Posts filed under ‘Background’

DOMA for Dummies: This Week in Prop 8 for Feb 28, 2011

By Matt Baume

Can you even believe this week?

President Obama this week ordered an end to the defense of the Defense of Marriage Act, which is huge. We’ll check in with Marriage Equality USA’s Molly McKay and Immigration Equality’s Lavi Solloway to find out exactly what this means, in addition to talking about Dianne Feinstein’s surprise announcement about DOMA’s repeal.

And the surprises don’t stop there. Ted Olson asked the California Supreme Court this week to expedite oral arguments against Prop Eight, and to start allowing gay couples to start marrying now.

In addition, we all thought Imperial County was out of the game for good, but a new foe popped up this week at the very last minute.

All that plus more good news from Hawaii, Maryland, Delaware, and Rhode Island. Whew!

The DOMA situation is pretty complicated, so let’s break it down.

DOMA goes back to 1996, and has three main components. Section 1 just states the name Defense of Marriage Act. Section 2 says that no state has to recognize marriages from any other state. And Section 3 says that the federal government can only recognize marriages between opposite genders.

The law was passed in response to a court case in Hawaii, Baehr versus Miike, which fifteen years ago looked like it might legalize same sex marriage. We’ll come back to that case in just a few minutes.

Now, in the last few years, five court cases have challenged DOMA in different ways. The one thing that ties them all together is that they all have awkward names.

First is Commonwealth of Massachusetts versus United States Department of Health and Human Services. Then there’s Gill versus the Office of Personnel Management, Dragovich versus the US Department of the Treasury, Golinski v. United States Office of Personnel Management and Pedersen et al. versus the Office of Personnel Management, and Windsor versus United States.

And there have been other challenges, but those six are the most recent and the most likely to succeed. By the way, big big thanks to Box Turtle Bulletin for gathering a lot of this information together.

So, these cases were filed in 2009 and 2010, and the circumstances of each one is a little bit different.

Since Massachusetts legalized marriage equality, the state Attorney General there sued over Section 3 of DOMA when a legally marriage couple was denied burial in a federal veterans’ cemetery. Judge Tauro, of the US District Court for Massachusetts in the First Circuit, ruled in our favor in July of 2010. The Department of Justice Appealed in October.

Gill was also filed in US District Court in Massachusetts, also challenged Section 3, also was decided in our favor by Judge Tauro in July of 2010. And also was appealed by Justice in October of 2010.

Dragovich is in the District Court for the Northern District of California, part of the Ninth Circuit, and concerns retirement benefits. That one again challenges Section 3, and although it hasn’t yet been decided by Judge Wilkin, she did indicate that she was likely to rule in our favor.

Golinski’s interesting because Karen Golinski isn’t just a federal employee — she’s an employee of the Ninth Circuit Court of Appeals. And even though a judge has already ordered that she’s entitled to spousal benefits, the federal government refuses to obey because of DOMA. So now, she’s not just an employee — she’s also a plaintiff.

Pedersen was filed in the District Court of Connecticut, which is part of the Second Circuit. That’s important because there’s no precedent in the Second Circuit for dealing with sexual orientation discrimination. Five couples sued, again over Section 3, with filings due in March. The judge in that case is Vanessa Bryant.

And finally, Windsor. A couple from New York got married in Canada, one of them passed away, and the survivor was taxed on the estate as though they were single. Filings are due in March, the case challenges Section 3, the judge is Barbara Jones, and the court is US District Court for the Southern District of New York. Also part of the Second Circuit.

Okay. Got all that? Now, here’s what’s changing.

Until this week, Obama and Attorney General Eric Holder have gotten a lot of criticism for defending DOMA. Their rationale was that precedent compelled them to defend existing law.

Of course, they weren’t defending it very hard. That annoyed anti-gay groups, who felt that they could do a better job.

Now, the Justice Department is saying that in the Second Circuit courts, Section 3 of DOMA is unconstitutional. So that means that they won’t defend DOMA in Pedersen or in Windsor. They also said that they’ll cease to defend DOMA in the first circuit court.

In Dragovich and Golinski, they still might. That’s because “unconstitutional” in one court doesn’t necessarily equal “unconstitutional” in another court. It’s complicated. In essence, their position is that if you just casually glance at DOMA, there might potentially be a rational basis for keeping it around. But if you strictly scrutinize it, then it falls apart. COMPLICATED.

So, what’s next?

For now, DOMA’s still on the books. And with Justice out of the way, anti-gay members of Congress have the opportunity to step in and defend it themselves, which is what a lot of anti-gay groups wanted to happen all along.

They have until mid-March to decide exactly what they’re going to do, but they’ve been preparing for this for weeks just in case, so we expect them to have a pretty well-organized campaign.

This could also affect on a lot of other cases, starting with Prop 8 case.

I caught up with Marriage Equality USA’s Molly McKay in the Castro this week to find out more.

Matt: “So, how do you think the wording of Obama’s decision, specifically about using strict scrutiny, how is that going to affect, or potentially could affect, the Prop 8, Perry versus Schwarzenegger? Do you think that could have some ramifications?”

Molly: “Absolutely. The fact that they’ve weighed in and the President of the United States and the Attorney General of the United States lay out the case for why they believe that heightened scrutiny should apply for sexual orientation is really powerful. And will make a huge difference in the litigation as it’s moving forward. That was as big as what they declared today, really.”

And oh yeah! The American Foundation for Equal Rights requested this week that the Supreme Court expedite oral arguments against Prop 8 and that the Ninth Circuit Court lift the stay.

The Prop 8 case lives in two different courts right now: the California Supreme Court is considering standing, or who has the right to defend Prop 8. The Ninth Circuit Court of Appeals is deciding whether Prop 8 is constitutional.

If the courts agree with AFER, then it could mean that we’ll hear arguments really soon about who has standing to intervene, rather than in September as was originally planned. It would also mean that the Ninth Circuit would issue its decision on constitutional grounds much sooner. It could also potentially mean that gay couples could start getting married right away. Like, this afternoon. So … ?

Matt: “What do you think the chances are of them expediting the arguments?”

Molly: “Honestly? Hope springs eternal. No matter what, whether it’s spring, summer or fall, we will be there, back on the California Supreme Court steps, and we will be watching that hearing. In some ways, it’s sort of a side-journey, because ultimately that case may be the one that’s decided on the constitutional merits and things are moving faster, the world’s moving forward. It’s a great suit, can’t have better legal advocates. So whether we win on standing or even better maybe the Constitutional issues, change is in the air for sure. And of course, we’re so lucky to have a front seat to so much that goes on here. But it calls us to be responsible for that, and to make sure that we show up and we represent our entire country on all of these issues, because this is where so much of it is happening. And the fact that Feinstein, our Senator, is now the one repealing DOMA! Huge! Totally exciting. California rocks.”

Oh yeah! Dianne Feinstein. We’re not even done talking about the major surprises this week. Senator Dianne Feinstein announced that she intends to introduce a bill to repeal DOMA. So even though there’s all these judicial challenges floating around, DOMA might disappear legislatively.

That’s a big deal for everyone, but especially for folks working towards immigration equality. The US continues to deport legally married spouses because of DOMA. For more on what that means, let’s check in with Lavi Soloway. He’s the founder of Immigration Equality and Stop the Deportations.

Matt: “So, Lavi, tell me about one or two of the binational couples that you’re representing. Before today, what was your strategy for fighting their deportation?”

Lavi: “Sure. We’re representing a group of about a dozen gay or lesbian binational couples, all of whom are married. And in each case, the foreign spouse is in deportation proceedings. And our strategy beginning last summer when the Defense of Marriage Act was struck down as unconstitutional in Boston by a federal court judge, our strategy has been to file I-130 petitions, which are marriage-based green card petitions, on behalf of those couples. And to fight for a halt in deportation while those petitions are being considered.”

Matt: “So, before today, what was the administration’s response to those petitions?”

Lavi: “Well until today, the expectation was that because of of the Defense of Marriage Act, those petitions would necessarily be denied. That all changed on Wednesday, though. Because if the administration, if we take the administration at its word that it truly believes that he Defense of Marriage Act is unconstitutional, it’s clearly acted consistently with that by withdrawing its defense from cases currently pending in the first circuit, we also expect them to exercise prosecutorial discretion, for example in the immigration cases, and not give effect to unconstitutional and discriminatory law, the Defense of Marriage Act. We now have two new voices arguing our position. President Obama and Attorney General Holder. And we believe that we will soon be able to expand our outreach effort to Secretary Napolitano and Secretary Clinton and try to bring in all government agencies that have discretion in how they deal with gay and lesbian bi-national couples, to try to put in some intermediate policy measures that will ensure that as DOMA is being dismantled, being relegated to history, that it does not any more have its pernicious discriminatory effect.”

Matt: “So one more bonus question: what do you think of Dianne Feinstein’s bill? Do you think it’ll have any impact on your work and whether it’ll have an impact on the Prop 8 cases, whether those’ll have an impact on her? How does this change the ecosystem?”

Lavi: “We’re really excited to see Senator Feinstein’s announcement on Wednesday that she’ll be introducing a bill in the Senate to repeal DOMA. It was followed the next day by Representative Nadler in the house, announcing that he would re-introduce the DOMA repeal bill, Respect for Marriage Act, that had 128 co-sponsors in the last Congress. We believe that this is extremely important because with a DOMA repeal bill pending in Congress, we’ll now have all three branches of government in unison all working towards the end of DOMA. Again, the executive branch declaring it unconstitutional, the Congress working to repeal it, and the Judiciary, which has so far struck it down as unconstitutional.”

Matt: “What do you think its chances are in Congress? With the election bringing so many Republicans into Congress, is it going to face a hostile reception?”

Lavi: “I think that the introducing a bill to repeal DOMA in the present Congress is a brilliant move, and a wise tactic. Not because we’re necessarily sure that we can count up enough votes to pass it into law, but because any bill like this typically takes a lot of work to build a foundation of support. In the last Congress, we saw 120 Democrats joining together to co-sponsor the Respect for Marriage Act. We hope we can top that number in this Congress and add a healthy group of Senators. Senator Leahy announced today that he would join Senator Feinstein as a co-sponsor. And this is the road to victory. It’s not necessarily a question of whether it would pass this year or next, but whether or not we can build on substantial support that exists in Congress, perhaps even expand this to become bi-partisan, and eventually pass it and repeal it. I think it’s very important that Congress take responsibility to repeal DOMA because in a sense that’s the branch of government that should be held accountable for passing it into law in the first place.”

Matt: “Right. Well Lavi Soloway, thank you so much for joining us.”

Lavi: “Sure.”

Okay. I think that’s everything with DOMA for this week.

Aside from AFER’s requests, the Prop 8 case was pretty quiet this week until Friday, when a clerk from Imperial County stepped in, and said that he wanted to defend Prop 8. They’ve tried this before, and they messed it up pretty royally. Maybe this time they’ll have more success. They only sure thing is that it means more delays.

Big headlines across the country this week: in Delaware, lawmakers anticipate introducing civil union legislation sometime next month. In Hawaii, Governor Neil Abercrombie signed civil unions into law, a long-fought battle that started 15 years ago with Baehr versus Miike — which, I told you we’d come back to that case. In Rhode Island, a new survey shows a majority support marriage equality, which as always, is our cue to recognize that Rhode Island, you’ve got style. And the Maryland Senate passed a marriage equality bill.

So start planning your wedding now.

To find out when marriage is coming to your state, subscribe to our weekly updates. And click over here to watch our recent episodes and get all caught up.

See you next week, at which point we may all be getting married.

February 28, 2011 at 10:15 am 72 comments

The Prop. 8 Trial a Year Later: The Education Continues

Stay tuned for an exciting new project we’ll be rolling out on this topic. -Adam

By Rick Jacobs

A year ago this weekend, my brilliant partner Shaun Kadlec joined me in San Francisco as we headed into the third week of the Prop. 8 Trial. Shaun and I had planned for months to be in Vienna to visit a college classmate of mine who’s now a senior diplomat there. I had always assumed that the Prop. 8 Trial would be on TV, meaning that everyone could see the proceedings. After that first day in the courtroom when it became clear that the trial would not be on TV, we canceled the trip and I stayed to live blog the rest of the trial (with lots of help from Brian Leubitz and Paul Hogarth, among others). That was one of the most important and best decisions of my life.

The full meaning and impact of that trial grow daily. A year later, in retrospect, the outcome seemed inevitable. The judge’s thorough and reasoned ruling followed the logic of the witnesses, the pleadings and the arguments. The defendant-intervenors put on no case and the ruling reflected that. But that’s hindsight. During those days of the trial, we could not know how the judge would rule. Would he rule that the state had no role in marriage? Would he decide that even though the evidence for marriage was overwhelming, the courts should stay out of this altogether? Would some other procedural delay intervene, holding the case at bay for months more than the eight it took?

We wait now to find out how –and whether–the California Supreme Court will reply to the appellate court on the issue of “standing,” that is, whether proponents (sponsors) of ballot measures have special rights to act. For a range of reasons unrelated to this trial, I hope that the Court decides they do not have those rights, but that’s a subject for another day. In time, this case or one like it will wind up at the Supreme Court. And that we hope will end what David Boies calls the last arena of legalized discrimination in America. With the fall of DADT and the ultimate legalization of marriage on constitutional grounds, the rest will follow quickly.

For the moment, let’s reflect on the courtroom drama I watched and so many here followed through this blog. That first day, Monday, January 11th 2010, was extraordinary in every way. After that vigil outside in cold San Francisco winter air, we’d heard that Justice Kennedy had put a “hold” on whether the trial could be on YouTube. I told my colleague, Andy Kelley, that I’d go upstairs into the courthouse just “to see what’s going on.” That was my first of dozens of trips through the magnetometer, depositing and collecting computer and keys on the beltway through the x-ray machine.

I tried to get into the main courtroom, but it was full. So I went upstairs and found the overflow room. The line to get in that day was not terribly long, but the room was pretty full. I found a seat in one of the pews, opened my laptop and waited. Once the proceedings began, I typed away, much to the chagrin of those sitting nearby. I guess I type loudly.

Courage had built this Prop 8 Trial Tracker site to keep track of what the right wing/NOM/Focus On the Family/ had to say outside the courthouse because we thought the proceedings would be on YouTube. Instead, I emailed my typing to Julia Rosen who then put it up on this blog, added commentary sometimes and organized it so that it was readable.

At first, I did a pretty bad job. I was not sure about format or what to write. Should I actually try to transcribe or just describe? And of course, I had no clue whether anyone would ever read the blog. After all, we’d put it up in a hurry and did not promote it.

By the lunch break that first day, Julia and Eden James told me over the phone that we had about 20,000 hits, maybe more. I was stunned. Your comments also helped shape my coverage of the trial. You wanted more transcription and less description, which I tried to fulfill.

Monday morning began with the judge talking about the controversy over whether the trial should be televised. At the very outset, you were a key component of this trial.

Judge Walker said:

We have received a very substantial number of comments in response to that change (of rules that would allow the trial to be televised). As of — as of Friday, 5:00 p.m. Friday, we had received 138,574 responses or comments.

I think it’s fair to say that those that favored coverage of this particular case implicitly also favored the rule change, which would make an audiovisual transmission of this case possible.

And if these results are any indication of where sentiment lies on this issue, it’s overwhelmingly in favor of the rule change and the dissemination of this particular proceeding by some means through the Internet.

And the numbers frankly are 138,542 in favor, and 32 opposed.


So I think the — at least the returns are clear in this case. …

I do think what we have gone through in this case in the last few days has been very helpful. Very helpful indeed.

The issue of the public’s right to access court proceedings is an important one. I think it’s highly unfortunate that the Judicial Conference and the courts have not dealt with this issue in the past, have not in a considered and thoughtful fashion worked through the issues.

He continued:

The briefs that you filed in the Court of Appeals and in the Supreme Court deal with those issues. And that’s true of both sides.

Certainly, the concerns that the proponents have raised here are concerns that should be considered, need to be considered, and in due course should be given thorough consideration.

But I think, in this day and age, with the technology that’s available and the importance of the public’s right to access judicial proceedings, it’s very important that we in the federal judiciary work to achieve that access consistent with the means that are presently available to do that.

And I would commend you for the efforts that you’ve made in bringing these issues forward, and I’m hopeful that this experience will have brought these issues to the fore. And maybe, finally, after some 20 years we will get some sensible movement forward.

Courage Campaign members provided nearly all of the public comments. When the judge asked for comment on Wednesday and gave 48 hours, until the Friday before the trial to provide them, you all jumped in with both feet. We collected over 140,000 comments, but by the cut off time of Friday afternoon when we had to deliver them, we brought in just over 138,000. The trial had become an object of considerable public interest, as well it should have been.

I excerpt the judge’s words above at such length because the very essence of this trial is public education. We have said it repeatedly. The trial testimony exposed the lies that have been used for generations to allow legalized discrimination against gays and lesbians. Those lies were at the very heart of the Prop. 8 campaign. The lies further alienated people from each other, led to more bullying, more suicides, more fundamental hurt.

You all here on this blog have been the heart and the bloodstream that have circulated the truth. Count on us at the Courage Campaign to continue to provide you with the tools and the platform to get the messages out. America’s social fabric has been rent apart by Prop. 8 and its spawn. This trial and your hard work can sew that fabric together into a quilt of justice, diversity and hope.

Even as I write, Arisha Michelle Hatch, Anthony Ash, Jackki Hirahara (from our Courageous staff) are with the folks at Granite State Progress (our sister organization) and the Cleve Jones Wellness Center in New Hampshire holding Camp Courage trainings to train folks on how to tell their own stories and how to use our brand new site–Testimony: Take a Stand (about which much more will be written later).

I’ll add further reflections in future posts, but we need your reflections as well. What have you learned? What messages need to penetrate society? How can we work together to assure that each of us, each of our friends and family members are part of the effort to disseminate the lessons of the trial, which means, really, to give our own testimony?

January 23, 2011 at 9:00 am 70 comments

Is NOM lying to you (again?)

Cross-posted at Waking Up Now.

by Rob Tisinai

NOM isn’t the most truthful bunch on the planet. And it’s almost sad, because their lapses are so damn easy to spot. Here’s their expert Jennifer Roback Morse, blogging just before the appeal hearing started. She’s saying our star attorneys, Olson and Boies, had a responsibility during the trial to explain why previous federal precedents (against marriage equality) didn’t apply to their case:

Olsen and Boies didn’t do that. Judge Walker didn’t do that. They didn’t even mention Baker v Nelson, Adams v Howerton and a host of state and district court rulings around the country.

Baker v Nelson is a case from 1972: the Supreme Court left in place a lower-court verdict denying same-sex marriage rights. Our opponents invoke Baker to say Judge Walker had no business taking the current case in the first place, and his disregard for Baker is proof of his pro-gay bias.

Now here’s Morse advancing that claim, saying Walker, Olson, and Boise didn’t even mention Baker.


Actually, no. I knew Morse was wrong, so I Googled Baker Nelson Judge Walker. Here’s what I found in Judge Walker’s ruling against our opponents’ motion for summary judgment:

Page Reference to Baker v Nelson
7 – 8 Judge Walker brings up Baker, and Cooper (the other side’s attorney) acknowledges this is the only case that might offer complete grounds for dismissing the complaint
9 Cooper starts talking about Baker but get sidetracked.
17 Judge Walker brings the court’s attention back to Baker. And Cooper gets sidetracked again.
34 – 38 Judge Walker brings the court’s attention back to Baker again. Cooper finally stays on track and makes his points.
40 – 43 Judge Walker asks Olson (one of our attorneys) to address Baker. Olson does so.
59 Olson addresses Baker again without being prompted.
73 Judge Walker mentions Baker in his decision not to dismiss the case in summary judgment.
75 – 79 Judge Walker explains why he does not find Baker to be binding in this case.
90 Judge Walker officially declares Baker to be insufficient grounds to dismiss the case.

Not only does Judge Walker mention Baker, he repeatedly brings it up and asks both sides to comment on it. Baker comes up in the closing arguments, too (page 2986), when Walker asks Olson about Baker and Olson responds.

Here’s a word of advice for Morse, though: when you falsely accuse someone of egregious misdeeds, you only end up convicting yourself.

One last note: I merely wondered whether Morse is lying because there is another explanation. Perhaps she merely devoted a blog entry to something so untrue — not just untrue, but easy to check on, as well — because she lacks basic knowledge and research skills. I wouldn’t be surprised. Apart from Maggie Gallagher herself, the NOM team strikes me a bunch of Keystone Kops. When she reviews the troops, I imagine poor Maggie spends a lot of her time doing face palms — do you think?

Image from dancerher at

December 7, 2010 at 12:15 pm 80 comments

Official Prop 8 Trial Tracker preview of the 9th Circuit hearing tomorrow

By Adam Bink

Tomorrow is the 9th Circuit hearing of the appeal on Perry v. Schwarzenegger. As usual, it’ll be trial central here at P8TT. Here’s a run-down for all your 9th Circuit hearing needs:

  • What coverage you’ll find here at P8TT. The hearing starts at 10 AM PST tomorrow. As in Judge Walker’s courtroom, Courage Campaign’s Rick Jacobs and Arisha Michelle Hatch will be in the courtroom, sending back dispatches as they become available. I will be watching the proceedings and live-blogging, format similar to the Don’t Ask, Don’t Tell hearings on Thursday and Friday. I will also be live-tweeting occasionally, and my handle is @adamjbink. Brian Leubitz, publisher of the Calitics blog and occasional legal contributor to P8TT, will be joining us tomorrow to post his occasional thoughts in the trial thread, and answer legal questions/comments from you in the comments. He’ll also have an analysis piece later tomorrow.
  • How the hearing will be divided. Oral arguments will be divided into two hour-long sessions with a brief recess in between. The issue of standing will be addressed in the first hour, and the constitutionality of Prop 8 in the second. David Boies will be arguing the standing issue, and Ted Olson, along with Therese Stewart from the City/County of San Francisco, will be arguing the constitutionality for our side. Charles Cooper will be addressing the constitutionality for the Pro-Prop 8 side, and it’s as-yet undetermined who will argue standing for their side, although Lisa Keen reports Imperial County will be represented by an attorney from Advocates for Faith and Freedom.
  • Possible rulings. Brian and the rest of the legal team will have more on this in the week ahead, but brief, potential rulings include upholding Judge Walker’s ruling denying standing to the defender/intervenors, not to mention the issue of constitutionality itself. And naturally, that could go the other way. The case may be appealed to the Supreme Court, but if the court does not take the case and the ruling goes our way, Prop 8 will be overturned. P8TT friend Karen Ocamb reports that if the Supremes do not take the case, AFER announced it will then file a new lawsuit to try and achieve marriage equality at the federal level. The losing party could also appeal for a ruling by the full 9th Circuit, which can decide to hear or not to hear such an appeal. And last, if proponents of Imperial County lose on standing, there may not be a ruling on the merits (constitutionality) at all. But then, the Supremes could rule that defendant/intervenors do have standing and send the case back to the 9th Circuit for a ruling on merits. We’ll have more legal scenarios and analysis tomorrow and later this week at P8TT, as well.
  • Where to watch. You can watch in-person, on C-SPAN, at a local law school near you, at a local courthouse near you, at the LA Gay and Lesbian Center (doors open at 9:30), and other places. Karen has the skinny on some other viewing possibilities. But of course, the best place to follow along, comment and read your fellow community members’ analysis, especially if you’re busy for the two hours, will be P8TT!
  • Where to go to be with supporters. If you’re in the area, tomorrow from 7:30-9:30 AM, various LGBT community leaders and allies will be holding a community rally before the hearing starts. The location is the courthouse at 7th and Mission Streets in San Francisco. In attendance will be NCLR’s Kate Kendall, Rev. Jesse Jackson, Chief Deputy City Attorney Therese Stewart, Lambda Legal’s Jenny Pizer, and other community leaders. You can also stick around to watch the hearing in overflow courtrooms, or head out to follow along here. A Facebook invite is here.

If you have any other tidbits to add, or questions/comments/expectations, please leave them in the comments.

Big day tomorrow. See you all then!

December 5, 2010 at 3:30 pm 64 comments

DEVELOPING: Schwarzenegger and Brown file papers with California Supreme Court responding to PJI’s appeal

(Cross-posted at LGBTPOV)

By Karen Ocamb

Jerry BrownLast week the 3rd District Court of Appeal rejected a lawsuit filed by the Pacific Justice Institute trying to force Attorney General Jerry Brown (who is running for governor in the 2010 elections) and the Governor Arnold Schwarzenegger to file an appeal in the federal challenge to Proposition 8. According to an email from the right wing Capitol Resources Institute, the California Supreme Court wants to know why the state isn’t appealing, too. Here’s the emai:

“Late yesterday the California Supreme Court responded to a request by the Pacific Justice Institute to compel the Attorney General and the Governor to file the appeal in the federal challenge to Proposition 8.

In August, a federal court in San Francisco overturned the voter approved measure that stated that marriage is between one man and one woman. While the Ninth Circuit Court of Appeals has agreed to hear the appeal of the lower court’s decision, they have made clear that there is a question whether the parties before them have standing to pursue the appeal. The Attorney General as well as the Governor have failed to file the appeal in this matter based on their personal opposition to Proposition 8. The proponents of the ballot measure took on the State’s job of defending the measure in court.

The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.

“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute. “Millions of Californians voted for Proposition 8. The issue should be heard all the way up to the US Supreme Court. No elected official ought to be able to substitute his judgment for the decision of our courts.”

Several sources are checking this out and I will update this as the information comes in. Theoretically, the California Supreme Court can order Attorney General Jerry Brown and Gov. Arnold Schwarzenegger to appeal Judge Walker’s ruling.

UPDATE from AP’s Lisa Leff:

The letters Schwarzenegger and Brown filed this morning are brief and reiterate their positions that they have discretion to choose which rulings to appeal. They also say that PJI miscalculated the deadline for filing an appeal with 9th Circuit–that it was Sept. 13, not Sept. 11.

UPDATE (2:20 Pacific) In AP’s report, Leff wrote:
“Proposition 8’s sponsors have appealed. But doubts have been raised about whether its members have the authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.”

UPDATE (12:45 Pacific):

Chris Geidner at MetroWeekly writes that Deputy Attorney General Tamar Pachter, responding for AG Brown, said in her letter that the Pacific Justice Institute’s effort on behalf of Pastor Joshua Beckley “is too little, too late.”

Pachter concluded:

It is within the Attorney General’s discretion to determine that it is or that it is not appropriate to pursue an appeal. In Perry, given the Attorney General’s position at trial, there are no grounds for an appeal, and the filing of an appeal under such circumstance would be frivolous. The petitioner’s contention to the contrary is manifestly without merit.”

Geidner also notes that Wednesday’s filing was already set by a court order detailing a briefing schedule of the expedited appeal. He says the Capitol Resources Institute’s email is “misleading.”

Brown’s response can be found here: Letter Brief.pdf

Veteran LGBT journalist Lisa Keen posts at her Keen News Service that Schwarzenegger won’t appeal either. Keen notes:

“The definitive statement means the ability of Proposition 8 proponents to appeal will depend entirely on the legal standing of the Yes on 8 coalition……In a five-page letter September 8, Counsel for the Governor Andrew Stroud told the court, “Although Beckley may disagree with the Governor’s decision not to file a notice of appeal [in the Proposition 8 case in federal court], it was the Governor’s decision to make.”

UPDATE BY EDEN: Jeff in the comments just posted Gov. Schwarzenegger’s response from Metro Weekly:

September 8, 2010 at 1:06 pm 106 comments

Prop 8 trial update with questions about Imperial County

(Cross-posted at LGBTPOV)

By Karen Ocamb

Judge Vaughn WalkerHere’s a quick wrap of some of the latest developments on the federal Prop 8 trial front.

Prop8TrialTracker posted video of three of the “best” moments from Prop 8 shouter Lou Engle’s TheCall Sacramento rally over Labor Day weekend, which David Link reported on earlier for LGBT POV.

Last Thursday, the 3rd District Court of Appeal rejected that lawsuit filed by the Pacific Justice Institute trying to force the state to defend Prop 8 on appeal. PJI are the folks who said “failure to pass Prop 8 in California would be akin to failing to stop Hitler.”

Meanwhile, Imperial County is using the pro bono service of the conservative religious firm Advocates for Faith and Freedom, according to the San Diego Union Tribune, instead of their own county counsel to try to intervene. This is curious.

District Court Judge Walker already ruled that counties cannot act independently of the state, which, through governmental defendants Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, has the responsibility to defend Prop 8 – which they’ve refused to do.

Imperial County passed Prop 8 by 20,217 votes or 70 percent, according to the Union Tribune. Last December the Board of Supervisors voted 3-2 to hire the outside firm, arguing that they had a governmental interest because their county clerks had to issue marriage licenses.

The county board appealed Walker’s ruling denying their petition to intervene. So when the 9th U.S. Circuit Court of Appeals convenes the week of Dec. 6 to considering the issue of whether Protect Marriage has legal “standing” as a civilian group to appeal Walker’s ruling on Prop 8, they will also decide if Imperial County has legal “standing” to serve as government-defenders in the case.

In addition to Walker’s reasons why Imperial County should be disqualified, it will be interesting to see if the 9th Circuit considers that the intervention plea is not being brought by the county’s own counsel, that it was authorized by a split political body, and that some of the 70 percent of Prop 8 voters may have since changed their minds and not want their local government advocating for Prop 8 in their name.

September 7, 2010 at 7:22 pm 86 comments

Ken Mehlman comes out as gay, will appear at AFER fundraiser; Former Bush campaign manager and GOP Chair takes heat for past actions

Shortly after this news broke yesterday, Karen Ocamb posted this piece on LGBTPOV. We’re cross-posting it on the Prop 8 Trial Tracker, as Mehlman will be raising money — reportedly $750,000 according to the Advocate — to support the American Foundation for Equal Rights and their case against Prop 8, as Karen explores in-depth below.

The discussion about Mehlman coming out of the closet is heating up across the media and the blogosphere, given his role in masterminding George W. Bush’s 2004 re-election as well as his tenure as Chair of the Republican Party. Both ABC News and the Advocate posted follow-up interviews with Mehlman last night in which he responded to questions about his past role in undermining marriage equality. For NOM watchers, Brian Brown makes an appearance in Kerry Eleveld’s Advocate piece, attempting to spin away the fact that his anti-equality agenda is becoming increasingly marginalized, as more and more conservatives come out in favor of the freedom to marry. — Eden

By Karen Ocamb

ELECTIONS RNC MEHLMANMarc Ambinder at The Atlantic blog broke the story: “Ken Mehlman, President Bush’s campaign manager in 2004 and a former chairman of the Republican National Committee, has told family and associates that he is gay.”

Ken who, you might ask if you’re new to LGBT politics? Well, as Ambinder explains, “Mehlman is the most powerful Republican in history to identify as gay.” He was head of the Republican National Committee in 2007 and George W. Bush’s campaign manager in 2004. He is considered incredibly smart on messaging and has a donor and politico address book that is the envy of political consultants everywhere. He was also intensely despised as a closeted gay man who was using those brains on behalf of antigay politicians.

Ambinder says:

“Mehlman arrived at this conclusion about his identity fairly recently, he said in an interview. He agreed to answer a reporter’s questions, he said, because, now in private life, he wants to become an advocate for gay marriage and anticipated that questions would arise about his participation in a late-September fundraiser for the American Foundation for Equal Rights (AFER), the group that supported the legal challenge to California’s ballot initiative against gay marriage, Proposition 8.

“It’s taken me 43 years to get comfortable with this part of my life,” Mehlman said. “Everybody has their own path to travel, their own journey, and for me, over the past few months, I’ve told my family, friends, former colleagues, and current colleagues, and they’ve been wonderful and supportive. The process has been something that’s made me a happier and better person. It’s something I wish I had done years ago.”

This is a big deal – as is, by the way, the fact that the AFER fundraiser Ambinder mentions is happening at the New York home of a huge Republican contributor Paul Singer, who is chair of the board of Chairman of the Board of Trustees for the Manhattan Institute for Policy Research.

Bush MelhmanMehlman was at the center of the antigay political scene when Bush’s political director Karl Rove used antigay marriage initiatives as a way to get out the religious and conservative vote – winning in 11 states. Rove used the same tactic in 2006. Mehlman told Ambinder that he tried to “beat back efforts to attack same-sex marriage” and insisted that Bush “was no homophobe.” Ambinder writes:

“Mehlman acknowledges that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda.

“It’s a legitimate question and one I understand,” Mehlman said. “I can’t change the fact that I wasn’t in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally.” He asks of those who doubt his sincerity: “If they can’t offer support, at least offer understanding.”

“What I do regret, and think a lot about, is that one of the things I talked a lot about in politics was how I tried to expand the party into neighborhoods where the message wasn’t always heard. I didn’t do this in the gay community at all.”

He said that he “really wished” he had come to terms with his sexual orientation earlier, “so I could have worked against [the Federal Marriage Amendment]” and “reached out to the gay community in the way I reached out to African Americans.”

Mehlman was for years a target of outing by DC-based gay activist and blogACTIVE blogger Mike Rogers – who talks about his efforts to get media attention on RawStory. Rogers figures prominently in the Kirby Dick -directed 2009 documentary “Outrage,” which had a theatrical run before airing on HBO. The documentary is up for an Emmy award this Sunday.

In his interview with Ambinder, Mehlman

“admits to having mislead several people who asked him [about his sexuality] directly. He said that he plans to be an advocate for gay rights within the GOP, that he remains proud to be a Republican, and that his political identity is not defined by any one issue.

“What I will try to do is to persuade people, when I have conversations with them, that it is consistent with our party’s philosophy, whether it’s the principle of individual freedom, or limited government, or encouraging adults who love each other and who want to make a lifelong committment to each other to get married.”

“I hope that we, as a party, would welcome gay and lesbian supporters. I also think there needs to be, in the gay community, robust and bipartisan support [for] marriage rights.”

Log Cabin Republicans Executive Director R Clarke Cooper

Log Cabin Republicans Executive Director R Clarke Cooper

R. Clarke Cooper, the new executive director of the national Log Cabin Republicans, told me he welcomes the news.

“Log Cabin Republicans is very supportive and appreciative of Ken’s coming out. Being gay and being conservative are not mutually exclusive. As a fellow Bush alumnus, I also look forward to Ken helping me and our colleagues build a stronger more inclusive Republican Party.”

AFER board president Chad Griffin – who was an executive producer on “Outrage” – is thrilled that Mehlman came out and told me that the GOP political strategist has been quietly helping AFER with their federal Prop 8 challenge for months.

“Ken over past several months has been a key strategic advisor to our team,” Griffin told me, regularly conferencing “non-stop for two months” with Griffin and Lance Black and others on communications and messaging from the moment the decision came down blocking cameras from the Prop 8 trial.

Griffin said Mehlman reached out first to AFER lawyer Ted Olson, who put

AFER's Chad Griffin and Ted Olson

AFER's Chad Griffin and Ted Olson

Mehlman in touch with Griffin via email. “I wouldn’t do this unless I felt very strongly that he would fight on our behalf. He didn’t just call up and say ‘I would like to lend my name.’ He reached out to Ted Olson many months ago.” And Mehlman is responsible for bringing Paul Singer on board to co-host the fundraiser at his house. Griffin said:

“Our job is to bring together and work together with people who don’t currently support our work. What we should do is welcome him with open arms and hope that many others follow him. And we shouldn’t underestimate that the youngest person in history to chair a major political party, a former senior Bush White House aide – that that person is openly gay and lending strategic advice and guidance and well as opening up his tremendous network of contacts – which is unparallel. We are very good at talking to ourselves. But it’s important that we take a step back and realize how significant this is to have someone advising us who knows how to win voters in the center and right.”

Griffin is very well aware of the consternation Mehlman’s coming out may cause among some LGBT activists over the 2004-2006 hey-day of antigay GOP activism. But he is philosophical and optimistic.

“That was then, this is now. There’s a long list of people who were against marriage equality – Democrats and Republicans. We are in a new age. I don’t care where people were in the past. If we are going to win equality, we have to welcome every single person to our side. That was a different time and place and today is today – we have to look forward. Ken is a tremendous asset to our efforts.”

August 26, 2010 at 7:30 am 221 comments

Older Posts

Support the Prop 8 Trial Tracker

Connect with us

Get to know your fellow Prop 8 Trial Trackers on Facebook.

Please send tips to

Follow us on Twitter @EqualityOnTrial

Sign-up for updates on the Prop 8 trial, including breaking-news alerts.


TWITTER: Follow us @EqualityOnTrial

Share this

Bookmark and Share

SITE STATS (by Wordpress)

  • 4,585,349 views of the Tracker and counting as of today...