Posts filed under ‘Trial analysis’

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

LIVE on P8TT: You got Prop 8 questions, we got answers.

by Adam Bink

Please welcome Shannon Minter and Chris Stoll, who are joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community following today’s 9th Circuit ruling.

Shannon is the Legal Director at National Center for Lesbian Rights, and was the lead attorney on In re Marriage Cases, which was the original 2008 California Supreme Court case holding that the ban restricting marriage to opposite-sex couples is unconstitutional and that laws treating gays and lesbians differently because of their sexual orientation are subject to strict judicial scrutiny. He’s a respected voice in the legal community fighting for LGBT equality, and a friend of P8TT who we’re happy to have stop by. Chris also worked on the 2008 marriage case as a senior member of the legal team. You may remember Shannon and NCLR senior staff attorney Chris from our earlier Prop 8 Q&A chat a few months ago, which hit 300 comments and well over a hundred questions answered.

To set the  stage, today the 9th Circuit (a) decided  to submit a question relating to whether proponents of Prop 8 have standing under state law, and how that can be reconciled with federal law with respect to Arizonans  for Official English v. Arizona (b) Ruled that Imperial County has no standing in this case (c) did not make a decision on the constitutionality of Prop 8.

A couple logistical notes:

  • If you have a question, please leave it in the comments below. You can leave a comment with a question by clicking “Add your own” just above where the comments start. This comment thread may get long, so if you have a question, please preface your question with “Question:” or “Q:”  so Shannon and Chris can easily distinguish between general comments and questions so as to get to as many as possible.
  • Shannon and Chris are going to get to as many different questions from different people as possible. If you have a follow-up question to one of their responses, or a different take on something, whether as a response to your question or someone else’s, please leave a comment with the question/response, and time permitting he will go back through to get to as many follow-up questions/comments as possible.
  • They have agreed to stick around for at least 45 minutes, and longer if he has time (and if he’s having fun!).
  • For first-time commenters here, two things. One is that you don’t need an account to comment. Two is that to reply to a comment, make sure to hit “reply” between the comment you’re looking at and the next comment. You can also use “@username”. An example:  “@adambink: This is a response to your comment immediately below. I believe [substance of your comment]” or “@Shannon Minter: Thanks for the response.” Your response will then appear below the comment you wished to respond to, and it helps make things clearer for those reading along.

So please welcome Shannon and Chris, click “Add your own” below, make sure to preface with “Question: or “Q:”, and fire away!

January 4, 2011 at 2:26 pm 475 comments

Analysis: 9th Circuit Appears Ready to Grant Proponents Standing to Appeal

by Robert Cruickshank

The 9th Circuit Court of Appeals today issued a “ruling” of sorts on the appeal of Judge Vaughn Walker’s ruling that found Prop 8 to be unconstitutional*. The “ruling” was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker’s decision. Here’s the question they want answered:

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.

We understand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision.

A further reading of the document suggests that the 9th Circuit is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here’s what the 9th Circuit said:

If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State….

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”…

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so….

Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government, with its own sovereign power. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say “yes, the proponents do have standing” or “no, the proponents do not have standing,” or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes’ longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.

In which case, the 9th Circuit would then rule on the issue of Prop 8’s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing. Still, that’s just my view, and we should prepare for any outcome.

The 9th Circuit also concurrently ruled that Imperial County does not have standing to appeal Judge Walker’s decision, a ruling that was widely expected in the wake of the farcical appearance before the 9th Circuit court by Imperial County officials.

The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule. Whatever the outcome of the Prop 8 case, it’s time to bring some sense and sanity to ballot initiatives here in California.

*Somehow I doubt that the 14th Amendment will be read out on the House floor this week by Republicans, who hate the 14th Amendment and want to pretend it doesn’t exist.

Robert Cruickshank worked at the Courage Campaign from November 2007 to November 2010, when he stepped down as Public Policy Director. His analysis represents his views alone.

January 4, 2011 at 12:30 pm 126 comments

BREAKING: 9th Circuit rules on the Prop 8 case

By Adam Bink

Update 13: Olson said he would be submitting briefs et al to the CA Supreme Court if/when it is allowed.

Update 12: I’m on a press call with Ted Olson et al. I’ll update with any interesting info.

Update 11: Here’s a quick reaction that Shannon sent over e-mail. We’ll see you at 2:30 PM PST for Q&A.

This will delay the day that Proposition 8 is gone for good, but hopefully not for long.  The Ninth Circuit asked the California Supreme Court to decide whether initiative proponents can force the state to defend an initiative that has been struck down by a federal court.  There is nothing in California law that gives initiative proponents such an extraordinary power.  Both Kamala Harris and Jerry Brown were very clear when they ran for office as Attorney General and Governor that no more state money should be spent on appealing a federal court ruling that Proposition 8 violates the equal protection rights and the core fundamental rights of hundreds of thousands of its citizens.  Their opponents expressed the opposite view, and the voters spoke.  That should be the end of the matter.

I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives.  In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage.

Update 10: We have a special treat coming to help answer all of your questions. I asked Shannon Minter, the Legal Director at National Center for Lesbian Rights and the lead attorney on the original In re Marriage Cases ruling at the California Supreme Court, to stop by here at 2:30 PM PST and answer some questions. The format will be similar to the chat we hosted several months ago.

So, check back here at 2:30 PM PST/5:30 PM EST with your best questions in hand, and we’ll field ’em.

To read Shannon’s earlier chat on the case, you can find that here.

Update 9: On the question of how the CA Supreme Court could rule, they could rule that proponents have standing; do not have standing; or make no ruling at all. If they rule there is standing, then the 9th Circuit would make a ruling on the merits (constitutionality) of the case. If they rule there is no standing, the case could be thrown out without a ruling on the constitutionality, as Arizonans for Official English v. Arizona was by the US Supreme Court, where the Court specifically said it makes no ruling on the constitutionality while remanding a lower court decision. Robert will have more on what he sees as most likely to come out of the CA Supreme Court.

Update 8: Robert Cruickshank of Calitics, who often guests here, will have another analysis piece coming at 12:30 PM PST.

Update 7: After talking to a few con law experts in the field, some analysis. At issue is whether ballot initiative proponents (e.g. are allowed to defend initiatives in a case when the State (e.g. the Attorney General and the Governor) decline to do so. That we’ve known all along. On the table is that the question of “standing” is a federal one. Our side argued that even if California law allows initiative proponents to defend a ballot initiative under state law, standing could still not be conferred in the federal courts. If the California Supreme Court decides that initiative proponents like cannot defend the initiative in state court, then it’s more doubtful it would be able to do so in federal court. And that is the reason the 9th Circuit is asking for clarification from the California Supreme Court re state law.

Update 6: With thanks to Kathleen, here’s a Scribd version to read through:

View this document on Scribd

Update 5: Folks are asking about the timeline. There’s nothing on the timeline of a CA Supreme Court decision. There is this:

The case is withdrawn from submission, and further proceedings in this
court are stayed pending final action by the Supreme Court of California. The
parties shall notify the Clerk of this Court within three days after the Court accepts
or rejects certification, and again within three days if the Court renders an opinion.
The panel retains jurisdiction over further proceedings.

Update 4: Here’s the meat of the ruling. I bolded the key parts:

“Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text) The Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact / Conclusions of Law / Order (704 F. Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c). The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED. [7598921] (RP)”

On the issue of standing for Imperial Valley (h/t Karen Ocamb):

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT. [7598965] (RP)

Update 3: The filing can be found here.

Update 2: Reading through the documents, the 9th Circuit has issued a question to the CA Supreme Court asking if proponents have standing. No decision on the merits yet. More soon.

Update: According to the American Foundation for Equal Rights, the 9th Circuit ruled that Imperial County is denied standing in the process.

The breaking news is that the 9th Circuit will rule any minute on the Prop 8 case. The filings are being uploaded and I’m sorting through. I will update this post from the top.

January 4, 2011 at 11:14 am 141 comments

Judge Reinhardt’s question: Which is worse? Taking rights away or never providing them?

An insightful perspective on the 9th Circuit’s Prop 8 hearing from Syd Peterson, cross-posted from Karen Ocamb’s LGBTPOV. — Eden

By Syd Peterson

Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith for the U.S. 9th Circuit Court of Appeals in San Francisco (AP Photo/Eric Risberg, Pool)

My mind keeps coming back to a question posed by Judge Reinhardt yesterday at the Perry vs. Schwarzenegger arguments in the Ninth Circuit. Which is a worse thing to do, he asked attorneys from both sides of the case, taking rights away from a group of people who were already exercising them, or never providing them those rights to begin with?

Reinhardt’s question could be a pivotal issue in the Perry appeal. It’s ironic, though, that it seems to turn on its head the old adage that “It’s better to have loved and lost than never to have loved at all.”

The arguments raised more questions about this then they answered. Charles Cooper, arguing for the Proposition 8 proponents, several times cited the California Crawford v Board of Education case, which concluded that states that have done more than the federal Constitution requires can return to the minimum provided by the federal Constitution’s floor. Ted Olson, counsel for the plaintiffs challenging Prop 8, said that other cases, including those dealing with California’s and Colorado’s antidiscrimination laws, had suggested otherwise. But the answer may lie in the arguments made by San Francisco Deputy City Attorney Therese Stewart (who also happens to be the only LGBT-identified person who spoke at the arguments yesterday).

San Francisco Deputy City Attorney Therese Stewart.

As Stewart pointed out, the California Supreme Court had held that the only possible reason to deny same-sex couples the right to marry when they were provided all the rights and benefits of marriage through domestic partnership was to convey that same-sex relationships were not as good as those different-sex couples form and that same-sex couples, and lesbian and gay people generally, deserve to be treated worse. California voters didn’t change that reasoning; they couldn’t have, noted Stewart. So when they took away same-sex couples’ right to marry, voters necessarily were doing so because they wanted to have the state treat lesbian and gay couples worse and to convey they are unworthy of equality – and that is what is particularly offensive to the federal guarantee of equal protection, she continued.

What do you think? Which is worse: taking away a right or preventing someone from having it the first place? And is that general question the most significant question in Perry? Or is the more important matter that the right taken away was the right to equal treatment, and that it was taken away to intentionally designate one group of people as inferior?

Judge Reinhardt’s question was one of many that gripped those of us who were lucky enough to be in the Ninth Circuit’s imposingly ornate courtroom, listening intently to every word as many others followed along on CSPAN or read tweets about the proceedings or refreshed Prop8TrialTracker every two seconds. I believe I speak for most of us non-lawyers when I say that the first section of the hearings, the part about standing (which is just a fancy legal word for “having the right to sue”), was challenging to piece together.

From what I understand, the section boiled down to two questions: (1) Who has the right to defend a statute when the (official) defendants don’t? and (2) If the 9th Circuit finds that those who appealed have no standing, what happens next?

Charles Cooper, lead attorney for the proponents of Proposition 8.

Lambda Legal’s Marriage Project Director Jenny Pizer explained to us at yesterday morning’s rally before the Ninth Circuit argument began that federal courts limit who can bring cases before them through the concept of “standing,” (legal terminology for “having the right to sue.”) “The court makes a distinction between litigants who are being harmed or who will be harmed [who have the right to sue or appeal], as opposed to people who [simply] have a strong feeling about an issue [who don’t].”

As you likely know, California Governor Schwarzenegger and California Attorney General declined to defend Prop 8 in Perry. Judge Randy Smith noted that California’s Governor can’t veto voter-approved initiatives, and that California’s legislators cannot amend them. By not defending Prop 8,were Schwarzenegger and Brown in essence violating that prohibition?

Adam Bink’s paraphrase at Prop8TrialTracker, explained why not:

“Was the ‘…failure to defend Prop 8 … a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders?’ [my punctuation] Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the ‘Pacific Justice Institute’ exactly that question. PJI was first denied by the 3rd District, and later by the California Supreme Court.”

So, if government officials decide not to defend and don’t have an obligation to do so, who, if anyone, does have the right (“standing”) to defend the statute? What about the sponsors of an initiative?

Bink quotes Boies, who stated, “Appellants here do not have a particularized injury that the Supreme Court said you must have.”

Robert Tyler, Attorney for Imperial County. Photo credit: Syd Peterson.

Well, if the sponsors of an initiative can’t defend a statute, what about state workers, like, say, county clerks (who supervise the issuance of marriage licenses)? Robert Tyler, the attorney for Imperial County, argued that Imperial County Deputy County Clerk Isabel Vargas had standing to defend Proposition 8 because her duties would be altered depending on the fate of Perry. “She is in a legally conflicting situation,” he argued.

Olson and Boies cast doubt on Vargas’ role as a state worker and noted that, even if the County Clerk were considered a state official who might have standing, that wouldn’t apply to someone lower on the totem pole.” It’s interesting to note that, during the press conference after the arguments, a reporter asked the generally overwhelmed Tyler why he wasn’t representing Imperial County’s actual County Clerk. Tyler sniffed, “Ms. Vargas is my client and that’s all I’m going to say about that. Next question!”

Tyler noted that California Government Code allowed a government official, such as a county clerk, to commission other persons within the clerk’s office to act on the clerk’s behalf. Olson pointed out how this was of no help, however, because the Imperial County Clerk had not commissioned Vargas to act on the Clerk’s behalf.

So what happens if the 9th Circuit finds that those who have appealed have no standing? The attorneys and judges exchanged numerous ideas about impact of this might have on Judge Walker’s ruling: Would that mean that only the Perry plaintiffs could marry, or would the broader injunction Judge Walker issued stand as written? And, if the Court determined that no parties have standing, would the 9th Circuit be entitled to say anything about the permissible scope of the injunction, or about the constitutionality of Prop 8 at all? Many question, but few clear answers to them were provided in yesterday’s arguments.

Another important part of the proceedings occurred when Judge Smith questioned Stewart on Cooper’s earlier statement that the state has an interest in preserving procreation. “Same-sex couples do procreate,” Stewart replied. “Not in the old-fashioned way, but the point is that the state of California doesn’t discourage LGBT people from being parents, or treat them differently [than parents with other family structures].” “In other words,” Brian Leubitz at P8TT paraphrased, “if we are only fighting over a word, and no substantive differences at the state level, aren’t we essentially creating a subclass?”

Cooper’s response: “The word is the institution. If you redefine the word, you change the institution.” Luebitz writes that this was …”a big moment of the oral argument.” He continued, “If the word is the institution, then the argument is just that gays and lesbians would ‘“stain’” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause.”

Back to Reinhardt’s question: Which is more terrible: losing a right or never having it?

It makes me think back to the summer of 2008, a.k.a. The Summer When I Went To 30 Weddings. 18,000 same-sex couples got married in five months. Many Californians, and many outsiders with some queer link to California, had a chance to see what legally sanctioned weddings looked like. There’s no doubt in my mind that we’re better off with five months of marriage equality than with none.

But that’s not what Reinhardt’s question was asking. He put the focus on those who were doing the “taking away,” who, in this case, are the approximately 52% of California voters who enacted Prop 8 in September 2008. And he may be on to something. Isn’t it worse to call off an engagement than to never have asked someone to marry you? Isn’t it worse to breach an agreement than never to have made it? And, as Terry Stewart explained, isn’t it worse for a state to amend its Equal Protection clause (as Proposition 8 did) to intentionally treat people unequally than it is to have never understood that it violates equal protection to relegate same-sex couples to domestic partnerships instead of allowing them access to marriage?

Ted Olson noted how crazy it is that some same-sex couples are married in California while others can’t be and that, if a California same-sex married couple divorces, they can’t even remarry one another here. Maybe there’s something to the notion that it’s worse to have known what equality feels like and then to have it yanked away.

December 8, 2010 at 7:19 pm 108 comments

Morning after video/analysis of the 9th Circuit Perry v. Schwarzenegger hearing

By Adam Bink

Good morning after! After looking over the web and my inbox, I’ve got some excellent nuggets to satiate that analysis appetite. The best of what’s around (with apologies to Dave Matthews Band) can be found below.

  • Hour 1 and hour 2 of yesterday’s trial on video:
  • NCLR’s Kate Kendell and her thoughts (h/t Ronnie):
  • Lambda Legal’s Jennifer Pizer and her take (video) can be found here.
  • I’m with Karen O, Nan Hunter’s piece is very interesting. She’s with Georgetown Law and the Williams Institute.
  • I’m not much for reading tea leaves, but this (via SJ Mercury News) to me seemed one of the most poignant and telling moments yesterday, coming from conservative Judge Smith.

Smith, an appointee of former President George W. Bush, also repeatedly challenged Cooper. Smith was particularly troubled by the fact that California has broad protections for same-sex couples under its domestic partnership laws, yet forbids them to marry.

“What is the rational basis then if homosexuals have all the rights heterosexual couples have?” Smith asked. “We’re left with a word: marriage.”

His comments need to be repeated over and over in the post-trial echo chamber.

  • If you can stand it, the Ruth Institute’s Jennifer Roback Morse chats for a few minutes with Ron Prentice, Chairman of
  • Speaking of Jennifer, I’m with Jeremy Hooper, her “analysis” piece on Reinhardt was dumb.
  • Photos from the post-trial press conference on both sides.

What else are you reading?

December 7, 2010 at 9:35 am 83 comments

Flash 9th Circuit Hearing Analysis: Standing, Romer, and the Word

Thanks to P8TT legal analyst and Calitics publisher Brian Leubitz for chiming in his legal analysis as the trial proceeded during today’s liveblog thread, and for sharing with us his longer take here.

By Brian Leubitz

As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker’s bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil’s advocate. Sometimes you can get a read, and sometimes you can’t.  Also, I haven’t really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.

So let’s take a look at the meat of the issues, and see what we learned today.

Imperial County

The attorney for Imperial County, and Isabel Vargas, the deputy clerk of the county, took a real beating in the courtroom. Robert Tyler, of the Advocates for Faith and Freedom, a right wing anti-equality non-profit, came to the podium in front of a skeptical panel.

First, the court had an issue with the fact that the actual clerk of Imperial County was not a party to the attempt to intervene. Rather, Mr. Tyler represented Ms. Vargas, who only really has authority to act as an agent of her elected boss, Dolores Provencio. Erwin Chemerinksy, the Dean of UC-Irvine’s new law school, had this to say about the oral arguments:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state — only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene. (LA Times)

Of course, the question of Imperial County really only becomes important if the Court decides that the proponents do not have standing. But the Imperial County claim looks like something of a long shot at this point, or at least not something you would want to be pinning your hopes on.

Standing of the Proponents

This is where some unexpected wrinkles came up in the oral arguments. Namely the possibility of the “certification” of a question to the Supreme Court of California. But let’s back up a step.

In the questioning of David Boies, Judge Smith (the lone Republican appointee on the panel), asked him whether the failure to defend Prop 8 was a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders. Of course, a veto of an initiative is not allowed under the Constitution. So, conflict? (Here’s where I’m hearing an ominous duh-duh-duh in my head.)

Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the “Pacific Justice Institute” exactly that question. PJI was first denied by the the 3rd District, and later by the California Supreme Court.

There is a process for appellate courts to ask state courts a question about state law, called certification. Basically, they “certify” a question, and the state supreme court can answer it. It would delay the process substantially, and given the quick dismissal of the PJI attempt to get Brown to appeal, doesn’t really seem either necessary or worthwhile. Essentially, the state supreme court has spoken on this issue by failing to force the appeal.

However, if the panel really felt strongly on this subject, they could go to the State Supreme Court. We would probably hear about that fairly soon. But, really, don’t expect that.

Returning to the main issue, the ball game was essentially played on the field of Arizonans for Official English, with various cases modifying it. The court was essentially trying to figure out if there a) had ever been a case where a proponent was deemed to have standing and b) if this should be that first case.

Charles Cooper, the attorney for, eventually relented that there was not such a case. However, he then went on to say that the Strauss decision, where the state Supreme Court upheld Prop 8, was an example of just that in the state court. There, Brown and Schwarzenegger once again refused to defend, but the proponents had standing as defined by the California Supreme Court.

Now, Article III standing isn’t the same thing as California standing, there is different jurisprudence on that. However, the admission that there was no case makes the proponents request a question of novel law. Now, that’s not to say that they can’t win on this question, but it does underscore the big question mark on this issue.

The Substance

After all the process of the first hour (plus 15 minutes), it was on to the meat and potatoes of the due process and equal protection claims. One interesting initial point was that both sides seemingly dropped the question of intermediate or strict scrutiny. Ted Olson briefly mentioned that he think that it could apply, but the substance of his remarks all stuck to the question of whether there was a “rational basis” for Prop 8.

I think there were a couple of specific points that attracted most of the attention, the Romer case, and this question of the “word”.

The “Word”

Judge Smith focused a couple times on whether the State of California was in a worse position for having passed Prop 8 because it has given all of the same rights and privileges under the auspices of the domestic partnership statute. In other words, if we are only fighting over a word, and no substantive differences at the state level, aren’t we essentially creating a subclass? And roughly transcribed, here’s what Cooper said:

Cooper: The word is the institution. If you redefine the word, you change the institution.

I actually think this was a big moment of the oral argument. It said that yes, the anti-equality forces were there only to “put down” gays and lesbians, or as San Francisco Deputy City Attorney Therese Stewart said (again, this is my rough notes here):

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

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


Romer v Evans struck down Colorado’s Amendment 2, which barred local governments from recognizing gays and lesbians as a protected class, as the City of Denver had done earlier in the decade. In the decision, Justice Kennedy said that the law denied LGBT Coloradans the protection of the law in an impermissible way. It was so broad as to “confound” judicial review and that Amendment 2 was raised of animus. Or as Kennedy put it:

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected…

Cooper argued that the legislation at issue in Romer was so broad that it couldn’t be constitutional, whereas this was just one issue, the word “marriage.” Judge Hawkins pressed Cooper, saying that the removal of rights, especially this right, put it back in the Romer territory. This issue of the removal of rights looks likely to come up in the decision, if the court does reach past the question of standing.  The question just seems too large, and too conflicting with prior law, to not be a major part of the decision.  And generally, that’s a good thing for equality.

Who wins?

So, can we predict a winner from the argument today? Well, I go back to my initial statement, it is hard to tell from an oral argument alone. If you really pushed me, I would say that the plaintiffs would be the favorite at this point. The duel questions of standing and whether the court could really find a rational basis hang in the air. And I’m not sure that Cooper satisfactorily answered either.

December 6, 2010 at 4:15 pm 108 comments

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