July 18, 2024 / by 

 

The New Obama Policy On Constitutionality Of DOMA & Boies/Olson Reaction

Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, the Attorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains what this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom line is that they have done it, it was extremely bold in its forcefulness and it was the right thing to do. Mr. Obama and his Administration deserves credit where due. This is an area where I have expressed extreme disagreement with Mr. Obama and his policy, and he has met exactly the issues that were faulty, and in a strong way.

Another thing should be noted here. From what I know of the 2nd Circuit, and what others very knowledgable about it confirm, the 2nd is going to find this music to their ears. They may not be the equivalent of the 9th Circuit on everything, but their disposition was going to be to knock down DOMA to start with. With this extra ammunition provided today, expect them to write VERY strong opinions knocking back DOMA and finding clear cut Constitutional protection for sexual identity equality. Couple that with the clear position evinced by the 9th Circuit, and the tide is turning. Fast and hard.

I simply do not see how Anthony Kennedy, based both on what I know of him and his clear opinion in Lawrence v. Texas, will not find for sexual identity equality if and when these cases reach the Supreme Court. This is why I have always maintained that Boies and Olson should stipulate to standing in Perry and get the case to the Supremes.

The above linked documents speak for themselves in most regards, but I would like to point out a couple of things. First, the Administration is not just going to cease defending DOMA, they are doing so on the express ground that it “violates the equal protection component of the Fifth Amendment”. That is huge. Not just that it is wrong, but that it flat out violates the most fundamental protections within the United States Constitution. Secondly, and to a legal eye every bit as important, if not more so, they have concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Again, huge. They lay out a detailed analysis under Bowen v. Gilliard why this is so, discuss Lawrence v. Texas, Romer v. Evans, Fontiero v. Richardson and conclude:

Each of these factors counsels in favor of being suspicious of classifications based on sexualorientation.

and

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent o f the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.

Ballgame.

And why do I say ballgame?? Because this is far more reaching than just the pending DOMA cases in the 2nd Circuit. No, this seismic change will filter into any LGBT Constitutional rights case pending in federal or state courts. The first case that came to my mind was the Log Cabin Republican case out of the Central district of California (CACD).

I had no sooner started writing about the applicability of today’s Obama Administration announcement to the LCR case, when an even better example of the far ranging consequences came across my desk straight from the 9th Circuit Court of Appeals. David boies and Ted Olson, on behalf of the plaintiffs in Perry v. Schwarzenegger, have filed a Motion to Lift the Stay Pending Appeal on marriage equality in California. Speaking of huge, this instantaneous and hard edged aggressive action by the Perry plaintiffs fits the bill:

Moreover, events of this morning demonstrate that proponents likely cannot prevail even if this lengthy procedural detour were resolved in their favor. In a letter to Congress, the Attorney General of the United States announced the view of the United States that ““classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of”” the Defense of Marriage Act (““DOMA””)——which defines ““marriage”” under federal law to be ““a legal union between one man and one woman””——““is unconstitutional.”” Letter from the Attorney General to Congress on Litigation Involving the De- fense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).

These new developments——this Court’’s certification order, the California Supreme Court’’s response to it, and the Attorney General’’s announcement that the gov- ernment will no longer defend DOMA——are materially changed circumstances that warrant vacatur of this Court’’s decision to grant a stay pending appeal. See SEACC v. U.S. Army Corps of Eng’’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

The long and short of this is that Boies and Olson argue that between today’s announcement of the quantum shift in policy by President Obama and Attorney General Holder and the direction the California supreme Court is heading creates a situation is which there is simply no resolution of the appeal that favors the challengers – the h8ters – actually winning on the merits. There are several ways the case could go down, as pondered through by Boies and Olson, but none of them favor the bigoted proponents of Proposition 8.

Boies and Olson have a pretty compelling point if you total up the legal considerations extant at this point. The other thing I think should be noted here is just how fast the Boies and Olson motion came on the heels of the Obama/Holder announcement. I first heard rumor of the coming announcement of the new Obama policy at 9:15 am PST. Boies and Olson filed their motion and had it entered on the 9th Circuit ECF (Electronic Court Filing) system by 9:56 am PST, a mere 40 minutes later. Trust me, this is not possible, even for ace attorneys like David and Ted.

What the above shows is that there was at least some advance notice to and/or cooperation between the AG/DOJ and the Perry Plaintiffs, and far more than the press got. The Administration should be commended for this as well, when they finally decided to ante in on the right side of the Constitutionality argument, they went all in. Bravo!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]


California Supreme Court To Hear Perry Prop 8 Question

The breaking news out of the California Supreme Court is that they WILL entertain a full merits consideration of the question certified to them by the 9th Circuit in the Perry v. Schwarzenegger appeal. From the LA times:

The California Supreme Court decided Wednesday to determine whether the sponsors of Proposition 8 have special authority to defend the anti-gay marriage initiative in court.

The state high court, meeting in closed session, agreed to a request by the U.S. 9th Circuit Court of Appeals to determine the status California law gives initiative sponsors.

The court was unanimous in deciding to accept the case. The court’s order set an expedited briefing schedule to permit a hearing by “as early as September.” The court must rule on a case 90 days after oral argument.

A panel of the 9th Circuit has indicated it would have to dismiss an appeal by proponents of Proposition 8 on procedural grounds unless the California court determines that the initiative’s sponsors have legal standing. A procedural ruling would not affect gay marriage outside of California.

This is fantastic news, even though it was pretty much expected in the legal community. The California supremes simply would have taken far too much grief if they had punted without answering the question at all and leaving the 9th Circuit hanging. That was not going to happen, and it didn’t.

Now the question is how will the Supreme Court decide the question of whether the Proposition 8 sponsors have standing? That is unclear, but the smart early money would be that the court will indeed find standing based on the tenor of their consideration of Strauss v. Horton. Strauss was a consolidated decision of three different suits originally filed after the passage of Proposition 8, and in it the court gave some weight and deference to the initiative’s sponsors and voters. giving standing to the Prop 8 sponsors would also seem to be in line with other cases that have upheld the initiative process in California over the years.

The full text of the order, including the briefing schedule, is as follows:

The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted.

For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively “Proponents”) are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).)

In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18.

Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011.

The court does not contemplate any extension of the above deadlines.


9th Circuit Punts On Perry Prop 8; Certifies Standing To California

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the 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 current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

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 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.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

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.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair’”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]


Teh Gay Are Stealing the Rainbows! Who Will Protect Richie Blackmore?

Alright, this is a quick hit because it is so freaking absurd. And it flat out cracks me up. Do these dogmatic conservative religious nutjobs ever stop to think how completely insane they sound? No.

Via Jillian Rayfield at TPM:

Becky Yeh of right-wing American Family News Network’s OneNewsNow, a product of the American Family Association, writes that Morse says “the rainbow is a sign of God’s covenant with man.” Morse told ONN: “Proposition 8 was passed by a great grassroots coalition that included people from all across the religious traditions, and also people of every race and color. We are the real rainbow coalition. The gay lobby does not own the rainbow.”

Morse continued: “We can’t simply let that go by. Families put rainbows in their children’s nurseries. Little Christian preschools will have rainbows…Noah’s Ark and all the animals…. Those are great Christian symbols, great Jewish symbols.” She also described how she wore a rainbow scarf to the Prop 8 hearings to show that anti-gay marriage activists still own the symbol.

You know, I don’t recall them specifically citing the theft of rainbows, but this is literally about the same kind of stupid shit argued by Charles Cooper, Andy Pugno and their battery of genius bigots attorneys in and around the Perry v. Schwarzenegger Prop 8 trial.

They’re all ripping off Richie Blackmore.


Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog

See bmaz’s intro explaining what will go on during the hearing here. Follow along on CSPAN and California Channel.

[This graphic is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

We’re doing the standing question now. Defendant-Intervenor’s Cooper is up. First question notes that the opinion they’re relying on preceded another opinion which shot it down.

Judge asks for a federal precedent.

“Your honor, I don’t have a case.”

Are you aware of any CA law which states that proponents do have standing?

Cooper: Strauss.

Strauss doesn’t talk about proponents as agent of the state.

Did you seek injunction to get AG to appeal?

Cooper: No.

If AG has power to do it wouldn’t that have been a way to ensure your ability to seek standing.

Reinhardt: Didn’t someone else do that?

Cooper: That wasn’t us.

Cooper explains how NJ Supreme Court decision led to standing in another federal case, Forsythe, which is the argument he’s making here.

Cooper: No one else would defend constitutionality of the statute in Strauss were these proponents. In that case, I hasten to add, CA SC denied intervention status to another group. In Strauss case, at Court of Appeals level, not in Strauss cases, marriage cases, the court of appeals denied intervention to a group that was not the official proponents but stated that “we make no ruling wrt whether under our law official proponents would be authorized in default of state officials would be authorized in representing state’s interests in state statute.”

Reinhardt: One more detail about court ruling–did court deny?

Cooper: I don’t know.

Reinhardt: better to say you don’t know than to guess.

Robert Tyler: Plaintiffs think justice served where appellate rule is frustrated.

Reinhardt: They’re talking about procedural rules.

Start by talking about Dolores Kozinski is. She’s the clerk.

Tyler: Deputy Clerk is a civil commissioner of marriage.

Anything in record to suggest she’s acting w/the clerk’s authority? The answer’s no, right?

Tyler; Nothing. Declaration of Miss Vargas saying she has these responsibilities. In position to intervene, assume facts to be true.

What facts are in record to show that Vargas has any authority whatsoever.

Tyler: In her declaration.

You’re repeating yourself now. Nothing in the record says she has authority, correct?

Tyler: She’s appointed by Board of Supervisors.

All political functions remain vested in County Officer who would continue to exercise them when present. Only be exercised by Deputy in name of or act of principal. So I’m again worried that this clerk can only act as agent of principal, and if clerk isn’t here we have a problem.

Tyler: I disagree.

You disagree with Fout?

Tyler: Govt has ability to commission others.

Ability to act is what we’re about here.

Tyler: Judge Walker’s order binds her. Said all County Clerks under supervision.

Not true, I thought she was independent officer.

Tyler: Fact of matter is that Walker issued order.

Different question whether Walker thought she was bound, that may lead you to a different theory.

Are they state officers performing state functions.

Tyler: Local, individuals who are statutorily created under govt code.

How do I get around language in Locke that says they are state officers.

Tyler: State function, issuing of marriage licenses.

Tyler: What case turns on is whether or not her duties will be altered bc of this case.

Language in Locke: If however controlling rule of law requires official to carry out ministerial duty dictated by statute, unless and until determined to be unconstitutional. Such official cannot compel a court to rule on constitutionality of issue.

Tyler: Locke stands for important proposition. City and State of SF trying to violate the law. Imperial county trying to uphold the law.

Now using death penalty as analogy.

Reinhardt: When you’re asked a question and don’t know the answer, say so.

Two county clerks said they were comfortable with ruling. Could a Deputy Clerk in either LA or Alameda County come in and say “I don’t agree w/my boss.”

Tyler: If they have official duties.

How long do you think he would last?

Tyler: Maybe why we don’t have other govtl defenders. We have a clerk.

You have a Deputy Clerk, we’re left completely at mystery to know why the clerk is not before us.

We’re wondering why there’s not a single sentence in her affidavit saying she’s acting on the authority of clerk.

Did you say Board of Sups appoints?

Tyler: I was mistaken, I was given a note, they’re elected.

May delegate authority. Did you ask AG for authority to appear?

Tyler: We did not.

Did Judge Walker say your client was bound by injunction?

Tyler: Quavers.

You’re not answering our question, you’re using other people’s time.

Tyler: Said Vargas had no authority to disregard.

Boies: Let me begin by answering court’s question wrt getting AG to appeal. One sentence denial. Also like to be certain record is clear, permanent injunction issued by Walker relates only to official defense and persons under control.

So Walker was wrong about registrar controlling county clerks. If she’s not bound by injunction how is she bound?

Boies: We don’t believe she does.

So only clerks of LA and Alameda bound by this?

Boies: No, AG and Gov also bound.

What about clerks who issue licenses? Aren’t they bound?

Boies: Marriage is state-wide concern.

Basically, Boies is trying to argue that Vargas isn’t affected by Walker’s ruling, but that the AG and Governor will now go to use the state courts to enforce law via county clerks. I sort of wonder whether this arg would have gone the same way if Brown hadn’t won?

Boies: Had trial before Walker, Walker has enjoined gov and AG, all defendants.

And that phrase was makeup was chosen by plaintiff’s counsel, chose only Alameda and LA. Made no effort to get defendant class certified, or plaintiff. That was a known factual choice.

Boies: We could have done that your honor. Just as plaintiff in Romer did not proceed via class act.

[Doesn’t matter anyway, bc John Roberts is about to get rid of class action.]

As of now, nobody is bound except LA and Alameda. No other clerks.

Boies: But bc all clerks are ministerial officials who simply issue marriage licenses to whomever state decides is entitled to marriage licenses.

But then why did you need anything?

Boies: In absence of judicial determination wouldn’t have done that. Both Gov and AG have continued to enforce the law. Could have tried to change the law in CA. They’ve not done that.

Question about that: my understanding that these particular initiatives could not have been vetoed. Leg could not even amend them unless approved by voters, I guess my problem is, in fact gov’s actions have nullified efforts made by initiative to be placed on ballot.

Boies: I would disagree.

If they don’t appeal and therefore no one can appeal, haven’t they nullified affect?

Boies: Only insofar as every state case, if state doesn’t appeal, it nullifies.

Boies: Do not appeal decision after trial finding it’s unconstitutional.

By suggesting they won’t appeal are they saying they won’t enforce the initiative.

Boies: Because they’re enforcing it right now.

You’re suggesting they won’t enforce.

Isn’t AG in effect veto this by refusing to appeal it.

Smith brings up GInsberg’s opinion knocking down Reinhardt’s earlier ruling.

Boies: Fact that there’s no one to defend does not give standing.

Now asking whether CA SC and SCOTUS determine whether there’s standing.

Boies: In order to have jurisdiction of this court, must have particularized injury, nothing CA court could say that would provide Article III standing to these proponents. It doesn’t matter whether CA wants to give standing under SCOTUS they don’t have standing. SCOTUS said even members of Congress acting pursuant to grant of jurisdiction would not have standing bc no particularized injury.

Would you say that if CA SC said they had standing, you’d be back here making that argument.

If neither opponents have standing and therefore dismiss appeal do we have power to address cope of injunction.

Boies: I do not believe so, your honor.

You’re saying scope of injunction quite limited. You’re counting on AG to go into state courts to expand injunction to other counties.

Boies: I wouldn’t put it that way, but practical terms is that we do have to depend on AG and GOv.

You’re lucky election came out the way it did. [hey I already said that]

Boies: Constitutional standing so important that you can’t just get together and settle it. Where it is clear, it is crystal clear in this case these appellants don’t have standing.

Hard to believe you didn’t want to get a judgment throughout the state. Hard to believe that a lawyer w/your ability and fame and whatever you have–even if you lost to Mr. Olson–nevertheless it’s hard for me to believe that. This marriage system we have is integrated system. They all act in concert in scheme to get two people married. They’re all acting together. Doesn’t injunction extend to all these people acting in concert?

Boies: Injunction itself did not go as broad as it might have under Rule 65.

Smith: How would clerk bring any case about what she’s to do.

Boies: If court were to say I’m concerned about injunction, she would have narrow ability to ask court whether the injunction binds her. I agree that deputy clerk or even clerk if she were here, would not have standing to litigate the issue. Purely ministerial function.

Boies: I would try to end w/two points. Case at federal level of what happened to In Re marriage. State defendants and AG and Gov as respondents. Appellants here do not have particularized injury.

Cooper: In Karcher, what law did they have to defend?

Hawkins: In Karcher didn’t Ag defend?

Cooper: He was willing to reserve wrt attorney’s fees. Only indivs who took notice of appeal to 3rd Circuit. I bring you exactly same law as Karcher. I bring you Strauss case. If you do not agree we have standing, I urge you to ask CA SC.

10 minute recess, we’ll return for second hour.

Cooper: People of CA and throughout the country, meaningful debate about definition of marriage. Words of SCOTUS, fundamental to existence and survival of human race. This fundamental question: whether definition of marriage is one for the people themselves to resolve through democratic process, or whether it takes that out of their hands and decides it for them.

HAwkins: Could the people of CA reinstitute segregation.

Cooper: Inconsistent w/US Constitution.

Hawkins: But they probably could have done that in 1870s 80s or 90s. How’s this different?

Cooper: Nothing like the for example, the racial restrictions at issue in Loving. There is simply no legitimate rational basis whatsoever on any purpose of marriage to deny right of mixed race couple. On every basis on which one can identify purpose of marriage, mixed race

Smith: Baker has absolute right to prescribe conditions of marraige.

Cooper: Not absolute. Limited by whatever restrictions US constitution places on it.

Cooper: SCOTUS said that racial restriction violated fundamental meaning.

Smith: Turner v. Safley?

Cooper: Case dealing w/prison inmates

Smith: Warren?

Cooper: What we want to advance here is this. Distinguishing characteristics of opposite sex couples

Smith: Are you arguing that enough for rational basis for federal court to get involved?

Cooper: Arguing rational basis, if any rational basis for opposite sex def of marriage that def must be upheld, only if nothing to say in favor of the def of marriage that has prevailed in this country and all places at all times since time immemorial, there’s no rational basis for it. That is the test that we submit that applies, your honor. We believe rational basis justifying rational basis of marriage. Key reason existed at all is that sexual relationships between men and women naturally produce children. Society has no particular interest in platonic relationship between man and woman. When relationship becomes sexual one, society has vital interest. Needs creation of new life for next generation. Society’s vital interests threatened by unintentional pregnancy will mean child born out of wedlock raised by mother alone that directly implicates society’s general interests. Immediate interests, society will have to step in, and assist that single parent in raising of that child, but as well, in undeniable fact that children raised in that circumstance.

Smith: Sounds like good arg for prohibiting divorce. [laughter] how does it relate to two males or two females from forming household.

Cooper: Point is whether CA has rational reason for drawing distinction between same-sex couples who cannot w/o intervention of 3rd party opposite sex, and couples who can procreate unintentionally and create unwanted pregnancies. Not phenom that exists w/same sex.

Smith: Rational basis for initiative, CA law says homosexual couples have all rights, what is rational basis if in fact homosexual couples have all the rights that heterosexual couples have. We’re left w/a word, marriage. What is rational basis for that.

Cooper: A word, a word that is, essentially, the institution, if you redefine the institution, redefine the word, you change the institution. You cannot separate the two. Name of marriage effectively institution. Issue whether be redefined to be genderless institution that bears little or no relationship to history of marriage.

Hawkins: Why not defined by Romer? Exactly what prop in CO did?

Cooper: In Romer, court dealing w/sweeping law that placed undifferentiated burdens on homosexuals.

Hawkins: If you take away a bunch of rights, that’s bad, but if you take away just one right, that’s okay?

Cooper: Not about taking away rights?

Hawkins: Did or did not homosexuals have right to marry before Prop 8.

Cooper: Court did, then people reversed it.

Hawkins: In CO, wanted to extend preferred status, voters said you cannot do that. stop doing that.

Cooper: Amendment 2 rendered homosexuals strangers to the law. Ordinary pursuits of civic law, as court put it. Sweeping, undifferentiated, isolated class, strangers to the law altogether. Unprecedented in our jurisprudence. Traditional def of marriage anything but unprecedented.

Cooper: Your question governed by Crawford case. Constitution

Hawkins: Cannot reinstitute racial segregation. Harlan’s dissent in Plessy. Kennedy: Constitution neither knows or tolerates classes. Aren’t you flying in face of that.

Cooper: If no rational reason to distinguish between citizens.

Hawkins: proponents said all they were doing was leveling playing field.

Hawkins: Is it preference of proponents, assume you have standing.

Cooper: I accept that assumption.

Hawkins: Do you want us to get to merits of issue here, do you want us to sidestep Baker?

Cooper: I believe Baker binding on this court. Opening legal point would have been that this is not the first court to take up and deal with the 14th Amendment issues. In fact there have been 8 appellate courts, state and federal, insofar as they relate to traditional marriage all 8 have upheld, rejected 14th amendment claims, one of those is Baker.

Reinhardt: Some difference, before Romer, didn’t deal with taking away rights.

Hawkins: CA SC said, sir, that’s what the Constitution said.

Cooper: Said that this is what Constitution says. All the people retain sovereign power, have authority to reverse it. Came to people of CA same way it came to people, on revision of CA Court of Appeals.

Reinhardt: Question is can you amend, is there valid reason to amend Constitution under standards we follow?

Cooper: Point of Crawford is that the people are free to reverse.

Reinhardt: Well, not everything as question Hawkins points out, you can’t reverse segregation.

Cooper: Federal Constitution would prohibit that quite apart. If CA Constitution had provided that there will be racial segregation in connection w/schools, the federal constitution would outlaw that and it wouldn’t matter if intervening decision also outlawing it. If Prop8 had been enacted before CA SC invalidated traditional marriage, it could have been enacted before that, same as Prop 8. Under Crawford, people retain authority to reverse unless federal Constitution.

Reinhardt: If you’re taking away right from particular class and done for reason only directed at a class in manner, I won’t say invidious–a biased manner, that sometimes you can derive from action in itself. Here you have take into all circumstances. You had all the aspects of marriage other than title. What reason to take title away from people who have enjoyed it. Constitutional question.

Cooper: Our submission to you, people of CA needed no reason beyond they disagreed that their constitution ordained that result.

Reinhardt: Why isnt’ that true of Romer? Doesn’t have to be in federal constitution, has to be rational can’t be related to bias.

Cooper: If Prop8 coming to you w/o previous period in which CA had approve same sex marriage would come to you as it comes to you now.

Hawkins now probing the limit of Cooper’s claim that marriage is somehow different, basically distance between Cooper and Romer.

Cooper: They would be able to take away civil unions unless constitution affords same sex couples civil unions.

Reinhardt: they took away things that are not required by Constitution.

Smith: Couple of questions I am particularly worried about. Some states have not provided domestic partner rights to homosexuals. Do they have stronger right to deny marriage than CA. It seems to be arg could be made as to rational basis if not all sorts of rights already given.Do they have a stronger arg for rational basis than CA?

Cooper: it would be quite perverse if CA, by enacting domestic partnership, going far as state can do short redefining marriage, state insisted it not redefine marriage. Reserve it for purposes it has always served.

Smith: My worry is, this is what I’m really worried about in your arg. I’m trying to find rational basis, when CA has gone as far as it has, what is rational basis that they have. I’m wondering if it’s not just to market marriage,  promote special relationship in society.

Cooper: “I believe” it’s to preserve purpose it has always had.

Smith: I’ll skip my last question. My last question was: do you think this rationale would fulfill the more searching form of rational basis that Justice OConnor found?

Cooper: We think it does satisfy heightened scrutiny. Essential proposition that main objection to infertile couples are nonetheless allowed to marry. No society has ever insisted that marriage produce children. Then becomes how would society draw that line, it would have to have Orwellian measures to police fertility, annul marriages that are childless, would undoubtedly violate rights of indivs involved.

Smith: He indulged me, I hope it didn’t aggravate him.

Olson: It is important to focus on fundamental fact that CA has engraved discrimination into its fundamental charter, label given in official pamphlet, it eliminates right of homosexuals to marry. Access to what SCOTUS repeatedly said most important relation in life.

Reinhardt [softball]: difference between taking right away?

Olson: Yes, going back to 60s on housing. That is what SCOTUS said in Romer. I don’t think it would be different if enacted before In Re Marriage, SCOTUS has said taking away enhances effect of purported constitutional change.

Reinhardt: Case Cooper referred to several times.

Olson: Crawford. To extent not required by constitution remedies could be restricted, that doesn’t change anything. I heard Cooper mention Crawford five times, doesn’t say an initiative rises above 14th amendment.

Reinhardt: Are you suggesting gay marraige required by constitution.

Olson: Fundamental right of citizens to marry. SCOTUS has never said man and women. 14 cases, in context of abortion, of prisoners, of contraception, and of divorce, right to marry is aspect of right to liberty privacy association, and identity.

REinhardt: Is your arg in response to Crawford that there is right to gay marriage. Taking away constitutional right.

Olson: Are taking away right recognized by state of CA. That by itself makes it unconstitutional. But I would also say, not gay marriage, any more than SCOTUS called it interracial marraige, it’s a right of liberty association

Reinhardt You can say whatever you want. We’re entitled to know whether answer to Crawford is yes you can’t take away Constitutional right and this is taking away constitutional right.

Olson; Yes.

Reinhardt: Depending on finding that taking away.

Olson: Right to marriage right of indiv. Cooper talks about society’s interest in procreation. Not rights of CA, not rights of voters, rights under 14th amendment. If CA could insist that procreation be engraved on marriage, this is a fundamental indiv right, reason I’m emphasizing this, if you look at it from standpoint of two indivs, it was marriage, it was their right to get together. [Reads from Griswold]

Reinhardt: Trying to find out how far we have to go if we are to accept your view of this case. Certainly if we start from assumption that everyone can marry. But as you well know, we are advised not to reach constitutional q unless we have to. I was not planning on reaching that question to you that early in the discussion, how we distinguish Crawford. Whether you are saying it’s necessary to take position, that only thing you can’t take away.

Olson: two questions. 1) how far you have to go: Romer. Taking away constitutional rights of indivs who are homosexuals bc they’re homosexuals. This is clearest case of heightened scrutiny. Additional answer wrt Crawford, Crawford, yes citizens can change non-constitutionally required remedies for constitutional case. I’d be happy to put Crawford against Romer< Lawrence, Loving, Griswold. Intimate sexual contact is protected. How can marriage be taken away from CAs because engaged in Constitutionally protected activity? It cannot exist. If you put Lawrence w/marriage cases, you can’t take that right away. It’s a right of all citizens. to have association they select, to live life of privacy, self-identification, that right cannot be taken away from indivs in this state bc of sexual orientation. Discrimination on basis of sex, and of sexual orientation. Prop 8 proponents came up w/various different reasons. Necessary to protect our children from thinking that gay marriage was OK. Protect our children from thinking that gay marriage is okay. Retreated from that proposition on  107-108 of their brief. Prop 8 needs to be enacted bc it’ll make children prematurely preoccupied w/issues of sexuality. If that was justification would equally warrant in comic books, video games, and conversations w/other children.

Hawkins: In deciding whether rational basis saves, what would we look to? Record in district court. Or imagine whether there’s any conceivable rational basis.

Olson: Too attenuated, just to imagine something from sky that someone can imagine. Reasons must make sense, can’t be motivated by fear of people we don’t like or minorities. That’s why I was looking at reason they’ve advanced. 1) protect our children.

Hawkins: Assume for purpose of q this “accidental pregnancy” basis. Have proponents given up that argument bc of args made in political process.

Olson: Look at context in which prop was passed. Concept of rational procreation. No way that Prop 8 prevents, has anything to do w/hetero marriage. Same sex marriage not going to discourage opposite sex from getting married, prevent from getting divorced, children. Evidence clear from witnesses in this case, that there would be harm. Cooper said, I don’t know. What he was saying was that we don’t know impact of same sex marriage. Means a great deal.

Hawkins: People in pop election campaigns make all sort of nonsensical args.

Olson: I haven’t heard that. [laughter]

Hawkins: Matters not what people say. If we can conceive and argue there’s a rational basis, that satisfies test.

Olson: That says that instead of witnesses who talked about damage done, people don’t choose to become gay. wrt to immutability, all of plaintiffs and experts, this is characteristic immutable. Long history of discrimination which Cooper stipulated to. All requires heightened scrutiny. If imagine that it articulates in what you’ve said, what can we imagine. What conceivable thing can we imagine that would justify doing damage we have done.

Smith: Do you believe that distinguishing marriage from DPs in name only, in order to promote as vehicle for procreation. Inclusion of one group, children most likely to thrive when raised by father and mother. Would that survive rational basis.

Olson: Flatly inconsistent w/evidence in this case.

Smith: If you only accept that evidence in record is what is in the record. Rather than that legs do things for reasons and judges decide whether rational basis. Marriage, in name only, children likely to thrive, that is rational.

Olson: Yes, in first place, Cooper said name is institution. Witnesses that were willing to be cross examined and plaintiffs talked about what marriage meant, what it means in this society, nothing said children thrive better in those rels, Blankenhorn, defendants witness, the children would be better off. Easy to say children better w. mother and father, restricting marriage doesn’t mean there won’t be people in same sex marriages. Something like 30,000 people in same sex marriages today. Easy to say children better off, if you have hetero rels in CA, and marriages between same sex. Child is between man and woman. I think Reinhardt would be to prohibit divorce. Not something CAs interested in doing.

Reinhardt: Anything besides rational basis?

Olson: yes.

Olson: CA has built a fence around its gay and lesbian citizens. WRT marriage, citizens w/in that one fence, denied access to what every other citizen has access to.

Reinhardt: Broadest should be avoided, narrowest should be adopted. Free to do anything besides CA repeal of initiative? Closing speech would require holding that any state that did not permit gay marriage violate constitution. But could be Prop 8 withdrawal is unconstitutional under circumstances that they enjoyed that right, every other aspect of marriage. Are we free to go beyond a holding, can we go farther than that.

Olson: You mentioned that I was involved in that case. You could decide on narrow ground that Romer gives you, in conjunction w/InRe. But nothing that suggests you can’t look at larger constitutional rights. What has CA done? Taken class and put in separate category. That act, no doubt, that it is discrimination, Only question is, can it be justified. Cannot be justified. AT lowest standard, have to know what is rational. All args my opponent is making, are not rational when it comes to question of why did you draw that line. Hetero people are different. But that does not mean you can classify them–to use Kennedy in Romer–and exclude them from this part of society. Has to go to justification for exclusion. That’s where rational basis falls down. If you’re saying they can’t participate in a right, you have not only due process, but equal protection. That’s the decision I’d like to see this court issue.

Stewart: Circumstances in context of CA.

Hawkins: Label?

Stewart: Yes.

Hawkins: A state allows everything short of a label, better to enact Prop 8 than a state that has none of it.

Stewart: We agree w/plaintiffs, treating same sex differently is unconstitutional across the board. Underscores irrationality of measure.

How?

Stewart: Family law recognizes that gay people do procreate, assisted reproduction, recognizes that both hetero and sadly gay people as well can be irresponsible. State’s interest is exactly the same.

Smith: If just vehicle for procreation, does it not survive rational basis.

Stewart: same sex couples do procreate, they don’t do it the old-fashioned way. CA doesn’t discourage that or say one is preferable from another. If you think that excluding same sex couples would make heteros more likely, only way to get there is assume that association of gay men and women taints marriage. Not rational. Fact that Prop 8 largely symbolic, makes insult obvious. Prop 8 is state commanding we call gay relationships different even though it treats them the same. Court doesn’t have to infer animus. Campaign demonstrated that proponents would avoid gays and lesbians bc it would demean the institution. Campaign didn’t say to voters, well gee, court got that wrong, it said we need children to recognize that gay couples not okay. Opposite sex as ideal and gay couples as a lifestyle that should be kept in private. Let me just close w/this. Proponents say that to affirm this court must find that majority are bigots. Prejudice is not always born of hatred. May be simple want of careful reflection or instinct to guard against people we think are different than ourselves. Equal protection does not allow state to enact measure based on proposition that some people are unworthy.

Cooper: We know that if Loving was two men, it wouldn’t come out the same way. We think Olson is simply wrong that Baker was just gender. The Loving case would have been on all fours, sorry Baker would have been on all fours w/Loving.

Smith: Do you have case or is that just good argument?

Cooper: Both.

Smith: Well, I guess I’d like the case.

Cooper: Upheld distinctions based on distinguishing characteristics. Romer. Passage from Romer: Amendment 2 does more than rescind, it prohibits all judicial designed to protect named class, a class we should call homosexual persons. It was unconstitutional, would have been if singled out any class of persons.


Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer

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 simply a fantastic judge and a true liberal lion on the bench; Smith I do not know, but is clearly very conservative. Mike Hawkins I know from working with him on a case or two during his time in Phoenix as a private practitioner, as well as his time here as the United States Attorney for the District of Arizona, all prior to being appointed by Clinton to the 9th Circuit. He is a good and fair man, extremely bright and likes to bore straight to the gist of issues. Ideologically, he leans to the left, but in a pretty moderate manner. However, Hawkins has a track record and personal belief system that is very much against discrimination and inequality. On the merits, he is a likely vote with Reinhardt to uphold Judge Walker’s opinion.

The bigger issue, and the first one argued, however, is whether the court should even address the merits of the appeal. Specifically, Plaintiffs Perry et. al are arguing that the Appellant Proposition 8 supporters (Defendant-Intervenors below in trial court) do not have standing to appeal without being officially joined by the State of California. California, by and through Governor Schwarzenegger and Attorney General Jerry Brown has refused to participate in the appeal.

Today’s oral argument will be two hours long, divided into two distinct segments, each an hour in length. The first segment and issue will be the standing issue. David Boies will argue on behalf of Plaintiffs Perry et. al that the Appellant opponents of marriage equality lack the requisite Article III standing to appeal. Washington-based lawyer Charles Cooper, representing Appellant ProtectMarriage.com, the sponsors of Proposition 8, will argue there is sufficient standing. Also appearing and arging as an Appellant in favor of standing will be an attorney representing Imperial County of California who has filed a separate appeal in order to attempt to give governmental cover to the Appellant Proponents of Proposition 8. That appeal was consolidated for purpose of today’s argument.

For the second hour, on the merits portion of the oral argument, famed attorney and former Solicitor General Theodore Olson will handle the constitutional issues of equal protection, due process and fundamental fairness on behalf of Perry et. al and Charles Cooper will again argue on behalf of Appellant sponsors of Proposition 8.

This is history being made right in front of your eyes, enjoy the festivities!

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]


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

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 attorney of record in the case, has no pecuniary interest in the outcome, and the ACLU is not part of the appeal. But H8ters are gonna hate, and that is what these folks do best.

Steve Reinhardt wasted no time telling them where to place their hate. The D-I motion was filed early last night, and Reinhardt has already issued his order tersely denying the motion:

Filed order (STEPHEN R. REINHARDT) I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997). Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.

Well, that will take care of that. That is what the entire raison de etre of the D-I is though, if you are not like them and believe as they do, you are not equal, not worthy and biased; be it being gay, atheistic/agnostic or liberal you are just simply not fit. Judge Reinhardt told them where to go with that rubbish. It is interesting to note that although there are some very substantial questions that could be asked about the staunch conservative judge appointed to the Perry panel, N. Randy Smith, the appellees have not thrown up unsupported and scurrilous motions to disqualify Smith because, without substantial factual support to do so it would be wrong. That is the qualitative difference in the attorneys and people on the two respective sides.

Now here is where it gets interesting and we move away from silly hate and back to the merits of the appeal. When you hear stories about how the Supreme Court frowns on the liberal Ninth Circuit and takes glee in reversing decisions from the 9th, Steve Reinhardt is the poster child for that meme. An appeal to the Supremes on a decision authored by Reinhardt is like waving a red flag in front of a bull, you are going to get their attention.

And to double the fun here, the threshold question, and really a huge issue that many people discussing the Perry appeal still do not grant enough weight, is the issue of standing on the part of the appellants. Lyle Denniston at SCOTUSBlog has a post from back in August giving a very thorough and easy to understand discussion of the standing issue in Perry. The entire post is worth the read if you are not familiar with the standing issue, but the gist is this:

In both the Ninth Circuit and, if the case goes further, in the Supreme Court, it is now apparent that the resolution of the issue of standing to appeal will turn on how those courts interpret the Supreme Court’s 1997 decision in Arizona for Official English v. Arizona, casting doubt on whether initiative sponsors may appeal to defend a ballot measure when state officials refuse to do so, and the Court’s 1985 ruling in Karcher v. May, suggesting that state legislators may sometimes do so when other state officials refuse, provided state law allows for that. The proponents of the ban on gay marriage, in direct conflict with Judge Walker’s interpretation of California law, argue that state law does give them the right to be in court. California law, they said, makes their case different from the Arizona English initiative case.

And here is where the fun really starts. As I previously indicated, on the merits, you would expect a 2-1 decision upholding Walkers decision in favor og marriage equality and striking down the appeal of the Prop 8Haters. But, before you get to the merits, there is the problem of the standing issue and, as Denniston pointed out, the critical case for that determination will be the Supreme Court decision Arizona for Official English v. Arizona. Know who wrote the circuit court opinion in Arizona for Official English v. Arizona that the Supreme Court slapped down and reversed? Yep, Steve Reinhardt.

So, we have a Circuit Court judge predisposed to find standing in such cases, a Supreme Court predisposed to not care much for said judge’s opinion and a case that may, or may not, be able to be distinguished. Whatever the ruling is in the 9th, the opinion will almost certainly be written by either Reinhardt or Mike Hawkins. Reinhardt has the seniority over Hawkins and the lifetime of work on social justice opinions, if he wants to author the opinion, I think Hawkins will defer to him. The question is, might they decide to have Hawkins author the opinion to pull back on the red flag in front of the SCOTUS bull?

Get your popcorn, and remember that Emptywheel will be covering the oral argument in the 9th Circuit Monday morning December 6th at 10:00 am PST/FDL time and the proceedings will be carried live by CSPAN and other networks.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Mirko is an artist par ecellence in New York who also teaches illustration and design. Please visit Mirko and check out his stock of work, it is really superb.]


Excellent Panel Announced for Perry Prop 8 Appeal

When the appeal in Perry v. Scwarzenegger was initially lodged, I put forth the possibility that the panel assigned to hear the full merits appeal in December might be the earlier panel of Judges Wardlaw, Fisher and Berzon, which had heard substantive interlocutory appeals from the trial portion of the case when it was in Judge Vaughn Walker’s court. This was an exciting possibility as it would be a very favorable panel. That is not to be; however, the panel just announced that will hear the merits appeal on the morning of December 6 is very good and favorable to upholding Judge Walker’s seminal ruling.

Today it was announced the panel will consists of Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith. Stephen Reinhardt is the living epitome of an old school dyed in the wool liberal; you simply could not ask for a better man. Mike Hawkins is also an excellent judge and, although not quite as liberal as Reinhardt, should be expected to have little patience for the poorly fleshed out case the defendant-intervenors put on in the trial in front of Walker or that they belligerently reargue on appeal as if they never lost. N. Randy Smith, on the other hand, is a very conservative judge from Idaho, of Brigham Young University heritage both undergraduate and law school, and was appointed by George W. Bush. Smith is not so promising.

The bottom line is, early odds are on a 2-1 decision upholding Judge Vaughn Walker’s fine decision in Perry. The one stumbling block, of course, is the issue of standing, and on that I still have some concern that Hawkins, who can be a stickler on procedural details, might align with Smith to hold that there is no standing on the appeal. So, while there are still problems with the standing issue and therefore there should be no premature wild celebrations today, it is nevertheless a very favorable panel the Perry appeal has drawn. For that, there should be some joy.

As a reminder, the oral argument on the Perry appeal is scheduled for 10:00 am PST Monday December 6, 2010 – one week from today. Marcy and I will be live blogging it and, incredibly, it is currently set to be televised on, among other stations, CSPAN. So, one and all can watch this historic argument and join in the discussion!


Ballots and the Bench: The Iowa Judges

In a devastating night for Democrats, there was a notable and disturbing loss that did not draw enough attention, that of the so called “Iowa Judges”. From NPR:

Iowa voters decided to remove three State Supreme Court justices who’d overturned an Iowa ban on same sex marriage last year. Out are Iowa Chief Justice Marsha Ternus and Justices David Baker and Michael Streit. The full seven member panel unanimously rejected the law but not all members faced a retention vote.

No, not all seven Iowa Supreme Court judges were removed, but of the only three that were up for retention votes, all were ousted. Last year, all seven members of the Iowa Supreme Court voted unanimously to overturn the Iowa law restricting marriage to between a man and a woman as violative of the constitutional right of equal protection. The conservative effort to remove the judges who had the courage to protect equality under the Constitution was an astounding result in what are normally perfunctory state judicial retention votes. So perfunctory, in fact, that no Supreme Court justice had ever been removed in Iowa since the advent of the retention vote system in 1962.

The effort to oust the Iowa Judges was heavily financed, to the tune of approximately a combined million dollars, by aggressive national anti-marriage equality groups such as the American Family Association. The Campaign for Working Families and the Washington-based Family Research Council, as well as a plethora of local fundamentalist and religious groups in Iowa.

Sadly, this is probably one of the least discussed, yet most pernicious, aspects of monetary influence in political campaigns in the wake of the much discussed Citizens United decision by the US Supreme Court. Although judicial retention elections, being non-partisan in nature, were not directly affected by the Citizens United decision to the degree normal partisan elections were, the sheer scope of large money injected will clearly have an increasing impact on them, as will this remarkable result in Iowa.

Courtrooms, especially those of the appellate level, should be places where constitutions, both state and federal, reign supreme and the rights of all citizens are respected and protected without regard to the vagaries and whims of interst groups and fundamentalist bigots of any striping. The wild success of the conservative effort to remove the Iowa Judges signals a disturbing trend in the wrong direction.


Obama DOJ Moves 9th Circuit To Stay DADT Ban

Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than simply that. The constitutionality of invidious discrimination based on sexual orientation should be argued with the government taking the lead on saying it is NOT constitutional, has no place in our society or government and that the court should so declare any such conduct invidiously discriminatory against a protected class under equal protection, due process and first amendment grounds. The Obama Administration and DOJ should should have the courage and principle to come out and say just that.

And in the meantime, Obama should help the effort along, and set a positive example, by issuing an executive order under his crystal clear stop loss authority pursuant to 10 USC 12305 stopping all discharges from the United States Military under the pernicious DADT policy. The President has that power and should have the courage to use it.

Obama is doing none of the above and, instead, is paying cheap political lip service only by hiding and trying to frame everything in terms of Congressional repeal. When asked about the court rulings by Phillips in the LCR DADT case, by Tauro in the DOMA case, or by Walker in Perry, the response is always in terms of legislation repealing things in place. legislation affirmatively protecting something in the future, studies to see what is appropriate or some other mealy mouthed baloney.

On the other hand, not a lick of the above described baloney matters if the discrimination at issue is flat out unconstitutional. If it is unconstitutional, and DADT absolutely is, then studies are irrelevant. What generals and servicemembers wives think and respond to in answers to ginned up surveys is irrelevant. Legislation by Congress is irrelevant. Public opinion, for that matter, is irrelevant. None of that matters because it is a fundamental right for such citizens to be treated equally under the United States Constitution and not be discriminated against. End of story. Seriously, it either is or it is not.

However, the filing by the Obama DOJ speaks for itself as to where we stand today. (And here is a just posted article by Gerstein on the stay attempt in the 9th). As an attorney, I am inclined to agree with their position that the injunctive order by Judge Phillips is of questionable validity in its extension worldwide against the US military. As the government’s brief argues, the standing granted in the Log Cabin Republican case was limited and restricted; it is hard to see how it serves as a proper foundation for the extraordinarily broad injunction she issued.

That said, Judge Phillips’ decision on the root unconstitutionality of DADT is spot on valid and correct and, as cited above, there is nothing to stop the government from voluntarily complying with the spirit of that finding or, indeed, President Obama from mandating evisceration of DADT pursuant to his stop loss authority under 10 USC 12305. What is needed is a profile in courage instead of another example of rank political triangulation.

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Originally Posted @ https://emptywheel.net/prop-8/page/3/