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.

Federal Judge Denies Motion To Vacate Prop 8 Ruling

In an unsurprising move, Federal Judge James Ware has summarily dismissed the motion to vacate last year's ruling striking down Proposition 8 filed by the heterosexual supremacist supporters of the 2008 ballot measure which ended marriage equality in California.

You can read the full text of the Motion to Vacate here.
Denial of Motion to Vacate 06-14-2011

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.

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 Expected To Decide Prop 8 Question Today

On February 3rd I blogged that the Chief Justice of California had given hints that a ruling from the California Supreme Court was imminent on whether it would rule on the question of whether Proposition 8 proponents have standing under California law to defend their initiative before the 9th U.S. Circuit Court of Appeals.

Well, today comes word that the much awaited decision should be announced as early as today:

The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8’s sponsors have legal authority to defend the ballot measure.

Depending on the court’s ruling, the 9th Circuit could either dismiss the Proposition 8 appeal on procedural grounds -- limiting the case’s effect to California -- or rule on federal constitutional questions that would affect same-sex marriage throughout the country.

A federal judge in San Francisco struck down Proposition 8 in August, ruling after a 12-day trial that the 2008 ballot measure violated equal protection guarantees under the U.S. Constitution. Experts testified during the trial that one’s sexual orientation was largely fixed and that matrimony benefits the families of gays and lesbians.

California state officials refused to appeal the ruling. Now the 9th Circuit must determine whether Proposition 8’s sponsors, ProtectMarriage.com, have legal standing to challenge the trial court's decision.

Hat/tip to Karen Ocamb's LGBTPOV.

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.