Debate continues over timing of Perry v. Schwarzenneger

These articles concern Judge Vaugn Walker's denial of a summary judgment motion in Perry v. Schwarzenneger.

At the October 14th hearing to review the motion, Judge Walker asked Charles Cooper, attorney for the official Prop. 8 proponents, how gay marriage would harm married heterosexuals. Cooper conceded that he could identify no harm, a concession that appears to support the plaintiffs' constitutional challenge. Walker also gave Cooper a counterexample to proponents' claim that procreation provides an important reason why the state limit marriages to heterosexuals: Walker had recently married an elderly couple. Cooper acknowledge that Walker was not "missing something" about the "procreation" claim.

Nevertheless, the tea leaves do not auger well for plaintiffs and gay and lesbian couples who hope that the Perry case will overturn state bans on same-sex marriage. Debate continues over whether the case was appropriately timed, given the unlikelihood of a 5-4 decision by the U.S. Supreme Court to overturn these bans.

10/25/09 The Desert Sun:

“We do think it's early to be doing federal litigation, but we do not disagree with the legal theory,” said Jennifer C. Pizer, senior counsel and marriage project director for Lambda Legal in Los Angeles. “There are different views about the timing of the suit.”

10/26/09 NY Times:
Andrew Koppelman, a law professor at Northwestern and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” said [plaintiffs' attorney Theodore] Olson will have trouble attracting votes from the current justices. Asked how many justices Mr. Olson could count on, Professor Koppelman said, “I have trouble getting to one.”

See also this letter to the Times by Eva Wolfson, executive director of Freedom to Marry.

Judge Vaugn Walker allows San Francisco City Attorney to intervene in federal challenge of Prop. 8, but bars intervention by gay-rights groups

Here is a selective roundup of commentary, news and press releases. I expect to continue updating this post.

Commentary:

08/20/09 Huffington Post, by law professor Carlos A. Ball:

For better or for worse, the lawyers who have been leading the legal battles for same-sex marriage will be watching all of this from the sidelines, their role limited to the writing of amicus (or "friend of the court") briefs. Although there are many of us who believe that the time is not yet right for this kind of federal constitutional lawsuit, the question no longer is whether the lawsuit should be brought, but whether it will succeed. Mr. Olson and Mr. Boies seem confident that it will. I hope they are right. But if they are not, they will likely go back to their high-powered law practice, leaving it to the gay rights organizations to pick up the pieces.

08/19/09 Leonard Link, by law professor Arthur Leonard:

Today U.S. District Judge Vaughn R. Walker basically accepted Ted Olson's strategy to put the pending Proposition 8 lawsuit, Perry v. Schwarzenegger, on a fast track to trial. Rejecting attempts to intervene by the LGBT movement groups and an anti-gay marriage group, and granting only limited participation to the City and County of San Francisco - which had sought to intervene as a full-fledged co-plaintiff, along the lines of what the state of Massachusetts has done in the pending challenge to the Defense of Marriage Act in the US District Court in Boston - Walker has set a trial date of January 11, 2010, with a sharply expedited schedule for discovery and pre-trial motions.

08/19/09 Law Dork, by attorney Chris Geidner:

Geidner provides a "preview" summary of what is at issue in today's hearing of the Perry case.

08/19/09 Law Dork, by attorney Chris Geidner:

The news today has come from San Francisco that U.S. District Judge Vaughn Walker set a rather quick trial date and has denied the request of several LGBT community groups in California — represented by the ACLU, Lambda Legal and NCLR — to intervene in the Perry v. Schwarzenegger lawsuit challenging the constitutional validity of Proposition 8. The similar request of the Campaign for California Families, which had supported Proposition 8, to intervene also was denied.

08/19/09 WordinEdgewise, by law professor John Culhane:

Geidner discusses two claims made in the supplemental case management statement of Prop. 8 Proponents. One claim is that gay sexual orientation can change. Another is that Prop. 8 fosters procreation and optimal parenting. In the supplemental statement, the Alliance Defense Fund and Cooper & Kirk identify a plan to provide supporting evidence. Culhane cuts to the chase about the fallacies their plan involves.

08/18/09 NY Times Room For Debate Blog / 08/19/09 Law Dork.com

As Geidner writes at Law Dork,

The paper also asks Eugene Volokh, Amy Wax, Evan Wolfson and Kenji Yoshino about Olson’s effort. The answers, for those familiar with the thinkers’ works, were not at all surprising.

My observation on August 20th:

Yesterday's development in the Perry case has far-reaching consequences that more than deserve the attention of the commentators. One consequence concerns the plaintiffs and defendants who Judge Walker has not allowed to intervene.

Attorneys for both plaintiffs and defendants have been at odds with legal groups that sought to intervene, even though little has been said about divisions between the defendants, the Campaign for California Families (CCF), and their respective legal counsel. In fact, while highlighting the dispute between legal groups that oppose Prop. 8, two San Francisco legal newspapers also described the success of Prop. 8 proponents in opposing attempted intervention by CCF.

The Recorder reports that CCF sought intervention, in part, because Prop. 8 proponents had accepted, as fact, that sexual orientation has no bearing on the capacity of gays and lesbians to contribute to society, except to reproduce. "Sexual orientation does impact more than just procreation, " said former Liberty Counsel attorney Rena Lindevaldsen told Judge Walker on behalf of CCF. She claimed that it also impacts childraising.

It's hardly surprising that the news media have supported a carefully crafted, if one-dimensional, drama over who will control the plaintiffs' side of the case. Theodore Olson - who, with David Boies, represents plaintiff couples - told the Los Angeles Times that control of the case presented the issue of controversy between his legal team and three gay-rights groups that sought to intervene on behalf of other plaintiffs. The made-for-media drama has been a deliberate distraction from real, and important, issues of controversy that not only cross both sides of the case, but have fundamental implications on how attorneys for plaintiffs and defendants will present facts and legal arguments.

News

08/20/09 The Recorder and the Daily Journal:

These San Francisco legal newspapers cover intervention disputes between legal groups and parties on both sides of the case. They also report on Judge Walker's observation that while the city of San Francisco had established a governmental interest in the case, Governor Schwarzenneger and the Caifornia Attorney General did not even try.

08/19/09 AP:

Chief Deputy City Attorney Terry Stewart said that during the trial the city planned to call witnesses who could testify about the public health costs of treating gays and lesbian families who feel discriminated against. [Judge Walker] also ordered California Attorney General Jerry Brown's office to work with the city's lawyers in providing testimony on how the voter-approved measure affects state government.

08/19/09 San Jose Mercury News:

I find this the best of the news articles on the August 19th hearing. Among other useful details, the reporter, Josh Richman, identifies scheduled deadlines for discovery, witness designations, and conferences. Richman also considers stipulations to fact that Prop. 8 proponents have made:

The parties already have begun filing briefs listing the areas in which they agree and disagree, setting parameters not only for what's to be argued at the trial but also for the public debate that's sure to rage outside the courthouse as same-sex marriage advocates continue moving toward a new ballot measure to repeal Proposition 8. For example, Prop. 8's proponents wrote in recent briefs they'll probably be able to come to some agreement before trial that gay or lesbian sexual orientation isn't an illness or disorder; that, besides certain aspects of procreation, sexual orientation doesn't relate to one's ability to contribute to society; that sexual orientation is fundamental to one's identity; and on other stipulations to avoid the need for time-consuming testimony and evidence. With such things out of the way, the trial will home in on basic questions of whether Prop. 8 is discriminatory and unconstitutional in its intent and effect, and what the public's interests are in restricting marriage to heterosexuals.

08/20/09 SF Chronicle:

Sponsors of the ballot measure had opposed a trial, saying legal precedents and studies about parents and children can easily demonstrate that voters had reasonable grounds to add a traditional definition of marriage to the state Constitution. But their lawyer, Charles Cooper, did not argue against a trial at Wednesday's hearing in San Francisco and said only that he would try to narrow its scope.

08/19/09 NY Times:

William Duncan of the National Review has responded to this article on Thedore Olson's path to defending marriage equality. Not surprisingly, he doesn't think Olson has lived up to his reputation as a conservative. The Advocate considers the article "a must read." For commentary by law professors, see the Volokh Conspiracy and the Mirror of Justice.

Press Releases

08/19/09 ProtectMarriage.com:

Notice the less-than-coincidental omission about a long-running conflict between ProtectMarriage.com and the California Campaign for Families:

As the only party to Perry v Schwarzenegger that has consistently fought to preserve Prop.8, we are pleased with Judge Walker’s decision to deny intervenor status to Campaign for California Families, the Our Family Coalition, Lambda Legal, and the National Center for Lesbian Rights. The motions for intervenor status clearly demonstrate the discord and disagreement that exists among gay activists as they continue to run roughshod in their efforts to overturn the will of the people in regards to upholding traditional marriage in California.

08/19/09 San Francisco Attorney General Dennis Herrera:

“In terms of our unique public sector perspective and the evidence we’ve already developed, we think the City is an extremely well-prepared co-plaintiff in the kind of trial Judge Walker envisions.”

08/19/09 Statement by National Center for Lesbian Rights, Lamda Legal, and the ACLU:

On behalf of our clients, we are disappointed that the court did not permit organizations that represent California’s diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling.

Legal commentary on the Iowa Supreme Court's decision to overturn the state's statutory ban on same-sex marriage

I summarize the ruling here , and Brisbane family law practitioner Stephen Page summarizes it here. New York Law School Professor Arthur Leonard provides his analysis here.

Press Comments: Impact in California and West Virginia

04/04/09 Washington Post:

"Justices look at opinions from other states," said Jennifer C. Pizer, the national marriage project director for Lambda Legal, which brought the Iowa case. "There's a significant likelihood that [the decision] will influence other states, like California."

04/03/09 NY Times:

Camilla Taylor, a senior staff lawyer for Lambda, said the Supreme Court ruling in a way was merely "vindicating quintessential Iowa values," namely, a commitment to families. That this battle was being waged in Iowa, Ms. Taylor said, would have a "transformative effect" not just on the Midwest, but elsewhere.

"The fact that it's here in some way highlights the inevitability of this all," she said.

04/04/09 Palm Springs Desert Sun:

Shannon Minter is legal director of the National Center for Lesbian Rights (NCLR), and participated in the Prop. 8 litigation oral arguments. NCLR filed an amicus brief in the Iowa case. This article produces a statement from NCLR's press release:

"The eyes of California and the world are now on the California Supreme Court, which must determine whether equal protection means equal, and whether Californians will continue to share that equality in the freedom to marry. We hope the California Supreme Court will uphold the principle of equality, just as the Iowa Supreme Court has done.”

04/03/09 Liberty Counsel press release:

Mathew Staver is founder of Liberty Counsel and Dean of Liberty University School of Law. He filed motions to intervene and amicus briefs in the Prop. 8 litigation and the Varnum case. In his press release, he said:

"The definition of marriage, which throughout history has been defined as a union of one man and one woman, is not discriminatory. Maintaining the definition of marriage does not deprive anyone of the fundamental right to marry. Laws may properly restrict marriage of same-sex couples just as the law may forbid incestuous or polygamous marriages."

He also told the Washington Post:

"The Iowa Supreme Court has become a proselytizing engine of radical social change. Untying the knot that holds together traditional marriage will unravel the family, destabilize the culture and harm children."

04/04/09 SF Chronicle:

UC Hastings School of Law Professor Calvin Massey said, ""I think you're likely to see more victories in judicial chambers for advocates of same-sex marriage. The judiciary in general is more liberal on this issue than the population as a whole."

04/04/09 LA Times:

University of Southern California law professor David Cruz told the LA Times that the ruling could influence the California Supreme Court's decision on Prop. 8 "if there are justices who are still wavering one way or another."

"It shows them that a Republican appointee writing for a unanimous court in a not decidedly liberal state takes the view that there are basic constitutional guarantees that are especially important for the judiciary to enforce," Cruz said.

"The opinion is very, very careful to lay out its understanding of the role of the judiciary at some length and to defend that role," Cruz said, adding that the ruling dealt heavily with "the importance of an independent judiciary enforcing constitutional rights even if they might be unpopular with a large majority."

04/03/09 West Virginia MetroNews:

Speaking about a proposed constitutional ban on same-sex marriage, [attorney] Steven Skinner, with Fairness West Virginia says what happens in Iowa will stay in Iowa. "This is an Iowa decision on Iowa law based on the Iowa Constitution," Skinner said on Friday's MetroNews Talkline. "It really has no effect in West Virginia and we need to make sure that we stay calm about what this means because it really doesn't mean anything in West Virginia."

Source of MetroNews reference: 04/03/09 ADF Alliance Alert

04/04/09 Christian Science Monitor:

"The strongest argument for traditional marriage has always been anchored in faith," says Douglas Kmiec, a law professor at California's Pepperdine University and an opponent of same-sex marriage. "The issue is one that affects every part of the country and it is a topic that requires the balancing of claims of equality and religious freedom," he adds.

He argues that legislatures need to carve out explicit religious exemptions. These would ensure that legal protections for gay equality do not eventually impact churches' tax benefits, hiring practices, and public activities. He and others have also mooted removing the state from marriage altogether.
Blog Posts

04/04/09 NY Times Room for Debate Blog:

"The Iowa Supreme Court struck down as unconstitutional the state’s 1998 law limiting marriage to a man and a woman. Iowa now becomes the third state in the country, along with Massachusetts and Connecticut, to allow gay marriage. The decision is considered groundbreaking because no Midwestern state has permitted same-sex marriage, and at least six in the region have adopted constitutional amendments banning gay marriage.

"We asked Kenji Yoshino and Robert F. Nagel, two constitutional law scholars who’ve written about this issue, to give us their thoughts on the decision and the language of the court."

04/04/09 Sexual Orientation and the Law Blog:

"Professor Pat Cain, who helped organize a law and history professors' amicus brief in Varnum, writes in today's Iowa City Press-Citizen that unlike the California constitution, Iowa's constitution wisely does not allow the people to amend the constitution directly. Iowa's constitution, as the Iowa Supreme Court emphasized today, protects our 'republican form of government.' Under this form of government, the legislative branch enacts legislation and the courts serve as a check on that legislative power to protect individual freedoms and ensure equal treatment."

04/09/09 Gender & Sexuality Law Blog:

Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She writes:

The court also makes every effort to situate the marriage case within the context of local Iowan values. Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”


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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. "

Gay married couples face legal limbo if Prop. 8 passes

10/30/08 Los Angeles Times

Maureen Dolan and Jessica Garrison of the LA Times report:

"But after researching the issue, New York University law professor Kenji Yoshino, who favors same-sex marriage, concluded that the U.S. Constitution would offer few protections to existing gay marriages if Proposition 8 passed."

Santa Clara University Law Professor Gerald Uelmen expresses his view that such marriages would not remain valid if the voters pass Proposition 8.