Cal Sup Ct Prop 8 Arguments To Be Televised Live

Last week I told you that the California Supreme Court had set oral arguments in "the Prop 8 case" (Perry v. Brown) for September 6, 2011 at 10am. This week comes news that those oral arguments will be televised live!

Online newspaper SF Appeal has the deets:

In January, a panel of the appeals court said that federal law, as defined in a 1997 Supreme Court decision, doesn't seem to allow sponsors to defend an initiative when state officials refuse to do so.

But the appeals panel said there might be a right under state law, and asked the California Supreme Court to step in and decide that issue.

The seven-member state high court will hear one hour of arguments in its State Building courtroom on Sept. 6 and then will have 90 days to issue a written ruling.

Court spokeswoman Lynn Holton said that because of public interest in the case, the court has approved a live statewide television broadcast of the arguments on the California Channel, a public affairs network.

If the state court eventually rules that the sponsors have standing, or the right to appeal, the case will then go back to the 9th Circuit for review of Walker's decision, a process that might take several more months.

But the federal appeals court said earlier this year that if the sponsors lack legal standing, the federal court would be required to dismiss the appeal.

Hat/tip to Wonder Man

CA Sup Ct Sets Prop 8 Case Oral Arguments Date: 9/6/2011

Good news! The California Supreme Court has finally set a date of September 6 at 10:00am for the oral arguments in the Perry v. Brown lawsuit (informally known as "The Proposition 8 case") in which the question at hand is a very limited one. Namely,

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Although the question is limited, the stakes are not. If the state Supreme Court rules, most likely within 90 days of oral arguments, that the heterosexual supremacists who drafted and promulgated Proposition 8 now have no legal standing to defend its constitutionality, it is very likely a 3-judge panel of the 9th U.S. Circuit Court of Appeals will follow that decision and rule that the Proposition 8 proponents have no standing to defend the measure in federal court, either.

In that case, the lower court's decision would go into effect and federal Judge Vaughn Walker's brilliant ruling determining that Proposition 8 violates the United States Constitution would go into effect. Of course the bad guys would probably appeal to the Suprem Court but since the case would only be about California (and California law) it is unlikely that SCOTUS would take the case. There is a possibility that SCOTUS would take the appeal to try to clarify once and for all whether proponents of state ballot measures who are not named plaintiffs in lawsuits have a right to continue appeals when the named plaintiffs fail to appeal but there's already a decision called Arizona for Official English vs Arizona in which SCOTUS basically says you need a particularized interest under state law in order to pursue a federal appeal. And it is precisely that question of whether a particularized interest exists under California law that the California Supreme Court will decided, by the end of 2011.

Another wrinkle is that the 7-member Supreme Court has recently lost its most pro-gay member, Carlos Moreno, and Governor Brown only announced his replacement, Goodwin Liu, who is probably as similarly pro-equality as Moreno, this week. If Liu is not on the court by September 6th, the court will probably name a state appellate judge to hear oral arguments and participate in the decision.

Hang on to your hats, folks, it's gonna be a bumpy ride!

Heterosexual Supremacists Appeal Judge Ware Ruling

Good grief! The heterosexual supremacists who believe that they are "defending marriage" by supporting Proposition 8 in federal court have appealed Federal District Court Judge James Ware's decision denying their motion to vacate Judge Vaughn Walker's ruling which struck down the measure.

The San Francisco Examiner says:

Attorneys for Prop. 8 filed their appeal this afternoon before the 9th U.S. Circuit Court of Appeals, the same court that is hearing an appeal of Judge Vaughn Walker’s ruling last August that the law unconstitutionally violated the civil rights of gays and lesbians.

Earlier this year, Prop. 8 sponsors had asked Ware, Walker’s replacement as chief justice, to throw out Walker’s ruling because of an interview he did with reporters in April, after his retirement, during which he discussed his long-term relationship with a gay man. They argued that Walker should have disclosed the relationship and whether he intended to marry before last year’s trial.

Attorneys for the same-sex couples who sued over Prop. 8 argued at the time that the motion was “frivolous” and “offensive.”

Ware denied the motion, saying there was no federal precedent for disqualifying a judge solely because he shares a characteristic, such as sexual orientation, with a litigant.

It should be interesting to see which case they lose first, the Perry v Schwarzenegger lawsuit (the appeal of Judge Ware's ruling) or the Perry v Brown lawsuit (the appeal of Judge Walker's ruling). I expect they will lose them both.

Judge Ware To Rule On Prop 8 Motion To Vacate Tomorrow

Federal judge James Ware, chief judge of the U.S. District Court for the Northern District of California, says he will rule tomorrow on a desperate motion to vacate last year's decision in Perry v. Schwarznegger striking down Proposition 8 as unconstitutional because the federal judge who issued it, Vaughn Walker, is openly gay and should have disclosed that fact at the time. Walker was previously chief judge of the same district but retired at the end of February 2011.

The motion by the heterosexual supremacist proponents of Proposition 8 has been widely ridiculed by the vast majority of legal experts and on the editorial pages of major newspapers.

It should be a delightful to read Judge James Ware's decision tomorrow. In other news, the judge has also said that he will deny the motion of the proponents to attempt to collect all the videos of the trial's witnesses and order them destroyed. Our side is arguing that the testimony is  a public record (the transcripts are available from the court) and that the entire video record should be released. There is some important, powerful testimony from expert witnesses explaining the nature of marriage and demolishing the arguments of the heterosexual supremacists that they would dearly not like to get into public view. I dearly hope the videos of the Prop 8 trial "leak" at some point in the future.

WATCH: Olson/Boies Tribute To Loving v. Virginia

June 12 is the 44th anniversary of the unanimous Loving v. Virginia United States Supreme Court case which overturned all state-enacted bans on interracial marriages. David Boies and Ted Olson are the lead attorneys in the federal lawsuit against Proposition 8, a 2008 California ballot measure which bans same-sex marriage. They have recorded a special video tribute acknowledging the significance of the Loving decision, and its potential impacyt on the Perry v. Brown case.

Hat/tip to TowleRoad.

REPORT: Why 2012 Is Not Year To Repeal Prop 8

There is a debate going on in California (again) about when (or if) the LGBT community should attempt to repeal Proposition 8 by circulating and passing a constitutional amendment to restore marriage equality in 2012.

REPORT ON WEST HOLLYWOOD TOWN HALL
The state's largest LGBT political advocacy group, Equality California, is hosting 12 town halls around the state seeking LGBT community input on the momentous decision to attempt to pass a ballot measure which would enact marriage equality and overrule Proposition 8. To that end, MadProfessah was invited to attend the 2nd of these events at the West Hollywood Auditorium on Sunday May 22 (Harvey Milk Day) as part of the panel. Other members were David Codell, a leading gay attorney who participated in the California marriage case and is one of the smartest legal minds in the state, Jim Carroll, interim Executive Director of Equality California, and Andrea Shorter, Director of Coalitions and Marriage at EQCA.

About 75 people showed up for the event which started a bit late at 5:45pm. Incoming EQCA Executive Director Roland Palencia was introduced to the crowd but did not say anything. During the event David explained that if a new constitutional amendment were to be passed then that would immediately make the Perry v Brown lawsuit moot. He also gave his opinion on the disposition of that case, making it clear that he felt it was very unlikely that the California Supreme Court would rule that the Proposition 8 proponents have standing to pursue the federal lawsuit when the Attorney General and Governor of the state have declined to defend the ballot measure in federal court. According to his timeline, oral arguments should happen in September with a ruling in December and the 9th Circuit ruling soon after that in early 2012. That would lead to a U.S. Supreme Court ruling sometime before June 2013. David also thought that the U.S. District Judge James Ware would quickly dispose of the offensive challenge to the original Perry v Schwarzenegger decision based on the sexual orientation of the judge, saying he was looking forward to reading the decision to see just how sharply the judge smacks down the heterosexual supremacists for making the ridiculous claim that a gay judge's sexuality or relationship status would have any impact on his ruling. David also made the point repeatedly that never in the history of America has any state passed a ballot measure to enact legislation to provide a right to LGBT people. There was a question from the audience about this later and I explained that there have been pro-gay ballot measure results (Maine 2005, Arizona 2006, Washington State 2009). Maine 2005 was the defeat of the repeal of a statewide gay civil right bill on employment. Arizona 2006 was the defeat of a measure to ban domestic partnerships and same-sex marriage (in 2008 Arizona passed  a constitutional amendment to ban same-sex marriage only). Washington 2009 was the statewide approval of a referendum on a comprehensive domestic partnership law recently passed by the state legislature and signed by the Governor. These are all different situations from asking voters to overturn a previously passed initiative statute and constitutional amendment banning same-sex marriage while a lawsuit is pending.

Jim Carroll's job was to give the results of a new poll about marriage equality conducted by Binder Research paid for by former Ambassador James Hormel and Love Honor Cherish. You may recall LHC was the group who moved forward with a Repeal Prop 8 campaign in 2010 (and failed to turn in any signatures) despite most of the LGBT community deciding in summer 2009 that this was not the right time to raise and spend tens of millions of dollars to pass a pro-gay ballot measure that year. Carroll presented a powerpoint which demonstrated that there has been very little change in public support for marriage equality since the last time the LGBT community polled in 2009. Carroll tried to educate the audience about the difference between polls of "adults" and polls of likely voters. California has 37 million people, and about 24 million adults, of which 21 million are registered to vote and about 15 million who are likely to vote in the next election. These 15 million are, on average, whiter, older and more conservative than the population as a whole which is "majority minority." The poll results Carroll discussed were for this group of likely voters.

THE LATEST POLLING RESULTS ON MARRIAGE EQUALITY IN CALIFORNIA
The topline result is that on the question of marriage equality, i.e. "Do you support or oppose allowing same-sex couples to be legally married" the 2011 numbers are 45% Yes-45% No 10% Undecided compared to the 2009 numbers of 47% Yes 48% No 5% Undecided. This is a somewhat shocking result in the light of numerous national polls (Gallup, CNN)showing majority support in the adult population for marriage equality in the last 6 months or so.

Unsurprisingly, support for marriage equality varies depending on how you ask the question. For example, if the question is about repealing Proposition 8 there is majority support (51%). Note that the margin of error in the telephone poll of 900 likely voters May 10-14 (with oversampling in African-American and English-speaking Asian Pacific Islander communities) is 3.3 percentage points. Look at the graphic above to see that support in communities of color for marriage equality has slightly increased with opposition slightly decreasing.

Binder also polled on the question of explicitly adding a religious exemption to a ballot measure which legalizes same-sex marriage (and thus also implicitly repeals Proposition 8) and support went down from the repeal Prop 8 numbers.

Would you vote yes or no on a ballot initiative that would legalize civil marriage for same-sex couples, on the condition that clergy or religious institutions are never required to perform a marriage that goes against their religious beliefs?

47% Yes 43% No 10% Undecided

Binder calls this an increase in support because the 47% number is higher than the 45% baseline support for the marriage equality question. However, the question "Would you vote yes or no on a ballot initiative that would legalize civil marriage for same-sex couples" was not included in the poll. The assumption is that the results of this question would track identically with the results on the marriage equality question.

In fact, in a bizarre case of fallacious reasoning Binder lumps all the respondents who said they support marriage equality OR repealing Proposition 8 OR would vote yes on a ballot measure with a religious exemption and comes up with a support of 58% Yes and 34% No. The notion that you can presume that people who will vote for a measure that does ONE of these things will also vote for a measure which does ALL of these things is simply ridiculous. (Mathematical geek aside: There is a huge logical difference between an OR and an AND.)

WHY TRYING TO REPEAL PROP 8 IN 2012 IS A BAD IDEA
All in all, I went into the Town Hall undecided and left pretty convinced that a 2012 ballot measure campaign to restore marriage equality to California is a bad idea. Especially when there is a pending federal court challenge which may not only restore marriage equality in California but support the legal argument to strike down the 30 other constitutional amendments which ban marriage equality around the nation. There are numerous other states which will likely have anti-gay marriage measures on the ballot (Minnesota, North Carolina and Indiana) and there may be states which have affirmative pro-gay measures on the ballot (Oregon and Maine). For the amount of money it takes to expand California from civil unions to full marriage equality one could have a good shot of winning one or both of the affirmative measures and possibly defeating one or some of the anti-gay measures. Nationally, it just doesn't make sense to me to spend 30-plus million dollars to enact marriage equality in California when there are states which do not have basic laws banning discrimination on the basis of sexual orientation (29) and gender identity (38).

We shall see what happens in the future, since EQCA says they will report back to the community in September 2011. LHC says that we can file ballot language and collect signatures before the California Supreme Court rules on the standing issue. Depending on the decision, the signatures do not have to be submitted. I'm not opposed to this idea, but I think it will be very very difficult to not submit the signatures to the secretary of state in March 2012 if either the Cal Sup. Ct. or  9th Circuit doesn't rule our way. Of course if a measure does get submitted and qualified I would support it, not monetarily but I would vote for it.

I just think that 2012 is not the right year to repeal Proposition 8. In order to make that decision to move forward I have three pre-conditions which need to be met: 1) Show majority support outside of the margin of error for marriage equality in the state in multiple polls 2) Significant (7 digit) quantities of money in the bank and 3) a open, accountable leadership structure and detailed plan for how to run a statewide ballot measure campaign.

MN Legislature Sends Prop 8 Copycat To 2012 Ballot

After nearly 6 hours of debate the Minnesota House voted 70-62 to send a proposed constitutional amendment which would ban same-sex marriage to be decided by voters on the November 2012 presidential ballot. The measure had previously passed the Minnesota Senate 38-27.

The Washington Post reports:

State law already prohibits gay marriage, but supporters of the proposed amendment said it’s necessary to prevent judges or future lawmakers from making it legal in Minnesota. Critics said the plan is divisive and would put discrimination into the constitution.

The amendment would define marriage as only between a man and a woman.

The state Senate already passed the measure. Democratic Gov. Mark Dayton has no power to block it from the ballot, but said before the vote Saturday that he would fight its passage. Dayton called the amendment “un-Minnesotan.”

Rep. Steve Gottwalt, the bill’s sponsor, said voters should have the final word on the issue.
“This is not about hatred. It is not about discrimination or intolerance,” said Gottwalt, R-St. Cloud.

But another Republican, Rep. John Kriesel, described how losing his legs in Iraq began a personal transformation of his views on the issue. He said he would have supported the amendment five years ago, but has since realized that the country for which he fought should not deny the right of two people who love each other to marry.

“I’m pleading with you to vote no,” said Kriesel, R-Cottage Grove. “I’m begging you.”

So far we know that Minnesota will be voting on the marriages of other people. There are amendments pending in North Carolina and Indiana. There are also discussions in Maine, California and Oregon about going to the ballot to repeal previously passed anti-gay marriage amendments.

MN Senate Approve Prop 8 Copycat Measure 38-27

The Minnesota State Senate has approved a constitutional amendment by a vote of 38-27 that would ban marriage equality, despite the existence of a state statute that already bans the practice. In Minnesota, a constitutional amendment can be put on the ballot after passing the state legislature by a simple majority in one legislative session.

The discriminatory measure has been hotly debated with almost all Democrats opposing the measure and Republicans supporting it, generally with religious-based arguments about "defending marriage." A recent editorial in the state's largest newspaper blasted such thinking in opposition to the legislation and a video of testimony of State Rep. Steve Simon asking "How many more gay people does God have to create before we ask ourselves if he wants them around?" has gone viral.

Republicans won control of both houses and the measure is expected to pass the State House, as well. In the Senate, all but one Democrat opposed the measure and all Republican voted for it. In the House, there are 72 Republicans and 62 Democrats (before the 2010 election there were 47 Republicans and 87 Democrats). Just goes to tell you what Republicans do when they get majority control of legislative bodies.

The question which would be presented to voters if the Senate version of the amendment is approved by the Senate is:

Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?

So, with wording eerily similar to 2008's Proposition 8, in 2012 a NO vote would be needed to preserve the possibility of marriage equality in Minnesota, although marriage equality would be banned by statute in the status quo. A yes vote would insert the language into the constitution and would require another amendment to be  passed by voters to repeal it and enact marriage equality.

Hat/tip to TowleRoad and @xavierla

LA TIMES Editorial Eviscerates ProtectMarriage Argument

Dismissing an argument that even heterosexual supremacists should have been ashamed to make in their increasingly desperate attempts to not lose the Perry vs. Brown lawsuit, today's Los Angeles Times op-ed titled "Prop. 8: Who's fit to judge?" eviscerated the motion to vacate filed by Protect Marriage attorney Charles Cooper on Monday:

Married judges rule on divorce cases all the time. So do single judges. And divorced ones. Their rulings aren't challenged on the grounds of their marital status; that would obviously be ridiculous.


Yet ProtectMarriage, the group that sponsored Proposition 8, is challenging last year's ruling by Chief U.S. District Judge Vaughn R. Walker that declared the same-sex marriage ban unconstitutional. The group's lawyers argue that because Walker has a longtime male partner, he was unfit to render a decision on Proposition 8. If one day he should want to marry, the argument goes, he might benefit from his own decision, assuming it survives the scrutiny of higher courts.


This claim is absurd on many levels, especially when you remember that ProtectMarriage's case against same-sex marriage is that it threatens the institution of heterosexual marriage. In fact, the group says, that damage gives it the legal status to challenge the initiative, because any married heterosexual is allegedly harmed by same-sex unions. But if that's the case, then by the group's own logic, married heterosexual judges would also be forced to recuse themselves; the integrity of their own marriages could be damaged by the matter before them.


According to this line of argument, former Chief Justice Ronald M. George, a married heterosexual, would not have been able to preside over the California Supreme Court case in which same-sex couples sued to overturn an earlier ban on same-sex marriage. George wrote the majority opinion setting out the reasons why the ban violated the state Constitution.


So then, perhaps, only an unmarried judge who has sworn never to wed could hear cases about same-sex marriage. Or any marriage at all. An African American judge could never hear a race-discrimination case. And no female judge could decide a lawsuit on gender discrimination. Or a male one either.


The guidelines for judicial recusal can be unclear at times, but generally the bar is a high one. The rules call for judges to disqualify themselves when their impartiality might reasonably be questioned, but they are not supposed to back away from cases because of who they are — their ethnicity, gender, marital status, affluence, political leanings or, yes, sexual orientation. It's another matter if they are directly and materially affected, or if they have previously displayed a deep-seated bias on the issue at hand. A judge who drives a gas guzzler can still hear a lawsuit against an oil company, but not if his or her spouse works for the oil company.


Had Walker been one of the activists fighting Proposition 8, or if he had repeatedly sought a marriage license and been rejected, ProtectMarriage would have valid claims of conflict of interest. The group's assertion that a gay judge in a relationship is less able than a heterosexual married judge to render a fair decision on a sexual-orientation case says more about the pervasiveness of discrimination against homosexuals than it does about Walker's fitness to hear the matter.

READ: Prop 8 Supporters' Motion To Vacate Due To Gay Judge

Prop 8 Supporters'' Motion to Vacate Judgment

EQCA Asking For Input On Possible 2012 Prop 8 Repeal

Equality California Announces Community Town Halls, Polling to Discuss Possible Repeal of Prop 8 in 2012

San Francisco – Because legal experts are advising that the Proposition 8 federal challenge could take years to resolve, Equality California is launching a community engagement initiative to start a discussion on whether to return to the ballot in 2012 to repeal the marriage ban or whether to wait for a final decision by the courts. Before making any recommendation, Equality California will survey its membership, hold 10 town halls across the state and an online town hall, conduct a poll of likely 2012 voters, consult with political experts, coalition partners and engage with its members and the LGBT community. Equality California will announce results of polling and analysis by Labor Day.

“For two people who love each other and want to be married it is heartbreaking that an unfair law keeps them and their families apart,” said Jim Carroll, Equality California interim executive director. “We were truly optimistic that the court case to overturn Prop 8 would restore marriage equality by the end of 2010 or early this year, making a ballot measure unnecessary. Despite the amazing work of the dedicated lawyers leading this effort, there is no guarantee how or when the courts will ultimately rule.

“As a community, we will figure out together whether we wait until the courts rule or whether we repeal Prop 8 at the ballot box. We urge LGBT community members and our allies to join the conversation.”

Details and a complete schedule for community town halls are forthcoming with initial meetings scheduled for San Francisco on May 19, West Hollywood on May 25 and San Diego on June 2.

U.S. District Judge Vaughn Walker ruled that Prop 8 was unconstitutional in August 2010. However, that same month the Ninth Circuit Court of Appeals issued a stay, preventing same-sex couples from marrying while the case is on appeal.

On January 4, 2011, the federal appeals court asked the California Supreme Court for guidance on an issue related to whether the sponsors of Prop 8 have standing to pursue an appeal. The California Supreme Court said will consider the question with oral arguments to be held as early as September, meaning a decision likely would not come until the end of this year at the earliest.

To take the survey, please visit: www.eqca.org/Prop8survey

9th U.S. Circuit Refuses To Lift Stay On Prop 8

The 9th U.S. Circuit Court of Appeals issued a ruling today refusing to lift Judge Vaughn Walker's stay on the enforcement of Proposition 8 while the ruling is appealed. Currently the California Supreme Court is considering a question of whether official proponents of a ballot measure can defend an initiative in court when the state's official representatives refuse to do so.

Here's the official text of the order from the 3-judge panel of the 9th U.S. Circuit Court of Appeals:

Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.

The ruling means that Proposition 8 will remain in effect until after the California Supreme Court rules later in 2011 on the standing question and the 9th Circuit panel issues a ruling either accepting the standing determination from the California Supreme Court (which it does NOT have to do, since there are very different standards for standing under federal and state law) and issues its own ruling on the constitutionality of Proposition 8.

POLL: Support For Marriage Equality Up 8 Points in 3 Years

Looks like 2011 will be the tipping point where there is more popular support for marriage equality than opposition. Ever since the heterosexual supremacists' Pyrrhic victory with Proposition 8 in November 2008, there has been an 8 percentage point movement towards marriage equality. That's faster than the generally accepted 1-2 percentage point per year movement that most activists cite.

The Pew Research Center for People and the Press poll was conducted February 22 to March 1, 2011 and has a margin of error of  3 percentage points.

The new poll finds that about as many adults now favor (45%) as oppose (46%) allowing gays and lesbians to marry legally. Last year opponents outnumbered supporters 48% to 42%. Opposition to same-sex marriage has declined by 19 percentage points since 1996, when 65% opposed gay marriage and only 27% were in favor. 

Majorities of the public now support same-sex marriage in the Northeast (59% in favor) and West (56%). In many states in those regions, efforts to legalize same-sex marriage have been underway or have already succeeded. By contrast, support is much lower in the Midwest (40% favor) and the South (34%). 

As has been the case since 1996, there is a wide partisan division on the question of same-sex marriage. Currently 57% of Democrats favor making it legal, while only 23% of Republicans agree. Independents (at 51% in favor) are more similar to Democrats than to Republicans, in part because 46% of Republican-leaning independents are supportive of same-sex marriage, along with 58% of independents who lean Democratic. 

Hopefully legislattors in Rhode Island and Maryland will see these results and do the right thing. I also hope that these poll results may help President Obama as he "struggles" with the issue of marriage equality.

CA-AG Harris Asks Court To Lift Prop 8 Ruling Stay

Attorney General Kamala D. Harris

Wow! Yesterday I blogged about a Los Angeles Times editorial ("Same-sex weddings, now") that called for the 9th Circuit to lift their stay of U.S. District Court Judge Vaughn Walker's August 4, 2010 ruling striking down Proposition 8 from going into effect, effectively legalizing same-sex marriage in California again. I opined that I thought it was unlikely the 9th Circuit would lift the stay, even though they have effectively delayed the case by as much as 11 months by asking the California Supreme Court whether they think that under California law the proponents of Proposition 8 have the right to defend a ballot measure when the elected representatives (Governor and Attorney General) the people have refuse to do so. (This is a bizarre delay because Proposition 8 is now in federal court, and there is also a question of standing under federal law, notwithstanding whether the Proposition 8 heterosexual supremacists have standing under state law.)

Today comes word that our current Attorney General (and the former Governor Arnold Schwarzenegger) Kamala Harris agrees with the position that same-sex marriages should be legal in California while the courts wrangle and have filed papers with the 9th Circuit Appellate Court asking them to lift the stay:

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Proposition 8 is unconstitutional. The appeal's likelihood of success has been substantially diminished, Attorney General Harris said, "both by the United States Attorney General's conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case."

In addition, Attorney General Harris said, "there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California." But as long as the stay on same-sex marriages remains in effect, Attorney General Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker's ruling legally inappropriate.

"The President and the United States Attorney General have determined that they will not continue to defend the Defense of Marriage Act (‘DOMA')," Harris said, "because it enforces a classification that fails to meet the heightened standard of scrutiny that should apply for equal protection analysis under the Fifth Amendment."

The California Attorney General's long-standing position, Harris told the Ninth Circuit, is that Proposition 8 "violates the equal protection clause of the Fourteenth Amendment of the United States Constitution."

"For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples," Attorney General Harris said. "Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied." 

Wow. I guess elections really do have consequences. I can not imagine Republican Steve Cooley issuing such a strong statement in favor of LGBT rights.

Even if the 9th Circuit Court of Appeals does lift the stay, opponents could appeal to the U.S. Supreme Court, which almost definitely would maintain the stay.

It will be curious to see what "harm" heterosexual supremacists will tell a court that they will undergo if Proposition 8 is allowed to be in limbo pending a future court decision.

L.A. TIMES Op Ed: "Same-sex weddings, now"

Today's Los Angeles Times runs an editorial in favor of ending the stay on Judge Vaughn Walker's ruling declaring Proposition 8 unconstitutional and calls for same-sex marriages to resume immediately while the legal wrangling at the 9th U.S. Circuit Court of Appeals and California Supreme Court get settled.

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system.

The state Supreme Court was asked by the U.S. 9th Circuit Court of Appeals to rule on whether supporters of Proposition 8 have the right — known as "standing" — to continue with their case. It indicated that it would hear arguments late this year, with a ruling likely to follow a few months later. Meanwhile, a stay pending the outcome of the appeal has kept gay weddings from going forward. Now, however, the lawyers challenging Proposition 8 have asked the 9th Circuit to lift the stay and allow the weddings to take place. We agree that it should.

Every day that the case drags on, gay and lesbian couples who would like to marry are being deprived of their civil rights. That's not our wording; the federal trial judge decided that issue, at least for now. The denial of constitutional rights, even temporarily, is a deplorable situation that must meet high legal standards to be allowed to continue. In our view, those conditions have not been met.

First, a stay should be issued only if there is a strong likelihood that the appealing party — in this case, the supporters of Proposition 8 — will prevail in court. Yet there are serious questions about whether they even have the standing to appeal, so the outcome is very uncertain. There are other factors the courts take into account when deciding whether to keep a stay in place. Those filing the appeal must show that they would be irreparably harmed if the stay were lifted; the courts also take into account where the public interest lies. During the trial, the supporters of Proposition 8 were unable to identify any harm that would befall them if same-sex weddings took place.

Certainly it would be messy if California were to resume performing wedding ceremonies for gay and lesbian couples, only to have to stop again when another ruling comes down. But there may be no other option. Right now, same-sex couples are being deprived of their constitutional right to marry, and every indication is that unless the stay is lifted, they'll have to keep waiting for more than a year. That is real harm, and there is no valid reason to allow it to continue.

I think it is unlikely that the Courts will agree to lift the stay, but I do agree that the harm to same-sex couples who would like to get married in California should not be discounted, especially  when it is looking increasingly likely that Proposition 8 will not survive judicial scrutiny.

BREAKING: CA Sup Ct Agrees To Decide Standing Question

The California Supreme Court unanimously agreed to decide whether Proposition 8 proponents have standing to defend the anti-gay marriage initiative in the federal lawsuit of Perry v. Schwarzenegger which is currently pending before the 9th U.S. Circuit Court of Appeals.

Specifically, the Court will decide the question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

If the State Supreme Court rules they DO NOT have standing, the 9th Circuit panel may dismiss the lawsuit immediately as moot, which would lead to marriage equality being legal in California again. If the State Supreme Court rules that they DO have standing (a more likely result) then the 9th Circuit will have to decide the case, which they could do on the merits of the claim that Proposition 8 violates a federal constitutional right to marry. That decision could be appealed to the US Supreme Court and would have national implications.

According to Chris Geidner, the State High Court issued a relatively brisk briefing schedule:

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.

Oral arguments are scheduled for "as early as September 2011" and this is significant because the Court must issue a written ruling within 90 days of an oral argument or else it does not get paid, which would probably mean the 9th Circuit would be getting Perry v. Schwarzenegger back in early 2012. So, basically a year has been added to the time in which marriage equality could be decided by a court ruling in California.

CA Sup Ct Rumored To Release Prop 8 Response Next Week

The California Supreme Court will likely let us know next week if they will be deciding whether the Proposition 8 proponents have standing to defend the initiative in federal (or state) court when the government officials tasked with that responsibility (the Governor and Attorney General) decide not to.

From The Los Angeles Times (New chief justice says California Supreme Court will decide soon on entering Proposition 8 fray):

Chief Justice Tani Cantil-Sakauye said Wednesday that the California Supreme Court may decide "as soon as next week" whether to weigh in on the federal Proposition 8 appeal and expressed hope that a Southern California Latino would be chosen to succeed departing Justice Carlos R. Moreno.


[...]


The U.S. 9th Circuit Court of Appeals has asked the California high court to determine whether state law gives sponsors of initiatives the authority to defend them legally when state officials refuse to do so.

The state court has been highly deferential to initiatives in the past. If the court rules that initiative backers have special status under state law, the 9th Circuit would be more likely to rule on the constitutionally of Proposition 8.

Lawyers and law professors who have followed the case suspect that the 9th Circuit was prepared to dismiss the appeal by backers of Proposition 8 on the grounds that only state officials can challenge the trial court's ruling against the measure. Gay rights lawyers say such a ruling would mean Proposition 8's demise, but it would have no direct effect on same-sex marriage outside California.

Keep your fingers crossed! Actually either way the California Supremes is a win-win for us. If they rule that proponents do not have standing, and the 9th Circuit panel rules in our favor we'll regainmarriage in california relatively quickly but it will not affect the rest of the country. If they rule the proponents DO have standing then a more substantive appellate circuit ruling on why Prop 8 is unconstitutional will be forthcoming and it is unlikely the Supreme Court of the Unite States 9and the Pres8dent) will be able to punt on opining on Prop 8's legality.