Same-Sex Marriage Update

[Jess]

Kagan’s recusals — potential barrier to pro-gay rulings

http://www.keennewsservice.com/2010/...o-gay-rulings/

[SuperFemme]

Wyoming couple drops gay marriage lawsuit

By The Associated Press
09.16.2010 10:30am EDT


(Cheyenne, Wyo.) A gay couple in Cheyenne has dropped a federal lawsuit that challenged the Wyoming law defining marriage as existing only between a man and a woman.

The Casper Star-Tribune reports that David Shupe-Roderick and Ryan W. Dupree filed a notice Friday voluntarily dismissing their lawsuit against the state.
They say they are dismissing the suit because unspecified circumstances had changed.

The couple sued last month, alleging that Wyoming’s law defining marriage as being a contract solely “between a male and a female person” was unconstitutional.

Some gay-rights activists expressed concern about the lawsuit; others thought it might be a con. The two men were representing themselves, even though they’re not lawyers.

http://www.365gay.com/news/wyoming-c...riage-lawsuit/

[MsTinkerbelly]

BREAKING: Prop 8 legal team files argument to 9th Circuit attacking Judge Walker
September 17, 2010
By Eden James

The defendant-intervenors filed their written arguments to the U.S. 9th Circuit Court of Appeals shortly after 9 p.m. PST — just 3 hours before the court’s deadline. We will be posting it here ASAP.

According to Lisa Leff at the Associated Press, it targets Judge Vaughn Walker for being “egregiously selective and one-sided.” More to come.

UPDATE: Here it is (h/t to both Kathleen, in this thread, and Ann S. in the previous thread, where the news broke almost immediately in the comments):


View this document on ScribdMore from the Associated Press:

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.


UPDATE: Trial Trackers are quickly digesting the document and posting their thoughts in the comments. Below are some of the best comments posted so far.

James UK:

I’ve just read the Proponents brief. The problem I think that they have is the cursory treatment given to Lawrence v Texas, and to a lesser extent, Romer v Evans, which cases have so changed the landscape regaring the classification of lesbian and gay people, to the extent that Baker v Nelson is unlikely any longer to be good law. Whilst Lawrence specifically did not mandate recognition of gay marriage, which it could not and was not required to do, since the subject matter under discussion was a Texas criminal statute, it did not foreclose such a finding in future cases. It merely left that argument to be made in future cases. Lawrence did not apply standard rational review. It applied some higher level of scrutiny, whether rational review with bite or intermediate scrutiny. Thus the Propents complaints on rational basis review are probably nothing to the point.

The brief is noticeably silent on Justice Scalia’s dissent in Lawrence too, where he asserted, rightly, that if moral approbation was not an acceptable basis upon which to legislate against lesbians and gays as a class, then same sex marriage could not be prevented either, because procreation was not and never has been a requirement for marriage.

Justice Ginsberg’s recent note in Christian Legal Soc v Martinez that the USSC”s recent jurisprudence does not distinguish between behaviour and status as regards lesbians and gays also goes unmentioned.

“Lightning Baltimore” posted this gem of a quote from page 33 of the brief:

The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws. Heller, 509 U.S. at 320 (emphasis added). To the contrary, the State’s “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

Here is Kathleen Perrin’s response to the above quote:

It’s true that it can be based on rational speculation…. but the key word here is “rational.”

IF the standard of review is only “rational basis”, then the court can actually come up with its own rationale for the law, even if the parties have not presented one. However, neither the Proponents nor Walker could come up with any justification for the law that was “rationally related” to a “legitimate” government interest.

Anonygrl:

They wrote: “The trial proceedings were skewed from the outset, given that four of Proponents’ expert witnesses refused to testify…”

Basically they are claiming that the fact that the judge videotaped the proceedings EVEN THOUGH NOT FOR BROADCAST scared away the experts. And THAT is why they had no evidence! The fact that they were unable to explain properly to their own witnesses that this was for court records, not broadcast is why this should be overturned.

This leaves me somewhat speechless. I think that Olson and Boies must be laughing their asses off somewhere right now, as they read this.

UPDATE (h/t to Kathleen): Imperial County just filed their brief on the standing issue:


View this document on ScribdFinally, AFER released the following statement shortly after the Prop 8 legal team filed their brief earlier tonight:

OFFICIAL PROP. 8 PLAINTIFFS’ STATEMENT ON TODAY’S 9th CIRCUIT FILING
Statement from Chad Griffin, Board President, American Foundation for Equal Rights

“Regardless of the defendant-intervenors’ protests, the fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial. There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “We are eager to proceed with affirming the unconstitutionality of Prop. 8, and the equality of all Americans, in the Ninth Circuit and the Supreme Court.”

The American Foundation for Equal Rights is the sole sponsor of the Perry v. Schwarzenegger case. After bringing together Theodore Olson and David Boies to lead its legal team, the Foundation successfully advanced the Perry case through Federal District Court and is now leading it through the Ninth Circuit Court of Appeals before the case is brought to the United States Supreme Court.

The plaintiffs in the case are two couples — Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo — who wish to marry but cannot because of Proposition 8.

Kris and Sandy have been together for more than ten years and their family includes four boys. Both are in public service — Kris leads a childhood health and education agency and Sandy works for a county health department. Their home life centers around their kids, with PTA meetings, soccer and music lessons taking up much of their free time.

Paul and Jeff have been together for nine years. Jeff is a general manager for a movie theater company and Paul is a business owner. They own a home together and are proud uncles.

Leading civil rights organizations, legal scholars, doctors, scientists, and religious organizations filed amicus briefs in support of the the Foundation’s case, including: the California NAACP, Mexican American Legal Defense & Educational Fund (MALDEF), Asian Law Caucus, National Black Justice Coalition, South Asian Bar Association of Northern California, ACLU, Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, retired California Court of Appeal Justice Donald King, family law professors from across the state, American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, and the American Academy of Pediatrics California Chapter.

The American Foundation for Equal Rights Advisory Board is co-chaired by John Podesta, head of the progressive Center for American Progress, and Robert Levy, head of the libertarian Cato Institute. The Board also includes former NAACP Chairman Julian Bond, UFW founder Dolores Huerta and FOX News Commentator Margaret Hoover.

For complete information about the case, including court documents, photographs, video and more, visit www.equalrightsfoundation.org .

Specifically, the District Court’s comprehensive, 136-page decision may be found here: http://www.equalrightsfoundation.org...ourt-decision/

A summary of the trial is available here: http://www.equalrightsfoundation.org...trial-summary/

Video evidence and other court filings are available here: http://www.equalrightsfoundation.org...legal-filings/

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the original suit against Prop. 8 stated, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage

[MsTinkerbelly]

Prop 8 proponents still arguing procreation in 9th Circuit brief
(Here is Karen Ocamb’s take, cross-posted from LGBTPOV, on the written arguments filed by the Prop 8 legal team late last night. Check out Friday night’s breaking news post for more on the brief).

By Karen Ocamb

The defendant-interveners in the federal Prop 8 trial filed a 134-page argument with the U.S. 9th Circuit Court of Appeals, three hours before it was due. Prop8TrialTracker has the brief scribed. Interestingly, Austin Nimocks, senior legal counsel for the Alliance Defense Fund, (pictured in this photo by Mark Hefflinger at the Yes on 8 podium with attorney Andy Pugno) is not a named author in the brief, despite being ubiquitous during the trial. Wonder what happened there.

The Proponents argument that they have standing in the case starts on page 19, after a list of citations – but it reads like they are submitting their case in full, once again arguing the incredible importance of procreation as the distinguishing characteristic of heterosexual relations. And once again, we’re jumping through the Looking Glass:

“Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence – the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored. And the district court ignored it quite willfully; in the court’s view, apparently only oral testimony presented at trial constituted “evidence” on the issue (and its treatment of even this evidence was egregiously selective and one-sided….).”

In another interesting twist, the Prop 8 proponents claim the plaintiffs erroneously argued that there was animus on the part of the people of California, when in fact the legal team of Ted Olson and David Boies argued convincingly that it was the proponents and pushers of Prop 8 who were motivated by animus toward gay people:

“This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same sex couples all the same substantive benefits and protections as marriage. And it defames as anti-gay bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve society’s interests – from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of he scores of state and federal judges who have addressed the issue.”

On the issue of Standing, they write:

“As official proponents of Proposition 8, Appellants are authorized by California law to defend that Proposition on behalf of the people of that State. Accordingly, they have standing to defend this appeal. The Imperial Interveners, who directly administer California’s marriage laws, likewise have standing, and should have been permitted to intervene in this case…..”

Specifically, Proponents have “authority under state law” (Karcher v May 1987) to defend the constitutionality of an initiative they have successfully sponsored, for they are acting “as agents of he people” of California “in lieu of public officials” who refuse to do so,” ie Gov. Arnold Schwarzenegger and Attorney General Jerry Brown.

They cite Arizonans for Official English v Arizona (1997) as backup – but as Lambda Legal’s Jon Davidson wrote earlier, other attorneys believe the Arizona decision went against the initiative proponents.

The defender-interveners also say they have standing because the California Supreme Court “has already permitted these very Proponents to defend this very Proposition when the Attorney General would not do so.”

[MsTinkerbelly]

Knights Of Columbus Donate More To Fight Gay Marriage Than Fight Hunger

God's Gentle People™ at the Catholic charity Knights of Columbus have donated more to fight marriage equality than it has allocated for its own food bank program.
The Knights of Columbus, a Catholic fraternal society founded in New Haven in 1881, does a lot of good work. In a report detailing its charitable giving during 2009, the organization noted that while the “Knights and their families are hardly immune to the economic downturn,” they had once again furthered their proud 128-year tradition of service — a tradition including “helping the widows and orphans of the late 19th century” and “providing coats to poor, cold children.” Add to that list a donation of a whopping $1.4 million in 2009 to the National Organization for Marriage (NOM), a nonprofit group dedicated to fighting same-sex marriage through the ballot initiative system in California, Maine and other states. While NOM hasn’t yet made public its 2009 fundraising numbers, the amount of charitable contributions it received in 2008 totaled approximately $2.9 million. The NOM donation eclipses what the Knights’ Supreme Council spent on some of its own charitable programs — such as its new effort supporting food banks or its total spending on education initiatives — in the same year, much to the outrage of some observers, including Catholic groups.

NOM has sued in state courts to prevent the disclosure of their donors, but the Knights of Columbus proudly announced their donation in a public report.

[PearlsNLace]

TinkerBelly, I have purchased a Yule/christmas tree from the KofC in the past.

Thank you for this post. I found a link, and shared it on my facebook!

[MsTinkerbelly]

Not a marriage rights victory, but still one for equality!

Another court victory: Florida gay adoption ban ruled unconstitutional
By Eden James

As our friends at the ACLU and Equality Florida (as well as Alan E. in the comments) alerted us this morning, we have some more excellent news coming out of the courts on LGBT rights — this time from a state court in Florida:

MIAMI — Florida’s strict ban on adoption by gay people is unconstitutional because no other group, even people with criminal backgrounds, are singled out for a flat prohibition by state law, an appeals court ruled Wednesday.

The ruling by the 3rd District Court of Appeal upholds a 2008 decision by a Miami-Dade County judge who found “no rational basis” for the ban when she approved the adoption of two young brothers by Martin Gill and his male partner. The prohibition was first enacted in 1977 and is the only law of its kind in the nation, according to court records.

In a 28-page opinion, a three-judge panel of the court noted that gay people are permitted to become foster parents or legal guardians in Florida, yet are the only group not allowed to adopt.

“It is difficult to see any rational basis in utilizing homosexual persons as foster parents or guardians on a temporary or permanent basis, while imposing a blanket prohibition on those same persons,” wrote Judge Gerald Cope for the panel. “All other persons are eligible to be considered case-by-case to be adoptive parents.”

The decision is likely to be appealed to the Florida Supreme Court, which could then determine the ultimate fate of the law. “We note that our ruling is unlikely to be the last word,” the appeals panel said