Same-Sex Marriage Update

[MsTinkerbelly]

Originally Posted by AtLastHome

Does anyone know that if the appeal is struck down by the 9th Circut and the opposition (Prop 8 proponents) then try to go to the SC and it just does not take (cert)..... will Judge Walker's (and a 9th Circut strike-down) ruling then stand?

I know that one of the motivations behind the case brought was to just get the constitutionality issue to the federal SC, but, the SC can refuse to hear cases. Obviously, this one might just be one it wants to take on, but if not (or until it does) and the 9th Circut upholds Walker's decision, then same-sex marriages could simple happen and continue in CA, correct? And the opinion be used as precident setting for other states, yes?

Trying to put together some analysis I heard parts of today and not certain if my line of thinking is correct. Thinking about how critical it is for these marriages to get going again in terms of strenghth of numbers, etc. and the case for there being some same-sex couples married in CA and others not being allowed to under an unconstitutional amendment (which Prop 8 is in CA).

I believe you are right. If the 9th Circut Court agrees with Judge Walker and the SCOTUS will not hear the case, then equal marriage in California stands and the opinion will be used as a precident in other states. If it is heard by SCOTUS and they agree with Walker, then it will be the law of the land. If they strike down Judge Walkers ruling, we will have to overturn Prop 8 by a ballot inititive.

[MsTinkerbelly]

If you go to the website joemygod, you can read Jerry Brown's answer to the request for a stay. It is only 4 pages and just reiterates his previous stance that he doesn't want the decision to be stayed, and he doesn't think the yes on hate people have any standing.

[UofMfan]

Prop 8: Gay-Marriage Opponents May Be Unable to Appeal
Time.com

By MICHAEL A. LINDENBERGER Michael A. Lindenberger – Fri Aug 13, 7:40 pm ET

If same-sex weddings resume in California next Thursday, the happy couples may have more names to add to their thank-you lists than that of U.S. District Judge Vaughn Walker, the San Francisco jurist who last week struck down the 2008 voter-approved constitutional amendment that made gay marriage illegal. They may have to address new cards to Governor Arnold Schwarzenegger and California attorney general Jerry Brown.

That's because Brown and Schwarzenegger's choosing not to appeal Walker's Aug. 4 ruling - and their contention that the state is ready to begin issuing same-sex wedding licenses immediately - may turn out to be almost as decisive a factor as the historic court ruling last week. That possibility emerged Thursday in an 11-page ruling Walker issued to deny a request by Proposition 8's proponents for him to delay implementing his own ruling allowing gay marriage until they can appeal the case to the Ninth Circuit and perhaps all the way to the Supreme Court. (See why Prop 8 was upended.)

But in a twist that caught some experts off guard, Walker not only denied the motion but did so in a way that raises serious questions whether Prop 8 proponents have any right to appeal the case at all. He ruled that they not only failed to show that the resumption of gay marriage would do them personal, irreparable harm, but that they likely lacked the legal standing to request to appeal. Instead, he suggested, their only remedy may be a political one - as unlikely as that may be. "In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction," he wrote. (See how an unlikely pair of allies are making a Supreme Court case for gay marriage.)

Walker's reasoning is this: the actual defendants in the lawsuit brought by two same-sex couples last year weren't the folks who brought Prop 8 to the ballot two years ago. Instead, the suit named Schwarzenegger and Brown. When those two officials declined to mount a defense - an unusual and controversial decision by Brown, whose job normally includes the defense of all state law - Walker allowed the group behind ProtectMarriage.com to step in and defend the case at trial. But, he said in Thursday's order, just because they were allowed to intervene to defend Prop 8 at trial doesn't mean that they would have independent standing to bring an appeal in the event that the named parties in the case chose not to do so. "When proponents moved to intervene in this action, the court did not address their standing independent of the existing parties," he wrote. "This court has jurisdiction over plaintiffs' claims against the state defendants pursuant to 28 USC S 1331. If, however, no state defendant appeals, proponents will need to show standing in the court of appeals." (Comment on this story.)

That could mean trouble for the proponents. Walker gave the proponents until 5 p.m. on Aug. 18 to take their motion for a stay to the Ninth Circuit, where three judges who serve on a monthly motions panel will likely hear it. If they uphold Walker's ruling denying the stay, the only recourse for the proponents will be to ask the Supreme Court to intervene. To do so means asking the justice assigned to the Ninth Circuit to hear the motion. Ironically, in this case, that would be Justice Anthony Kennedy, the court's frequent majority maker who Supreme Court oddsmakers have long said holds the decisive vote if the question of gay marriage is ever decided there.

But if the appellate judges agree with Walker that the proponents lack standing to appeal, the case may never reach the appellate courts at all, at least not on its merits. That would mean a win for gay marriage in California, as it rejoins the five other states (and D.C.) where gay marriage is legal. But it would also mean that the case would have much less national importance. The first federal decision - Walker's - ruling in favor of gay marriage would remain the only one, and would have no direct impact on marriage laws in any other state.

And to add another twist, at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet's nest he may have been better off leaving undisturbed. "If the proponents don't have standing to appeal, then it's entirely plausible that the courts will rule that they did not properly have standing to go to trial," Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. "This is an issue he glossed over when he allowed them to intervene in the trial."

Amar says that if the Ninth Circuit agrees with Walker that the proponents don't have standing to appeal, the judges may well decide they shouldn't have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene - but on the other hand, come November, voters will choose new candidates for both of those offices.

In that event, what happens next is anybody's guess. "We're in uncharted waters here," Amar told TIME.

[Jess]

We had the privilege of hearing this brilliant young man speak yesterday at the Big Commit Rally. He is the boy from Arkansas who refused to say the pledge of allegiance until ALL people can get married.

[Soon]

Will The Right Sacrifice California to Save Marriage Amendments Elsewhere?


Submitted by Kyle on August 12, 2010 - 2:07pm

Earlier today I posted audio of David Barton talking with Tim Wildmon and Marvin Sanders of the American Family Association about his relationship with Glenn Beck, but now I want to highlight a more important piece of that discussion that occurred later in the interview when they were discussing the Prop 8 ruling.

All three were convinced that the case was eventually going to end up before the Supreme Court and that when it does, Justice Anthony Kennedy was going to be the deciding vote in favor of allowing gay marriage. As such, Barton revealed that there is some talk on the Right of not appealing or fighting the Prop 8 ruling and letting California have gay marriage in order to keep the case away from the Supreme Court and thereby saving the marriage amendments in all the other states:

Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."

Wildom: So you think the better situation here would be California not to appeal ...

Barton: Well, I'm telling you that that's what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said "on no, you left too many arguments on the table, you stayed technical." And now, knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.

If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.

[UofMfan]

Prop 8 Backers: Gay Marriages Would 'Harm The State's Interest In Promoting Responsible Procreation'

LISA LEFF | 08/16/10 03:02 PM | AP

SAN FRANCISCO — California voters had sound reasons and were not motivated by anti-gay bias when they outlawed same-sex unions in 2008, sponsors of the ban said Monday while urging a federal appeals court to stop gay weddings from resuming.

In addition, the state's interest in promoting responsible procreation through heterosexual marriages would be harmed if gay marriages were permitted while the 9th U.S. Circuit Court of Appeals reviews a previous ruling that overturned Proposition 8, lawyers contended in legal filings.

"The record leaves no doubt, none at all, that California, 44 other states, and the vast majority of countries throughout the world continue to draw the line at marriage because it continues to serve a vital societal interest that is equally ubiquitous – to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation," the lawyers wrote.

The arguments represented a final attempt by gay marriage opponents to persuade the 9th Circuit to step in and prevent the Aug. 4 ruling by Chief U.S. District Court Judge Vaughn Walker from taking effect at 5 p.m. Wednesday.

Walker has said county clerks must stop enforcing the ban at that time, a move that would clear the way for gay couples to obtain marriage licenses unless the appeals court decides otherwise.

Attorneys for the two same-sex couples who successfully sued to strike down Proposition 8 have been joined by state Attorney General Jerry Brown in urging the 9th Circuit to allow gay marriages to resume without delay.

They argued that same-sex couples should not be denied their constitutional rights while the appeal is pursued, and that government agencies would suffer no harm by being required to sanction same-sex marriages.

The Proposition 8 legal team said Walker had erred in concluding there was no evidence that allowing same-sex unions would undermine heterosexual marriages by causing more children to be born into households not headed by a married mother and father.

"Reluctance to fundamentally redefine marriage stems not from blind allegiance to tradition but rather from an eminently reasonable concern that decisively severing marriage from its procreative purposes would harm the institution's ability to serve these still important societal interests," they wrote. They also disputed the notion that Proposition 8 was based on religiously rooted moral disapproval of gay Californians. If that were true, laws against prostitution, assisted suicide and other prohibitions founded on strong moral components would also be invalid, they said.

They also questioned whether the two couples who filed the lawsuit can claim that having to wait for the appeal to be considered would hurt them when neither has concrete plans to get married this week.

The two couples have both said they want to be able to schedule their weddings so their families and friends can join them.

[AtLast]

Originally Posted by UofMfan

Prop 8 Backers: Gay Marriages Would 'Harm The State's Interest In Promoting Responsible Procreation'

LISA LEFF | 08/16/10 03:02 PM | AP

SAN FRANCISCO — California voters had sound reasons and were not motivated by anti-gay bias when they outlawed same-sex unions in 2008, sponsors of the ban said Monday while urging a federal appeals court to stop gay weddings from resuming.

In addition, the state's interest in promoting responsible procreation through heterosexual marriages would be harmed if gay marriages were permitted while the 9th U.S. Circuit Court of Appeals reviews a previous ruling that overturned Proposition 8, lawyers contended in legal filings.

"The record leaves no doubt, none at all, that California, 44 other states, and the vast majority of countries throughout the world continue to draw the line at marriage because it continues to serve a vital societal interest that is equally ubiquitous – to channel potentially procreative sexual relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation," the lawyers wrote.

The arguments represented a final attempt by gay marriage opponents to persuade the 9th Circuit to step in and prevent the Aug. 4 ruling by Chief U.S. District Court Judge Vaughn Walker from taking effect at 5 p.m. Wednesday.

Walker has said county clerks must stop enforcing the ban at that time, a move that would clear the way for gay couples to obtain marriage licenses unless the appeals court decides otherwise.

Attorneys for the two same-sex couples who successfully sued to strike down Proposition 8 have been joined by state Attorney General Jerry Brown in urging the 9th Circuit to allow gay marriages to resume without delay.

They argued that same-sex couples should not be denied their constitutional rights while the appeal is pursued, and that government agencies would suffer no harm by being required to sanction same-sex marriages.

The Proposition 8 legal team said Walker had erred in concluding there was no evidence that allowing same-sex unions would undermine heterosexual marriages by causing more children to be born into households not headed by a married mother and father.

"Reluctance to fundamentally redefine marriage stems not from blind allegiance to tradition but rather from an eminently reasonable concern that decisively severing marriage from its procreative purposes would harm the institution's ability to serve these still important societal interests," they wrote. They also disputed the notion that Proposition 8 was based on religiously rooted moral disapproval of gay Californians. If that were true, laws against prostitution, assisted suicide and other prohibitions founded on strong moral components would also be invalid, they said.

They also questioned whether the two couples who filed the lawsuit can claim that having to wait for the appeal to be considered would hurt them when neither has concrete plans to get married this week.

The two couples have both said they want to be able to schedule their weddings so their families and friends can join them.

I believe this argument can be knocked-down via research data available.... certainly was during the trial.

UGH.... why would any same-sex couple in CA right now make any concrete plans for a wedding with this up in the air? DUH!!

[suebee]

Originally Posted by HowSoonIsNow

Will The Right Sacrifice California to Save Marriage Amendments Elsewhere?


Submitted by Kyle on August 12, 2010 - 2:07pm

Earlier today I posted audio of David Barton talking with Tim Wildmon and Marvin Sanders of the American Family Association about his relationship with Glenn Beck, but now I want to highlight a more important piece of that discussion that occurred later in the interview when they were discussing the Prop 8 ruling.

All three were convinced that the case was eventually going to end up before the Supreme Court and that when it does, Justice Anthony Kennedy was going to be the deciding vote in favor of allowing gay marriage. As such, Barton revealed that there is some talk on the Right of not appealing or fighting the Prop 8 ruling and letting California have gay marriage in order to keep the case away from the Supreme Court and thereby saving the marriage amendments in all the other states:

Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."

Wildom: So you think the better situation here would be California not to appeal ...

Barton: Well, I'm telling you that that's what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said "on no, you left too many arguments on the table, you stayed technical." And now, knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.

If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.

Thanks for posting this. I think it underlines what WE all already know: the anti-marriage equality forces know that they don't have any valid legal arguments - the only way they will succeed in blocking our rights is if they appeal to the prejudices of the general public. Hopefully our allies will see this too.

[MsTinkerbelly]

The similarities and differences between the Prop 8 and DOMA cases
by Adam Bink

In last night’s thread, Eden posted some thoughts from UPenn law professor Tobias Wolff:

A victory in this appeal on the jurisdiction / standing issue would be phenomenal. Although the principles established in Judge Walker’s ruling would only result in the striking down of Proposition 8, rather than the establishment of marriage equality nationwide, dismissal of the appeal would eliminate the risk associated with bringing these claims before the Supreme Court of the United States — the most conservative Court that we have had in the last fifty years, in many respects — and Judge Walker’s devastating analysis of the factual record and the utter lack of evidence supporting any reason for excluding same-sex couples from marriage would remain on the books and be available for us to cite in all our future efforts at litigation and legislative reform.

Over the last few weeks an interesting debate has emerged over whether equality advocates should hope that the case is not struck down over the standing issue, so as for the case to make it to the Supreme Court where it has a chance of playing a role in enacting equality for the entire nation, rather than just California.

What I’ve noticed is that the debate is very similar to the discussion around the lawsuit challenging DOMA in Massachusetts. I examined these arguments in depth in a piece at my home blog, OpenLeft.com, titled “The question of whether to hope for a DOJ appeal“. For those unfamiliar with the case, some background from the lede:

The strategy and legal question that has been buzzing around LGBT circles, and articulated here at OpenLeft by Mark Matson, is whether or not advocates for equality between same-sex and opposite-sex couples should actually be hoping for the Department of Justice to appeal the case to the First Circuit and then the Supreme Court. The reason is because these cases are limited in their effects to the married, same-sex couples residing within Massachusetts borders only, while if the case is appealed and won at the First Circuit, same-sex couples in other states (most notably New Hampshire, which has legalized same-sex marriage, but also a few other states and Puerto Rico) would benefit. And of course, if won at the Supreme Court, it would affect the country.

Very interesting similarities to our debate around a Prop 8 appeal. In the end for the DOMA lawsuit, it appears likely that one way or another, the case will end up before the Supreme Court. I wrote:

Aside from it being unlikely for one of the three situations to come true, it appears unlikely that the SCOTUS will not hear this case, sooner or later.

I say that for three reasons Gary [Buseck, the Legal Director at Gay and Lesbian Advocates and Defenders] and I worked through. One, it’s not likely that one by one, a lawsuit or lawsuits will work its way through each of this country’s twelve circuits (not including the Federal Circuit, which only does patent law) over the next few decades, and every single time the federal government declines to appeal. Nor is it likely that if the government does, that every single time the SCOTUS declines to hear them. If we lose at one, it’s also not likely to happen for a second reason, which Gary pointed out to me- where there is a conflict in circuit court rulings- e.g., we win at the 1st Circuit but the 9th Circuit decides differently- that is often where the SCOTUS decides to step in. A third reason it’s also not likely is because if our side prevails, I’m told it’s more likely the SCOTUS will hear the case than if we lose.

So, when it comes to advocates for equality, there are definitely downsides to the government not appealing. On the other hand, this seems to be a road that has an end at the SCOTUS anyway, sooner or later. With that point of view, what would matter in determining whether or not to hope for appeal is your view of how friendly the SCOTUS is, now versus in the future. Which may be the better question to ask.

In the Prop 8 case, this question- the likelihood of the SCOTUS coming down on the side of equality- is, too, burning on all of our minds, and has been since the Olson/Boies lawsuit was announced. “Do you really think there are 5 votes on the Supreme Court for this?” is the most common question I hear asked of the two attorneys in interviews.

But the difference in the case here, as I see it, is that there is far more good news if the Prop 8 case is struck down on standing. I am always a little surprised when friends and colleagues lament that the ruling would be limited to California, the 8th largest economy in the world- large enough to be a country on its own, large enough to be bigger than some entire countries that already have legalized the freedom to marry for same-sex couples. Having thousands of more same-sex couples marry if the case is struck down on standing alone should not be a disappointment. It will help create a favorable environment to a future court ruling. It will help move public opinion and create visibility. It could (potentially) mean saving tens of millions of dollars and countless other resources from a future Prop 8 repeal effort that could be channeled towards advancing equality in other states, like Oregon. I also believe it will help us in efforts to repeal the anti-equality constitutional amendment in Oregon in 2012. And of course, it will make many more same-sex couples a great deal more equal. It is no small deal.

So while I agree with Tobias that a victory on the standing issue would be phenomenal, it is less out of fear or caution regarding the composition of the Supreme Court. I believe, as Olson and Boies do, that we can win there, and that too would be incredible. It is out of a hope for fairness to come sooner rather than later to same-sex couples, and for the sake and usefulness of advancing our movement down the road via other avenues that could even further build our chances of winning at the Supreme Court one day

[Jess]

Originally Posted by Jess

We had the privilege of hearing this brilliant young man speak yesterday at the Big Commit Rally. He is the boy from Arkansas who refused to say the pledge of allegiance until ALL people can get married.

I got our boy in school today. While waiting for the guidance counselor to go through class selection, etc. we listened to the morning announcements. It began with the Pledge of Allegiance. We were sitting in the main office and everyone present stood up, hand over heart, eyes on flag and repeated it along with speaker. The boy glanced at me with a startled look and kinda shook his head muttering "uh-huh". I remained seated beside him.

I'm not sure how he will feel tomorrow am when he is in his first period class but I do know that hearing this young man ( Will) really seemed to have impacted him.

We didn't get a chance to discuss it and I will be discussing it with his other mom tonight, so we are both on the same page "if" Alex decides to follows Will's lead. Part of me hopes he does. Part of me totally understands if he doesn't. Being a new kid in a new school with special needs after being in a non-mainstream school for several years and dyke parents.. he is already in front of the eight ball.

Glad to see so much great participation in this thread! thank you to everyone who has been participating ( either vocally or not! )

[suebee]

"A Hindu priest performed the first wedding ceremony in Nepal for a foreign gay couple, a rights group said Wednesday, as activists and tourist agencies increasingly promote the Himalayan nation as a gay-friendly destination."

Story here.

[MsTinkerbelly]

Thursday, August 19, 2010
SAN DIEGO: 12 Activists Arrested In Marriage Protest At County Clerk's Office

A dozen activists were arrested today at a San Diego county clerk's office when they refused to leave without being issue marriage licenses.
On the day hundreds of gay and lesbian couples statewide planned to obtain their long-awaited marriage licenses, a crowd of about 50 people gathered at the county clerk's office Thursday to protest a federal judge's stay of a federal ruling that Proposition 8 is unconstitutional. Three people were taken away in plastic handcuffs by sheriff's deputies early in the demonstration and an additional nine people were removed later. A deputy said they were detained for blocking access to a county office. Tony and Tyler Dylan-Hyde and at least one other couple came to the county clerk's office this morning at 8 a.m. asking to receive their marriage license. "We believe that county officials and the Attorney General have the authority and the obligation to allow marriage licenses to proceed based on both federal court findings and that Prop. 8 is unconstitutional and the governor's filings in Prop. 8 cases," Tyler Dylan-Hyde said. "We are asking you to do what's right."

According to the linked news story, those arrested had blocked the entrance of heterosexual couples with appointments to get licenses.