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Prop 8 Appellate Arguments to be Televised (Probably)

November 17th, 2010 No comments

All over the gayosphere this evening was the news that oral argument on Prop 8, set for December 6, is to be televised. The Ninth Circuit issued an order allowing the full two hours of argument to be broadcast.

You’ll probably recall that the proceedings in the court below had been approved for telecast, too — until SCOTUS stepped in with some trumped-up reasons for reversing that determination (by an ominous 5-4 decision). Technically, at least, the Court’s ruling was based on the lower court’s failure to follow the rules for approving broadcasting, so assuming that these rules have now been followed (sheesh, let’s hope so!), I don’t expect the Supremes to weigh in again — at least not for now.

The two hours are to be divided equally between procedure and substance, and that’s telling all by itself. The first hour will focus on the quite serious standing issue; since the State of California has declined to appeal its loss, there’s strong Supreme Court language suggesting (though by no means stating unequivocally) that the intervenors supporting Prop 8 don’t have standing to lodge the appeal. The case might or might be complicated by the alleged interest of county officials, though. Can they defend the law even if the state won’t? It’s quite possible, for the reasons set forth in this clear, and excellent post. It’s also possible that the whole case could be thrown out on this basis: If the intervenors don’t have standing to appeal, why then did they have standing to sue? (The post also discusses this problem expertly). If the court finds no standing for this reason, then the suit would have to be refiled — but would have no defenders (since the newly elected Governor — who’s also the former AG — believe that Prop 8 should die.

OK, standing isn’t the best topic with which to debut Prop 8 Court TV, but it will get more interesting for non-lawyers from there. They will rouse themselves from a deep, coma-like sleep once the argument moves to the serious constitutional issues. I hope enough people are watching for word to spread, far and wide: The Prop 8 proponents have little to commend their position. As David Boies has memorably stated, once the issue moved out of the public square where anything can and will be said — support or logic be damned — and into the courtroom where actual arguments are needed to sustain the ban against same-sex marriages, the emperor stood revealed.

Don’t expect anything to happen soon, though. Whatever the court decides, an appeal to the court en banc (which usually means all judges on the appellate court, but is constituted by fewer judges in the Ninth Circuit given the court’s sheer size) is inevitable. Then, on to the Supreme Court, in all likelihood — whether on standing issues or substance, it’s too early to say.

But the public will get a rich sense of the injustice of the law’s exclusion of same-sex couples from the dignity and legal recognition of marriage. For that, we can thank the court’s sensible decision to allow this broadcast.

The Further Misadventures of Warmed-Over Natural Law Arguments

September 25th, 2010 2 comments

I’ve spent some time going through the amicus appellate brief filed by Robert P. George et al. in the Prop 8 case. In a couple of pieces I posted a few months ago, I criticized George’s warmed-over natural law ideas, which amount to little more than convenient sophistry in defense of his preferred outcomes (including the exclusion of gay and lesbian couples from marriage.)

Nonetheless, this short and pointed amicus brief is clear and effective on its central point: We need a definition of marriage, and that definition has to be provided by the legislature (or, in the case of Prop 8, by the people). Without such a definition, everyone has a claim to be included, and there’s no legitimate basis for excluding other sorts of unions, including polygamous ones or relations between adult kin. And this definition inescapably takes in a moral dimension, as it inevitably must: What are we signaling with marriage? What is its normative, prescriptive content?

But it’s a long way from asking those vital questions to getting the answers that George et al. hope the appellate court to reach, and the argument simply doesn’t hold together. First, it’s too simple to state, as the authors do, that we have a clear definition of marriage to start (“logically prior,” as they say) and that we can then raise constitutional issues only in the context of that agreed-upon definition.

By that clinical way of considering the issue, we’d rarely be able to declare the exclusion of any group unconstitutional. So if marriage really is tied to procreation and the best interests of children (as the authors state, but in a more sophisticated way than usual), then it presumably would be constitutionally permissible to exclude women over a certain age (say, 65 for women; by the logic of this argument, we wouldn’t care about the sex discrimination involved). The authors attempt to avoid this conclusion by pointing to the natural-law-heavy assertion that men and women unite in a unique way, but why is that union important to marriage if it can’t produce children (since marriage is, again, mostly about children)? In the end, George’s natural law biases return to their moorings.

No, it’s more complicated than that: The meanings (not meaning, singular) of marriage are complex,  and subject to constant reconstruction and challenge, especially at certain watershed moments. We’re in one now. And it’s fair to say, as the authors do, that the political process has a role to play in this on-going definitional process; to that extent, the marriage equality debate has been useful to a collective consideration of the broader questions about the purposes and meanings of marriage.

But that doesn’t mean that the courts have no role to play in ensuring that those definitions are not crafted in a way that ensures the unequal treatment of certain groups of people. And, as it turns, out, the supposed clarity that George et al. find in the purpose of marriage is really just a convenient way to fence out same-sex couples. It’s obvious from what they don’t say. For example, they overlook the inconvenient fact that adult friends can marry, as long as they’re of the opposite sex. But surely such non-procreative, non-sexual unions are inimical to the purposes of marriage, as they’ve defined them. Why don’t they “weaken the links between marriage and procreation,” which the authors fear that sanctioning same-sex marriages would do?

This brief is better than most on the anti-equality side, principally because it clinically eviscerates the argument that the state should stay out of morality in creating marriage laws. Doing so would be impossible, perhaps even incoherent. But its own positive arguments for morality stand revealed as just another way to define marriage to exclude same-sex couples only – not the old, the infertile, or the non-sexual.

I’m not done. The authors also simply assert that extending marriage to same-sex couples would “convey that marriage is fundamentally about adults’ emotional unions – not bodily union or children….”

Really? As for “bodily unions,” we can see the natural law argument peeking through – and this same argument would, by the way, exclude deliberately non-procreative sexual relations between opposite-sex, married people, as well as all sex between a “whole” and a seriously disabled person (who lacks not only procreative capacity but the “equipment” needed for the task); the latter, according to their theory, shouldn’t be allowed to marry, either. But don’t expect to hear them arguing against such unions – unless the couple also happens to be gay.

As for children, we have yet another case of the anti-equality forces completely overlooking the welfare of the children in families headed by same-sex couples. But these authors go further, and overlook the very existence of these children – after all, the union of their parents is about their “emotions,” not about their kids. It’s quite apparent that none of the authors has spent any time around our families.

In short, there’s no principled way of excluding only our unions from the right to marry. It’s precisely for that reason that courts have come to recognize that what really lies at the bottom of the opposition is a kind of natural law argument that, on the most basic level, reduces to: “Ick!”

“It Ignores the Writings of [Three Long-Dead Guys]”

August 17th, 2010 1 comment

In an op-ed in today’s Washington Post, former Reagan AG Ed Meese takes Judge Vaughn Walker to task for ignoring facts and evidence that would supposedly have supported the state’s interests in restricting marriage to opposite-sex couples. One thing that Meese didn’t like about Walker’s opinion:

“It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell.”

That’s really it, isn’t it? The defenders of marriage fall back on tradition and history, little realizing (or acknowledging) that the institution of marriage that these (admittedly) great men spoke of bears little resemblance to the version on offer today. Blackstone, for example, whose influential Commentaries on the Law of England were completed before the U.S. existed, spoke of marriage from the perspective of coverture, a principle by which a married woman’s legal existence was swallowed whole by her husband. This quote will give you the flavor of how extensive the disability was:

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage….For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.”

How could Walker have ignored the bewigged Blackstone’s writings? Here’s a better question: How benighted is Meese — not only to chide Walker for failing to consult Blackstone, but to think that his argument would be strengthened by this point? Yet his failure gets at the real deficiency of the anti-equality forces: They don’t have any arguments that work under current, and generally well-accepted, views of what marriage is, or should be.

The Prop 8 “Stay Go-Round”

August 16th, 2010 No comments

As reported in about a scrillion places last week (but nowhere so brilliantly as here), Judge Vaughn Walker denied the Prop 8 proponents’ motion for a stay pending appeal of his decision in the Perry case. Erring on the side of caution, though, he stayed the stay (huh?) for a few days in order to give the federal appellate court time to consider an emergency appeal.

This evening, with papers for and against the appeal (find both here) having been filed, the court issued this terse order (I’ve stripped out the legalese for your reading enjoyment):

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court…orders that this appeal be expedited….

This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

That’s it. But what an “it”! The case that the court cited, Arizonans For Official English v. Arizona, takes a very stingy view of standing. Although this is cheating, here’s the relevant part of the overview from the case (cheating because the overview is a summary and not part of the official holding):

A state employee sued the state of Arizona and the governor for a judgment declaring that the provisions in Ariz. Const. art. XXVIII making English the State’s official language were unconstitutional. The State was dismissed as a party, the trial court entered judgment in favor of the employee, and the governor declined to appeal. However, the appellate court allowed the sponsor of the initiative for art. XXVIII and its chairman to intervene, and affirmed the trial court’s judgment. On appeal, the [Supreme C]ourt vacated the judgment and held as follows: The employee resigned from her position with the state during the pendency of the appeal, thus she no longer had standing and her claim was moot. Neither the sponsor nor its chairman had a direct stake in the outcome. Thus, they had no standing and there was no case or controversy before the appellate court, and under U.S. Const. art. III, the appellate court had no jurisdiction.

The highlighted language reflects the part of the overview that most closely parallels this case. The Supreme Court could always wriggle around this, or simply overrule it (in the corporate financing case, Citizens United, for example, the Court was little troubled by overruling even its very recent precedent). But as long as Arizonans for Official English stands, it’s a substantial obstacle for the Prop 8 proponents. They’d better hope that the state appeals, but they’d also better not count on that happening.

Update on this point: For a much more comprehensive treatment of the standing issue (which ultimately comes to the same conclusion — that the proponents have a heavy lift on this question), see David Cruz’s excellent guest blog here.

Don’t get giddy yet. In a case like this, even the standing issue (which will itself be decided by a panel that had nothing to do with today’s ruling) could then go to an en banc hearing (of 11 of the court’s judges) and then to the Supreme Court. So even if the defenders lack standing to appeal, we likely won’t know that for some time yet.

I can’t help concluding this post with a brief observation on the similarity between Arizonans United and Perry. Both cases involved  popular referenda that gave voice to a caste-based principle of subordination. This is popular democracy at its worst, and the very reason courts are standing by to enforce constitutional rights. Standing might not be the most viscerally satisfying way of expressing judicial rejection of this ugly impulse, but in its way it affirms an important truth: Those who support initiatives aren’t the ones directly affected by them. Their ability to get enough signatures for the ballot, and then to play to primal fears (nativist, Christianist, and so on) to get their measures passed, can’t and won’t deter courts from discharging their constitutional duty.

Categories: Marriage Equality, Proposition 8 Tags:

Analysis of Judge Walker’s Decision Denying Stay of his Prop 8 Order

August 12th, 2010 No comments

Earlier this afternoon, Judge Vaughn Walker issued another explosive ruling in the Prop 8 case: There will be no stay of his decision declaring Prop 8 unconstitutional while the case works its way up through the appellate process. He did, however, allow the current stay to remain in place through next Wednesday, August 18 (at 5 pm PDT) to allow the Prop 8 proponents (or, I suppose, the state or AG) to ask the appellate court to hear and grant an emergency appeal of this latest ruling.

For all of the political posturing on the wisdom of the stay, the legal analysis is really quite straightforward. In deciding whether to grant a stay, courts consider four factors: (1) whether the party seeking the stay has a likelihood of success on the merits; (2) whether the party seeking the stay would suffer irreparable harm absent the stay; (3) whether some other interested party would be harmed by the stay (or the lifting of it); and (4) whether the stay is in the public interest.

As Walker notes, the first two of these factors are the most important. If neither of those supports granting the stay, recent Supreme Court precedent suggests that the analysis needn’t proceed to the last two. The Court has also emphasized that the party seeking the stay must show not a chance, but a likelihood of success on the merits, and that a judge has wide discretion on whether to issue a stay.

A fairly heavy burden, in all. And the Prop 8 proponents didn’t come close.

First, the judge who’d spent months trying and deciding the case against them wasn’t apt to find that they now have much chance of success on the merits. Worse for them, it’s not even clear that they have standing to appeal (for reasons I explained here, and that Walker made clear are serious obstacles).  Likelihood of success on the merits of the claim is hard to argue when it’s entirely possible (probable, I’d say) that you aren’t even a proper appellant. You can’t win if you’re not even in the game.

So really, this came down to irreparable harm. And the Prop 8 proponents had a fatal problem on this score. In fact, Judge Walker’s analysis of why the Prop 8 proponents failed to satisfy this standard dovetails nicely with one of the points I’ve been making all along about the legal flaccidity of the case against marriage equality:

The irreparable harm is suffered entirely by the couples who can’t marry, not by the state (which is, remember, the “real” defendant here) or anyone else. Moreover, the Prop 8 proponents aren’t the “state,” despite their efforts to conflate their interests and the states’.  (In fact, the state’s position against the stay puts lie to the argument that the Prop 8 proponents and the state have a community of interest, let alone identity.)

And the court didn’t think much of the Prop 8 proponents’ newly discovered concern for the other parties — the same-sex couples. According to proponents, these marriages would be in a confusing limbo were they permitted to happen before the case is fully resolved. But, the court noted, the couples can make that call for themselves, and in any case, the on-again/off-again marriage right situation has already been dealt with in California, and the couples’ status is clear enough: Those marriages entered into between the Supreme Court’s order requiring marriage equality and the passage of Prop 8 taking that right away are valid.

The court could have stopped there, but nonetheless moved on to the third factor: harm to other parties. The failure of the Prop 8 proponents to show harm for purposes of the stay mirrors the problem they had at trial — the trial they rightly feared. Not a shred of evidence supports their conclusion of harm, and their speculative tales of apocalypse can’t stand, legally or morally, against the real and obvious harm suffered by gay and lesbian couples and our children.

But wait! There’s no harm to same-sex couples in having to wait, they argued, because domestic partnership law confers the same benefits and, after all, if getting married were that urgent, the couples would have done so back in 2008 when they had the chance. I’m not going to waste time or your intelligence by responding to these arguments.

The one place that the Prop 8 proponents have a colorable argument is in the fourth factor: the public interest. From their perspective, the public expressed its “interest” in passing Prop 8, and — to continue this line of argument — that decision is entitled to respect. Judge Walker rejected this conclusion based on evidence at trial that Prop 8 actually harms the state, and supports its conclusion with a citation to the Attorney General and a concern that taking away rights is harmful to all citizens.

This last point could be a bone of contention — if the reviewing (Supreme?) court decides that, in this case, the fourth factor should weigh more heavily than it has otherwise suggested it should. Then, we’d have to consider who gets to decide what the public interest is, and how such decisions are to be reviewed.

Again, let’s not lose sight of one important fact: The court gave the supporters time to appeal. So nothing may happen for awhile, yet. But every decision exposing the bankruptcy of the opposition arguments is a victory.

Judge Walker Denies Stay of Prop 8 Decision

August 12th, 2010 No comments

Literally moments ago, Judge Vaughn Walker decided not to stay his decision striking down Prop 8. Now let’s see which happens first: same-sex California couples marrying, or the issuance of an emergency stay by the Ninth Circuit. The race is on (but will end if the appellate court decides not to grant the stay on an expedited basis) .

This is getting more and more interesting.

I’ll be back with an analysis of the decision soon.

Update: The decision is here. He did lift the stay, but not just yet. The lifting of the stay is itself stayed until August 18 (next Wednesday) at 5 pm PDT. This will give the Prop 8 proponents time to seek an emergency stay.

Categories: Proposition 8 Tags: , ,

Prop 8 Case Might Already Be Over

August 12th, 2010 3 comments

All of this build-up and ritual concern about how Justice Kennedy holds the key to equality in his trembling hands and then…no appeal of Judge Walker’s decision?

Wha –?

In today’s 365gay column, I explore how that could happen.

Reaction and Analysis to Prop 8 Decision: The View From Provincetown

August 5th, 2010 1 comment

Perhaps it’s the setting – I’m in Provincetown for Family Pride Week – but after slogging through the exhaustive and compelling opinion by Judge Walker in yesterday’s decision striking down Prop 8, I don’t feel like delivering a particularly analytical assessment.

Spending some time around the reality of all these gay and lesbian families and their de facto marriages, I’ve had a revelation that no amount of legal training could have prepared me for.

We in the mainstream LGBT movement do a lot of apologizing for our support of marriage equality, in the face of criticisms such as: “It’s too assimilationist, it’s the wrong fight, and oh! the banality of marriage.” Tell that to the thousands of happy, multi-racial, non-conforming families that pepper Commercial Street and its environs during the week. No, it’s not we who are banal: It’s the forces arrayed against us in their pathetic, doomed holding action who wear their banality like a crown.

Read the arguments that the Prop 8 proponents put forth, and that Judge Walker clinically (and mercilessly) summarized and destroyed yesterday: Marriage is for procreation; it fosters the optimal setting for children, and responds to the natural impulse that causes men and women to create new life by creating institutional support structures around supporting the children who are products of their sexuality. I can type these points as fast as my fingers will move, so rote and tiresome are they. They have nothing to do with the reality of actual families — and not just gay and lesbian ones — that thrive, whatever the sterile arguments against their existence pronounce. The proper question is: What arguments support excluding gay and lesbian families from the one universally recognized marker of commitment and mutual support? The answer, of course, is: none.

Judge Walker took the unusual approach of exposing the ritual pronouncements of the anti-equality forces to the withering glare of a trial: evidence needed to be adduced; witnesses called; arguments supported by facts. This, the Prop 8 proponents couldn’t do. Their factual case was based, at bottom, on the conjecture of David Blankenhorn, who acknowledged that marriage would be good for same-sex families – compare Maggie Gallagher, who won’t even concede this much – but then stated that it wasn’t worth the cost to traditional marriage, which would (somehow, likely, maybe) thereby be weakened.

In other words: Factually, they threw the case. And they paid a very heavy price for doing so: In eighty detailed findings of fact (many with numerous subparts) that ran to some 60 pages, Judge Walker dissected every admissible — as opposed to moral or religious — argument for and against marriage equality, and the results were unambiguous: Logic and fact overwhelmingly support marriage equality. Once the facts had been laid out, the treatment of the state’s justifications had the feel of a ritual execution.

The Prop 8 supporters’ only hope – but it’s a solid one – is that the Supreme Court will ignore the facts and do the following by-the-numbers legal analysis: Gays and lesbians aren’t entitled to a higher level of protection from courts than, say, milliners, and since rational basis scrutiny is very deferential, the side supporting the law usually wins. (There’s a compelling argument for affording the GLBT community more protection under the law, and the great, mostly overlooked accomplishment of the recent CLS v. Martinez case is that it establishes us as a community.) Walker made a compelling argument that Prop 8 can’t even clear the low rational basis hurdle, but the surest route to victory is through some kind of heightened analysis. (Walker made the case for heightened scrutiny for classifications affecting gays and lesbians, but explicitly stated that his decision was grounded in rational basis analysis.)

The Prop 8 proponents’ strategy might work, but – despite my skepticism about this case from the start – I’m starting to doubt it. Facts matter. The closest parallel here is to Iowa, where the trial judge’s exhaustive detailing of the facts led to a unanimous decision for marriage equality in the state supreme court’s later ruling in Varnum. And even a rational basis test demands some level of review; the Court has lately looked askance at laws that seem animated mostly by animus against a disfavored group. Without facts in support of the exclusion of gays and lesbians from marriage, the animus stands revealed. Indeed, anyone reading the Perry decision would come away convinced of the basal fear and loathing of gays that animated Prop 8.

I’ve been on this vertiginous ride for years now, so I can’t get too giddy about a win in Round 1 of any case. But every decision that lays bare the bankruptcy and exhaustion of the opposing side is another wrecking ball’s blow against an indefensible orthodoxy.

Does anyone, even the blusteriest members of NOM, really think this won’t all be over within a generation?

Marriage, Kids, and the Gays

June 18th, 2010 1 comment

This neat summary of how marriage is becoming less child-centered has indirect implications for the marriage equality debate, it seems to me. Tara Parker-Pope, a blogger for the Times, summarizes research establishing that kids rank fairly low on the list of things necessary to a happy marriage; not surprising, given that people are also having fewer kids — and having them later — than generations past.

The story also quotes the testimony of the main witness for the Prop 8 proponents, the disastrous and case-destroying David Blankenhorn, who blathered on about the marriage-reproduction bond,which he regards as insoluble:

Extending marital rights to couples who cannot conceive children would change marriage from “a child-based public institution to an adult-centered private institution” and “weaken the role of marriage generally in society.”

But while Mr. Blankenhorn has been marinating in his think tank, marriage has been changing around him. His airy pronouncements, void of empirical support, are contradicted by reality — a reality that could include (as long as we’re speculating) the strengthening of marriage by allowing same-sex couples in. After all, the couples likeliest to take advantage of the right to marry would be those who have, or want, kids. So the marriage-kids connection might be reinforced, not further pulled apart, by marriage equality.

Prop 8: Airing the Proponents’ Arguments

June 17th, 2010 1 comment

In my just-posted column over at 365gay.com, I distill the closing arguments presented by the Prop 8 proponents. Hint: they’re not good. It’s mostly this: We don’t need evidence in order to exclude gays and lesbians from marriage. Everyone knows marriage is for procreation, and gays can’t do that (not on our own, anyway). And letting us in will “destabilize” the institution.

That’s really about it.