Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer

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Liberty & Justice by Mirko Ilic

Emptywheel and Firedoglake have covered the groundbreaking marriage equality civil rights litigation in Perry v. Schwarzenegger from the outset. today is the critical appeal in the 9th Circuit and it is being televised on CSPAN live. In a separate dedicated post, Marcy Wheeler will be liveblogging and I will be assisting with color commentary both through her and in comments.

The case was filed by plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo in response to the passage of an amendment to California’s constitution by Proposition 8 providing “Only marriage between a man and a woman is valid or recognized in California.”

There was a three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The appeal being argued today is from that decision by Judge Walker.

The oral argument is being televised live by CSPAN, will be carried by live feed on numerous internet sites, and will likely be on several other television networks as well. Here is a page with links and viewing information.

Here is Firedoglake’s dedicated Proposition 8 Resource Page containing just about everything you could possibly want to know about the case from start to finish including links to all of our coverage of the trial, closings, and judgment process, as well as the lead up to today’s argument, and nearly every important document, filing and brief in the case.

An article yesterday by Maure Dolan in the Los Angeles Times hit the nail on the head as to where to focus watching the oral argument:

When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.

“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.

Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said.

Having spent my legal career practicing in the 9th Circuit, I can tell you Dolan is spot on here. Reinhardt is Read more →

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The Chicken Shit in Your Neighborhood

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Like Mark Bittman, I have rather obsessively been playing with this interactive map, showing where all the factory farms are in this country, broken out by county. In my case, the interest is personal. I moved from the hippie-Ag area around Ann Arbor, MI, to west MI, where much of the bigger Ag is located (the biggest skyscraper in the area is a soy processing plant). I’ve driven a lot in the backroads around here and seen lots of blueberry plantations, some diverse crop farms, and the long sheds housing some kind of unhappy  industrially raised animals. This map provides a census of those unhappy animals.

I learned, for example, that there are 2.6 million egg-laying hens in the county, second only in the state to Allegan County, just south of here, which has 3.6 million layers.

It’s overcast today. Which means when I walked the dog in the beautiful snowy day, the smell of chickenshit (from the farms some distance to the east) hung in the air. It’s the first I noticed it so close to town, though there’s one gorgeous park where the adjoining chickenshit farm (which is upriver of town) makes the park pretty unusable.

Anyway, have “fun” with the map (and related factoids). Let us know in comments what kind of shit farm you’re living downriver from!

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Prop 8 Judge Tells H8ters to Get Lost; Denies Motion to Disqualify

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Liberty & Justice by Mirko Ilic

As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.

So, of course the hating bigots that comprise the pro-Proposition 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because – gasp! – his wife has spent her career at the ACLU who -gasp! – actually is in favor of marriage equality. In a nutshell, D-Is argue:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
…
The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit…
…
It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.

The D-I argument is, of course, ginned up baloney. Reinhardt’s wife, Ramona Ripston, was never an Read more →

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Crist’s Morrison Pardon: 21st Century Fox In A Lizard King’s Henhouse

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Hey, being pretty much a sentient life long Doors aficionado, I am all in with pardoning Jim Morrison, which there has been a flurry of scuttlebutt emanating, cool and slow, with a backbeat narrow and hard to master, out of the instant swamps of Florida, regarding.

Oh, and when I heard the subject brought up by the patently unhip, plodding Blue Dog, holier than thou, I’m a better Democrat than you, scold Larry O’ Donnell on his craptastic bloviathon MSNBC show, that was just too fucking much. The backdoor rumor is Charlie Crist, who may or may not have eaten more chicken that a man has eve seen, is pondering giving the Big Scooter Libby Get Out Of Jail Free card to the Most Right Reverend Snake King Jim Morrison.

Outstanding. And long over due. Because if some fucking little germ boy, bear cage child threatening, functionally traitorous subservient to Cheney blank like I. Lewis “Scooter” Libby can get a walk from a complicit President of the United States in order to mask apparent criminal behavior, then why not a posthumous hall pass for James Douglas Morrison? Seriously.

If you are comparing and contrasting facts and circumstances, one was an entertainer who may or may not have, for a fleeting moment, exposed himself in 1969 to a Miami audience at the end of a Doors concert that truly could not only have cared less, but were bummed they had not done so earlier. The other, Cheney’s toy Scooter, conspired to expose and out a classified top CIA clandestine agent working on the most critical issue of the day, the existence of nuclear and/or weapons of mass destruction in Iraq and/or Iran. You know, the fraudulent reason the very same Mr. Cheney and wooden operated mouthed George Bush relied on to affirmatively, aggressively and illegally start a war against Iraq for the sins of 9/11 that Iraq not only did not commit, but had actual avarice for the people who did.

That Scooter Libby.

So, if Scooter Libby can skate and, in the process, serve as a firewall for the immorality and illegality of the Bush/Cheney Administration, there is no reason the Lizard King should not be posthumously exculpated.

No tears, no fears, but a lot of ruined years. Charlie Crist made clear intimations he wanted to do this when he took office. Being a gutless politician at heart he, of course, never did it as Governor of the rockin state of Florida. Instead he cowered to the perceived sensabilities of the people in rockin chairs. And lost his ass, soul and electability in the process. Douchebag. Crist is toast. But if he wants to belatedly clean up the halls of the Morrison Hotel, well then I am all for that. Mr. Mojo is rising; Charlie Crist is not. Lizard Kings rule; political blanks drool.

We have constructed pyramids in honor of this escaping. Let the spirit of Mr. Mojo fly Mr. Charlie Crist. It is about the only thing of merit, morals and guts you can do at this point. Get on with it you ineffectual political chameleon stale fish.

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The Obama Disconnect: Arlington, Korea and Catfood

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Marcy wrote earlier this morning about David Axelrod’s despicable announcement of Obama’s capitulation to the oligarchs on tax cuts (another lead balloon the Obama White House incompetently tried and failed to walk back). Later this morning, however, were a couple of events that put an even starker gloss on this pig.

First, was this from The Oval:

President Obama is in Seoul, South Korea, where today he said lawmakers in the United States should hold off on comments about his fiscal commission’s proposals to slash the federal budget deficit through spending cuts, ending tax breaks, and a revamping of the Social Security system.

“Before anybody starts shooting down proposals, I think we need to listen, we need to gather up all the facts,” Obama told reporters.

He added: “If people are, in fact, concerned about spending, debt, deficits and the future of our country, then they’re going to need to be armed with the information about the kinds of choices that are going to be involved, and we can’t just engage in political rhetoric.”

So, Barack Obama is in Korea lecturing Americans to suck it up and embrace the catfood he and the wealthy elite have deemed necessary to feed us in order to pay for their grotesque largesse. Notably, at the same time Vice President Biden was left to be the White House representative at the traditional Arlington National Cemetery ceremony to honor America’s Veterans, where Presidents usually pay their respects and appreciation to veterans and the military. Especially during a “time of war”. Obama couldn’t make it to Arlington for the Memorial Day Ceremony either.

But Mr. Obama could not be present at Arlington this time because he was in Korea. And just what was so pressing in Korea? As Jane Hamsher points out, it is the desire to press for a horribly conceived US-Korea free trade deal:

It would be a truly horrific blow to whatever is left of American manufacturing at a time when unemployment is rampant. But from a political standpoint, fighting for another so-called “free trade” agreement right now has got to represent some kind of death wish for the Democratic party.

Yes indeed, but thus is what we are constantly served by Barack Obama. As Paul Krugman today rightfully termed it, Mush From the Wimp.

You know, it is not just that the arrogant and cluelessly detached President Pangloss is steaming toward a one and done Presidency, it is that he is literally destroying the Democratic Party and liberal ideology in the process and leaving them in his wake.

UPDATE: I guess Obama couldn’t even sell crack free trade to Charlie Sheen the Koreans.

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The War on Efficient Trash Collection

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Normally, I wouldn’t get into a shouting match between John Cole and his poster ED Kain. John started it when he objected to a revolt against a city council decision to contract with just one trash collector.

Our entire nation has collectively lost its shit:

A Valley community’s decision to change the way trash is picked up provided further proof of how deeply the nation’s anti-government, “tea party”-fueled sentiment is running.A decision by the Fountain Hills Town Council to hire a single trash hauler and begin a curbside recycling program has been met with angry protests from residents who accuse town leaders of overstepping their bounds and taking a leap toward socialism.

Some even likened it to “Obamacare” for garbage, calling it “trashcare.”

[snip]

This is how the American empire will end. With us rioting in the streets over the right to choose a trash collecter, while the top 5% laugh all the way to the bank.

Followed by Kain hailing choice.

Naturally, I disagree entirely with John’s argument on trash collection. It may be a small issue – so long as your trash is collected, it doesn’t really matter that much who picks it up – but the Tea Partiers are right this time: having choice is a good thing, even for trash collection. If the government came in and said “You can only buy Dell computers from now on” people would be unhappy. We want to be able to choose what kind of computer we buy – and not just because maybe we prefer Apple, but because we know that competition keeps innovation up and prices down.Now, in trash collection you probably won’t see too much innovation, but competition will keep prices down and quality of service high. If you don’t like the people picking up your trash, or the containers they provide, or the driver is rude, or whatever – you can switch.

Once the government has granted a monopoly, however, you’re stuck. It doesn’t matter what level of service you receive, whether prices go up – you have no choice. Many of us already have no choice when it comes to trash collection, so this is sort of a foreign concept. And that’s also why this isn’t really that big of a deal. Trash is basically a public utility in many places, and it works pretty well that way.

But I’m going to wade into this trash debate because it’s something I’ve been thinking a lot about lately. As you probably know, I recently moved from an idyllic left wing small city to an idyllic right wing small city. Both are great places to raise a family, both have charming downtowns, and both support diverse local businesses. One big difference, I’ve come to learn, is that the left wing city provides high quality public services–including single stream curbside recycling, best-in-state public schools, and well-developed social services, whereas the right wing city has privatized those same functions, with “choice” in trash collection, a significant reliance on religious schools (this is one of the hotbeds of voucher activism), and church groups providing many of the social services.

Now, as it happens, I still live in a complex with dumpsters; I’ve got no choice in trash collection because my landlord chose a collector for me. Which means I’ve got to pay a yearly fee with the county for the privilege of driving my recycling to a dumpster a few miles away. Which also means I can’t speak to this wondrous choice that Kain says we might have in trash collection firsthand.

But I will say this. First, it is a significant pain in the ass, on trash day, to have 4 different sets of trash collectors holding up traffic four different times on the same damn roads, because four different companies are picking up trash in the same area. This is not a dense area, which means you’ve got miles and miles and miles of duplicated truck routes, all in the name of this glorious “choice.” Each of those duplicative four truck routes cost money (and of course none of them have the automated pick up that might be affordable if a city awarded a monopoly for the pickup), which I presume makes the cost to consumer much higher. Of course, the way to avoid all this duplication in an idyllic right wing small city, is to push everyone into developments with CCRs, so the development can band together and offer a monopoly to one trash collector, thereby avoiding the four sets of trash trucks, but not the potential for corruption. Choice is not all it’s made up to be, particularly for services with a huge upside on efficiency.

As for me, I have honestly studied which townships offer trash collection–and particularly whether they offer curbside recycling. Because I’ve discovered out here that the real choice you’ve got–certainly the choice to have some kind of efficiency in trash collecting–comes when you select your house, because once you’ve picked, you’re locked into inefficiency.

(And don’t even get me started on sidewalks.)

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Zenyatta! An LA Woman Runs For The Roses & History

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There is great football this weekend, both by student and professional athletes. Obviously, that should be discussed in comments. It’s what we do here. Bizarrely as it may be, this blog exists in its current form because of some weird joining of legal thought and passion for football, with a smattering of divine intervention by Phred and perhaps a few too many pitchers of Beamish. Go figure; that is the randomness of entropy and the blogosphere. Nevertheless, here we are.

And so, here we are and I serve up a prime weekend Trash Talk of horse. Sue me if you object; my attorney, Mary, she of midwestern common horse sense, will answer and defend. Aggressively.

The story of Zenyatta was first adopted and incorporated by the Emptywheel blog just over a month ago when she ran to defend her crown in the Lady Secret Stakes at Hollywood Park in the City of Angels, California. Well, we are all in now. So much so that we had an official liveblog reporter at Hollywood Park for the Lady Secret, Rosalind. Rosalind not only went to Hollywood for the Lady Secret, she took pictures and came to feel the force that is Zenyatta. Although a bit bottled up and not quite as focused as normal, Zenyatta brought the heart of the champion she is and closed out a win, and defense of her crown, in the Lady Secret.

The Lady Secret win at Hollywood park made Zenyatta an unprecedented 19-0 in her racing career. She won the Breeders Cup Classic last year; other than the Triple Crown races of the Kentucky Derby, Preakness and Belmont Stakes, the biggest, and arguably more annually competitive, horse race in the world every year. No woman had ever won this bring all comers race before, but Zenyatta closed out all the best boys in the world, in the biggest race in the world. In style.

Last years’ Breeder’s Cup Classic win made Zenyatta a star, and fixture among the greatest horses of all time, and almost certainly surpassing the truly remarkable and astounding Rachel Alexandra to take her place as the greatest filly of all time. But now comes the 2010 Breeders Cup Classic. Rachel Alexandra, other fillies, and indeed almost all other horses regardless of sex are either in the backseat, or paying damn close attention as Zenyatta makes a move on unquestionable immortality.

A second Breeders Cup Classic win against the best male horses the world has to offer would put Zenyatta in the untouchable category. Babe Ruth and Secretariat land. Where, arguably, no horse, male or female, has gone before. This is truly stunning stuff.

Now, I have no idea whether this horse can close the deal or not. But, at a remarkable and unprecedented 19-0, Zenyatta has earned the reputation, and buildup, that puts her in this position. Seriously. In spades. The last horse that came into a race like this with the weight of history and expectation of otherworldliness on it’s shoulders was Secretariat in the 1973 Belmont Stakes. We know what happened in that race.

So, we shall see. There is stiff competition from the boys (so to speak). She will have to beat some studs including Paddy O’Prado, Blame and, perhaps most significantly, Bob Baffert’s Lookin at Lucky. Despite her eternal greatness, the odds and history are stacked against Zenyatta. While there is almost no chance Zenyatta will pull away from a talented field like Secretariat did in the 1973 Belmont, may the modern day Pegasus fly to a win of any nature and history!

There is also, of course, college and pro football; not to mention the penultimate race in the F1 Circus this year, the Brazilian Grand Prix. Somewhat incredibly, Fernando Alonso of the real red animal, the prancing horse of Ferrari, leads Mark Webber of Red Bull by eleven points going into Sao Paulo. Red Bull is fast in practice, but it is Sebastian Vettel leading the way. With only this race and Abu Dhabi left in the season, the race is indeed on!

It has been a long hard slog this week folks, let’s rip this joint and trash it up!

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The Logical Outcome of Juan Williams’ Legitimization of Irrational Fears

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As Adam Serwer noted, a family apparently dressed in Muslim garb was removed from a plane and questioned by the FBI today.

Some cannot help but think their appearance had something to do with a family’s removal from a plane Tuesday morning at Memphis International Airport.

“My understanding is they were dressed in attire that would indicate some Muslim-type religion,” said airport vice-president Scott Brockman.

[snip]

“The family was asked to leave the aircraft, which they did peacefully,” said Brockman.  “At that point, the aircraft was inspected and cleared,” he added.

A bomb-sniffing dog and other measures resulted in a two-hour delay.  The family was placed on a later flight following an interview with the FBI.

Thanks to Juan Williams’ legitimization of this kind of irrational response, I guess people dressed in religious garb no longer can pee in crappy airplane bathrooms without expecting to be detained by the FBI.

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Judge Phillips’ DADT Order Is Not The Victory Being Claimed

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As David Dayen is reporting at FDL News, Judge Virginia Phillips of the Central District of California United States Federal Court has issued her injunctive order in the Log Cabin Republicans’ (LCR) Don’t Ask, Don’t Tell (DADT) case, formally known as Log Cabin Republicans v. United States of America and Robert M. Gates:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

Judge Phillips’ order is being hailed far and wide as the greatest thing since sliced bread – at least on LGBT rights as they relate to DADT. I am quite decidedly not so sure about that.

I simply do not see how this judge, Virginia Phillips, has either the authority or jurisdiction to enter the sweeping injunctive mandates she has done in sections 2 and 3. The scope of those sections appear well beyond her actual authority and, quite frankly, have the patina of such an overreach that they should be appealed based upon protection of Executive Branch power and authority concerns. It is hard to see how the federal government in DC can allow a single remote District Court judge to have that type of reach over the conduct of the entire United States military across the globe.

There is little question but that the CACD had the jurisdiction to hear the case itself and to grant relief to the specific individuals within the established umbrella of the designated plaintiff “Log Cabin Republicans” within the territorial jurisdiction of the CACD. Further, there is no question Phillips has the authority to rule the DADT policy unconstitutional on a facial challenge to its constitutionality, which the government strongly argued this case was Read more →

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Witt Reinstated To The Air Force; Wittless In The White House

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The late, but great, news this fine Friday afternoon is the decision of Western District of Washington (WDWA) Judge Ronald Leighton in the case of Air Force Major Margaret Witt. Witt has been an Air Force reserve flight and operating room nurse since 1987 and was suspended from duty in 2004, just short of retirement, upon her base commanders being informed by an off base nosy neighbor that she was a lesbian.

From NPR:

A federal judge ruled Friday that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but two federal judges have ruled against the policy in recent weeks.

Maj. Margaret Witt was discharged under the “don’t ask, don’t tell” policy and sued to get her job back. A judge in 2006 rejected Witt’s claims that the Air Force violated her rights when it fired her. An appeals court panel overruled him two years later, leaving it to Leighton to determine whether her firing met that standard.

This is indeed a wonderful decision, and one based upon the elevated level of scrutiny that is now clearly the standard in Federal court consideration of the rights based on sexual preference. The full text of the court’s decision is here. The critical language from the decision setting and clearing the table is as follows:

Plaintiff commenced this action by filing a Complaint on April 12, 2006. On July 26, 2006, this Court granted the government’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that the regulation was subject to rational basis scrutiny, and that the evidentiary hearings held, and factual findings adopted, by Congress provided a sufficient foundation to support the regulation. Plaintiff timely appealed.

The Ninth Circuit agreed with plaintiff. It held that Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) effectively overruled previous cases wherein the Ninth Circuit had applied rational basis to DADT and predecessor policies. It held that something more than traditional rational basis review was required. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). The Circuit

Court vacated the judgment and remanded to the District Court the plaintiff’s substantive and procedural due process claims. It affirmed this Court’s dismissal of the plaintiff’s equal protection claim. On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest. Witt, 527 F.3d at 821.

Now comes the interesting part of the opinion (and case as argued by the government) and it ties in directly with the Log Cabin Republicans v. USA DOD decision recently rendered in the Central District of California (I will return to that in a bit). Specifically, the 9th Circuit based at least partially upon briefing in the alternative by the government (i.e arguing multiple positions), granted the government’s argument that, at a minimum, they were at least entitled to argue that homosexuals were bad for Read more →

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