Proposition 8 Cases: Viewing Options for March 5 Oral Argument

Here are your options for viewing the oral arguments.

Experts cite legal precedence for Prop. 8 intervention

02/27/09 Orange County Register Total Buzz Blog:

Martin Wisckol, Politics reporter, writes that "[w]ithout opining on the merits of next week’s legal challenge to Proposition 8’s ban on gay marriage, two panels of legal experts at Chapman University this afternoon repeatedly cited instances where courts intervened to overturn laws."

"Do we really want minority rights swinging on majority sentiment?" said Pacific McGeorge Law School’s Michael Vitiello. "Maybe homosexuals, who’ve been abused so drastically for so long, are a minority group that merits court protection." Chapman University Law Professor Ronald L. Steiner also expressed concern about yielding to the "tyranny of the majority," especially one manipulated by well-funded special interests. But Brigham Young University law professor Lynn Wardle warned that "[t]he California Supreme Court has no more authority to amend the state constitution to allow same sex marriage than does the president of Chapman University."

Gay Rights: Taming the Crocodile in the Bathtub

2/27/09 Jost on Justice: Kenneth Jost is the U.S. Supreme Court editor of CQ Press, and a law professor at Georgetown University Law Center. He believes that, given the current political climate, "California’s justices need not fear individual or institutional retaliation whichever way they rule on Prop. 8." He also finds that "[l]egal arguments in the case, Strauss v. Horton, are much closer than the pro-Prop 8 rhetoric suggests.

R.I.'s dueling same-sex marriage bills elicit personal stories

2/27/09 The Providence Journal:

According to Marriage Equality Rhode Island, the Rhode Island Senate Judiciary Committee heard testimony yesterday on "The Marriage Equality bill, S0147, introduced by Senators Perry, Sosnowski, Pichardo, Miller, and Levesque; and the opposition legislation, S0136, introduced by Senator Blais."

This Providence Journal article reports on the testimony. Mark S. Goldberg told the Committee, "I felt as if I was treated not as a second-class citizen, but as a non-citizen." He was describing what he experienced when the police and the state medical examiner's office denied his claim to the body of his deceased partner, so that he could fulfill his partner's wish to have his remains cremated.

Another witness was the Most Rev. Thomas J. Tobin, Bishop of the Roman Catholic Diocese of Providence, and board member of the National Organization for Marriage Rhode Island. "Contrary to the assertion of others," he said, "this is not an issue about civil rights." He affirmed that "that homosexual activity is immoral and contrary to natural law, the tenets of the Bible and the teaching of the Church."


The NY Times endorses the bill that extends the right of marriage to same-sex couples.

Shannon Minter: "preparations for the argument are very intense"

02/27/09 Washington Blade: Shannon Minter, legal director of the National Center for Lesbian Rights, will represent Equality California in the upcoming oral arguments before the California Supreme Court. He said that "preparations for the argument are very intense” and consist of “reviewing the briefs and the main cases, as well as discussing likely questions with colleagues."

Montana church may shield donations to gay marriage ban

02/26/09 Los Angeles Times:

"The Canyon Ferry Road Baptist Church of East Helena isn't obliged to make campaign finance disclosures, a federal appeals court ruled Wednesday, because its support for the Montana Marriage Protection Amendment -- use of some printer ink and a foyer table -- was 'extremely minimal.' The 2004 state ballot initiative passed by a 2-to-1 margin."

"This is a very important precedent, and I think it will have far-ranging consequences as it validates that churches play a fundamental role in shaping our democracy and speaking out on important social issues like marriage," said Dale Schowengerdt, an Alliance Defense Fund attorney who represented the Church. Montana State Solicitor Anthony Johnstone doubts that the ruling will have such broad consequences.

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California Deputy Attorney General Christopher Krueger Prepares For Oral Arguments Next Week

02/24/09 The State Hornet (a newspaper of California State University, Sacramento): At a program of University of Pacific's McGeorge Law School, California Deputy Attorney General Christopher Krueger practiced his oral argument against Prop. 8. McGeorge Law School was unable to engage an attorney([like Kenneth Starr?) who will argue for Prop. 8. So the Law School invited Chapman University law professor David Lewis Llewellyn, Jr., who, with John Eastman, filed an amicus brief in the case on behalf of the Center for Constitutional Jurisprudence.

Prop 8 could unravel minority rights, opponents say

02/25/09 Palm Springs The Desert Sun:

" 'It’s not déjá vu all over again,' said Kate Kendell, executive director of the San Francisco-based National Center for Lesbian Rights, the lead counsel in the case. 'Prop 8 is really less about marriage, from our perspective, than it is about how are we going to apply the law to minority groups in California. What our allies all recognize with alarm is the same thing that we are afraid most in the passage of Proposition 8 and that is, who’s next?' "


"Mathew D. Staver, who filed a petition to intervene in the case and founded Liberty Counsel, said Proposition 8 has always been about the right of citizens to define marriage. 'They’re running from marriage because they’re losing when it’s marriage because clearly Proposition 8 passed,' Staver said. 'This is about marriage and whether the people have the right to amend their constitution and protest marriage.' "

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State Senate panel OKs measure opposing Prop. 8

02/25/09 SF Chronicle :

The California Senate Judiciary Committee passed SR 7, a resolution declaring the state legisature's view that Prop. 8 represents an unconstitutional revision. "This is much bigger than marriage equality," Senator Mark Leno (D. San Franciso) said yesterday. "You don't put rights up to a majority vote or every minority group will be in danger."

02/24/09 Capital Resource Institute:

Karen England, executive director of Capitol Resource Family Impact, testified before the Committee with an unnamed Pacific Justice Institute attorney.

“This is another slap in the face of millions of California citizens,” stated Karen England, executive director of Capitol Resource Family Impact. “The legislature completely disregards the will of the people by calling on the state supreme court to overturn Proposition 8.” England testified against SR 7 in the committee hearing this afternoon. “As I shared with the committee members, Proposition 8 is a valid amendment to the state constitution. To ignore the overwhelming support of citizens for traditional marriage proves just how out of touch lawmakers are with average citizens.”

This Institute update also alleges that, in closing remarks to the Committee, "Senator Leno likened voters for Proposition 8 to Germans who supported the Nazi regime prior to World War II." England claims that "Senator Leno should apologize to the millions of voters who supported Proposition 8."

The Institute has also posted its "HR 5 and SR 7 Talking Points."

Court Refuses To Enjoin Contribution Reporting Requirement For California Prop 8

02/24/09 Religion Clause blog: Howard Friedman, Law Professor Emeritus at the University of Toledo, discusses the outcome in ProtectMarriage.com v. Bowen, 2009 U.S. Dist. LEXIS 13059 (E.D.Cal. Jan. 30, 2009).

Symposium at University of Iowa: "As Iowa Goes, So Goes the Nation: Varnum v. Brien and its Impact on Marriage Rights for Same-Sex Couples."

02/23/09 Iowa City Press-Citizen:

The 02/26-27/09 symposium will be hosted by the University of Iowa College of Law's Journal of Gender, Race & Justice. "The first day features a viewing of the oral arguments in the case followed by an evening event with keynote speaker Dan Savage. Savage is an award-winning columnist and author and a same-sex marriage advocate ... The second day of the symposium will be more focused on the case's academic issues."

02/12/09 University of Iowa News Release:

"Panelists will examine such issues as Iowa's historical commitment to expanding civil rights, how state and federal laws affect the issue, and the use of social science and history in marriage rights litigation.

"Among those participating in the symposium will be:

--Jean Love, a former UI law professor, and Pat Cain, former UI law professor and UI provost, both now teaching at the Santa Clara University School of Law.

--United States District Court Judge Joseph F. Batallion of Omaha, who held in 2005 that an amendment to the Nebraska state constitution banning same-sex marriage violated the U.S. Constitution. [Citizens for Equal Protection, Inc. v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005), rev'd 455 F.3d 859 (8th Cir. 2006)]

--Austin Nimocks, senior legal counsel, Alliance Defense Fund."

New York Times editorial supports expected legislation in Rhode Island allowing same-sex couples to marry

02/24/09 NY Times: " This week, the State Senate Judiciary Committee is expected, once again, to hear testimony on a bill allowing gay marriage; a House committee may do so next month. These will be empty gestures, once again, if the bills go no further. Proponents should redouble their efforts to propel them to the floor of both houses, where a favorable vote could help raise the issue in the national consciousness."

A Reconciliation on Gay Marriage

02/23/09 NY Times:

David Blankenhorn is president of the Institute for American Values and the author of “The Future of Marriage.” Jonathan Rauch is a guest scholar at the Brookings Institution and the author of “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America.” In this opinion article, they propose that Congress

"bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill."

02/23/09 The Corner (National Review Online): Maggie Gallagher, president of the National Organization for Marriage, claims that "gay rights groups have shown little willingness to offer any substantive religious-liberty protections at the state level," and that a federal civil-unions law would be used "to endanger DOMA and state marriage laws."

02/24/09 ADF Alert: According to the Alliance Defense Fund, "[t]his proposal has already been offered as a compromise by many leading pro-family organizations. But, it has been rejected [by] proponents of marriage redefinition, because the real battle here is about defining societal norms[,] not benefits." Glen Lavy, Senior Vice President of ADF's Marriage Litigation Center, has claimed that " 'same-sex "marriage' advocates want to force the government and their fellow citizens not just to extend benefits to same-sex couples, but to fully endorse such relationships by extending legal status to them.

02/24/09 comment by Michael Ginsborg: Australia has recently adopted the Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill of 2008. This sweeping reform represents an alternative model for extending the rights and benefits of marriage, even if it falls short of recognizing an equal right to marry. The Blankenhorn-Rauch proposal of federal civil unions involves, by its own terms, a "separate-but-equal" legal status for same-sex couples, with a First Amendment allowance for religious discrimination, and an allowance for "religious-conscience" forms of government discrimination. Australia's new law has been designed to ban discrimination against same-sex couples, without creating a separate legal status arguably at odds with that status' anti-discriminatory intent. Instead, the Australian Bill confers federal recognition of equal treatment with respect to federal rights of de facto couples. According to family law practitioner Andrew McCormack of HopgoodGanim, in Brisbane:

"The rationale behind the Bill was to ensure that same sex couples have the same rights and privileges under Commonwealth legislation as opposite sex couples. It provides legislative recognition to same sex partners and their children to ensure that children are not disadvantaged due to the construction of their family unit."

NAACP announces its support of California legislature's resolutions against Prop. 8

02/23/09 Gay News Blog: "The National Association for the Advancement of Colored People today announced support of measures before the California legislature challenging Proposition 8, which altered the California Constitution to deny same-sex couples the freedom to marry and equal protection under the law."

Marriage ruling gave gay people legal protection

02/23/09 San Diego Union-Tribune: "Tucked deep within the state Supreme Court's sweeping decision in May that struck down same-sex-marriage bans for a time is a single sentence that will have a significant effect for years – regardless of any new turns in the same-sex-marriage debate ... If the court upholds Proposition 8, gays and lesbians will still have an important legal victory going forward with the heightened status the court granted them in May."

Loyola University Law Professor Karl Manheim filed an amicus brief in the Prop. 8 litigation, seeking its invalidation. He believes that the strict scrutiny standard in In re Marriage Cases makes it somewhat easier for the California Supreme Court to overturn Prop. 8, on grounds that it represents an unconstitutional revision. "Without the designation of sexual orientation as a special legal class, attacking Proposition 8 as an overbroad revision 'would be a much harder argument to make,' Manheim said."

02/24/09 LawBeat Comments: This blog is affiliated with The Carnegie Legal Reporting Program at Newhouse. Professor and blogger Mark Obbie "watches the journalists who watch the law." He finds that San Diego Union-Tribune Reporter Greg Moran has made a "valiant attempt at educating the public about important and complex legal realities. "

Proposal to narrow the definition of marriage and expand access to rights and benefits of married couples

02/23/09 ADF Alert:

James L. Musselman, What’s Love Got to Do With It? A Proposal for Elevating the Status of Marriage By Narrowing Its Definition, While Universally Extending the Rights and Benefits Enjoyed by Married Couples,16 Duke J. Gender L. & Pol’y 37 (2009)

(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)

This article proposes an approach that defines two legally recognized relationships. First, opposite-sex couples desiring a traditional marriage could choose the option that generally adopts portions of the covenant marriage law enacted thus far by three states. Second, all couples, whether same-sex or opposite-sex, could choose the option most similar to today’s current marriage relationship.

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Janson Wu, staff attorney of Gay & Lesbian Advocates & Defenders, on his testimony supporting New Hampshire's marriage equality legislation

02/06/09 GLAD blog: Gay & Lesbian Advocates & Defenders (GLAD) is "a public interest legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression," with advocacy based in New England. In this post, GLAD staff attorney Janson Wu describes his experience testifying on 02/05/09 for New Hampshire's marriage equality legislation (and against a competing bill limiting state recognition of marriage to heterosexual couples.) Here is his statement to the New Hampshire House Judiciary Committee. Wu says:

"I was particularly eager in my testimony to counter some of the arguments from the other side and to illustrate, from GLAD’s extensive experience with both civil unions and marriage, how civil unions are not equal to marriage and instead impose real harms on same-sex couples and their families – from the lack of respect and recognition for civil unions, to the inability to access the 1,138 federal rights and protections that come with marriage only. "

Wu testified on another bill to protect transgender citizens from discrimination.

Maine and Vermont also have pending, marriage-equality legislation.

National Center for Lesbian Rights Legal Director Shannon Minter, S.F. Chief Deputy City Attorney Therese Stewart Named California Lawyers of the Year

02/20/09 National Center for Lesbian Rights press release: "(San Francisco, CA, February 20, 2009)—Today California Lawyer named National Center for Lesbian Rights (NCLR) Legal Director Shannon Price Minter and San Francisco Chief Deputy City Attorney Therese M. Stewart as California Lawyer Attorneys of the Year Awards. Stewart and Minter were recognized for their achievements in the fight for marriage equality in California. The recipients of the CLAY Awards, which honor 22 accomplishments in 13 areas of legal practice, are featured in the March 2009 issue of California Lawyer."

Cal Law Legal Pad: "Psst -- There's an Easy Way Out on Prop 8"

02/19/09 Cal Law Legal Pad: April's Fools Day has arrived early (or stillborn?) at the blog of The Recorder. The Cal Law Legal Pad has drafted a hoax opinion that would require those allegedly "grandstanding" state legisators to determine whether they will uphold Prop. 8.

California's Prop. 8 legal challenge harkens back to 1966 housing measure

02/18/09 Sacramento Bee: In a 1966 "in a case [Mulkey v. Reitman, 64 Cal. 2d 529 (1966), aff'd 387 U.S. 369 (1967)] that divided Californians as much as same-sex marriage does today, the court overturned a voter-approved measure [Prop. 14] that had allowed housing discrimination based on race."

The Sacramento Bee reporter, Aurelio Rojas, appears at odds with his purpose. He relies on "legal experts" to undermine any basis for analogy to Mulkey v. Reitman, even if one obvious difference is that anti-Prop. 8 petitioners do not base their argument on equal protection under the 14th Amendment. The "legal experts" include Andrew Pugno, attorney for the Yes on Proposition 8 Campaign, and UC Berkeley Law Professor Emeritus Stephen Barnett. Rojas presents their view that the Prop. 8 litigtation concerns same-sex marriage, or a right to same-sex marriage, rather than equal protection of the right to marriage. Analogy to Mulkey fails because, according to Pugno, the U.S. Constitution lacks a right to same-sex marriage, or, per Barnett, the federal government does not recognize same-sex marriage.

But Mulkey and the Prop. 8 litigation sustain a compelling analogy: both involve core constitutional questions of equal protection. Petitioners in the Prop. 8 litigation contend that by violating the equal protection clause of the California Constitution [Cal. Const. Art. I, Sec. 7(a)], Prop. 8 changes the fundamental plan and democratic ordering of California's government, and thus represents an unconstitutional revision. California Attorney General Thomas Lynch argued in Mulkey that Prop. 14 (1964) represented unconstitutional discrimination by violating the equal protection clause of the U.S. Constitution's 14th Amendment.

Pugno disparages the petitioners for failing to claim violation of the 14th Amendment, asserting that they "do not want to risk losing in federal court because losing there would be a nationwide loss." Has this risk been overstated? UC Hastings Law Professor Brian Gray advances an argument that suggests it has. But Pugno's claim has support from within the marriage equality movement. See, for example, this statement by the National Gay and Lesbian Task Force on whether marriage equality supporters should seek review from the U.S. Supreme Court: "Even the strongest gay rights case the Court has decided—the Lawrence case striking down laws against intimacy for gay couples-said it was not going to say anything about formal recognition of same-sex relationships."

This article also has comments by Santa Clara University Law Professor Gerald Uelmen and UC Irvine Law School Dean Erwin Chemerinsky. Uelmen continues to express misgiving about a California Supreme Court ruling that overturns Prop. 8. If the Court agrees that the right of same-sex couples to marry "is so fundamental that to abolish it revises the constitution," Uelmen says, "the [a Court majority] would have to admit they revised the constitution in the first place." But Chemerinsky disagrees: ""If [the Court] concludes, as I believe it should, that this is a revision, then it is unconstitutional," Chemerinsky said. "The whole point of a constitution is to limit what the majority can do."

California lawmakers back Prop. 8 challenge

02/17/09 AP: "The Assembly Judiciary Committee voted 7-3 Tuesday to put the legislature on record as opposing Proposition 8." According to the Committee analysis of House Resolution 5, "the resolution addresses one of the most significant civil rights issues in the history of California, namely, whether the initiative process may be used to deprive a group defined by a suspect classification of a fundamental and inalienable right. " The companion resoultion in the California Senate is SR 7 (2009).

02/18/09 SF Chronicle: Reporter John Wildermuth calls the resolutions "symbolic with a capital 'S.'"

02/18/09 Christian Post: "ProtectMarriage.com, which ran the campaign to pass Proposition 8, has called the non-binding resolutions meaningless and a waste of time. "

02/18/09 California Family Council: The Alliance Defense Fund reports an e-mail in which California Family Council states that after "almost 2 hours of testimony during the hearing and a large number of citizens testifying to their dismay of the possibility of having their votes invalidated for a second time – the Democrat majority approved the resolutions."

UC Irvine Law School's February 10th Forum, "Is Proposition 8 Legal? A Forum on Marriage Equality"

2/17/09 UC Irvine "New University" newspaper: "The three panelists [of the forum] included [Chapman University Law Professor Katherine] Darmer, Tiffany Chang, a second-year at Chapman Law and Erwin Chermerinsky, dean of UCI’s Law School and long time advocate of marriage equality." Professor Darmer filed in an amicus brief seeking to overturn Prop. 8. “Remember that this is not the first time that groups in our country have to fight for their right to marry the person of their choice,” Darmer said. Like Darmer, Chermerinksy said that “the issue of marriage equality is a relatively easy one, it is about equal protection. Gays and lesbians should have the same right to express love and commitment to a marriage as heterosexuals have always had.” Chermerinsky believes that the California Supreme will probably uphold Prop. 8, but not make it retroactive.

Blogs reporting developments in same-sex law in other countries: Australian Gay and Lesbian Law Blog

I have just had a cordial greeting from the host of the Australian Gay and Lesbian Law Blog, Stephen Page. He is "a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm." His practice of 20 years has focused on family law. Among his accomplishments, he has "helped community groups over many years, especially those involved in promoting equality and combatting the scourge of domestic violence." His work provides an inspiring example of attorneys worldwide committed to challenging minority discrimination and protecting fundamental rights. I have not considered the impact of Prop. 8 litigation in other countries, although its ramifications obviously reach beyond California and the United States. Stephen's blog reminds me not only of keen international interest in Prop. 8, but of legal efforts to promote equality everywhere. And, of course, his blog affords revealing insight on the latest developments in Australian same-sex law. See, for example, his 11/29/08 post, "Same sex reforms pass through Parliament."

President and Founder of the Equal Justice Society to speak about relations between LGBT and African-American communities in the aftermath of Prop. 8

Horizon Foundation Givers and Shakers Conference 2009: Eva Paterson, President and Founder of the Equal Justice Society, will be the keynote speaker at this Conference on February 21st in San Francisco:

"Horizons Foundation is honored to welcome Eva Paterson as the keynote speaker for our Givers and Shakers Conference. As the founder of the Equal Justice Society (EJS), Eva is a fierce advocate for social justice. EJS is a national strategy group heightening consciousness on race in the law and popular discourse. Eva will share her experiences as a strong ally in the Prop 8 fight, and offer a comparative perspective with the defeat of Prop 209. Most importantly, Eva will offer an inspiring message on and how, together, we will soon win marriage equality."

Lambda Legal publication: "Strauss et al. v. Horton: Legal Challenge to California Prop 8"

02/05/09 Lambda Legal has posted this "fact sheet" about the Prop. 8 litigation.

NYC Marriage Bureau Turns Away Hundreds Of Same-Sex Couples, But In Arizona One Same-Sex Couple Obtain Marriage License

02/12/09 Huffington Post: "Same-sex couples seeking to wed showed up at marriage license counters nationwide Thursday to highlight a right they don't have in 48 states, part of an annual protest that took on renewed urgency given recent election setbacks ... The protests around Valentine's Day, part of the 12th annual Freedom to Marry Day, were considered especially important this year because they come after the November passage of Proposition 8 ... Jennifer Pizer, director of the marriage project at gay rights legal group Lambda Legal, said the disappointing outcome of the California election has created momentum in other parts of the country."

02/13/09 Arizona Star: "A lesbian couple who decided to take part in a 22-state rally supporting same-sex marriage shocked participants Thursday when they obtained a marriage license from the Pima County Clerk of the Court's Office ... Marriage Equality has already gotten in touch with the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights for assistance in helping the women defend their right to get married."

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Cal Law Legal Pad: We're Surprised No One Made This Prop 8 Ad 4 Months Ago

02/11/09 Cal Law Legal Pad: "After Prop 8 passed in November, we at Legal Pad HQ had a hearty debate over whether the No on 8 folks would have fared better if they’d pegged their ad campaign more to real gay couples instead of concepts like fairness and equality ... Well, we finally saw the commercial we were envisioning this week. Only it wasn’t really a commercial: It was a video attached to an Internet petition that we randomly got in our e-mail, asking the Supreme Court to invalidate Prop 8 when it hears arguments over the initiative." Widener Law Professor John Culhane also comments on the ad.



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ADF attorneys seek appeal in NY same-sex marriage recognition suits

02/12/09 ADF press release: “New York state and local officials should not recognize the laws of foreign jurisdictions when they conflict with state law,” said Alliance Defense Fund Senior Legal Counsel Brian Raum. “These officials have overstepped their authority in order to forward the agenda of special interest groups.” See also this post on the role of ADF in the New York litigation.

ADF files complaint against L.A. Community College District after professor allegedly calls "Christian" student "fascist bastard": Prop. 8 implicated

02/12/09 ADF Alliance Alert: In its 02/11/09 complaint (C.D.Cal. 09-cv-0995), the Alliance Defense Fund Center for Academic Freedom alleges that the District violated a student's First Amendment rights before, during and after an assigned classroom speech about his religious views. The student, identified in the complaint as a "Christian," described "the ways in which he has witnessed God act both in his life and in the lives of others through miracles." The student also elaborated on his view of "morality," providing "two dictionary definitions of marriage as being between a man and a woman," and "reading two [related?] verses from the Bible." His professor allegedly interrupted him and called him a "fascist bastard." Several weeks before the student gave this speech, the professor is alleged to have told his class that "if you voted yes on Proposition 8, you are a fascist bastard." The complaint characterizes Prop. 8 as "a state ballot measure to amend the state constitution to define marriage as between one man and one woman," even though the California Attorney General, in the ballot summary, stated that Prop. 8 changes "the California Constitution to eliminate the right of same-sex couples to marry in California."

Law Professor Nan Hunter on "First cracks in the DoMA wall"

02/10/09 hunter of justice blog: Georgetown University Law Professor Nan Hunter discusses recent administrative rulings by 9th Circuit Judges Reinhardt and Kozinsky on the Defense of Marriage Act. Further to my 02/07/09 post, she also provides links to both rulings. She concludes that "[t]hese rulings concern only the individual personnel matters [for court employees in the 9th Circuit), and do not constitute precedent. Inevitably, however, they will encourage other challenges to DoMA."

Ken Starr gives Prop 8 argument preview

02/10/09 Baptist Press: "NASHVILLE, Tenn. (BP)--Perhaps giving a preview of what he will argue before the California Supreme Court next month, Kenneth Starr said Feb. 10 that the constitutionality of Proposition 8 turns less on the issue of 'gay marriage' and more on the issue of whether the state's citizens have the power to overturn even controversial court rulings."

" 'What is being argued before the California Supreme Court is: Do the people have power under the California constitution to amend the constitution so as to overturn a specific decision of the California Supreme Court? It's a very important but nonetheless different issue than the underlying constitutional issue of the right to marry someone of the same sex,' said Starr, who has not been granting media interviews about the case."

Georgetown University Law Professor Nan Hunter identifies what she thinks "Starr got right - his apparent openness to the substitution of civil unions for marriage as the relevant civil legal status ... The key issue is that everyone who wants their couple relationship recognized should be part of the same legal category. Whether it is called 'marriage' or 'civil union' (or whatever) is completely inconsequential."

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Prop 8 Donor Web Site Shows Disclosure Law Is 2-Edged Sword

02/09/09 NY Times: At eightmaps.com, "visitors can see markers indicating a contributor’s name, approximate location, amount donated and, if the donor listed it, employer. That is often enough information for interested parties to find the rest — like an e-mail or home address."

“These are very small donations given by individuals, and now they are subject to harassment that ultimately makes them less able to engage in democratic decision making,” said Chris Jay Hoofnagle, senior fellow at the Berkeley Center for Law and Technology at the University of California.

A federal judge has rejected a challenge to the California election law that allows this form of disclosure.

ADF-allied attorney James Hochberg responds to effort in Hawai'i to enact a civil union law for same-sex couples

02/06/09 Honolulu Advertiser: In this commentary, Honolulu lawyer James Hochberg faults the Family Equality Coalition for engaging public support of Hawaii House Bill 444, "A Bill For An Act Relating To Civil Unions":

"Wherever they are enacted, so-called 'civil unions' and 'domestic partnerships' have been nothing other than an alternative way of enacting 'marriage' for same-sex couples. If the Hawai'i Legislature chooses to drag within its walls the innocuous-looking Trojan horse of civil unions, it needs to understand the danger hidden inside of it: same-sex "marriage."

The Advertiser identifies Hochberg as "a Honolulu lawyer and an Alliance Defense Fund allied attorney. He previously served as one of seven commissioners on the Hawai'i Commission on Sexual Orientation and the Law. He wrote this commentary for The Advertiser."

Rulings on gay couples' benefits question Defense of Marriage Act

02/06/09 LA Times: "The 9th Circuit judges ruled in their capacity as dispute-resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court." The rulings are limited to just the two employees who sought benefits for their spouses. "But legal analysts see the judges' orders as an indication that the Defense of Marriage Act is unlikely to stand up to the constitutionality test if it reaches a federal court. They also predict that the decisions will put pressure on the Obama administration to repeal the act as an unjust denial of rights to gay citizens." Erwin Chemerinsky, dean of UC Irvine's law school, said that Justice Stephen Reinhardt's ruling is "very important ... in terms of the application of the Constitution to sexual-orientation discrimination, especially with regard to partners." New York Law School Professor Arthur Leonard analyzes the decisions here.


02/11/09: For links to both rulings, see this post by Georgetown University Law Professor Nan Hunt. Thanks also to Laura Grant for helping me identify links.

Therese Stewart and Shannon Minter to discuss Prop. 8 litigation in 2/17/09 BASF forum, " Legal Strategies in the Fight for Marriage Equality"

Announcement by Bar Association of San Francisco: "Is there a constitutional basis for using the initiative process to eviscerate the constitutional rights of minority groups? What is the legal status of Proposition 8? Stewart & Minter will provide an overview of the legal challenges to Prop 8 and provide a preview of the court battle ahead."

Liberty Counsel's Mat Staver on same-sex marriage

02/05/09 OneNewsNow (a service of the American Family News Network):

Mathew Staver is an attorney for Campaign for California Families, and founder and chairman of Liberty Counsel. Yes on 8 opposed CCF's attempt to intervene, although Liberty Counsel filed an amicus brief on behalf of CCF.

When asked about a divorce filing by a same-sex spouse in Massachusetts, Staver alleged that same-sex relationships do not sustain long-term commitments:

"In fact, even in male-male relationships there is a general philosophy among same-sex relationships that they are open relationships -- which means that even if they live under the same roof, they have affairs frequently and often with many other partners throughout their lives ... What we see in Massachusetts is the future of same-sex marriage. They simply want same-sex marriage -- not to have long-lasting, committed relationships, as they often like to say to the media."

Staver offers an ad hominem that appears to be typical of how he views same-sex marriage. He said that gays and lesbians seek same-sex marriage to validate their "abnormal and aberrant lifestyle."

The Ultimate Association: Same-Sex Marriage and the Battle Against Jim Crow’s Other Cousin

02/04/09 ADF Alliance Alert:

The Ultimate Association: Same-Sex Marriage and the Battle Against Jim Crow’s Other Cousin
Bryan K. Fair, 63 U. Miami L. Rev. 269 (2008)

(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)

Twentieth-century American legal history is notable for a series of equal-rights struggles and partial, majestic triumphs. Since the 1950s, activists have insisted that the nation confront its formal policies of white supremacy and their legacies. Since the 1960s, women have demanded an end to unequal protection before the law and broader rights to control their bodies and the social, economic, and political conditions of their lives. And, since the 1970s, equality advocates have compelled Congress and the federal courts to address their disabled clients’ inferior status under the law. Although each of these landmark battles endures, with much work yet to be done to eliminate cumulative privilege for some Americans and cumulative disadvantage for others, those unfinished revolutions will likely await the resolution of the battle over the civil rights of American citizens who are also gay individuals or couples. And at stake is more than simply a license to marry. Like its predecessors, this epic battle is about again asserting the constitutional entitlement to equal dignity of all American citizens.

It's too easy to amend California's Constitution: The Proposition 8 battle showed that the process to get an initiative amendment on the state ballot

02/04/09 LA Times opinion article: Edward L. Lascher Jr. and Tim Hodson are political science professors at Sacramento State University. Floyd F. Feeney teaches election law at UC Davis School of Law. In this article, they say that because constitutions "outline basic, enduring principles, change and modification should be rare." California fails this standard for constitutional amendment. UC Davis law professors Viram Amar and Alan Brownstein have also faulted California's constitution for its "all-too-facile system of amendment."

State high court to hear Prop. 8 case March 5

02/03/09 SF Chronicle: "The state Supreme Court will hear arguments March 5 on the validity of Proposition 8 ... The court said today that it would hold a three-hour hearing, from 9 a.m. to noon, at its chambers in San Francisco. The proceedings will also be televised statewide on the California Channel, the court said. A ruling is due within 90 days of the hearing."

02/03/09 Cal Law Legal Pad: "

"When arguments begin at 9 a.m. on March 5, Shannon Minter, legal director of the National Center for Lesbian Rights; Gloria Allred, a partner in Los Angeles’ Allred Maroko & Goldberg; San Francisco Chief Deputy City Attorney Therese Stewart; and the AG’s office, most likely represented by Sacramento-based Deputy AG Christopher Krueger, will have 30 minutes each to argue against Prop 8.

"Their opponents, represented by Pepperdine University School of Law dean Kenneth Starr, will get 60 minutes."

02/04/09 Sacramento Bee: "Public seating will be limited. To increase public access, the court will allow the California Channel, a public affairs cable network, to provide a live TV broadcast of the session."

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.

Conservative Christian Group Targets New York

02/03/09 New York Law Journal:

" New York courts are a relatively new battleground for the Alliance Defense Fund's national campaign against same-sex marriage.

"The group represented one of the petitioners in the case in which California's Supreme Court legalized same-sex marriage and it defended the subsequent ballot Proposition 8, in which voters invalidated same-sex marriage, against legal challenges.

"The group also has been involved in same-sex marriage litigation in Rhode Island, Oklahoma and other states."

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.

Same-sex insanity: A California Assembly bill takes the wrong path on its goal toward equal property tax benefits.

02/03/09 Los Angeles Times editorial: In this editorial, the LA Times opposes AB 103, by Assemblyman Kevin de Leon (D-Los Angeles). Under this legislation, any co-owners of a property who have lived in it for at least one year would qualify for the same property tax benefit of married couples. If extending a marriage benefit represents the object of the legislation, then LA Times editors believe it should be tailored to that purpose.

Forthcoming Nolo Press publication by Frederick Hertz and Emily Doskow: Making it Legal: Same-Sex Marriage, Domestic Partnership & Civil Unions

Nolo Press has not yet announced release in August of this book by attorneys Frederick Hertz and Emily Doskow. Nolo Press currently offers A Legal Guide for Lesbian & Gay Couples.

The Unintended Tax Advantages of Gay Marriage

Theodore P. Seto, The Unintended Tax Advantages of Gay Marriage, 65 Washington and Lee Law Review 1529 (2008): "The Article concludes that the only way to ensure that gay couples will be
taxed no more favorably than heterosexual married couples is to list gay marriage as one of the proxy relationships that automatically invokes pertinent anti-abuse rules—in other words, to treat gay marriage as marriage for federal income tax purposes. In the absence of an attractive formal status that then invokes related-party anti-abuse rules, well-advised gay couples are, and will
continue to be, permitted to pay systematically lower federal income taxes than heterosexual married couples—a result unlikely to be acceptable to a majority of Americans in the long run."