Sunday, May 31, 2009

Maryland Attorney General To Issue Opinion On Recognition of Marriages Performed Elsewhere

05/31/09 Washington Post:

The attorney general's office in the past has issued less-formal advisory letters to lawmakers stating that Maryland has no obligation to recognize same-sex marriages from other states, citing a state law that defines marriage as being between a man and a woman. [Sen. Richard S.] Madaleno [who requested the opinion] is seeking to learn whether Maryland has the option of recognizing same-sex marriages. Doing so could require action by the governor or General Assembly or both.

Friday, May 29, 2009

Compromise reached on New Hampshire gay marriage bill

05/29/09 AP (source: ADF Alliance Alert):

CONCORD, N.H.—House and Senate negotiators on Friday agreed to add one sentence and change one word in a bill [HB75] that will determine whether the state allows gay marriage ... The new version, which is expected to come up for a vote Wednesday, adds a sentence specifying that all religious organizations, associations or societies have exclusive control over their religious doctrines, policies, teachings and beliefs on marriage. It also clarifies that church-related organizations that serve charitable or educational purposes are exempt from having to provide insurance and other benefits to same sex spouses of employees. The earlier version said "charitable and educational" instead of "charitable or educational."

On May 18th, Republican members of the Senate Judiciary Committee had proposed an amendment to exempt individual religious-conscience objectors in the wedding business - a more limited version of a proposal that several religious-liberty scholars recommended to New Hampshire Governor John Lynch (here and here), and to officials in Connecticut and New York. AP reports that among other amendments proposed today, Sen. Sheila Roberge, R-Bedford, proposed to exempt "individuals [who] decline to provide wedding services if doing so would violate their "consciences or sincerely held religious beliefs." All of her amendments were defeated. Why did negotiators reject the amendment to exempt religious individuals in the wedding trade? They appeared to fear a slippery slope that would lead to other forms of discrimination:

"Hypothetically, if I'm a Nazi -- which I'm not -- and I felt white supremacy should take place, do I now get an exemption because my conscience says if you're not blond and blue-eyed, I can discriminate against you?" asked Rep. Anthony DiFruscia, R-Windham.

06/01/09 update

(source: ADF Alliance Alert):

Sen. Sheila Roberge, R-Bedford, tried without success to convince negotiators to let any private individual or business could decline to participate in same-sex marriages due to their “conscience or sincerely held religious beliefs.”

Sen. Bette Lasky, D-Nashua, said this protection would go too far and run afoul of the state’s existing anti-discrimination laws.

06/02/09 update

Baptist Press (source: ADF Alliance Alert):

"The New Hampshire governor is right to recognize the threat to religious liberty posed by same-sex marriage, but he underestimates the threat by a long shot," Austin R. Nimocks, an attorney with the legal organization Alliance Defense Fund, told Baptist Press. "The protections he proposes do not cover business owners and individuals with religious objections to same-sex marriage, and these are exactly the kind of cases that the Alliance Defense Fund is having to defend."

Reaction to Strauss v. Horton and Perry v. Schwarzenegger; ADF files motion to intervene in Perry case

I continue to update my previous posts on Strauss v. Horton (here) and Perry v. Schwarzenegger (here).

05/29/09 Alliance Defense Fund press release:

On behalf of Yes on 8 /, ADF has filed a motion to intervene in the Perry case, just as it did in Smelt v. U.S.A.. AP has a brief report on the intervention.

Smelt v. USA revisited in light of latest 14th Amendment challenge to Prop. 8

05/28/09 AP (posted to Riverside-Enterprise Press):

This article concerns the federal lawsuit against Prop. 8 and the federal DOMA, Smelt v. U.S.A. It might be considered a predecessor to Perry v. Schwarzenegger, which David Boies and Theodore Olsen filed last week to challenge Prop. 8 under the 14th. I am not surprised to learn that "some gay rights groups have tried to make [the Smelt] case go away claiming it's badly written and other challenges may stand a better chance. They fear a poorly drafted or argued case could result in an unfavorable ruling in the U.S. Supreme Court." But they also fear that a well-drafted, expertly argued case - like Perry v. Schwarzenegger - may have no better chance of success, and by its failure may do more immediate harm to same-sex couples than good.

Thursday, May 28, 2009

Legal scholars’ latest letter recommending a religious-liberty exemption in marriage equality legislation - the new "substantial hardship" exceptions

05/26/09 Mirror of Justice (source: ADF Alliance Alert)

Several law professors - all scholars on the First Amendment and religious liberty - have again asked a state legislator to consider their proposal for a religious-liberty exemption in marriage-equality legislation. On May 8th, law professor Robin Wilson and her colleagues (who include law professors Tom Berg and Rick Garnett) recommended their proposal to New York Assemblyman Sheldon Silver. On May 12th, the New York Assembly approved Gov. David Paterson's same-sex marriage program bill (A7732 / S4401). It does not include the recommended exemption.

On April 30th, these scholars submitted the initial version of their proposal to the Connecticut Speaker of the House, Christopher Donovan. They advocated an exemption not just for religious institutions, but also for religious individuals, such as wedding photographers and marriage counselors, who sell services related to marriage. Connecticut's new marriage equality law included the substance of their recommended exemption with respect to religious institutions, but not also with respect to these individuals. (See sections 17-19 of Connecticut Public Act No. 09-13. Section 19 extends exemption to religious adoption and foster-care agencies that do not receive government funding; the religious-liberty scholars favor exemption for such agencies especially when they do receive government funding.) On May 1st, they recommended the same version of their proposal to New Hampshire Governor John Lynch, tailoring it to that state's circumstances.

The latest version of their proposal differs from the initial version in one important respect. Like the initial version, it provides exemption not just to religious institutions, but also individuals who own small businesses that sell services related to marriage. However, the latest version also provides exceptions to the exemption, when same-sex couples would otherwise face "substantial hardships." The new allowance of hardship exceptions may be the result of a discussion between proponents and law professor Dale Carpenter. Or it may be the result of acknowledging the greater likelihood in New York of substantial hardships to same-sex couples than in Connecticut, a geographically "compact" state where, as Douglas Laycock suggests, they have less inconvenience to reach alternative service providers.

Governor Lynch threatened to veto New Hampshire's marriage equality legislation unless legislators included a religious-liberty exemption (HB75) along the lines of the scholars' April 30th / May 1st proposal. (HB75 does not go as far as Robin Wilson and her colleagues would like, because it does not extend protection to individuals who sell marriage-related services.) But that demand has prevented the marriage-equality legislation from reaching Lynch's desk as the legislature tries to craft a compromise. Law professor Rick Garnett has just explained why even liberals should reconsider their opposition to religious-liberty exemptions, even if he was not expressly thinking of New Hampshire State Representative Steve Vaillancourt, who claimed that HB75 "would allow discrimination to be written into state law." In New Hampshire, "House and Senate negotiators," the 05/28/09 Nashua Telegraph reports, "will meet and try to come up language acceptable to Lynch, as well as the House and Senate majorities by the time the Legislature meets in session next Wednesday."

The NY Times recently reported that Douglas Laycock,"a foremost analyst of First Amendment religious liberty questions," urged New York officials to include a religious-liberty exemption. He said that it was not “in the interest of the gay and lesbian community to create religious martyrs when enforcing the right to same-sex marriage.” That was the same language he used when he wrote to Connecticut House Speaker Donovan, expressing support for the religious-liberty exemption that Robin Wilson and her colleagues had proposed.

Law professor Michael Perry has posted a May 22nd letter by Laycock to Governor Lynch. Writing on behalf of Perry and several others, Laycock urges Governor Lynch not to retreat from providing religious institutions and their employees the protection of a religious-liberty exemption, even though he favors a broader exemption that would also protect certain individual religious-conscience objectors. He also mentions a May 22nd analysis of the favored exemption. The analysis was prepared by law professor Tom Berg, who, with Robin Wilson, has been among the legal scholars advocating the broader exemption. Unfortunately, I am unable to identify a link to Berg's analysis.

Gay Divorce Still Legal in California

05/28/09 NY Times News Blog Lede:

Frederick Hertz, a lawyer in Oakland, Calif., who specializes in same-sex family law, told The Lede that since California’s Supreme Court ruled on Tuesday that same-sex marriages that took place in 2008, before voters approved a ban in November, will remain “both valid and recognized,” that means “all the rules of marriage apply, including divorce.”

Just before the California Supreme Court issued its ruling, Hertz addressed the subject of same-sex divorce in this interview.

Is Strauss v. Horton a "gay-rights block buster"?

05/28/09 WordinEdgewise:

An unidentified "legal reader" of Andrew Sullivan's Daily Dish explains why he or she thinks Strauss v. Horton represents a "gay-rights block buster." Widener University law professor John Culhane expresses his concern that he doesn't "know (nor can anyone) how far the court would be willing to go in supporting more far-reaching restrictions on the rights of the GLBT community, including revoking domestic partnership protections ... the court’s actions revealed principle to be rhetoric, expendable at the first sign of trouble (read: the prospect that the justices might not be retained when they next appear on the ballot)."

A related question concerns whether rulings upholding same-sex marriage have set back the back the cause of marriage equality, by unleashing a political backlash. Sullivan favors a 05/26/09 post by Ilyra Somin, who contends that a ruling like that in Strauss can still represent a net gain to the cause. Somin finds evidence in the influence of the "Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state." Such decisions, he says, can help shift "the parameters of the political debate." In this respect, Somin appears to support one version of popular constitutionalism, in which groundbreaking decisions on the expanded scope of constitutional protections can increase public support for commensurate legislation and successor-rulings.

Wednesday, May 27, 2009

Law professors Robert George and Douglas Kmiec on Kmiec's marriage-alternative proposal

05/27/09 (source: ADF Alliance Alert)

Pepperdine University law professors Douglas Kmiec and Shelley Ross Saxer have recently proposed replacing the term "marriage" with "civil license," or some other neutral term, and applying the official designation to both same-sex and opposite-sex couples who are married, or who would have sought marriage. (See their proposal here and here. ) Kmiec discusses the proposal; Princeton law professor Robert George explains why he thinks it is a bad idea.

Tuesday, May 26, 2009

Federal lawsuit against Prop. 8 filed by Theodore Olson and David Boies

Initial News: 05/26-27/09

05/26/09 Bloomberg News:

A federal lawsuit filed May 22 in San Francisco seeks to overturn Proposition 8. The lawsuit, on behalf of two gay couples wishing to marry, was filed by Theodore Olson, the former U.S. solicitor general who represented former President George Bush during the 2000 U.S. Supreme Court case that decided the presidential election, and by David Boies, who represented former Vice President Al Gore in the same case.

The case is Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009), before Judge Vaughn Walker. Here is the complaint, which alleges that Prop. 8 violates the due process and equal-rpotection clauses of the 14th Amendment.

Smelt v. United States of America (C.D.Cal. Case No. 8:2009-cv-00286, filed Mar. 9, 2009) represents the only other (and less credible) federal challenge to Prop. 8.

American Foundation For Equal Rights

"The Foundation's first project is a federal court challenge to California's Proposition 8, which eliminated marriage rights for same sex couples. Led by attorneys Theodore B. Olson and David Boies, two of the nation's most preeminent constitutional lawyers, the suit states that Proposition 8 creates a class of "second-class citizens" and thereby violates the U.S. Constitution."

05/27/09 AP (posted to The Desert Sun):

"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," said Shannon Minter, legal director of National Center for Lesbian Rights. [See the press release here.]

"There will be many people who will think this is not the time to go to federal," Olson said during a news conference in Los Angeles Wednesday. "Both David and I have studied the court for more years than probably either one of us would like to admit. "We think we know what we are doing."

Boies agreed: "Reasonable minds can differ, but when you have people being denied civil rights today, I think it is impossible as lawyers and as an American to say, 'No, you have to wait, now is not the right time.' I think if we had done that in prior civil rights battles, we would not be where we are."

05/27/09 Advocate:

Attorneys responsible for a new federal challenge to Prop 8 rebuffed outrage from LGBT legal organizations, which contend that such a case before the U.S. Supreme Court could have disastrous consequences.

05/27/09 Volokh Conspiracy

University of Minnesota law professor law professor Dale Carpenter says that "even if he supported gay marriage, Olson struck me as the kind of conservative who would reject what many conservatives would regard as judicial activism."

News and Commentary: 05/28/09 - 04/05/10 update

As of 04/06/10, you can follow subsequent updates by linking to "Commentary and News Since May 2009" under the "Perry v. Schwarzenneger" tab of this site. I will no longer maintain updates here.

  • News
04/05/10 Proposition 8 and the Right to Marry:

Parties have until April 9th to file briefing in Perry v. Scharzenneger, order on briefing schedule, No. 10-15649 (9th Cir. Mar,. 31, 2010).

03/24/10 Proposition 8 and the Right to Marry:

Judge Walker has granted a stay of his decision to sustain Judge Spero's discovery order, pending appeal by Equality California and the ACLU

03/22/10 Proposition 8 and the Right to Marry:

Judge Walker has upheld Magistrate Judge Spero's discovery order, which requires Equality California and the ACLU to produce what they characterize as "internal" campaign communications about Prop. 8.

03/22/10 NY Times:

Jordan Lorence is Senior Counsel for the Alliance Defense Fund, and represents the Prop. 8 proponents. He told the NY Times that "there should not have been a trial.”

03/16/10 Cal Law Legal Pad

Judge Walker walked out on plaintiffs' attorney Steve Bomse as he argued against a discovery order issued by Magistrate Judge Joseph Spero.

03/11/10 Proposition 8 and the Right to Marry:

Boies and Olson discuss the case during a NY Times interview. Matt Coles and David Levine describe how Judge Walker might rule.

02/28/10 Proposition 8 and the Right to Marry:

Attorneys on both sides submit their final briefs about legal conclusions the trial testimony support.

02/26/10 Proposition 8 and the Right to Marry:

Will we be able to watch a telecast of the closing arguments? A Court press release doesn't end speculation.

02/28/10 Proposition 8 and the Right to Marry

Attorneys on opposing sides filed their last briefs just before midnight on February 26th.

02/03/10 Proposition 8 and the Right to Marry:

The ACLU, Lambda Legal, and the National Center for Lesbian Rights have filed an amici brief that bears comparison with this earlier brief.

01/31/10 Proposition 8 and the Right to Marry:

News and commentary about the trial, including recaps.

01/30/10 Proposition 8 and the Right to Marry

News and commentary about the trial.

01/27/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 12, the last day of the trial.

01/26/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 11 of the trial.

01/25/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 10 of the trial.

01/23-24/10 Proposition 8 and the Right to Marry:

Weekend roundup of news and commentary on the trial.

01/22/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 9 of the trial.

01/21/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 8 of the trial.

01/20/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 7 of the trial.

01/19/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 6 of the trial.

01/18/10 Proposition 8 and the Right to Marry:

News and commentary roundup.

01/17/10 Proposition 8 and the Right to Marry:

Here's my latest selection of news and article posts related to the trial.


Day 4 of the trial.


Day 3 of the trial, and the U.S. Supreme Court grant of continuing stay of a trial broadcast.


Day 2 of the trial, and contretemps between 9th Circuit Chief Judge Alex Kozinki and the U.S. Judicial Conference.


Day 1 of the trial, and the U.S. Supreme Court order granting a temporary stay of the planned YouTube webcast.


The Perry plaintiffs have responded to Prop. 8 proponents' emergency application for a stay of Walker's order on a YouTube webcast of the trial. Here is a roundup of noteworthy articles about the case.


Here is a post on the emergency appeal by Prop. 8 proponents with the U.S. Supreme Court, and here is my selective roundup of commentary and news.

01/08/09 Proposition 8 and the Right to Marry:

Prop. 8 proponents have filed an emergency petition to stay the planned broadcasting of the Perry trial.

01/07/10 AP:

AP reporter Lisa Leff provides an insightful overview of the Perry case and discusses the trial to start next week.

01/06/09 Proposition 8 and the Right to Marry:

I link news on Judge Walker's decision to allow a delayed YouTube recording of the trial, and to the "minute order."

01/05/10 Time Magazine:

Olson says that he doesn't trust "scholarly prognostications" about the risks of the lawsuit, and Jennifer Pizer considers how it may affect the legal status of gays and lesbians.

Chuleenan Svetvilas, Anatomy of a complaint: How Hollywood activists seized control of the fight for gay marriage, Cal. Law., Jan. 2010

12/31/09 Proposition 8 and the Right to Mary:

Developments yesterday include the 9th Circuit's order against rehearing the discovery dispute appeal en banc (post); another - possibly webcast- hearing in the lower court of the latest version of that dispute (post); and plaintiffs' opposition to Imperial County's motion to intervene (post).

12/29/09 Proposition 8 and the Right to Marry:

I link to yesterday's filing of a letter by Prop. 8 proponents opposing use of cameras in the trial.

12/23/09 LGBT POV, by journalist Karen Ocamb:

The title of Ocamb's post is " appeals for bucks to fight the federal Prop 8 case."

12/19/09 Gender & Sexuality Law Blog:

Law professor Katherine Franke summarizes the latest developments, with scathing criticism of Boies and Olson.

12/17/09 Proposition 8 and the Right to Marry:

I provide links to news reports that the case may be televised.

12/16/09 Proposition 8 and the Right to Marry:

The 9th Circuit will consider whether to review en banc the discovery appeal brought by Prop. 8 proponents.

12/16/09 Law Dork:

The 9th Circuit Court may issue an order today to review en banc an appeal by Prop. 8 proponents of Judge Walker's discovery orders.

12/16/09 Proposition 8 and the Right to Marry

Imperial County has filed a motion to intervene.

12/14/09 Proposition 8 and the Right to Marry:

You will find links to commentary on the December 11th ruling by a 9th Circuit panel upholding a First Amendment right of Prop. 8 proponents to withhold internal campaign communications from plaintiffs.

12/09/09 Cal Law Legal Pad:

This post concerns proposed findings of fact by attorneys on both sides, with the focus on an expert of the Prop. 8 proponents.

12/09/09 Proposition 8 and the Right to Marry:

Parties on both sides have filed trial briefs, and the plaintiffs have filed a witness list.

12/08/09 Proposition 8 and the Right to Marry:

Will the U.S. Supreme Court's ruling in Mohawk Industries, Inc. v. Carpenter undermine the argument that a 9th Circuit has jurisdiction to review an appeal by Prop. 8 proponents, who are seeking to overturn discovery orders?

12/03/09 Proposition 8 and the Right to Marry:

A 9th Circuit panel has continued a stay of discovery orders on the grounds that Prop. 8 proponents are likely to prevail in their claim that the orders violate the First Amendment protection of political speech.

12/02/09 Proposition 8 and the Right to Marry:

The ACLU has filed a letter brief supporting Prop. 8 proponents in their claim of a First Amendment privilege for internal campaign documents that plaintiffs seek in discovery.

12/01/09 Proposition 8 and the Right to Marry:

Link here to the oral argument held by a 9th Circuit panel over the discovery dispute.

11/25/09 Proposition 8 and the Right to Marry:

A Ninth Circuit panel has ordered a December 1st oral argument on an expanded range of issues presented by its emergency stay of Walker's discovery orders (one of which Judge Spero issued on Walker's behalf.)

11/23/09 The American Prospect

This is an exceptionally thoughtful overview of the case's legal issues and seminal importance for defining "the place of gay people in society."

11/22/09 Proposition 8 and the Right to Marry:

On November 20th, the 9th Circuit granted a stay of discovery orders. Parties have until 5 p.m. on November 23rd to file briefs.

11/19/09 Proposition 8 and the Right to Marry:

California attorney Rick Xiao comments on Judge Walker's order today compelling document production by the official Prop. 8 proponents.

11/17/09 Proposition 8 and the Right to Marry:

Judge Walker has issued a discovery order favorable to plaintiffs.

11/14/09 Proposition 8 and the Right to Marry:

An anonymous contributor discusses Judge Walker's November 2nd hearing on the discovery needed to test assertion by Prop. 8 proponents that certain campaign communications have qualified privilege.


In the second part of his two-part series, constitutional scholar Vikram Amar offers narrow and broad explanations of why it was "at least plausible" for Judge Walker to deny the summary judgment motion of Prop. 8 proponents.

11/05/09 Proposition 8 and the Right to Marry:

The Recorder reports on the appeal by Campaign for California of Judge Walker's order denying its motion to intervene.

10/26/09 Proposition 8 and the Right to Marry:

I link to two articles about continuing debate over the timing of the Perry case.

10/25/09 SF Chronicle:

This article concerns Judge Walker's denial of stay of his discovery order.


In the first of a two-part series, constitutional scholar Vikram Amar, identifies what is compelling about arguments that Baker v. Nelson represents a binding precedent for summary judgment.

10/20/09 National Constitution Center program:

This program on "A Right to Marry? Same-Sex Marriage and the Constitution" features David Boies, Ken Boykin, Maggie Gallagher and Glen Stanton.

10/21/09 Proposition 8 and the Right to Marry:

California attorney and site co-author Rick Xiao comments on the 9th Circuit's order to show cause in the appeal of Judge Walker's 10/01/09 discovery order.

10/14/09 Proposition 8 and the Right to Marry:

Here is my roundup of commentary and news on Judge Walker's denial of the summary judgment motion by Prop. 8 proponents.

10/11/09 Contra Costa Times:

Will Baker v. Nelson tie the hands of Judge Walker as he holds a hearing this week on a motion for summary judgment?

10/09/09 Proposition 8 and the Right to Marry:

I include commentary on yesterday's motion by Charles Cooper to stay Judge Walker's 10/01/09 discovery order pending appeal.

10/06/09 The Recorder:

The Recorder profiles Charles Cooper, a lead attorney for the official Prop. 8 proponents.

10/05/09 Proposition 8 and the Right to Marry:

Judge Walker asks parties what they think of a proposal to televise hearings in the case.

10/02/09 Proposition 8 and the Right to Marry:

I write about Judge Walker's October 1st discovery order.

09/28/09 The Recorder:

This article concerns a discovery dispute over production of e-mail and other documents used by Yes on 8.

09/26/09 Proposition 8 and the Right to Marry:

California attorney Rick Xiao comments on the plaintiffs' opposition to defendants' motion for summary judgment.

09/25/09 Proposition 8 and the Right to Marry:

Law professor Nan Hunter interviewed Kate Kendell, the executive director of the National Center for Lesbian Rights (NCLR), on the Perry case. I highlight a comment by Kendell.

09/24/09 National Review:

Professor Nelson Lund attacks what he understands as the legal arguments of David Boies and Theodore Olson.

09/12/09 Find Law News:

On behalf of the official Prop. 8 proponents, Charles Cooper has filed a motion for summary judgment.

09/04/09 hunter of justice:

Campaign for California Families has appealed Judge Walker's order denying its motion to intervene.

08/30/09 Proposition 8 and the Right to Marry:

I respond to an LA Times editorial.

08/25/09 Proposition 8 and the Right to Marry:

I link to additional commentary on the fallout of Judge Walker's decision not to let several gay rights groups intervene.

08/23/09 Proposition 8 and the Right to Marry:

I suggest that case management statements filed in the case may underscore substantive differences among parties in the case and those who sought to join them.

08/20/09 Proposition 8 and the Right to Marry:

I provide a roundup of commentary and legal news on the August 19th hearing.

08/17/09 Proposition 8 and the Right to Marry:

I link to two San Francisco articles, one about the subject of the August 19th hearing, another about Judge Walker.

08/14/09 Proposition 8 and the Right to Marry:

I link to Judge Walker's August 12th order, in which he tells attorneys that they must file new case management statements by August 17th, detailing how the case will proceed.

08/10/09 and 08/11/09 Proposition8 and the Right to Marry:

I discuss the 08/07/09 filings in the case, including opposition by Boies and Olson to the intervention motion of the National Center for Lesbian Rights, Lamda Legal, and the ACLU.

08/8/09 AP:

Boies and Olson filed oppositions to motions to intervene by San Francisco, several gay rights groups, and the Campaign for California Familes.

07/29/09 Wall Street Journal:

In this letter to the editor, Chuck Cooper responds to a July 20 op-ed “Gay Marriage and the Constitution,”by David Boies.

07/25/09 Los Angeles Times:

Patt Morrison of the Los Angeles Times interviewed Theodore Olson, who comments about the case.

07/23/09 San Francisco City Attorney press release and motion to intervene

07/22/09 Huffington Post:

Law professor Tobias Wolff addresses the controversy over the motion to intervene by three gay rights groups, and offers a mea culpa.

07/21/09 The Recorder

The Recorder reports on the controversy over a motion by three gay rights groups to intervene.

07/20/09 Wall Street Journal:

David Boies explains why he and Ted Olson have filed the lawsuit.

07/16/09 JURIST Forum:

Law professor Douglas NeJaime contends that even with respect to the Perry case, "the mainstreaming of gay rights is a good thing."

07/16/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to an opinion article by Ann Rostow, who explains why the ACLU, the National Center for Lesbian, and Lambda Legal have decided to intervene in the Perry case

07/15/09 Legal Commentary on Proposition 8 and the Right to Marry:

I post a July 13th order by Judge Walker setting out deadlines for Boies and Olson to file opposition to intervention by the ACLU and other organizations, and for these would-be intervenors to respond.

07/10/09 Law Dork 2.0:

Attorney Chris Geidner blogs on an "explosive" letter that the American Foundation for Equal Rights sent to "three of the nation’s most established LGBT legal organizations."

07/07/09 Legal Commentary on Proposition 8 and the Right to Marry:

I provide links to news reports on fast-tracking of the case by Judge Walker, and his goal of creating a trial record for the U.S. Supreme Court. The Mercury News reports on attorney Charles Cooper, who is representing the official Prop. 8 proponents.

07/06/09 Legal Commentary on Proposition 8 and the Right to Marry:

I summarize an article in a legal newspaper, the San Francisco Daily Journal, whose reporter thinks that Judge Walker's 06/30/09 order bears the imprint of legal struggles of the civil rights movement.

07/01/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to Judge Walker's 06/30/09 order, in which he granted intervenor status to Yes on 8, and said that he is inclined not to grant a preliminary injunction but to proceed "expeditiously" to a trial on the federal constitutionality of Prop. 8. I also link to legal and non-legal news articles.

07/01/09 Pam's House Blend
: provides an overview of the case, including an interview with one of the plaintiff attorneys, Theodore Boutrous.

06/29/09 San Jose Mercury News:

Marc Spindelman, an Ohio State University law professor said that Judge Vaughn Walker may not grant the motion for a preliminary injunction, but that Boies and Olson may succeed in their ultimate goal of review by the U.S. Supreme Court. On the other hand, he said that "it's not inconceivable the courts may think it's too soon for the federal courts to weigh in and settle the matter one way or the other.''

06/26/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to the brief filed by the ACLU and National Center for Lesbian Rights, and to a press release about the brief by the American Foundation for Equal Rights.

06/19/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to a press release by SF City Attorney Dennis Herra on his amicus brief; to a Boston EDGE article about the brief; and to a San Francisco Chronicle article quoting Shannon Minter on interest in filing an amicus brief by the National Center for Lesbian Rights.

06/18/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to an LA Times article on Governor Schwarzenegger's decision not to defend Prop. 8.

06/12/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to news articles on the answer to the complaint filed by Attorney General Jerry Brown, in which he says that his loyalty to the U.S. Constitution requires him not to defend Prop. 8.

05/28/09 Jurist News:

This article links to the motion for a preliminary injunction against enforcement of Prop. 8, and references the position of the lawsuit by Lamda Legal, the ACLU, and several other civil rights organizations:

A group of gay rights and legal organizations, including the American Civil Liberties Union, GLAD and Lambda Legal [official websites], have cautioned against pursuing federal court action [statement, PDF] because "the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states."

If the U.S. Supreme Court upheld state constitutional bans on same-sex marriage, these groups fear that it could take years before the Court reversed itself, just as it took 17 years for the Court, in Romer v. Evans, to overturn Bowers v. Hardwick, the 1986 Supreme Court ruling that upheld Georgia's sodomy law. And they fear the consequences of a comparable delay. The delay of 17 years "was fast for the Supreme Court. And during that time, many [LGBT] Americans lost jobs, lost custody of their children and suffered other harms because the Bowers decision was taken as a license to discriminate against us."

06/04/09 Time Magazine:

"We are not minimizing the obstacles," Olson told TIME.

  • Opinion opposing the lawsuit

08/3/09 Wall Street Journal:

Professor Robert George opposes this lawsuit because he considers it an invitation to judicial fiat and because, if the U.S. Supreme Court overturns bans on gay marriage, it would imperil the institution of marriage.

07/29/09 Wall Street Journal:

In this letter to the editor, Chuck Cooper responds to a July 20 op-ed “Gay Marriage and the Constitution,”by David Boies.

07/02/09 NY Review of Books, written 06/04/09, by Georgetown University law professor David Cole:

[T]he stakes are extremely high, and the risks of an adverse decision from the Supreme Court are considerable. Incrementalism would have been the smarter strategy.

06/18/09 Reuters:

[L]ong-time national gay marriage advocates are wary of the lawsuit. "The lawsuit has been filed. We all have an interest in it going as well as possible," said Evan Wolfson, executive director of Freedom to Marry. "The best way is to win more states and to continue moving more hearts and minds," he said.

06/11/09 The Providence Journal editorial

Given the current court’s conservative bent, and that nominee Sonia Sotomayor’s views on the issue are unknown, AFER is taking a huge gamble.

06/09/09 Gender & Sexuality Law Blog, by Columbia University law professor Katherine M. Franke

Press comments by Boies and Olson "betray little sensitivity to the fact that these cases are not only about the two couples they conjured up who want to marry, and are not only about the rightness of their analysis of the rights secured by the Constitution."

06/08/09 The Desert Sun, comments by ACLU staff attorney Lori Rifkin:

Rifkin said she worried about the timing of a federal lawsuit filed recently in California that contends Proposition 8 violates the U.S. Constitution. The suit, she said, could do more harm than good if heard by the U.S. Supreme Court. Its present roster makes a favorable ruling unlikely, she believed.

06/06/09 American Family News Network, comments by Alliance Defense Fund attorney Austin Nimocks

"In America we respect free and fair elections. Proposition 8 was, in fact, a free and fair election representative of everything America stands for -- and yet the advocates for redefining marriage want to once again try and use the courts to subvert the will of the people."

05/31/09 Dissenting Jutice, by law professor Darren L. Hutchinson

Bringing this litigation proves that Olsen and Boies are either ignorant of the history of gay rights litigation, trying to sabotage same-sex marriage, or are arrogant heterosexuals who believe that they know more about this issue that experienced GLBT rights activists. Pick your poison, men.

05/30/09 hunter of justice:

Georgetown University Law Professor Nan Hunter thinks that while the 9th Circuit might find Prop. 8 unconstitutional under the equal protection clause, the U.S. Supreme Court would almost certainly overturn such a ruling. She also believes that the Alliance Defense Fund has sought intervention to reserve independent means of appealing an adverse 9th Circuit ruling just in a case a Democratic governor would otherwise decline appeal.

05/29/09, by Darren R. Spedale and William Eskridge, Jr.

This is not the moment for federal judges to step in and close off discussion. Why not continue with the state-by-state process of debate, experimentation, and slow but increasing movement toward marriage equality? ... Also relevant to the merits of bringing the California challenge now in federal court are the long odds against success ... When the state-by-state experiment with gay marriage becomes more the norm than the exception, the constitutional argument for same-sex marriage will become just as clear to the justices of the Supreme Court as it is for Ted Olsen and David Boies.


John Dean speculates that Kenneth Starr may intervene in the case, and observes that the preliminary injunction presents grounds for immediate appeal. He overlooks two other federal lawsuits challenging the federal DOMA, or both the federal DOMA and Prop. 8. He underscores reasons for opposition by the ACLU and LBGT advocacy groups:

In speaking off-the-record with the ACLU, I learned that they are quite worried about the Olson/Boies action ... The questions raised are simply about the wisdom of taking a tremendous risk, a gamble that may grievously backfire ... Olson and Boies are placing at risk the slow, state-by-state, steady progress that has been moving apace across the nation.

05/28/09 The Recorder (a San Francisco legal newspaper):

"There is no end run around the nitty-gritty work of social change," Evan Wolfson, executive director of the New York-based Freedom to Marry, said in a telephone call. "If it was just about hiring a good lawyer and filing a good brief, we'd have won decades ago."


"We only have one shot at the U.S. Supreme Court," Shannon Minter, legal director for the San Francisco-based National Center for Lesbian Rights, said in an e-mail message. "And any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a heavy responsibility to be certain they have fully considered the consequences of pulling the trigger on a federal challenge."

Wolfson agreed.

"We need to go before the court with the best possible climate and that means winning more states and winning more hearts and minds," he said. "Nobody should think the route to equality comes by rolling the dice and turning the question over to a court. It just doesn't work that way."


Brooklyn Law School professor Bill Araiza makes this comment:

I am pretty annoyed at this lawsuit. I have a lot of respect for public interest/cause lawyers who spend a lot of time -- yes, all their professional lives -- crafting a long-term litigation/legislation strategy to get from point A to point B. For a couple of high-profile litigators to suddenly enter the fray and make a high-stakes, high-risk legal claim may be their right, but it's hard to believe that it's being done in good faith. Why didn't they write an amicus brief in the Prop. 8 case, warning that upholding Prop. 8 would raise serious federal constitutional issues? Why haven't they participated in any of the state constitutional litigation over the last ten years? Why only now, and why the riskiest argument?

05/28/09 NY Times:

“We think its risky and premature,” said Jennifer C. Pizer, marriage project director for Lambda Legal in Los Angeles, adding that a loss at the Supreme Court level could take decades to undo.

Laurence H. Tribe, an expert on constitutional law at Harvard, called the suit “a bold measure,” adding that “the fact that it’s being advanced by people at both ends of the ideological spectrum gives it a certain profile.”

Mr. Tribe said the question of timing could be argued from both sides.

“There’s a national trend which is obvious, with Vermont, Maine and Iowa,” he said, citing states that have recently legalized same-sex marriage. “But pushing it right now in front of a conservative court is not necessarily the wisest thing to do.”

05/28/09 San Diego Union-Tribune

In this opinion article, Glen Lavy, senior counsel and vice president of the Alliance Defense Fund, asks whether, by upholding same-sex marriages licensed before November 4, 2008, the California SuremeCourt "court deliberately setting the stage for an 'equal protection' claim under the federal Constitution.

05/28/09 SF Chronicle:

Still, filing a federal lawsuit at this point "sounds like a silly and rash act," said UC Davis law professor John Oakley, an expert on the federal court system. "There is no evidence that the Court is near that point (to approve same-sex marriage.)"

05/28/09 Family Research Counsel blog

Peter Sprigg faults Olson and Boies for comparing bans on interracial marriage with bans on same-sex marriage.

  • Opinion favoring the lawsuit

07/20/09 Wall Street Journal:

David Boies explains why he and Ted Olson have filed the lawsuit.

06/10/09 Edge San Francisco:

"The federal case is very interesting," former California Supreme Court Justice Joseph Grodin said. "The arguments are good. They deserve to win. Whether they will is uncertain."

06/01/09 Daily Kos

05/29/09 Huffington Post:

Pam Spaulding (of says offers this reason for the lawsuit, even if she does not support it:

OK, now there is another reason why it can be argued that a federal case has merit at this time, and it needs discussion. Regardless of the timing of the case, part of what is going on here is by filing at the federal level, the alwsuit is a direct challenge to this White House ... After all -- how can you have a President of the United States who is a constitutional scholar out there saying "God is in the mix" and tossing off "it's an issue best left to the states"? After all, his parents' relationship was illegal in many states, and Loving v. Virginia was needed to nullify all of those state bans.

05/28/09 Andrew Sullivan's Daily Dish:

The lawsuit is "almost certainly premature, and will probably not get very far. But what it does is reveal, especially in Olson's strong and inspiring language, is that this is a civil rights issue, should not be a Democrat-Republican concern, and should command the support of all decent Republicans and conservatives eager to ensure equality under the law and greater stability and inclusion for gay citizens. Maybe it's strategically unwise. But the public impact of that bipartisan statement is real. In the long run, that matters."

05/28/09 Huffington Post:

Trevor Nelson believes that "Olson's role in Bush vs. Gore and position as solicitor general in the Bush administration gives him a powerful and surprising opportunity to draw broad support to the issue." He offers a less than convincing analogy about the debate over methods and strategic timing by considering Martin Luther King's "Letter from a Birmingham Jail," in which King challenged "white moderates" to reconsider the timeliness of "direct action."

Legal commentary on California Supreme Court's ruling on Prop. 8


05/27/09 WordinEdgewise, by Widener University law professor John Culhane (analysis of Justice Moreno's dissenting opinion)

05/26/09 WordinEdgewise, by Widener University law professor John Culhane (analysis of the majority opinion)

05/26/09 Leonard Link, by New York University law professor Arthur Leonard

05/26/09 Waldlaw Blog, by Deborah Wald, Chair of the National Family Law Advisory Council of the National Center for Lesbian Rights


06/02/09 The California Constitution, by appellate practitioner Steve Mayer

06/02/09 The California Family Law Blog, by family law practitioner Mary Ellen Waller

05/30/09 hunter of justice, by Georgetown University Law Professor Nan Hunter

05/29/09 Sacramento Bee, comments by Lambda Legal senior counsel Jennifer Pizer and McGeorge Law School professor Lawrence Levine.

05/28/09 Which Way LA, featuring ADF Attorney Austin R. Nimock and Brad Sears of the UCLA Williams Institute.

05/28/09 Reality Check Live with Mike Monokian, discussion of the ruling by ADF attorney Austin R. Nimock.

05/28/09 San Diego Union-Tribune, by Glen Lavy, senior vice president and senior counsel for the Alliance Defense Fund

05/27/09 Waldlaw Blog, by Deborah Wald (faulting the ruling for undermining state constitution's equal protection clause)

05/26/09 CalLaw ("Prop 8 reaction from lawyers and academics")

05/26/09 Volokh Conspiracy, by University of Minnesota law professor law professor Dale Carpenter

05/26/09 Volokh Conspiracy, by Ilyra Somin, with links to law blog debate on whether In re Marriage Cases represents a "net gain" for advancing marriage equality

05/26/09 Gender and Sexuality Law Blog, by Columbia University law professor Katherine M. Franke

05/27/09 Daily Journal (subscription required), "California's Step Back," by Russell S. Roeca, 2009 president of The Bar Association of San Francisco

05/26/09 Los Angeles Times, "You Just Can't Change Marriage", by Andrew Pugno, attorney for Yes on 8 /

05/27/09 Los Angeles Times, comments by Goodwin Liu, Vikram Amar, Jesse H. Choper, Douglas Kmiec, Douglas Kmiec, Andrew Pugno, and Shannon Price Minter.

05/27/09 San Francisco Chronicle
, "On the Prop. 8 Ruling," by San Francisco City Attorney Dennis Herrera

05/27/09 San Francisco Chronicle
, comments by Evan Gerstmann, author of Same-Sex Marriage and the Constitution, and law professor Richard Hansen.

05/27/09 Talk Radio (Hugh Hewitt Show), UC Irvine Law School Dean Erwin Chemerinsky and Chapman University School of Law Dean John C. Eastman discuss Prop. 8.)

05/27/09 Democracy Now
, interview of Bryan Wildenthal," the first openly gay law professor at the Thomas Jefferson School of Law."

05/27/09 Legal Broadcast Network, "Lambda Legal's Jon Davidson Discusses Prop 8 Ruling"

Legal newspapers and legal news blogs

05/26/09 CalLaw (roundup of reaction within legal community)

05/27/09 National Law Journal

05/27/09 Daily Journal (subscription required), critical comments by appellate practitioner Jon B. Eisenberg and Robert Bradley Sears, executive director of UCLA School of Law's Williams Institute on Sexual Orientation Law and Public Policy)

05/27/09 Metropolitan-News Enterprise

05/26/09 Jurist Legal News

Newspaper editorials

06/09 "Newspaper Reactions to California Marriage Cases," a comprehensive survey of editorials by the Institute For Marriage and Public Policy

05/27/09 NY Times

05/27/09 SF Chronicle

05/27/09 Wall Street Journal

05/27/09 Washington Post

05/26/09 LA Times

Sample advocacy group press releases

05/27/09 press release by National Center for Lesbian Rights and ACLU, "Make Change, Not Lawsuits"

05/26/09 Pam's House Blend (summary of releases by Prop. 8 opponents)

05/26/09 Alliance Defense Fund

05/26/09 Liberty Counsel

05/26/09 Pacific Justice Institute
(anticipates religious-liberty challenges to married same-sex couples)

05/26/09 Yes on 8 /

05/26/09 Lambda Legal

05/26/09 Equality California
05/26/09 Communities of Color Statement

Illinois House panel again votes to legalize civil unions

05/26/09 Chicago Tribune (source: ADF Alliance Alert):

SPRINGFIELD---On the same day that the California Supreme Court upheld a ban on gay marriage, an Illinois House committee advanced a measure that at would allow civil unions for same-sex couples in the state.

Illinois' proposed Religious Freedom Protection and Civil Union Act was the subject of a University of Chicago Faculty blog debate on the necessity and scope of a religious-liberty exemption.

Monday, May 25, 2009

Reflecting on The Way to Win Marriage Rights from the Perspective of Roe v. Wade

05/21/09 Gender and Sexuality Law Blog:

Columbia University law professor Katherine M. Franke favors a position that she calls "disestablishment of marriage": if marriage "can’t be had on fair terms, states shouldn’t be in the business of providing it." She appears to support an equivalent alternative to marriage that the state would recognize - a civil institution in which both same-sex and opposite-sex couples, among other family relationships, have all the rights, benefits, and duties of marriage. (For example, she welcomes a version of this proposal that that the Domestic Partnership Initiative represents, even though she prefers the state legislature to enact it.)

I have already expressed a misgiving about the ambiguity surrounding her use of "disestablishment" to characterize her idea. Disestablishing marriage appears to imply acknowledging that it is exclusively a religious institution that should have no element of state recognition. This sense of "disestablisment" represents a version of the marriage-alternative proposal that Pepperdine University law professors Douglas Kmiec and Shelley Ross Saxer have recently advanced here and here. During the Prop. 8 oral arguments, Justice Ming Chin had asked Kenneth Starr whether the Kmiec-Saxon proposal would provide equal protection to same sex couples, and whether the Court could order it. Franke, however, acknowledges the cultural values of dignity and respect that gays and lesbians, no less than straights, associate with marriage, whether or not the association has religious underpinnings. And, as I understand her, she believes that not just married couples, but other family relationships - including partners in committed relationships - deserve the same rights and benefits of marriage.

On May 7th, Franke participated in NY City Bar Association panel on legalizing same-sex marriage. In her latest post, she responds to criticism of her view that two legal arguments advanced for same-sex marriage risk precluding defense of the marriage-alternative proposal. These are the arguments that substantive due process makes the right to marry fundamental, and that same-sex couples have the same dignity interest in marriage that opposite-sex couples have. She faults these arguments for their (unintended) consequences, just as she faults the effect on impoverished women of the limitations of the privacy argument for Roe v. Wade:

The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community.

Nevertheless, Widener Law Professor John Culhane has already explained why the equal-protection argument that Franke accepts depends on the dignity argument that she rejects.

Saturday, May 23, 2009

Two domestic parternship proposals advance in Wisconsin despite constitutional bans on same-sex marriages and "substantially similar" relationships

05/22/09 Wisconsin Joint Finance Committee Budget Blog:

The Joint Finance Committee approved two domestic partnership plans on May 22nd that are among provisions of AB 75, the Biennial Budget Bill. One proposal would extend health insurance and retirement benefits to domestic partners of state employees, for both same-sex and opposite-sex partners; the other would establish same-sex domestic partnerships and confer upon same-sex domestic partners "certain rights and benefits that parallel some of the rights and benefits provided to spouses under current law." Among such rights are rights to join ownership of property, inheritance of assets, hospital visitation, power of attorney for health care, and access to medical records.

While these proposals are limited in scope, I have explained why I think they have exceptional importance in a state whose constitution [Art. XIII, Sec. 13] not only bans same-sex marriages, but also "substantially similar" relationships. The Wisconsin Legislative Council recently found that the domestic partnership provisions do not violate the state constitution. The Joint Finance Committee adopted the following motion when approving these provisions:

"The Legislature finds that it is in the interests of the citizens of this state to establish and provide the parameters for a legal status of domestic partnership. The Legislature further finds that the legal status of domestic partnership, as established in this chapter, is not substantially similar to that of marriage. Nothing in this chapter shall be construed as inconsistent with, or a violation of, article XIII, section 13, of the Wisconsin Constitution."

05/22/09 AP (Source: Gay Marriage Watch):

"We are simply trying to allow for committed same-sex couples to get some of the most basic protections allowed by state government," said Rep. Mark Pocan, D-Madison, the openly gay co-chair of the Joint Finance Committee who married his partner in Canada in 2006.

Commentators, Subjects and Cases