David Codell - California Supreme Court Review of Prop 8

12/30/08 announcement of the Human Rights Campaign's Los Angeles Steering Committee: On January 27, 2009, the Committee will host a presentation by constitutional attorney Dave Codell, "an attorney who was part of the team who wrote the brief to the California Supreme Court, resulting in the 15 May 2008 decision ruling that denying gay and lesbian couples the right to marry is unconstitutional."

Long-Term Commitment - The Recorder's annual retrospective on the California Supreme Court

12/31/08: Santa Clara University law professor Gerald Uelmen repeats his belief that the California Supreme Court will uphold Prop. 8. Of In re Marriage Cases, 43 Cal.4th 757, he says that the Court "clearly went out on a limb, and the people sawed it off." If the Court invalidates Prop. 8, Uelmen predicts a recall movement to oust Chief Justice Ronald George.

Although California Attorney General Jerry Brown recently reversed his position on Prop. 8, Uelmen rejects Brown's argument that Art. I, Sec. 1, of the California constitution protects an "inalieable right" of liberty at the core of the right to marry, and that a majority vote can not, without compelling justification, abridge this fundamental right. "He's suggesting that if you label a right inalienable that somehow it becomes untouchable by constitutional amendment," Uelmen said. "And I think that just turns the constitution on its head."

Kent Richland, an appellate specialist at Los Angeles firm Martin, Stein & Richland, accepts Brown's argument: "You are essentially talking about a majority of the people being able to determine that any minority has less rights than others," he said. "And that's contrary to the fundamental concept of equal protection. There's reason to think that this court would be extraordinarily disturbed by any system in which a minority isn't entitled to the same rights as others."

UC Berkeley law professor Jesse Choper believes that if the Court sustains Prop. 8, it will not also invalidate the 18,000 same-sex marriages performed before the election. He bases his belief on an analogy: if nullifying the marrages "were not the denial of a civil benefit, but an imposition of a criminal sanction, it would be unconstitutional to be ex post facto."

Justice Kennard denied review of Prop. 8, except on the question of retroactive application, because, Richland says, "she saw [retroactivity] as a crucial issue that had to be resolved immediately, but that the other issues could go through the trial court, the court of appeal and the Supreme Court. She's always not wanted the Supreme Court to act precipitously."

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The Recorder's profile of attorney Frederick Hertz

12/30/08 The Recorder (subscription required): "The mustached mediator has written books for same-sex couples looking to form or dissolve relationships." Listen to the Cal Law interview here.

California Attorney General Jerry Brown first in decades to go against voters

12/23/08 San Francisco Chronicle: Chronicle reporter Bob Egelko says that Brown's "argument against the initiative isn't based on any clearly established legal doctrine or precedent, the standard suggested by Deukmejian and other former attorneys general."

Former California Attorney General and Governor George Deukmejian believes that absent case law to support his argument on Prop. 8, Brown should defend the law.

According to Egelko, former California Attorney General John Van de Kamp "said Brown would probably be on more solid ground if he were arguing that Prop. 8 violated the U.S. Constitution, rather than invoking the California Constitution."

Former California Attorney General Dan Lungren finds " it's very troubling when you [referring to Brown] announce that you're going to defend (Prop. 8) and then, some weeks later, say you're not going to defend it."

Jerry Brown Talks to Cal Law Legal Pad About Prop 8

12/24/08 Cal Law Legal Pad: Interviewed by Mike McKee of The Recorder, California Attorney General Jerry Brown "said he believes that legal experts who think his position has no chance haven’t read the high court’s ruling in In re Marriage Cases, 43 Cal.4th 757. 'There are some fundamental principles that America is based on,' he said."

Brown's Stand on Prop. 8 Raises New Questions

12/24/08 Los Angeles Times: "California Atty. Gen. Jerry Brown's decision to throw the weight of his office behind same-sex marriage has sparked debate over whether his arguments will actually do more harm than good for those hoping to overturn the initiative."

Jerry Brown Proposes a New Theory Against the Validity of Proposition 8

12/21/08: New York Law School Professor Arthur S. Leonard summarizes and assesses issues raised in the briefs filed on 12/19/08 by California Attorney General Jerry Brown and Yes on 8 counsel Kenneth Starr. Professor Leonard finds no precedent for Brown's argument that Prop. 8 should be overturned because it violates the state constitution's guarantee of fundamental liberty.

SF Chronicle backs California Attorney General Jerry Brown

12/23/08: "California Attorney General Jerry Brown has made the principled and politically risky decision to oppose Proposition 8 in court ... Brown's 111-page filing with the California Supreme Court makes a compelling case that the measure's attempt to deprive same-sex couples of the right to marry conflicts with the state Constitution's underlying guarantees of individual liberty , which are ingrained in its very first sentences.

California Attorney General Brown reverses his position on Prop. 8, urging the Court to invalidate it; Yes on 8 would undo 18,000 same-sex marriages

12/19/08 California Attorney General press release: “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,” Attorney General Brown said. Click here for the brief, in which the Attorney General also argues that Prop. 8 neither represents a constitutional nor violates separation of powers.

12/21/08 NBC San Diego News: " 'It became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative,' Brown said in an interview Friday night. 'Based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote.' "

12/19/008 Reuters: "The right of same-sex couples to marry is protected by the liberty interests of the constitution," Brown told Reuters, referring to In re Marriage Cases. "If a fundamental right can be take away without any particular justification, then what kind of a right is it?"

12/19/08 AP, 12/20/08 San Francisco Chronicle, 12/20/08 Sacramento Bee, and 12/20/08 NY Times:

These articles provide summaries of arguments in briefs filed by Brown and Kenneth Starr, representing Yes on 8.

12/20/08 Los Angeles Times has the following statements by Brown, Santa Clara University Law Professor Gerald Uelmen, and UC Berkeley Law Professor Gordon Liu:

"In an interview, Brown said he had developed his theory after weeks of consultation with the top lawyers in his office. 'This analysis was not evident on the morning after the election,' he said."

Uelmen said Brown's argument "turns constitutional law on its head" and lacks support from any case law that he knows. He finds that it "it is much too radical for this court."

Liu said it was "extraordinary for the chief law enforcement officer of the state to decline to enforce a law -- even on the grounds that it is unconstitutional."

"The chief law enforcement officer of the state is charged with enforcing laws, even laws with which he disagrees," Liu said. "Whether or not it will carry the day, I have no idea."

12/20/08 San Jose Mercury News:

Brown rejected Liu's view that the Attorney General has a duty to defend Prop. 8. Brown compared his duty with that of California Attorney General Thomas C. Lynch, who opposed Prop. 14 in Reitman v. Mulkey, 64 Cal. 2d 529 (1966), aff'd 387 U.S. 369 (1967). Voters approved Prop. 14 in 1964 to overturn a fair housing law and to bar laws against racial discrimination in housing. According to the Mercury News, "It's unusual, but it happens," Brown said of an attorney general opposing existing law. "Existing laws include the whole of the constitution, and just as Attorney General Lynch filed a brief calling for the invalidation of Proposition 14, we're filing a brief here calling for the invalidation of Proposition 8."

12/20/08 Res Ipsa Loquitur blog: George Washington University Professor Jonathan Turley believes that "Brown’s position creates an interesting issue of legal ethics and obligations" and characterizes it as "hopelessly conflicted." He also believes that defenders of Prop. 8 have overreached in their attempt to retroactively invalidate pre-election, same-sex marriages.

12/19/08 Cal Law Legal Pad: This post has initial reactions to Brown's reversal by Therese Stewart, San Francisco Deputy City Attorney, and by Jennifer Pizer, staff attorney for the Los Angeles branch of the Lambda Legal Defense and Education Fund.

Vikram Amar: The California Supreme Court’s Delicate Position in the Challenge to Prop. 8, and the Hurdle for Challengers: Part Three in a Series

12/19/08 Findlaw's writ: This is the third article in a multi-part series on the legal challenges to Prop. 8. Vikram Amar, a UC Davis Law Professor and constitutional scholar, discusses two conditions that the Court must satisfy to gain acceptance of a decision to invalidate Prop. 8:

1. If such a decision were "not actually dictated by past precedent, then the opinion would at least need to demonstrate its firm foundation in past cases."

2. "[T]he theory of "revision" the opinion adopts would have to be defensible in its own right." It must represent "a coherent and attractive way of limiting voter discretion that won't require the drawing of arbitrary lines."

Today's filing of briefs in Prop. 8 litigation: Kenneth Starr joins the legal defense of Prop. 8

Here is news about today's filing of briefs in the Prop. 8 litigation:

12/19/08 LA Times LA Now Blog: Times reporter Jessica Garrison states that "California Atty. Gen. Jerry Brown, who opposed Proposition 8 but is legally bound to defend the state’s laws, and his staff were still polishing his brief Thursday night." But others have disputed Brown's duty to defend Proposition 8, including Times editors in this editorial article.

12/18/08 ProtectMarriage.com - Yes on 8 press release: "Joining the legal defense of Proposition 8 is Kenneth W. Starr." The 12/19/08 LA Times LA Now Blog and 12/19/08 CNN News also have news about this development.

Pros and cons of Prop. 8: It falls to Atty. Gen. Jerry Brown to present a thoughtful legal argument for, or against, the initiative.

12/18/08 Los Angeles Times: This Times editorial appears to suggest that if California Attorney General Jerry Brown opposes Proposition 8 on constitutional grounds, he should follow the precedent of the California Attorney General who opposed Proposition 14, when, in 1964, voters adopted that initiative to repeal and bar fair housing laws.

[The Times editors state that "In 1967, California Atty. Gen. Thomas C. Lynch argued against Proposition 14, a rollback of fair-housing laws that was ultimately found unconstitutional." The two cases that challenged Proposition 14 are Prendergast v. Snyder, 64 Cal. 2d 877 (1966), and Mulkey v. Reitman, 64 Cal. 2d 529 (1966), aff'd 387 U.S. 369 (1967). Lynch filed an amicus brief urging affirmance in Mulkey, 387 U.S. 369 (1967), 1585. But Attorney General Stanley Mosk appears to have been the California Attorney General who set the precedent that Lynch followed.]

Couples in court case lack diversity

12/18/08 Bay Area Reporter: The amended petition in Strauss v. Horton adds seven couples to the plaintiffs. Howard Rice represents the couples pro bono. Two Howard Rice partners, Amy Margolin and Bobbie Wilson, respond to criticism that "none [of the couples] are black or Hispanic, leaving a void as LGBTs of color seek to be visible." Margolin noted that "[o]ur couples come from all walks of life with a variety of different backgrounds," while Wilson acknowledged that "the face of the fight has for the most part been white."

Domestic Tranquility

12/16/08 Daily Journal (subscription required): This article concerns steps employer can take to offer domestic partner benefits. One of the writers, Todd A. Solomon, is author of Domestic Partner Benefits: An Employer's Guide. Solomon and Brian J. Tieman, both of McDermott Will & Emery, advise that employers should start with benefits that are not governed by the Employee Retirement Income Security Act of 1974. "A first step is to extend the company's nondiscrimination policy to cover sexual orientation."

Same-sex marriage case brings Napier back to Iowa (ADF attorney in Iowa case also comments on Prop. 8)

12/14/08 [Iowa] Daily Gate: Attorney Douglas Napier is a legal consultant for the Alliance Defense Fund, which represented Proposition 22 Legal Defense & Education Fund in the In re Marriage Cases. Napier said that the Iowa Supreme Court did not afford him opportunity to participate in the December 9th oral arguments in Varnum v. Brien. The case involves six same-sex Iowa couples who seek to marry. They are challenging the the Iowa Defense of Marriage Act, on grounds of due process and equal protection under the state constitution. About Varnum v. Brien, Napier observes: "One of the questions asked (of same-sex marriage supporters) is how does your reasoning prevent multiple partners? They didn't give a very satisfactory answer."

Napier says that "70 percent of the African-American community voted against [Prop. 8]. How dare they hijack the civil rights movement for their case. Apparently 40 million Americans are bigots."

According to the Daily Gate, Napier gave a number of media interviews. See, for example, his comments in this 12/09/08 Des Moines Register article. In a "sit-down with Register editorial writers ," Napier claims that Varnum plaintiffs " don't have those [due process and equal] protections, because no one has ever granted protected ... status based on sexual behavior." Camilla Taylor, a senior attorney for Lambda Legal, disputed his claims. She said that opponents of same-sex marriage would "deny families the protections they need to take care of each other." She also characterizes the Alliance Defense Fund as "an extremist organization that takes anti-gay positions on a number of issues." She adds that ADF's "positions ... do not reflect the mainstream."

California Cities and Same-Sex Couples Join SF's Prop. 8 Challenge

12/11/08 San Francisco Weekly: The San Francisco City Attorney filed an amended petition yesterday that, according to its press release, "brings to fifteen the number of local governments challenging the validity of Proposition 8." The amended petition would also "add seven married couples as petitioners in the action to address a question, posed by the high court, about Proposition 8’s effect on the marriages of lawfully wedded same-sex couples should the validity of the controversial measure be upheld. As private parties, the couples are represented by pro bono outside counsel from the San Francisco-based law firm of Howard Rice Nemerovski Canady Falk & Rabkin." Howard Rice partner Amy Margolin observes that "[t]his [action] is really about securing marriage rights for everyone in California, not just the couples who had the opportunity to marry [before Prop. 8 passed]."

Panel: N.J. should OK same-sex marriages

12/10/08 Star-Ledger News: "The final report of the New Jersey Civil Union Review Commission [not yet released] says it gathered 'overwhelming evidence' that the civil union law not only fails to provide the same protections as marriage, it also has created economic, medical and emotional hardships for gay couples.

Jay Sekulow on "Proposition 8: Respecting the Will of the People"

12/3/08 Lynn v. Sekulow blog*: Jay Sekulow, chief counsel of the the American Center for Law & Justice, views legal challenges to Prop. 8 as another "example of a court being asked to improperly usurp the will of the people."


*"Lynn v. Sekulow is an ongoing debate blog--a blogalogue--about how big (or little) a role faith and religion should play in American politics and government, featuring the two leading voices of the church/state battle: American Center for Law & Justice Chief Counsel Jay Sekulow and Americans United for Separation of Church and State Executive Director Rev. Barry W. Lynn."

A civil right or moral issue? Marriage-rights activists draw link to other efforts

12/10/08 The Desert Sun (Palm Springs): Mathew Staver, founder of Liberty Counsel and Dean of Liberty University School of Law, finds it "offensive to frame [same-sex marriage] as a civil rights issue." He considers it a "moral issue" instead. The Desert Sun identifies Barbara Cox as a "national authority on sexual orientation and the law and professor at California Western School of Law in San Diego." Cox responds to one reason for viewing same-sex marriage as a moral issue - that gays choose to be gay: "My response is that heterosexuals don't believe they choose to be straight." She adds that religious affiliation also reflects a choice, a choice involving rights that are"strictly protected."

Attorneys conclude Iowa Supreme Court arguments in gay marriage case

12/9/08 DesMoinesRegister.com: This article has a summary of today's oral arguments, and a link to the Des Moines Register's video of the arguments.

“How do you stop?” asked Justice Mark Cady. “How do you stop more than two people from getting married?”

KCCI.com, a website of a local Des Moines television station, posts a 12/10/08 article, Justices Hear Historic Same-Sex Marriage Case. “The plaintiffs, in their circular reasoning, failed to answer the question, why should this court and these seven justices establish public policy in Iowa,” said Douglas Napier, an attorney with the Alliance Defense Fund.

See also the 12/10/08 Family Law Prof Law Blog, "Updates on Same-Sex Marriage: Iowa, NJ, California."

Vikram Amar and Alan Brownstein: The Core Issues in the Proposition 8 Case Before the California Supreme Court: Part Two in a Series

12/05/08 Findlaw's Writ: In this second article in a multi-part series on the legal challenges to Prop. 8, UC Davis Law Professors and constitutional scholars Vikram Amar and Alan Brownstein address the following question:

Was Proposition 8 a Valid Amendment, or an Invalid Revision, to the California Constitution? And Should the Court - Or Governor Schwarzenegger - Make the Decision?

Nossaman attorney Jan Vaughn Mock on "Domestic Partnership: Separate, Unequal"

12/05/08 The Recorder (subscription required): Attorney Jan Vaughn Mock finds no equivalence between domestic partnerships and marriage, as "proponents of constitutional discrimination would have you believe."

Proposition 8 Draws on Parallels To Prohibition, Some Scholars Say

12/05/08 Daily Journal (subscription required): Erwin Chemerinsky, founding dean of UC Irvine School of Law, finds an analogy between the likely fate of Prop. 8 and the 21st Amendment, repealing prohibition. He believes that just as majority moral sentiment reversed itself on prohibition , so it is already reversing itself on gay marriage. Other legal scholars dispute or support Chemerinksy's anlogy, including John C. Eastman, dean of Chapman University School of Law, and David Cruz, a constitutional law professor at USC's Gould School of Law.

Attorneys Respond to Eva J. Patterson's 11/21/08 Recorder Article, "Prop. 8 Overhauled the [State] Constitution"

12/05/08 Recorder Letters to the Editor: Two Recorder readers respond to Eva Patterson's article. Attorney Edward J. Taffe invokes Webster's dictionary to support his claim that "Prop. 8, like Prop. 22 before it, vindicates the most basic tenets of democracy." Attorney Russell Davis favors procreation as a rational basis for the state to ban gay marriage. And he rides a familiar, slippery slope from protection for "loving, caring, and sharing relationships" in gay marriages to protection for polygamy and "plural marriages."

Report of Alliance Defense Fund video on "outrageous behavior from homosexual activists"

12/4/08 ADF Alert:

"Dakota Voice reports: 'This is the Alliance Defense Fund (ADF) video put together of some of the outrageous behavior from homosexual activists after Californians voted for Proposition 8 to return marriage to the normal, natural definition: between a man and a woman.' "

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Deb Kinney to speak tonight at the Marin County Marriage Equality Forum on Proposition 8

12/4/08 press release bt San Anselmo-based Spectrum LGBT Center: The Recorder identifies Deb L. Kinney as a "leading estate planning attorney within the LGBT community." She is also a board member of Equality California. A summary of her comments can be found here.

Jerry Brown has a legal obligation to oppose Prop. 8

12/4/08 SF Chronicle: Derald E. Granberg, former staff attorney, of the California Attorney General's office, expresses his opinion that Attorney General Jerry Brown has no less an obligation to oppose Prop. 8 than his predecessor, Stanley Mosk, when Mosk opposed Proposition 14 (1964), repealing fair housing protections.

Reactions to the California Legislature's Resolutions Opposing Proposition 8.

Click here for California Senate Resolution 7 (SR 7), authored by Senator Mark Leno, and here for Assembly House Resolution 5 (HR 5), authored by Assembly Member Tom Ammiano.

SR 7 emphasizes "the crucial deliberative role of the Legislature in any proposed revision of our Constitution." The resolution adds that the "Legislature is specially suited to examine and
debate significant changes to the principles and structure that underlie the California Constitution, and is structured for precisely such a task." Santa Clara University Law Professor Gerald Uelmen believes that, in deciding the "amendment v. revision" question, the California Supreme Court must recognize the importance of the Legislature's deliberative role. He states that "the court should be asking whether the change [an initiative] measure accomplishes is significant enough that the adversary deliberation of a legislative proposal or a constitutional convention is necessary."

The 12/03/08 SF Chronicle has comments by U.C. Berkeley Law Professor Jesse Choper and Andrew Pugno, attorney for the Yes on Proposition 8 Campaign. Other news sources include the 12/03/08 Sacramento Bee. "Leaders of the ProtectMarriage.com - Yes on Proposition 8" issued this 12/2/08 press release, which appears to be a source of Pugno's comments to the SF Chronicle.

Are Utah and Arkansas the New Centers of the Gay Rights Movement?

12/3/08 Jurist Legal News and Research:

"JURIST Guest Columnist Douglas NeJaime of UCLA School of Law says that in the wake of California voters' endorsement of Proposition 8, amending the state Constitution to restrict the definition of marriage to a union between a man and a woman, the battle for gay rights may now shift to other states and focus on issues other than marriage equality..."

Attorney Fredrick Hertz: "I Said 'I Do' With My Same-Sex Partner--But Am I Married?"

11/30/08 Nolo Press article: Frederick Hertz, Oakland attorney who runs the website SameSexLaw.com, offers "educated guesses" on how the following questions might be answered, and addresses uncertainties with respect to taxes and divorce:

• For those married in California: Is our marriage valid at all?
• For Massachusetts and Connecticut residents who married in their home state: Will our marriage be valid if we leave the state?
• For non-residents who married in Massachusetts and Connecticut: Is our out-of-state marriage valid in our home state?

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.