Senate panel yesterday.

Senate Bill 5 targets an issue that has emerged in the court fight over Proposition 8, the 2008 voter-approved ban on same-sex marriage that was ruled unconstitutional by a federal judge last year. The Senate Judiciary Committee rejected the bill on an 3-2 party-line vote.

Then-Gov. Arnold Schwarzenegger and Gov. Jerry Brown, acting as attorney general, decided not to defend the measure in federal court, a position continued by Attorney General Kamala Harris. A federal appeals court considering the initiative proponents’ request to overturn the federal judge’s ruling has asked the state Supreme court to decide whether state law gives initiative sponsors standing to intervene in the case.

California voters deserve to have their position defended when an initiative is challenged in court and the State refuses to defend it,” GOP Sen. Tom Harman, author of the bill and a former primary candidate for attorney general, said in a statement. Harman introduced a similar bill in 2009 that also failed to make it through the Legislature.

Opponents, including representatives from gay-rights group Equality California and the National Center for Lesbian Rights, argued during yesterday’s committee hearing that the proposed change would conflict with the court’s existing power to decide who can intervene in a case. They also argued that law would undermine the constitutional responsibilities delegated to the state attorney general.

Good job, EQCA and NCLR.

May 4, 2011 at 12:53 pm 47 comments

Prop 8: New briefs in support of plaintiffs’ arguments on standing issue

H/t to Kathleen

By Adam Bink

Several briefs were filed today in support of the arguments made by the Perry plaintiffs on the standing issue. The first is from California Attorney General Kamala Harris. Notable excerpts (bolding mine):

An initiative’s official proponents have a great interest in the validity of a successful measure, but a limited role in California’s initiative process.Our law does not protect their post-adoption interest by giving proponents the authority to represent the state’s interest against a challenge to the validity of a measure that has become state law. And our law does not afford official proponents any legal right, arising solely from their role as proponents, that is injured by a judgment invalidating a law adopted by initiative. Instead, once an initiative measure is approved by the voters, a court considering a challenge to the measure’s validity may grant the measure’s proponents leave to intervene and participate in its defense, or as amicus curiae, but only to represent their own interests as individuals, not those of the state.


The limited role of initiative proponents in stimulating an initiative process is defined by statute. The voters, by adopting an initiative, do not elect initiative proponents to represent the state. In addition, the initiative power is a reservation of the legislative power of government. It does not encompass the executive authority to enforce the law once passed, or to defend the state’s interest in the validity of state law. Finally, to the extent that California courts have granted official proponents permissive leave to intervene in cases challenging the validity of a law adopted by initiative, they have done so to allow proponents to represent their own interests, not those of the state. The interests of the state are necessarily represented by the public officials exercising executive powers and against whom relief is sought.

The Attorney General “has charge, as attorney, of all legal matters in which the State is interested . . . ,” and “shall attend the Supreme Court and prosecute or defend all causes to which the State or any state officer is a party in his or her official capacity.” (Gov. Code, §§ 12511, 12512.) Accordingly, the Attorney General must give consent to a private person to sue in the name of the people. (People ex rel. Ferguson v. Bd. of Sup’rs,etc. (1869) 36 Cal. 595, 605.) She is the only person to whom authority is given by law to appear for the people in this Court. (People ex rel. Livingston v. Pacheco (1865) 29 Cal. 210, 213 [“A private person has not the right or power to use at his election, the name of the people for the purpose of obtaining redress for private wrongs”].) It is also clear that the Governor and Attorney General exercise discretion in performing these executive functions, particularly those involved in conducting litigation on behalf of the state. The Attorney General “is invested with a discretion which a private citizen may not coerce or court control.” (City of Campbell v. Mosk (1961) 197 Cal.App.2d640, 647-648.) Nor may a court annul the Attorney General’s decision,except in the event of extreme abuse of discretion. (Id. at p. 651.) Part of this discretion is to decide, with respect to asserting the interest of the state 18 in litigation, what is and what is not in the public interest. (Id. at p. 648.)The courts of appeal have consistently held that: The decision of the Attorney General whether to participate in a lawsuit, where the State has no financial interest at stake nor possible liability, is a decision purely discretionary and . . .exclusively within the province of the Attorney General’s office and not subject to judicial coercion. People v. Karriker (2007) 149 Cal.App.4th 763, 786 [quoting State of California v. Superior Court (1986) 184 Cal.App.3d 394, 398].)


State law protects no interest of initiative proponents as initiative proponents in the validity of a law they proposed for the same reasons that state law does not authorize initiative proponents to assert the state’s interest in the validity of state law. The exercise of the reserved legislative power by the electors ends with the adoption or rejection of the initiative measure, and any rights of initiative proponents necessarily end there, or earlier, with submission of a ballot argument. (See, ante, at pp. 11-12, 15.) Any continuing interest that proponents may have in defending an initiative enactment is recognized, at the discretion of the court considering an enforcement challenge, by granting permissive leave to intervene or to address the court as amicus curiae, but it is not protected as a matter of right. (See, ante, at pp. 21-25.) To the extent that the people, state officials, or the state itself have an interest in the validity of an adopted initiative, the authority to represent that interest lies with the public officials responsible for enforcing the law, and ultimately with the Governor and Attorney General. 13 (See, ante, at pp. 16-21.)

On pages 18-19, Harris also cites several cases in which the California Attorney General declined to appeal cases, or in others, did not defend statutes (citing AG Thomas Lynch’s decision to not defend Proposition 14 and also file an amicus brief arguing it was unconstitutional under the Equal Protection Clause. The whole thing, an extremely well-written brief, is worth reading. For even the layperson, there are simple and clear arguments citing numerous examples in case law.

The second is from a coalition of progressive faith groups, including a Metropolitan Community Church alliance, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association, and several other denominations. I am running out the door so I can’t read thru this one, but wanted to get the brief up. Both briefs can be found in their entirety below.

View this document on Scribd
View this document on Scribd

May 2, 2011 at 5:39 pm 39 comments

Irrational Prop 8 Demands Get Their Day in Court

Congrats to Matt on the new website and name for the show, but same great content -Adam

By Matt Baume

What really prompted a prominent law firm to give up its defense of DOMA, and lose a key lawyer in the process? The date’s been set for a showdown over the secret Prop 8 trial tapes, and over Judge Walker’s personal life. Rhode Island legislators give up on marriage in favor of civil unions, and New York keeps ratcheting up the pressure with a massive lobbying effort slated for next week.

There was a surprise twist to the Defense of Marriage Act this week. The law firm King & Spalding had initially signed on to defend the anti-gay law, but then abruptly ended their representation on Monday. Paul Clement, the lawyer in the case, responded by resigning from King & Spalding so that he could continue DOMA’s defense with another firm.

So, why did King & Spalding drop the case? They said that it just wasn’t vetted properly, but there’s a lot of speculation that they were heavily pressured by clients and colleagues to get out of the business of hurting gay families.

Now, a few people — including Attorney General Eric Holder — have come to Paul Clement’s defense, saying that our legal system has a duty to secure representation for even the most unpopular clients, because defending unpopular clients is necessary for protecting larger fundamental freedoms.

For example, if we want to protect the freedom of expression, that includes defending racist or violent speech, because there’s a larger freedom at stake.

But that’s not really the case here. What’s the larger freedom at stake with DOMA? There isn’t one. DOMA limits freedoms. Standing up for a cause can be noble. But not if your cause is denying health care, deporting husbands and wives, and forcing widows out of their homes.

There’s simply no justification for Paul Clement’s continued defense of this harmful law, which has even been renounced by the people who wrote it.

The good news is that more Senators have signed on to DOMA’s repeal, and we now have the 10 votes needed to pass it out of the Senate Judiciary Committee.

The next step is to pressure Patrick Leahy, the committee chair, to hold hearings on the Respect for Marriage Act. So Vermonters, you know what to do: go to and tell him it’s time to hold hearings on the Respect for Marriage Act.

In the mean time, we can all mark our calendars for June 13. That’s going to be a big day in the Prop 8 case, as we’ll be hearing arguments on two separate controversial issues.

The first is whether the public should be allowed to see videotapes of the Prop 8 trial from last year. The answer, obviously, is yes, because we do not live in a country that makes a habit of holding secret trials. But the anti-marriage folks don’t want anyone to see how badly they lost, so they’re making the public jump through all these hoops in order to see our own justice system at work.

The second question is even more unbelievable. They’re saying that Judge Walker’s ruling on marriage should be thrown out because he might want to get married someday. Not that he said he would get married, not that he tried once before, just might. Hypothetically. Maybe. Or not. Who knows?

If that sounds crazy to you, you’re not alone. Just about every legal analyst in the country is shocked that they’re trying to make an issue out of Judge Walker’s marital plans.

It just doesn’t make sense — not even to their own people. Here’s what Maggie Gallagher had to say a few months ago about whether it was relevant that Judge Walker was rumored to have a partner.

MAGGIE GALLAGHER: First of all, it’s relevant. It could be relevant. It’s not irrelevant. If he had upheld Prop 8, I think it would be even more relevant. I don’t believe that it’s totally irrelevant. I’m not sure it is relevant, in the sense that I do know a small number of people who supported Prop 8 who were gay. So it’s not necessarily relevant.

Maybe they’ll get their story straight by June.

There was a big disappointment in Rhode Island this week, with House Speaker Gordon Fox deciding that they didn’t have enough votes to pass a marriage law this year. As a result, they’ll be introducing a civil unions bill on Tuesday of this week.

It’s a big letdown, especially since polls in Rhode Island showed that voters supported the marriage bill and nobody’s satisfied with the civil unions compromise. Civil rights groups say that it doesn’t go far enough, while the Catholic Diocese said this week that it doesn’t want gay families to have any protections.

Things are even worse in Minnesota, where lawmakers are moving towards implementing a second marriage on top of an already existing prohibition. The proposed constitutional amendment passed the Senate Judiciary 8 to 4 on party lines, and is expected to pass the House and Senate later this year, which would put it before voters in 2012.

There’s a bit more cause for optimism in New York, where marriage currently has 26 of the 32 votes needed to pass the Senate. Several lawmakers have yet to take a stand, including Democrats Joe Addabbo and Shirley Huntley of Queens, and Republicans James Alesi of Fairport, Greg Ball of Brewster, and Joseph Griffo of Utica. Empire State Pride Agenda will hold a lobbying day for marriage in Albany on May 9, but a week later NOM and its allies will hold an anti-marriage rally on May 15.

Meanwhile, Equality Ohio founder Lynne Bowman will serve as interim Executive Director of Equality Maryland while that organization searches for a permanent leader. Morgan Meneses-Sheets was abruptly fired last week after a disappointing legislative session. Her replacement will be expected to revive attempts to pass marriage and anti-discrimination laws in 2012.

And Poland announced this week that the country would soon allow its citizens living abroad to get married, although Poland itself still wouldn’t recognize those marriages.

Those are the headlines. Visit for more on all of these stories, and head over to and click “Like” to get news alerts and headlines right on your wall. Click over here to subscribe to weekly updates, or over to the right to watch some of our previous episodes, such as our interview with Josh Vandiver about how DOMA could separate him from his husband, and our interview with Friendfactor’s Brian Elliot about moving New York legislators closer to marriage.

We’ll see you next week.

May 2, 2011 at 6:27 am 30 comments

Hearing on Prop 8 motion to return video recordings set for June 13

By Adam Bink

Judge Ware set the date for a hearing on the Proponents’ motion to return video recordings for June 13th at 9 AM. This will precede another hearing in front of Judge Ware, which is set for July 11th The hearing set for July 11th, on the topic of vacating the stay, is moved to June 13th. The hearing will also precede another hearing on our side’s motion to unseal the video recordings, which will be set once the Proponents’ motion is ruled upon.

What makes the June 13th hearing so interesting is that Judge Walker is ordered to be present:

All participants in the trial, including the presiding judge (now retired), who are inpossession of a recording of the trial proceedings, are ordered to appear at the hearing on June 13,2011, to show cause as to why the recordings should not be returned to the Court’s possession.
Which should make for some interesting drama. Rest assured P8TT will be covering it. Full order setting the hearing found in the Scribd doc below:
View this document on Scribd

April 29, 2011 at 8:26 am 46 comments

More coverage and analysis on Prop 8 sponsors’ motion to vacate ruling

By Adam Bink

A roundup of some interesting notes and analysis pieces this morning.

From SCOTUSBlog (bolding mine on the process parts):

In the new maneuver, the opponents of same-sex marriage relied upon comments that Walker had made in April, after his retirement, to a group of reporters, acknowledging publicly for the first time that he had been engaged in a ten-year same-sex relationship with a doctor.  The motion asserted that the opponents were “not suggesting that a gay or lesbian judge could not sit on his case.”  Rather, they argued that Judge Walker had a personal interest in the outcome of the case, because he may wish to marry his partner if Proposition 8 no longer exists.  At a minimum, the motion argued, he should have disclosed that relationship and whether he has any interest in marriage so that the parties in the case could evaluate whether to formally demand that he step aside under federal laws governing such disqualifications.

To help bolster their argument that Walker’s impartiality is clearly open to question, the motion listed a series of actions that he had taken during the progress of the case, and then commented: “The unprecedented, irregular, and/or peremptory nature of these rulings is difficult — very difficult — to take as the product of an objective, impartial judicial mind.”  While conceding that judicial rulings by themselves almost never amount to a valid basis for a disqualification demand, these rulings, it said, “are nevertheless highly relevant to the inquiry” under federal law.

Technically, the proposed order that the opponents filed with their motion would have Judge Ware declare that he “would grant” the motion to wipe out the ruling, so that the opponents could then go to the Circuit Court and ask it to send the current appeal back to him for that purpose.

At the Circuit Court, aside from the pending motion to permanently seal the videotape of the trial, the case is in an inactive state while the Circuit Court panel awaits a ruling — not expected until this Fall at the earliest — from the California Supreme Court on an issue of California state law that may influence whether the Proposition 8 backers’ appeal against the Walker ruling can proceed.  Of course, if the motion to vacate were ultimately granted, that would end the case, although an appeal of that would surely be pursued by the two same-sex couples who filed the successful challenge to Proposition 8.

A baseball analogy from The Atlantic’s Andrew Cohen, former chief legal analyst for CBS News and Murrow Award winner, in a piece titled “Why the New Prop 8 Argument is Bogus — And Offensive”:

The legal argument that a veteran federal judge cannot fairly preside over a trial involving gay marriage because he is gay and in a relationship is so preposterous that it requires me to use a sports analogy to express my disdain. I know: Now-retired U.S. District Judge Vaughn Walker, first appointed by President Reagan and then re-appointed by President George H.W. Bush, surely deserves better than that for his patient work on the Proposition 8 case. But it’s the best I can do in the circumstances.

So let me take you to the baseball diamond. It’s the Yankees versus the Red Sox (don’t read anything into my selection of teams, pick your own if you’d like). The Red Sox are crushing their opponents. It’s 15-0 in the 6th inning. The Yankees’ pitchers aren’t pitching and the Yankees’ hitters aren’t hitting. The bases are loaded with Sox and New York manager Joe Girardi decides after a visit to the mound notto replace his pitcher, who has been battered about like a rag doll by Boston’s hitters.

What we have here with this new argument, then, is a vestige of the very bias and bigotry that gay and lesbian Americans have had to deal with for all these years.”Are you sure about that decision, Joe?” the home plate umpire politely asks Girardi as the manager begins to walk off the field. “I just want to make sure I’ve given you a chance to try something else.”

“We’re fine, ump,” Girardi responds. And the game continues. It ends 21-0. Eight months later, the Yankees find out that the umpire was dating someone from Boston. They immediately call Major League Baseball Commissioner Bud Selig and share with him their new evidence.

“The game was rigged!” the Yankees cry. “That ump had it in for us. The fact that he is dating someone from Boston creates a reasonable suspicion that he was unfair and called the game in favor of the Red Sox. The game should be a do-over.”

“But you guys got crushed,” Selig responds. “It was never a close game. What, possibly, could this umpire have done to influence the impact of this game more than he otherwise would do in the normal course of business?”

“He’s from Boston, judge,” the Yankees say. “That’s all you really need to know.”

That is the magnitude of the silliness we are talking about here. That’s how much of a rout last summer’s Proposition 8 trial was. And that’s why the argument, now made by some same-sex marriage opponents, is so dubious. Having lost on the merits, and with polls showing support for same-sex marriage growing, Prop 8’s tribunes want to vacate Judge Walker’s landmark ruling because he is gay and in a relationship. That’s right. Having come to court with virtually no evidence or arguments, having had their hats handed to them by same-sex marriage proponents David Boies and Ted Olsen, Prop 8’s tribunes now are saying that they were jobbed by the umpire’s bias.


Judge Walker’s decision is going to stand or fall on appeal on its merits; whether the ballot initiative violated the equal protection rights of California’s citizens to marry their same-sex partners. It is going to be decided upon whether his findings of fact and conclusions of law were correct, and reasonable, and legally justifiable. It is not going to be decided by whom the judge is dating or what his sexual orientation may be. And it is certainly not going to be decided because a trial judge failed to disclose to the litigants before him who he was (or was not) seeing during the trial.

No reasonable person in America today would challenge a black judge by claiming he could not fairly judge a civil rights case. No reasonable person in America today would challenge a female judge claiming she could not fairly judge a case about women’s health. What we have here with this new argument, then, is a vestige of the very bias and bigotry that gay and lesbian Americans have had to deal with for all these years. How ironic that a case designed to eliminate official prejudice would generate such prejudice against an official. Like I said, Judge Walker surely deserves better than this offensive new wrinkle in the case of his lifetime.

P8TT friend and NCLR Legal Director Shannon Minter, in a statement, gets it right:

“This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits. This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds. This is part and parcel of the underhanded way the Prop 8 campaign itself was run-based on lies, insinuations, and unsupported innuendo.”

Which is why, as I wrote last night, this may turn out to be a mistake.

Finally, if you missed it, Maggie’s prebuttal. Or something.

Any interesting takes you’re reading?

Update: A very good segment from KTVU in San Francisco, including Andrea from EQCA and Professor David Levine at UC Hastings.

April 26, 2011 at 9:21 am 120 comments

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