Posts Tagged ‘Prop 8’

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: , ,

A Father’s Day Proclamation I Can Love

June 18th, 2010 2 comments

Here’s a just-issued Father’s Day Proclamation issued by the President. In a document that praises and celebrates fathers and those who act as mentors (and calls for responsibility by all fathers), Obama adds this:

Nurturing families come in many forms, and children may be raised by a father and mother, a single father, two fathers, a step father, a grandfather, or caring guardian.

The emphasized phrase is still startling to read, but not really surprising from this Administration. Although they’ve lagged on legislative priorities, when it comes to the stuff that the Oval Office — and the vast bureaucracy it controls — can do, they’re such a marked improvement over the preceding one that I feel as though I’ve just come out of a time machine.

I’m about to go watch a documentary about the Mormons’ role in Prop 8.  This Proclamation will provide a warm, insulating coat against what’s about to infuriate me. On second thought, maybe I’ll re-run the season finale of “Glee.” Or read yet more Wimbledon previews.

{HET} row sex walls

June 16th, 2010 1 comment

The title of the post is the sort of thing you get when you ban cameras from the courtroom, but allow reporters and others to attend and to relay what they’ve seen and heard.

A group called the American Foundation for Equal Rights is live-blogging today’s closing arguments in the Prop 8 case from California,. Obviously, they’re using some kind of voice-activated transcription service, which is how you get {HET} row sex walls for (I’m assuming) “heterosexuals.”

(But is labeling people “heterosexual” or “homosexual” not placing us on opposite sides of “sex walls”? Discuss.)

Judge Walker could have allowed cameras in the courtroom for the closing arguments, but I was hardly surprised that he didn’t. After all, the U.S. Supreme Court had stuck its unwanted neck into the earlier request for broadcast, siding with the Prop 8 proponents’ ludicrous “witness intimidation” argument (in a tediously predictable 5-4 ruling). Why set himself up for another slapdown, and one that could have further delayed the closing arguments during the pendency of the appeal?

As I wrote in a post shortly before the ruling was handed down:

Surely public access to a trial, where people sitting in their living rooms can make their own judgments about the evidence, should be — from the vox populi standpoint, anyway — better than having such proceedings filtered through the media lens; and a small number of media outlets, at that. Let’s see whether this sentiment even surfaces in a case where Scalia might believe that honoring it would do harm to a case in which his belief, from available evidence, is quite strong.

It didn’t, and now the filtering madness continues. I’m trying to get a handle on what’s going on — and I’m grateful to those making the effort to disseminate the information — but this is frustrating, and anti-democratic.

For this Supreme Court, the First Amendment protects animal crush videos and unlimited corporate spending on campaigns, but not the right of the people to learn about one of the most pressing social and political issues of the day. Nice job.

Judge Walker Raises Thoughtful, Provocative Questions of Prop 8 Litigants

June 10th, 2010 No comments

In today’s column over at, I analyze a few of the many questions that federal judge Vaughn Walker has asked the litigants to address during next Wednesday’s closing arguments in the Prop 8 (marriage equality) case.

Here are a couple of other analysts. The casually brilliant Nan Hunter takes an optimistic, global view of the questions and what they might signal about how this judge is thinking about the case. This analysis by Paul Hogarth runs through many of the questions in detail.

It’s still unclear whether we’ll have broadcast access to the closing arguments. I’m participating in a conference call later today on the issue, and will provide any relevant updates then.

The First Legally Married, Gay Dad in the U.S. Congress?

March 24th, 2010 No comments

Read Melanie Nathan’s short profile of Palm Springs Mayor and Democratic candidate for the US House of Representatives, Steve Pougnet. He’s running against Sonny Bono’s widow, Mary Bono Mack (now married to Florida Congressman Connie Mack). Bono Mack, of course, is the stepmother of the one and only Chaz (formerly Chastity) Bono, the offspring of the inexplicably famous Sonny and Cher. But I digress. Read Nathan’s account for a good sense of what having a legally married (before Prop 8 passed) father could do to the climate in the House. In sum: It would put another human face on the arguments for true equality, and the first of an otherwise mainstream, married parent. It’s going to be even harder for DOMA defenders to stand up and argue their position in front of this dad of three-year-old twins. As you might guess, I see a kindred spirit in Pougnet. (h/t Lee Dorsey)

BTW, my column tomorrow is on the legal treatment of gender complexity, especially in the context of marriage. I’ll expand on it here after it runs.

OK, I can’t resist doing this. Please, forgive me for bringing down the house (now you’re curious, admit it):

(Kind of) Live Updates of Prop 8 Trial

January 11th, 2010 1 comment

As I noted in my previous post, there won’t be any youtube coverage of the Prop 8 trial (Perry) now underway in California. But here’s a link to the Mercury News’s website, which is offering frequent updates of the proceedings. That’s what we’ve got from now, so we’re counting on those in the courtroom to relate what’s happening.

A Few Thoughts As We Await Decisions in Maine and Washington

November 3rd, 2009 2 comments

(Some thoughts are flying around up here, and I want to get them down and disseminated quickly. So this post will be link-free, at least in its first version.)

Within the hour, we might know whether Maine voters have decided to let the marriage equality bill enacted last summer stand. Update: It appears that this will go into  the wee hours. As of about 11 pm  EST, only 22% of precincts had reported, and the vote was essentially tied. Find updates here.

Later, we’ll have an answer to the slightly less dramatic question of whether the Washington electorate (or the tiny percentage of it that votes in mid-term elections, anyway) will let stand the comprehensive civil union bill that was passed into law a few months ago, or will overturn it and thereby cause the state to revert to the slightly less generous version of civil union status that previously existed. (Still awake?)

I feel like I’ve been going on about these issues forever (I’m hardly the only one), and I sometimes find myself wondering: What’s left to say? When I read that there were literally hundreds of  people scheduled to testify on the D.C. marriage equality bill, I’ll confess that my first reaction was one of numbness.

Haven’t we already made the case? How many more tearful children of same-sex couples will need to speak to the often-subtle, but real, shame that most states continue to enforce by fencing their parents — really, the whole family — out of a basic civil right? How many more visions of apocalypse will be described and displayed by opponents? We can all see, I think, how this is going to end, so  — why isn’t it ending?

Because it’s marriage, and a (shrinking) majority of people remain uncomfortable with a change of this magnitude. Marriage equality is either radicalism dressed up as conservatism, or the other way around, and that ambiguity has both spawned endless scholarly debate and given much of  the electorate cold feet. Better, some say, to stay away from the religiously charged lightning rod of “marriage” and offer the deliberately bland “domestic partnership” or “civil union” as a supposed virtual equivalent. In a limited sense, this is a good strategy: Washington’s domestic partnership law is quite likely to pass; Prop 8 took away marriage but left full domestic partnership status in place; and both Vermont and New Hampshire used the “civil union” to grease the skids towards full marriage equality. Even in Maine, equality opponents seem ready to accept civil unions, just not “marriage.”

I won’t go on about why the whole idea of marriage-in-all-but-name is unacceptable. It suffices to say that once one’s willing to grant all of the benefits but withhold the name, what is left is pure discrimination. If you have trouble seeing this, here’s a quick thought experiment: Imagine that the proposal were to call same-sex unions “marriages” but to rename opposite-sex unions “civil unions.” Acceptable? Q.E.D.

Everyone cares about marriage because that’s the status we understand, and that’s valued. As far as gay people in committed, long-term relationships are concerned, we are married in every way that matters. We just need the law to catch up, and thereby serve its valuable symbolic and educational role in changing hearts, minds, and practices in the many everyday ways that pass unnoticed. Consider this homely example:

A couple of years ago, we  bought an unnecessarily large fridge from Sears, which should change its slogan to: Where Americans Suffer Thoughtless Customer Service Procedures. Every time our adhesive service contract comes up for renewal, whoever answers the phone is asked whether she can speak to “Mr. or Mrs. Culhane.” Every time,  we tell the voice that this is a same-sex household1 and that we’ve told them this before. The reaction: “I’m sorry, but that’s the way we are required to speak.”

Really? In 2009? Yes; and Sears is  hardly the only company from whom we’ve gotten this treatment. There’s nothing sinister about it, and it comes even at the hands of other gays: When I told my retirement portfolio counselor about my “spouse,” she then proceeded to ask a question about “her.” (When I corrected her, she quickly disclosed that she “also was gay.”)

What does any of this have to do with Maine? Plenty. If we don’t win today, soon we will. As more and more people realize that the most important political act they can take part in is to be out, out, out, our numbers, proximity, and lives will work their transformative change on an ever-swelling number of our fellow citizens. Things are moving fast, now. It took Mainers three tries to support their state legislature’s sexual orientation anti-discrimination bill. Expect the much more cutting-edge marriage bill to pass either today, or next time.

We are pushing on the wheel of history, and everyone can hear the creak.

  1. Well, we only used the italics this last time.