Proposition 8 Ruling in California

slate gives a very shrewd reading of the narrow decision in the Circuit Court appeal of the Prop 8 case in California that just came out. Dahlia Lithwick does a nice job of reading the crystal ball of politics and gamesmanship that apparently went into writing the decision in Perry v. Schwarzenegger. In a 2-1 decision, the 3 judge panel upheld District Judge Vaughn Walker's lower court decision, but on much narrower grounds. Where Walker, in a widely-praised, broadly written decision struck down Proposition 8 with 80 findings of fact to ground his decision on the unconstitutionality of Prop 8, on both equal protection and due process grounds

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

The Court of Appeals, by contrast, chose to write a very narrow opinion upholding Judge Walker's decision, and making it very clear that the decision applies only to Proposition 8 in California. The opinion also prevents same-sex marriages from going forward until Proposition 8 backers have opportunities to either appeal to the full 9th Circuit or to the Supreme Court. We are all watching to see what will happen next.

Gay Marriage and Civil Rights

Do we get it yet?! This past week saw the ruling in the Proposition 8 case in California, where now-retired federal judge Vaughn Walker has been challenged in his ruling on the case because he didn't recuse himself as an openly gay person in a long-term relationship. Many commentators in the news stories noted that we are just where we were 30 years ago with respect to African-American and female judges being challenged for not recusing themselves on civil rights and sex discrimination cases. Judges should not be challenge-able on the basis of their membership in a minority group, whether it is based on ethnicity, language, religion, gender, or sexuality or gender identification.

There is a separate little issue running alongside: cameras in the courtroom. How many people have been beaten to death for opposing gay marriage, compared to the number of people beaten to death for being or even appearing to be gay or lesbian or transexual? I would challenge the people concerned about witness protection to come up with anybody who has been seriously injured from the straight side.

Here is a link where you can conveniently find both of Judge Ware's orders, about the recusal and the separate order about the videotapes, and cameras in the courtroom. The site is an organization that is trying to raise money to fund ads around the courthouse in support of the gay marriage side. I am a little bemused that they think this would be affecting the judge's decision. I certainly hope it doesn't work that way! But the site does have convenient images that appear to be true copies of the actual decision in the case.

Federal Judge Overturns California Prop 8 Banning Gay Marriage

The Washington Post today carries the most in-depth article on Judge Vaughn R. Walker's decision on California's Proposition 8. In the Northern District of California Federal Court, the case of Perry, et al., v. Schwarzenegger, et al. (C 09-2292) has been decided for the plaintiffs, ruling that equal protection and due process under the federal Constitution require Judge Walker to find Proposition 8 unconstitutional. The Post provides the full text of the decision, (136 pages) which interestingly includes a discussion of Judge Walker's probing questions at oral argument. The reader can sense the judge's frustration with the proponent counsel's (those supporting Proposition 8) arguments, which is interesting. While the attorneys for the plaintiffs built a rich record with eight lay witnesses and nine expert witnesses, and using complex arguments based on civil rights cases of the past, such as Brown v. Board of Education and Loving v. Virginia. Proponents presented only two expert witnesses, though they carefully cross-examined all plaintiff witnesses. The difference in presentation seemed to frustrate the judge, who was nominated by President Reagan and confirmed under the first President Bush. The judge ruled that Proposition 8, which in 2008 passed to amend the state constitution by 52% of the popular vote,

"fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," (snip) Walker said opponents have until Friday to convince him that the decision should be stayed during the appeals process, or the marriages will resume. (snip) Walker said the decisions of voters must be respected. But because the right to marriage is fundamental, he wrote, "voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons."

The Post article is enriched with lots of links to sidebar articles, polls, and extras. I encourage you to go there. The article is extracted in lots of papers around the country but it's worth going right to the Post itself.

Selected Filings in Perry v. Schwarzenegger (thanks Michael Ginsborg & Scribd!) I think this includes all or nearly all of the briefs as well as innumerable motions and orders issued along the way.

Here is the ACLU amicus brief

This will now be appealed to the Ninth Circuit Court of Appeals, and eventually, we can be sure, to the Supreme Court. Probably it will meet the Massachusetts Eastern District Court decision, Gill v. Office of Personnel Management, focused on the federal Defense of Marriage Act (DOMA), which allowed the OPM to deny federal employees spousal benefits even if they were in same sex marriages in states which recognized such marriages. Gill was a much narrower decision than the Perry case.

Gay Marriage in California - Law Suit Challenging Prop. 8

Two gay couples in California filed suit May, 2009 in federal court in the Northern District of California challenging Proposition 8, the voter-approved ban on gay marriage in that state. Originally, the California court had allowed the proceedings to be viewed over YouTube. But the U.S. Supreme Court has blocked that ruling, at the request of supporters of Proposition 8, who intervened in the law suit. You can get the full text of the documents of the case, including hearing transcripts at the site of www.EqualRightsFoundation.org, which seems to have been formed as a 501(c)(3) corporation specially to challenge Prop 8. The website includes not only plaintiffs' and defendant's legal filings, but also links to news and media.

There have been several statements by gay rights activists concerned that this is a dangerous time to file such a suit, which will almost certainly go to the U.S. Supreme Court eventually. The case is styled Perry v. Schwarzenegger. S.F. Gate.com offers one such article

Co-sponsored by nine gay and civil liberties organizations - including the American Civil Liberties Union, the Human Rights Campaign, the National Center for Lesbian Rights and Lambda Legal - the memo said "even the strongest gay-rights decision the court has issued - the Lawrence v. Texas case striking down laws against intimacy for gay couples - explicitly commented that it was not saying anything about formal recognition of same-sex relationships."

"There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices," the memo said.

The National Center for Lesbian Rights has links with PDF documents for the amicus briefs they have filed in the case and nice summaries of the issues and history of the case, and other helpful links to articles and such. Lambda Legal offers a link with the amicus brief they authored with ACLU and NCLR.

Family Research Council offers its amicus brief here. Scribd (Michael Ginsborg (hi!)) thoughtfully posts "selected" documents from the Perry case here, which today include a number of commentaries. I am not certain I have located all the amici in this sweep, but I have tried. There seems to be very divided opinion on the wisdom of this law suit and its timing. My heart goes out to the folks in California who have had same sex marriage handed to them in San Francisco and then torn away through Proposition 8. I only hope that this law suit does not do lasting damage to the cause of gay marriage in California and elsewhere!