6th circuit signs date with SCOTUS

The Supreme Court has been silent on the subject of marriage equality, tacitly approving it by ignoring appeals requests. Since all the circuit courts thus far have found for equality, there's been no conflict for the Supremes. This has led to a huge expansion of equality to 32 states.

But today, the conservative 6th circuit broke the streak, and issued a ruling finding that marriage discrimination is okay. For some reason, the bulk of their argument is that the people should be able to decide. Circuit Judge Jeffrey Sutton wrote,

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

The problem is this. The Constitution exists in part to protect the rights of unpopular minorities from the tyranny of the majority. We do not put basic rights to the ballot. If we had, schools in the South would still be segregated, inter-racial marriage would still be illegal, and husbands could control a woman's property.

This was called out in a brilliant dissent by Judge Martha Daughtrey.

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,” Daughtrey wrote in her dissent. “But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it.

This makes for a "circuit split" and the appeal to the Supremes is on its way. And then Chief Justice John Roberts and Justice Anthony Kennedy must decide what they want their legacies to be.

Arguments TODAY in front of Supreme Court

Oral arguments on both the Prop8 and DOMA cases will be held today in the Supreme Court. There will also be demonstrations pro and anti. Follow all the action on Scotusblog.

Why the 9th made the right decision

William Eskridge, a law professor from Stanford argues that the narrow decision in the 9th circuit on Prop8 was the right thing.

.... In my view, the court got it right, as a matter of law and as a matter of constitutional politics. 

Start with the role of federal courts of appeals in our rule of law system: their role is a limited one, a point these pro-gay commentators have neglected. Such courts (1) are supposed to address the particular factual context presented by the parties, (2) must follow the binding precedent of their own circuit and of the Supreme Court, and (3) ought usually to choose narrow rather than broad grounds for decision. Judge Reinhardt’s Perry opinion is exemplary along all three dimensions.

I agree.  The euphoria that led everyone to reach for the big hit covers up the very real danger of a smack down from the SCOTUS if the decision is as broad as Vaughn Walker's.  Besides, as we see just this week, the momentum is underway.  As Prof Eskridge cautions,

Courts can help put an issue on the public law agenda, and they can channel discourse into productive directions. They can also help create conditions for falsification of stereotypes and prejudice-driven arguments, such as the canard that gay marriage will undermine “traditional” marriage. But courts cannot create a national consensus on as issue about which “We the People” are not at rest. And nationally, the people are not at rest.

Prop8 supporters will ask for 9th circuit review.

Instead of going directly to the Supreme Court, it appears that the Prop8 supporters will next try for an en banc hearing at the 9th circuit. From Metro Weekly:

If a majority of the court's judges support en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal, which can involve briefing and oral arguments.

After that decision is reached, theoretically, a party dissatisfied with an en banc ruling of the Ninth Circuit can ask for the full Ninth Circuit to review the en banc panel's decision, but the court has not agreed to do so since adopting the "limited en banc" procedure.

After en banc consideration, the unsuccessful party could then petition the U.S. Supreme Court to hear the case. At that point, the parties submit written arguments explaining to the court why the justices should or should not hear the case. Then, if four of the nine justices agree to hear the case, another round of briefing occurs, with the parties and outside organizations and individuals arguing the merits of the case to the justices. Oral arguments are then set and held at the Supreme Court, and some time later a decision is handed down.

Why are they doing this? Probably because the very narrow opinion of the recent appeals court had a good chance of not being heard by the Supreme Court, which would have restored marriage to California. By doing this, they ensure that there is a further delay in the case, a further delay to the marriages, and another bite at the apple.

Also, I wonder if they (the pro-H8 side) are hoping for a broader finding than the recent opinion, one that would apply to other states, and would almost certainly be heard by SCOTUS and be struck down. They may be fishing for a bigger decision against them, in order to shut the door long-term. So even if they lose, they could still win.

There are a number of conservative, anti-gay judges in the 9th, so the outcome is not certain. Remember, a 9th circuit panel vacated the DADT case that the Log Cabin Republicans won. And one of the three judges on the recent appeal disagreed about Prop8.

It ain't over.

Dissecting the Dissent in Prop8 case

Dahlia Lithwick, writing in Slate describes the weakness of the arguments supporting Prop8, and the floppy dissenting opinion by Judge Smith

The evidence, the data, and the experts overwhelming agree that gay marriage does not harm children. And that leaves opponents of gay marriage to argue a tautology: Gay marriage is wrong because it’s wrong.....

That’s the best case that can be made against gay marriage. An appeals court dissent that rests on the premise that states needn’t act rationally, or offer evidence of rationality, or even be rational in creating classifications, so long as someone publishes a study and someone else believes it. That’s the best they’ve got, it seems.

That is not legal argument or empirical evidence. It is the death rattle of a movement that has no legal argument or empirical evidence. Nobody disputes the fact that Americans opposed to gay marriage believe passionately in their ideas and arguments. But that doesn’t necessarily mean those arguments should win in a court. The best thing that could have happened in the Prop 8 case just happened. The dissent has no clothes.

Prop8 follies: Overturn the decision because the Judge is gay?

AP reports:

Proponents of California's same-sex marriage ban filed a motion Monday seeking to vacate the historic ruling that overturned Proposition 8 because the federal judge who wrote it is in a long-term relationship with another man.....

"Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case," attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot wrote. ...

Walker has said that he did not consider his sexual orientation to be any more a reason for recusal than another judge's race or gender normally would be. A spokeswoman said Monday that the judge wouldn't comment on the motion.
...

As Prop8 Trial Tracker comments,

Checking in with some top legal minds who are colleagues and friends, there seems to be universal consensus that this was a mistake will piss off the 9th Circuit and probably judges everywhere. The reason why is simple: judges don’t like having their impartiality, or the impartiality of their colleagues, questioned. It’s a very slippery slope: married men who have marital troubles making ruling on divorce proceedings, women ruling on domestic abuse or abortion cases, African-Americans ruling on discrimination. Really, the slippery slope includes pretty much everyone. If there are accusations of bias, let’s see hard evidence. Otherwise, Andy Pugno dug an even deeper hole.

Remember, what Prop8 proponents are REALLY saying is that only straight white Christian men can be objective. Even thought EVERYONE has a religion, a race, an orientation....

BREAKING: 9th circuit will not lift stay

As you may recall, Judge Walker's decision finding Prop8 unconstitutional did not change anything in CA. Pending appeal, a stay was filed, so that LGBT couples cannot marry. The court was asked to lift the stay, and today refused.

So, people who are not at all injured by same sex marriage (the supporters of Prop8) are more important than loving LGBT couples who are materially and significantly injured by PropH8.

Because protecting their bigotry matters more than our relationships.

Should the stay be lifted?

From the LA TImes:

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system....

Every day that the case drags on, gay and lesbian couples who would like to marry are being deprived of their civil rights. That's not our wording; the federal trial judge decided that issue, at least for now. The denial of constitutional rights, even temporarily, is a deplorable situation that must meet high legal standards to be allowed to continue. In our view, those conditions have not been met.
....
Right now, same-sex couples are being deprived of their constitutional right to marry, and every indication is that unless the stay is lifted, they'll have to keep waiting for more than a year. That is real harm, and there is no valid reason to allow it to continue.

Updated: Important Prop8 appeal activity today

The Supreme Court of California will make an important ruling today on the Federal court case challenging Prop8.

Why is the STATE court involved in a FEDERAL case? because the 9th District Court of Appeals has two questions before it: one, how to address the finding of Judge Vaughn Walker that Prop8 is unconstitutional to LGBT citizens, and second, whether anyone has STANDING to appeal Judge Walker's decision.

Technically, because Prop8 was voted into law, the responsibility for defending it in court rests with the state of California. But neither the governor nor attorney general wants to defend it, because they agree it is unconstitutional. So the Prop8 proponents stepped it.

The Federal court is deferring to the State court to explain whether, under state law, the proponents have the right to appeal.

From the LA TImes:

Depending on the [state] court’s ruling, the 9th Circuit could either dismiss the Proposition 8 appeal on procedural grounds -- limiting the case’s effect to California -- or rule on federal constitutional questions that would affect same-sex marriage throughout the country.

UpdateA lot of fuss about very little. What they decided was.... they will take up the question. (They could have decided to ignore it). Wow. The notoriously slow SCoCal will now deliberate further, and probably won't even hold a hearing until fall 2011.

The delay here, while frustrating, means that repealing prop8 AT THE BALLOT BOX in 2012 is a much surer way to get marriage back in CA than waiting for the appeals process to work itself out.

Prop8 appeal: next step this week?

From the SF Gate:

Chief Justice Tani Cantil-Sakayue says the California Supreme Court will decide soon, maybe next week, on whether to enter the Proposition 8 gay marriage fray.

The 9th U.S. Court of Appeals said last month that it cannot decide if the gay marriage ban is constitutional until the state high court weighs in on whether proposition sponsors have authority to defend the measure.

A three-judge panel asked the California Supreme Court to decide if ballot proposition backers can step in to defend voter-approved initiatives in court when state officials refuse to do so. The panel suggested it would have to dismiss the case if there's no state high court input.

Breaking: news on Prop8 appeal

From the Prop8 Trial Tracker

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.

....

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 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.

Update: More commentary from lawyers and legal observers:

• Battle of the brains: how the standing question could have been avoided
• Ninth Circuit sends a question....
• Appeals Court punts

Just a word? the prop8 appeal

Technically, lesbian and gay Californians who get a domestic partnership get all the rights the state provides married straight couples.

(How you get it is rather different, of course: you download your DP form from the internet, rather than go personally to the county clerk; notarize it at Kinko's, rather than have a JP, marriage commissioner, or minister perform a marriage, and then you mail in to the state with a check, rather than file with the county to be sent a proper copy. But i digress.)

So, there is really nothing that marriage in the state of California confers that is different than a DP.

And that may be the crux of the appeal. Because with Prop8, the voters did not take away any of those RIGHTS associated with marriage--the California Supreme Court ensured that. They simply took away the WORD marriage, which is freighted with symbolic meaning. As Attorney Therese Stewart argued for the plaintiffs, the only reason to do that was to deny lesbian and gay Californians access to the symbolism: they wanted them to be treated as a separate, lesser class.

The questioning by the judges in the district court suggest that this affirmative act of taking away the symbolism of the word, and not anything of substance, may make Prop8 particularly vulnerable on Constitutional grounds.

Taken further, this viewpoint would suggest that once you give LGBT people any partnership rights, then you are creating them as a second class by denying them marriage. By this argument, states with DPs may indeed be on the "slippery slope" to marriage equality, while those states that deny their LGBT citizens any protections may be inoculated.

This does not get into the thorny area of "strict scrutiny" of LGBT people as a class or equality issues overall. While that's the question Ted Olson wants to litigate (one that could have nation-wide significance to the equality movement), that may not be the question upon which these judges will rule.

Instead, it may all hinge on the fact that we had the right to get married--and 18,000 of us did. And then the voters took it away.

Prop8 appeal hearing, followup (updated)

I did not see the hearing, being in meetings all day. For some good commentary of what transpired and what it might mean:

• The LA Times thinks it went well.

  The judges explored at least two routes that could achieve that goal. One would be a ruling that California, having granted marriage rights to same-sex couples, could not take them away by popular vote. The other would avoid a decision on the constitutional issues by declaring that gay-marriage opponents lacked the legal standing to appeal a lower court striking down Proposition 8, the 2008 ballot measure that amended the state Constitution.

• San Jose Mercury News has a detailed article.

  [Judge] Smith, an appointee of former President George W. Bush, also repeatedly challenged [Prop8 defense attorney] 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."

  
  
• Standing, Romer, and the Word from Prop8 trialtracker, again focusing on the idea that uniquely, California gays have all the rights but the word--and they used to ahve the word.
• SLugfest on gay marriage and standing in 9th Circuit, from lawyer Nan Hunter. Read this for a detailed discussion of the standing issue. She concludes,

  On the merits, the most important exchanges related to whether the court could determine the constitutionality of only Prop 8, that is, without reaching the question of whether bars to same-sex marriage in other states would be unconstitutional. Asked that direct question of whether the court could avoid ruling as to other states, Ted Olson said yes, although he added that the decision he wanted would be on broader grounds. If I had to bet on the merits, my money would be on a decision affirming the district court that applies only to California, and based on reasoning so limited to California that it would not be binding on any other state, even the other states within the Ninth Circuit. In my opinion, that would be the best possible outcome in this case, since it would make it possible that the Supreme Court would decline to review it at all.

• Also an excellent overview from Elizabeth Wydra at the HuffPo.
• Scotusblog: Deciding what to decide:

  Judge Reinhardt conceded that voters could amend their own constitution, but, he said, the key question is “what are you amending?” If the measure is taking away a right that previously existed, the judge suggested, that would not be open to voters to do. The problem, the judge said, would arise if a state were “taking away a right for a particular class with a reasonable reason.” And, he suggested, picking up on Judge Smith’s point, what was reasonable about giving gays and lesbians all the privileges of marriage, as California does, while taking away the title of marriage (which homosexuals had gained in a California Supreme Court ruling overturned by Proposition 8).
  
  Several times, Judge Smith made it clear that he was worried, as he put it, about the rational basis for going as far as California had gone. While the judge speculated about some reasons that California voters might have, he seemed uncertain that those were strong enough. The judge even wondered whether a state that had not given any rights to same-sex couples might have a stronger argument for denying marriage rights than Californians had.\

• Shannon Minter's reaction from Pam House Blend

  Therese Stewart, Chief Deputy City Attorney for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is "okay."
  
  Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is "animus," or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on "animus" does not have to mean that the voters intentionally sought to harm gay people. Rather, unconstitutional "animus" can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.

• Feisty questions on standing and merits from Keen News Service.
• And let's not forget what they really think, since part of the decision sits on whether or not Prop8 was motivated by animus. There was a rally outside the courthouse. Syd Peterson reports

  As I made my way up the courthouse steps, a Christian with a bullhorn and a huge yellow sign that read, “HOMO SEX IS SIN,” yelled from across the street: “You are an abomination!” He continued, “You don’t know anything about marriage! You don’t know anything about love! You know about lust!”

Prop 8 update: response to appeal

The Prop 8 federal case is now in the appeal stage. The Bad Guys and their friends have filed appeals and amicus briefs that explain accuse Judge Walker of bias, reiterate the same old arguments they tried before, and throw in a few new ones (including spurious, fact-free claims). They try to introduce new evidence not presented at trial. They also have to explain why they have standing to appeal, in the absence of any state interest in defending Prop8. (There's a related appeal by Imperial County claiming that it should represent the state in defending Prop8 because they issue marriage licenses. Imperial County voted against us by about 70% and are represented by a Christianist legal group, the Advocates for Faith and Freedom.)

Our side has just submitted their rebuttal of the appeal. The response and more info are at the ever-helpful Prop8 trial tracker.

What can the Supreme Court mean when it says that our Constitution "neither knows nor tolerates classes among citizens," if a majority can so stigmatize a small, visible, and vulnerable minority and in the process cause such wrenching anguish? The American promise--and dream-- of equality surely means at a minimum that the government, before "drawing a line around" some segment of its citizenry and designating them unworthy of something as important and socially meaningful as the institution of marriage, must have a legitimate and factually tenable rationale for doing so. Proposition 8 fails even at this most basic level of scrutiny. It advances no legitimate purpose.

The Crux of the Prop8 defense.

From the Christian Science Monitor article on the Prop8 case:

“The media should be focusing on the absence of harm demonstrated at trial by the Pro-8 side," [UC Irvine Law School professor Tony Smith] says. "The witnesses for them conceded that same-sex marriage doesn't harm heterosexual couples in any way, and that the ban on same-sex marriages directly harms families,” says Mr. Smith. “Given that over 36,000 gay and lesbians got married in California in the brief period when it was legal, if harm occurs from same-sex marriages, the appellants should have been able to demonstrate it.”

Cooper's revenge?

Time magazine has excellent coverage of the appeal from the pro-Prop8 side.

The proponents' lead attorney, former Reagan-era Justice Department lawyer Charles Cooper, has tipped his hand about where he'll strike with his appeal, now due Sept. 17. It's a remarkable — and, with the court's permission, longer than normally permitted — brief, which in 75 pages lays out a vigorous defense of Prop 8 that stands in stark contrast to the generally anemic defense his side presented at trial....

Cooper's brief reveals a strategy that looks like nothing if not a plan to proceed as if the trial didn't happen. All but ignoring Walker's conclusions to the contrary, Cooper argues that the right to marriage does not include the right to same-sex marriage, which he said would be a new right — and one not subject to the same strong protections enjoyed by fundamental rights like marriage. He argues, too, that gays and lesbians as a class are different than racial minorities, or even gender classes, because sexual orientation is harder to define, and gays lack the political powerlessness that racial minorities were enduring when they were given constitutional protections.

As a result, he argues, the government interest in laws like Prop 8 needs be subjected only to the lowest level of constitutional scrutiny, an equal-protection standard known as rational-basis review. Ten previous courts have held that laws discriminating against gays need only survive scrutiny under the more permissive rational-basis review, he argues. "The unanimity of these decisions is no accident, for the question whether gays and lesbians satisfy the requirements for suspect-class status is not a close one. As an initial matter, homosexuality is a complex and amorphous phenomenon that defies consistent and uniform definition. As well-respected researchers have concluded, 'there is currently no scientific or popular consensus on the exact constellation of experiences that definitively 'qualify' an individual as lesbian, gay or bisexual.' "

Read the whole thing.

Will the Right Yield California to keep other marriage amendments intact?

From Right Wing Watch, an interview with the Other Side.

So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."....knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.

If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.