Domestic partnerships
On May 13th, "the Minnesota Senate overwhelmingly passed a bill amending the state’s end of life statutes to add domestic partners to the list of individuals who may purse a wrongful death claim and who may make decisions about the disposition of remains."(HRC Back Story) Governor Tim Pawlenty has said that he would veto the legislation. (TwinCities.com) Project 515 has advocated for the legislation. The group takes its name from the number of state laws that discriminate against same-sex couples and their families.
Religious liberty exemption
May marriage commissioners in Canada's province of Saskatchewan claim a religious liberty exemption from performing marriage ceremonies for same-sex couples? The Court of Appeal heard oral arguments this week on the constitutionality of legislation that would confer this exemption, either for all marriage commissioners, or for just those who were commissioners in 2004 (or rather 2005?), when the country's marriage-equality was adopted. (Religion Clause / Regina Leader-Post / CBC News) Law professor John Culhane is among many who object to letting public officials use their offices to carve out exceptions to marriage equality. Culhane has recommended one means of accommodating American marriage license officials who say it violates their religious faith to issue marriage licenses to same-sex couples. (Prop. 8 and the Right to Marry)
The Court's heard a suggestion of a different form of accommodation, suited to the circumstances of the province's marriage commissioners, who perform marriage ceremonies. It involves a "system where couples would submit a form requesting a marriage commissioner and one would be sent to perform their ceremony ... Egale Canada, which advocates for gays and lesbians, said same-sex couples wouldn't face rejection in such a system and marriage commissioners could also be accommodated." (CanadaEast.com) Apparently the proposal would not apply to all couples seeking to marry. If limited to same-sex couples, doesn't the separate method still give state sanction to an administrative quarantine for these couples, and to associated stigma? "Nathan Seckinger of the GBLUR Centre for Sexuality and Gender Diversity [said that] 'in the end, it doesn't address the deeper concern for us, which is why these people want the right to discriminate against us in the first place.'" (Vancouver Sun)
Perry v. Schwarzenneger
"The Courage Campaign has launched Testimony: Equality On Trial, in which stars reenact the testimony given by the plaintiffs in California's Prop 8 trial ... The Courage Campaign invites supporters of marriage equality to download trial scripts and upload their own reenactments to the Equality On Trial site." (CourageCampaign.org, cross-posted by Freedom to Marry. See also the Prop. 8 Trial Tracker and Wall Street Journal law blog.) "Academy Award-winning actor Marisa Tomei helped the Courage Campaign kick off 'Testimony: Equality on Trial'." (Prop. 8 Trial Tracker)
"ADF attorney Jordan Lorence appeared on Freedom’s Ring with Alan J. Reinach to discuss the Cal. marriage trial in Perry v. Schwarzenegger. | MP3 Audio -13:32 mins" (ADF Alliance Alert)
Marriage equality - Iowa - Gartner v. Newton
"A lesbian couple married in Des Moines last year has filed a lawsuit against two state health department officials, after the department refused to name both women on their daughter’s birth certificate. Heather Lynn Martin Gartner, 38, and Melissa McCoy Gartner, 39, filed the Polk County claim on behalf of their second child, who was born in September ... The Iowa Department of Public Health rejected the couple’s request in March, according to the lawsuit filed in Polk County District Court, on grounds that Melissa had not legally adopted Mackenzie and was not biologically related." (Des Moines Register) "Camilla B. Taylor, an attorney with Lambda Legal ... who was one of three attorneys to file the lawsuit on behalf of the Gartners and their daughter. [She said,] 'I think this is just an error that will be cleared up shortly. Every other state that has allowed same-sex couples to marry or enter into civil unions has applied the spousal presumption of parentage equally to the children of same-sex couples. So, to my knowledge, this has never happened before'... 'Varnum makes it clear that children of same-sex couples are entitled to birth certificates naming both spouses as their parents — just as children of different-sex couples are entitled to those birth certificates,' Taylor said in reference to the landmark Iowa Supreme Court decision from April 2009." (Iowa Independent. See also LifeSiteNews.com for press statements by a Department of Public Health official.)
Divorce - Rhode Island
On May 4th, the Rhode Island House Judiciary Committee heard testimony on HB 7990, which would allow the state to divorce same-sex couples, even though it bars them from marrying. (The Provost Journal)
Divorce
On May 5th, CNN.com reported on the legal obstacles same-sex couples may face if they seek divorce in a state that does not recognize marriage equality.
Greene v. County of Sonoma
Greene v. County of Sonoma et al., complaint, No. SPR-81815 (Cal. Sonoma County Super. Ct. filed Mar. 22, 2010)
The New York Times reports on the horrors the aging plaintiff in this case suffered when a California county agency separated him from his partner following his partner's injury from an accident.
Marriage of transgender partner - Texas
"Texas Attorney General Greg Abbott has been asked to weigh-in on whether or not a marriage license can be issued to a couple when one of the partners is transgendered." (Texas Capitol Annex) The El Paso Times links to a request for the opinion by El Paso County Jo Anne Bernal. The Dallas Voice also reports on the request.
Immigration
"The Advocate reports on an immigration reform proposal that is being circulated by the Democratic leadership in Congress. Under the proposal, which could form the basis of an immigration reform bill, U.S. citizens and legal residents would be allowed to sponsor their same-sex partners for residency, ending long-standing discrimination against same-sex couples." (Marriage Equality New York)
super-DOMA - North Carolina
"Sen. Jim Forrester, R-Gaston, has filed a bill [SB 1156] to change the N.C. Constitution to ban same-sex marriages. The bill would provide for a referendum to ratify the constitutional amendment should lawmakers approve it. The bill would recognize 'marriage between a man and a woman' as the only domestic legal union in North Carolina." (05/15/10 TheTimesNews.com)
Developments abroad - Argentina and England
Earlier this month, "Argentina’s lower house passed a marriage equality bill, paving the way for the nation to become the first in Latin America to legalize marriage for same-sex couples ... If the bill passes in the Senate, Argentina would become the first nation in Latin America and would join Canada as the second nation in the Americas to legalize marriage." (05/06/10 GLAADBlog.com)
A gay couple in England is suing the owner of a bed-and-breakfast inn for refusing service on the basis of their sexual orientation. (Mail Online)
Showing posts with label Perry et al v. Schwarzenegger et al. Show all posts
Showing posts with label Perry et al v. Schwarzenegger et al. Show all posts
Saturday, May 15, 2010
Monday, May 10, 2010
Recent legal news and commentary
Lewis v. Harris II
Garden State Equality and five other organizations have filed an amicus brief in Lewis v. Harris II to document the nature and extent of harm children suffer because their same-sex parents cannot marry. They also maintain that "no legitimate state purpose" for continued marriage inequality under New Jersey's civil union law can justify such pervasive and profound harm to children. (Garden State Equality press release / Advocate.com)
Religious liberty exemption - Canada
On May 13th, "the Saskatchewan Court of Appeal in Regina will consider whether marriage commissioners are within their Charter rights to refuse to conduct ceremonies that offend their religious beliefs. While some other provinces have allowed for exemptions since same-sex marriage became legal, this will be the first time that a court will evaluate if that refusal meets the standards of the Canadian Charter of Rights and Freedoms, so it could have ramifications for the rest of the country." (National Post / cross-posted by ADF Alliance Alert)
Perry v. Schwarzenneger
Equality Forum gave law professor John Culhane five minutes for an interview last week with David Boies, one of the attorneys representing the Perry plaintiffs. Boies told Culhane that he expects to "win under rational basis." That is, he expects the U.S. Supreme Court to rule that no legitimate state interest provides a reason for same-sex marriage bans. In Boies' view, the Court can find no legitimate state interest for bans that significantly harm same-sex couples and their children, when lifting them would not in any way harm married, opposite-sex couples and their children. (365Gay.com) LGBT advocacy groups, if allowed to intervene, would have limited the "rational basis" test to the unique circumstances of Prop. 8's adoption - increasing odds that the 9th Circuit could issue a narrow ruling on just Prop. 8. (Prop. 8 and the Right to Marry)
Gill v. OPM
"According to two sources who covered the argument in Gill v. OPM, GLAD's challenge to Section 3 of DoMA (the section barring federal government recognition of same-sex marriages), Judge Joseph Tauro seemed from his questions to be applying a rational basis standard for evaluating DoMA's constitutionality." (hunter of justice)
Out-of-state recognition / adoption
[T]he federal government doesn't recognize same-sex marriage, nor do the vast majority of states, including Pennsylvania. Even with a valid out-of-state marriage license, gay and lesbian couples in those states face uncertainty, extra legal bills and inevitable rebuffs that straight couples avoid ... For some couples, among the most galling problems is trying ensure that both are legally recognized as parents of their children. Many states allow second-parent adoption for same-sex couples, which addresses this situation, but many other states do not." (The Daily Transcript)
Garden State Equality and five other organizations have filed an amicus brief in Lewis v. Harris II to document the nature and extent of harm children suffer because their same-sex parents cannot marry. They also maintain that "no legitimate state purpose" for continued marriage inequality under New Jersey's civil union law can justify such pervasive and profound harm to children. (Garden State Equality press release / Advocate.com)
Religious liberty exemption - Canada
On May 13th, "the Saskatchewan Court of Appeal in Regina will consider whether marriage commissioners are within their Charter rights to refuse to conduct ceremonies that offend their religious beliefs. While some other provinces have allowed for exemptions since same-sex marriage became legal, this will be the first time that a court will evaluate if that refusal meets the standards of the Canadian Charter of Rights and Freedoms, so it could have ramifications for the rest of the country." (National Post / cross-posted by ADF Alliance Alert)
Perry v. Schwarzenneger
Equality Forum gave law professor John Culhane five minutes for an interview last week with David Boies, one of the attorneys representing the Perry plaintiffs. Boies told Culhane that he expects to "win under rational basis." That is, he expects the U.S. Supreme Court to rule that no legitimate state interest provides a reason for same-sex marriage bans. In Boies' view, the Court can find no legitimate state interest for bans that significantly harm same-sex couples and their children, when lifting them would not in any way harm married, opposite-sex couples and their children. (365Gay.com) LGBT advocacy groups, if allowed to intervene, would have limited the "rational basis" test to the unique circumstances of Prop. 8's adoption - increasing odds that the 9th Circuit could issue a narrow ruling on just Prop. 8. (Prop. 8 and the Right to Marry)
Gill v. OPM
"According to two sources who covered the argument in Gill v. OPM, GLAD's challenge to Section 3 of DoMA (the section barring federal government recognition of same-sex marriages), Judge Joseph Tauro seemed from his questions to be applying a rational basis standard for evaluating DoMA's constitutionality." (hunter of justice)
Out-of-state recognition / adoption
[T]he federal government doesn't recognize same-sex marriage, nor do the vast majority of states, including Pennsylvania. Even with a valid out-of-state marriage license, gay and lesbian couples in those states face uncertainty, extra legal bills and inevitable rebuffs that straight couples avoid ... For some couples, among the most galling problems is trying ensure that both are legally recognized as parents of their children. Many states allow second-parent adoption for same-sex couples, which addresses this situation, but many other states do not." (The Daily Transcript)
Sunday, May 9, 2010
Prop. 8 proponents alleged to use latest discovery dispute in Perry case to try to distance themselves from anti-gay prejudice
Plaintiffs' opposition to Prop. 8 proponents' and Dr. "William" Tam's motions for reconsideration to strike, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)
Plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)
Declaration of Therese M. Stewart in support of plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)
(Thanks to Kathleen Perrin for alerting me to these filings and posting the links.)
Parties in Perry v. Schwarzenneger continue to dispute the scope of First Amendment protection from compelled disclosure of private communications to develop campaign strategy and messaging. The latest version of the dispute concerns whether Prop. 8 proponents, and their recalcitrant witness, Dr. Hak Shing "William" Tam, can now claim a First Amendment privilege as reason to strike from the trial record campaign communications by Tam and other Prop. 8 supporters, and testimony about the communications.
Here's the context. In December, a 9th Circuit panel ruled that Prop. 8 proponents - the "defendant-intervenors" in the case - are entitled to a limited First Amendment privilege for internal campaign communications. "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) In that case, Prop. 8 proponents appealed discovery orders requiring them to give plaintiffs internal campaign communications between proponents and any third parties, including political consultants. Judge Walker had limited the privilege to just the "the identities of rank-and-file volunteers and similarly situated individuals." Proponents appealed the orders, claiming a First Amendment privilege for all of their confidential communications with third parties. They argued that participants in initiative campaigns would otherwise experience a "chilling effect" on their political speech and association if they know that their campaign communications may be discoverable in lawsuits. A 9th Circuit panel limited the First Amendment privilege to "private, internal ... communications among the core group of persons engaged in the formulation of campaign strategy and messages."
To comply with this ruling, Magistrate Judge Joseph Spero applied proponents' First Amendment privilege to "an extremely broad core group that listed 25 individuals and their assistants, employees from ten consulting firms, and any and all 'volunteers who had significant roles in formulating strategy and messaging.'" (Plaintiffs' opposition, at 4) Proponents did not present evidence that Dr. Tam, or other agents of obvious anti-gay bigotry, belonged to the core group of persons eligible for the privilege. In fact, they abdicated any ties to Dr. Tam and other Prop. 8 supporters whose hostile, anti-gay messages could support plaintiffs' claim that proponents used or abetted prejudice to influence Californians to vote for Prop. 8.
After the trial, No-on-8 nonparties appealed discovery orders compelling them to give Prop. 8 proponents their internal campaign communications with Equality For All coalition partners. The same 9th Circuit panel denied review of the appeal, but clarified its earlier holding: a core group of persons subject to the First Amendment privilege can include persons who belong to more than one organization. Perry II, Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (hunter of justice)
The No-on-8 groups, facing the risk of a contempt citation, decided to turn over the campaign communications they had been ordered to provide proponents. But Dr. Tam and proponents recently filed motions to exclude from the trial record campaign communications, and related testimony, that they had not, until now, objected to as privileged under the First Amendment. The communications reveal the nature of the relationship between the proponents and Prop. 8 allies who perpetrated the most hateful messages about gays. Proponents and Dr. Tam do not want Walker to consider evidence about the ways in which proponents and anti-gay groups worked together.
Proponents and Dr. Tam now argue that Judge Walker must reconsider the discovery orders by Spero and him that required them to produce the communications. They claim that, in light of Perry I and Perry II, these orders have "clear errors." Walker and Spero allegedly mistook the Perry I holding to mean that the First Amendment protects communications internal to just one organization - ProtectMarrige.com / Yes on 8, and not also private communications between ProtectMarriage.com and members of allied organizations. But the 9th Circuit rulings, they say, extend the First Amendment privilege "to those persons who come together 'to advance one's shared political beliefs,' including "myraid social, economic, religious and political organizations." Perry I, 591 F.3d at 1158, 1162 (Defendant-intervenors' motion for leave to strike, at 2, and motion to strike)
Prop. 8 proponents have already appealed Perry I to the U.S. Supreme Court, alleging that it unconstitutionally limits First Amendment privilege to a "core group" of persons who developed campaign strategy and messaging. (hunter of justice) Law professor Nan Hunter has faulted the Supreme Court petition as "weak." Petitioners asked the Court to place the petition on hold pending its decision in Doe v. Reed. But now Prop. 8 proponents appear to present the argument that the privilege holding in Perry I - as clarified by Perry II - has a much broader scope than what they represent in the Supreme Court petition. They understand the holding to effectively eviscerate the idea of a core campaign group as a subject of First Amendment privilege. They now claim, in their motion to strike, that the First Amendment protects from discovery "communications regarding the exchange of ideas and/or formulation of messaging and strategy among persons who associate during the Proposition 8 campaign for the common purpose of that measure" (Defendant-intervenors' motion for leave to strike and motion to strike, at 9)
Plaintiffs and plaintiff-intervenors argue that Walker and Spero did not err in their January orders compelling proponents to produce the now contested campaign communications. Even if they did err, their error was far from clear, because proponents never furnished evidence that these communications were private communications among a core group of persons - persons with decision-making authority to develop campaign strategy and messaging. "[E]ven though (as proponents now finally and belatedly admit but had previously denied) ProtectMarriage.com is linked to the messages disseminated by other groups, including messages designed to promote stereotypes about, and prejudice against, gay and lesbian individuals, and even though the evidence shows ProtectMarriage.com sometimes knew of, encouraged or acquiesced in, and even funded the distribution of such messages, these facts are not enough to establish that its communication with these groups fall within the [First Amendment] privilege exception to disclosure." (Plaintiff-intervenors' opposition, at 10)
Plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)
Declaration of Therese M. Stewart in support of plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)
(Thanks to Kathleen Perrin for alerting me to these filings and posting the links.)
Parties in Perry v. Schwarzenneger continue to dispute the scope of First Amendment protection from compelled disclosure of private communications to develop campaign strategy and messaging. The latest version of the dispute concerns whether Prop. 8 proponents, and their recalcitrant witness, Dr. Hak Shing "William" Tam, can now claim a First Amendment privilege as reason to strike from the trial record campaign communications by Tam and other Prop. 8 supporters, and testimony about the communications.
Here's the context. In December, a 9th Circuit panel ruled that Prop. 8 proponents - the "defendant-intervenors" in the case - are entitled to a limited First Amendment privilege for internal campaign communications. "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) In that case, Prop. 8 proponents appealed discovery orders requiring them to give plaintiffs internal campaign communications between proponents and any third parties, including political consultants. Judge Walker had limited the privilege to just the "the identities of rank-and-file volunteers and similarly situated individuals." Proponents appealed the orders, claiming a First Amendment privilege for all of their confidential communications with third parties. They argued that participants in initiative campaigns would otherwise experience a "chilling effect" on their political speech and association if they know that their campaign communications may be discoverable in lawsuits. A 9th Circuit panel limited the First Amendment privilege to "private, internal ... communications among the core group of persons engaged in the formulation of campaign strategy and messages."
To comply with this ruling, Magistrate Judge Joseph Spero applied proponents' First Amendment privilege to "an extremely broad core group that listed 25 individuals and their assistants, employees from ten consulting firms, and any and all 'volunteers who had significant roles in formulating strategy and messaging.'" (Plaintiffs' opposition, at 4) Proponents did not present evidence that Dr. Tam, or other agents of obvious anti-gay bigotry, belonged to the core group of persons eligible for the privilege. In fact, they abdicated any ties to Dr. Tam and other Prop. 8 supporters whose hostile, anti-gay messages could support plaintiffs' claim that proponents used or abetted prejudice to influence Californians to vote for Prop. 8.
After the trial, No-on-8 nonparties appealed discovery orders compelling them to give Prop. 8 proponents their internal campaign communications with Equality For All coalition partners. The same 9th Circuit panel denied review of the appeal, but clarified its earlier holding: a core group of persons subject to the First Amendment privilege can include persons who belong to more than one organization. Perry II, Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (hunter of justice)
The No-on-8 groups, facing the risk of a contempt citation, decided to turn over the campaign communications they had been ordered to provide proponents. But Dr. Tam and proponents recently filed motions to exclude from the trial record campaign communications, and related testimony, that they had not, until now, objected to as privileged under the First Amendment. The communications reveal the nature of the relationship between the proponents and Prop. 8 allies who perpetrated the most hateful messages about gays. Proponents and Dr. Tam do not want Walker to consider evidence about the ways in which proponents and anti-gay groups worked together.
Proponents and Dr. Tam now argue that Judge Walker must reconsider the discovery orders by Spero and him that required them to produce the communications. They claim that, in light of Perry I and Perry II, these orders have "clear errors." Walker and Spero allegedly mistook the Perry I holding to mean that the First Amendment protects communications internal to just one organization - ProtectMarrige.com / Yes on 8, and not also private communications between ProtectMarriage.com and members of allied organizations. But the 9th Circuit rulings, they say, extend the First Amendment privilege "to those persons who come together 'to advance one's shared political beliefs,' including "myraid social, economic, religious and political organizations." Perry I, 591 F.3d at 1158, 1162 (Defendant-intervenors' motion for leave to strike, at 2, and motion to strike)
Prop. 8 proponents have already appealed Perry I to the U.S. Supreme Court, alleging that it unconstitutionally limits First Amendment privilege to a "core group" of persons who developed campaign strategy and messaging. (hunter of justice) Law professor Nan Hunter has faulted the Supreme Court petition as "weak." Petitioners asked the Court to place the petition on hold pending its decision in Doe v. Reed. But now Prop. 8 proponents appear to present the argument that the privilege holding in Perry I - as clarified by Perry II - has a much broader scope than what they represent in the Supreme Court petition. They understand the holding to effectively eviscerate the idea of a core campaign group as a subject of First Amendment privilege. They now claim, in their motion to strike, that the First Amendment protects from discovery "communications regarding the exchange of ideas and/or formulation of messaging and strategy among persons who associate during the Proposition 8 campaign for the common purpose of that measure" (Defendant-intervenors' motion for leave to strike and motion to strike, at 9)
Plaintiffs and plaintiff-intervenors argue that Walker and Spero did not err in their January orders compelling proponents to produce the now contested campaign communications. Even if they did err, their error was far from clear, because proponents never furnished evidence that these communications were private communications among a core group of persons - persons with decision-making authority to develop campaign strategy and messaging. "[E]ven though (as proponents now finally and belatedly admit but had previously denied) ProtectMarriage.com is linked to the messages disseminated by other groups, including messages designed to promote stereotypes about, and prejudice against, gay and lesbian individuals, and even though the evidence shows ProtectMarriage.com sometimes knew of, encouraged or acquiesced in, and even funded the distribution of such messages, these facts are not enough to establish that its communication with these groups fall within the [First Amendment] privilege exception to disclosure." (Plaintiff-intervenors' opposition, at 10)
Saturday, May 1, 2010
What do Prop. 8 proponents want to exclude from evidence in the Perry case, and why?
05/06/10: While I try to avoid rewriting posts, even when I err, I make an exception here, because otherwise I would lose a point I think worth making. See my new comments in red.
I've just returned from vacation. By now, this site's readers know what I've only just learned: in the Perry case, Judge Vaughn Walker has proposed June 16th as the date for closing arguments. (04/28/10 LGBT POV) A discovery dispute had delayed this welcome sign of progress towards a final judgment. The logjam broke when California Equality and the ACLU decided to avoid the prospect of a contempt citation for failure to give a large number of their No-on-8 campaign communications to Prop. 8 proponents. (Equality California press release and associated filing) Plaintiffs and proponents have informed Walker (here and here) that they believe these No-on-8 groups ("the No-on-8 groups") have complied with previous orders for document production, so yesterday he determined that there was no need to consider whether they should be cited for contempt.
Two discovery matters require resolution. (Walker's April 28th order) First, proponents must submit campaign communications from the No-on-8 groups that they want Walker to allow into evidence. Plaintiffs may respond to the submission, and proponents may answer the plaintiffs' response. Walker will then determine what campaign communications, if any, to allow, and he will close the evidence record.
Second, proponents (the defendant-intervenors) and their reluctant witness, Dr. Hak-Shing William Tam, want the Court to reconsider discovery orders in January and strike from the record certain parts of Tam's testimony. Tam - a director of the Traditional Family Coalition - was an official proponent. But neither defendant-intervenors nor Tam identify him among a core group of persons who worked together on Yes-on-8 strategy and messaging. In fact, at trial, defendant-intervenors claimed Tam's testimony and communications were irrelevant precisely because his association with ProtectMarriage.com gave him no decision-making role in campaign strategizing or messaging. Nevertheless, they claim that under the 9th Circuit rulings, Perry I and Perry II, Tam' association automatically qualifies some of his testimony and private campaign communications for First Amendment protection. On their understanding of Perry I and Perry II, the First Amendment protects from discovery communications by "those persons who come together 'to advance one's shared political beliefs.'" Walker has granted their requests (here) and (here) to file their proposed motions on the question of First Amendment protection, with opportunity for further argument by Tam, proponents, and plaintiffs. Walker is reported to have said that he is "inclined to grant the defense motion for Dr. Tam’s reconsideration," but he appears to have been referring to the request for leave to file this motion, not the motion itself. (Thanks to Kathleen Perrin for inviting me to reconsider this report.)
Tam testified on Day 8 of the trial (January 21st), displaying obvious hostility and prejudice against same-sex couples who wish to marry. But are Tam and proponents trying to exclude evidence of Tam's animus, as they would have good reason to do? I can't reach that conclusion. Proponents seek exclusions of not just Tam's testimony, but selected declarations or communications by leaders of other religious and allied organizations. In fact, as far as I can tell, proponents and Tam would have Walker remove from evidence material that, if retained, poses a problem they appear to consider serious. Left in the trial record, the targeted testimony and communications risk inviting Walker's perception that proponents' organization, ProtectMarriage.com, influenced or aided what Tam what said and did during the Yes-on-8 campaign; and it risks inviting Walker's perception that ProtectMarriage.com similarly influenced or aided other religious leaders who displayed obvious anti-gay animus. In other words, proponents would remove evidence on the nature of their relationship with Tam and other clearly hateful supporters, so that, with these omissions, proponents can try to separate Yes-on-8 campaign strategizing and messaging from the allied efforts of obvious anti-gay bigots.
Mine is an initial impression about one of proponents' aims here. I would need more time than I have to confirm it. You can form your own conclusion, of course. Start with the transcript of Tam's testimony. It provides context for specific testimony entries, and referenced exhibits of campaign communications, that Tam and proponents - in their motions here and here - have asked Walker to exclude from evidence. Kathleen Perrin has prepared a document to aid comparison between the transcript of Tam's testimony, on the one hand, and Tam's statements and campaign communications, on the other, that Tam targets for exclusion. Then, if patience and resolve match your curiosity (!), use proponents' motion to compare trial transcripts with targeted statements and campaign communications by Tam and other Yes-on-8 participants.
Finally, I wish to credit and thank Kathleen for her public service as she provides free access to the latest filings in the District Court case. She selectively supplements Justia.com's less current version of the docket. Almost needless to say, I own responsibility for my inferences from the filings. The mistakes are mine, not hers!
I've just returned from vacation. By now, this site's readers know what I've only just learned: in the Perry case, Judge Vaughn Walker has proposed June 16th as the date for closing arguments. (04/28/10 LGBT POV) A discovery dispute had delayed this welcome sign of progress towards a final judgment. The logjam broke when California Equality and the ACLU decided to avoid the prospect of a contempt citation for failure to give a large number of their No-on-8 campaign communications to Prop. 8 proponents. (Equality California press release and associated filing) Plaintiffs and proponents have informed Walker (here and here) that they believe these No-on-8 groups ("the No-on-8 groups") have complied with previous orders for document production, so yesterday he determined that there was no need to consider whether they should be cited for contempt.
Two discovery matters require resolution. (Walker's April 28th order) First, proponents must submit campaign communications from the No-on-8 groups that they want Walker to allow into evidence. Plaintiffs may respond to the submission, and proponents may answer the plaintiffs' response. Walker will then determine what campaign communications, if any, to allow, and he will close the evidence record.
Second, proponents (the defendant-intervenors) and their reluctant witness, Dr. Hak-Shing William Tam, want the Court to reconsider discovery orders in January and strike from the record certain parts of Tam's testimony. Tam - a director of the Traditional Family Coalition - was an official proponent. But neither defendant-intervenors nor Tam identify him among a core group of persons who worked together on Yes-on-8 strategy and messaging. In fact, at trial, defendant-intervenors claimed Tam's testimony and communications were irrelevant precisely because his association with ProtectMarriage.com gave him no decision-making role in campaign strategizing or messaging. Nevertheless, they claim that under the 9th Circuit rulings, Perry I and Perry II, Tam' association automatically qualifies some of his testimony and private campaign communications for First Amendment protection. On their understanding of Perry I and Perry II, the First Amendment protects from discovery communications by "those persons who come together 'to advance one's shared political beliefs.'" Walker has granted their requests (here) and (here) to file their proposed motions on the question of First Amendment protection, with opportunity for further argument by Tam, proponents, and plaintiffs. Walker is reported to have said that he is "inclined to grant the defense motion for Dr. Tam’s reconsideration," but he appears to have been referring to the request for leave to file this motion, not the motion itself. (Thanks to Kathleen Perrin for inviting me to reconsider this report.)
Tam testified on Day 8 of the trial (January 21st), displaying obvious hostility and prejudice against same-sex couples who wish to marry. But are Tam and proponents trying to exclude evidence of Tam's animus, as they would have good reason to do? I can't reach that conclusion. Proponents seek exclusions of not just Tam's testimony, but selected declarations or communications by leaders of other religious and allied organizations. In fact, as far as I can tell, proponents and Tam would have Walker remove from evidence material that, if retained, poses a problem they appear to consider serious. Left in the trial record, the targeted testimony and communications risk inviting Walker's perception that proponents' organization, ProtectMarriage.com, influenced or aided what Tam what said and did during the Yes-on-8 campaign; and it risks inviting Walker's perception that ProtectMarriage.com similarly influenced or aided other religious leaders who displayed obvious anti-gay animus. In other words, proponents would remove evidence on the nature of their relationship with Tam and other clearly hateful supporters, so that, with these omissions, proponents can try to separate Yes-on-8 campaign strategizing and messaging from the allied efforts of obvious anti-gay bigots.
Mine is an initial impression about one of proponents' aims here. I would need more time than I have to confirm it. You can form your own conclusion, of course. Start with the transcript of Tam's testimony. It provides context for specific testimony entries, and referenced exhibits of campaign communications, that Tam and proponents - in their motions here and here - have asked Walker to exclude from evidence. Kathleen Perrin has prepared a document to aid comparison between the transcript of Tam's testimony, on the one hand, and Tam's statements and campaign communications, on the other, that Tam targets for exclusion. Then, if patience and resolve match your curiosity (!), use proponents' motion to compare trial transcripts with targeted statements and campaign communications by Tam and other Yes-on-8 participants.
Finally, I wish to credit and thank Kathleen for her public service as she provides free access to the latest filings in the District Court case. She selectively supplements Justia.com's less current version of the docket. Almost needless to say, I own responsibility for my inferences from the filings. The mistakes are mine, not hers!
Sunday, April 25, 2010
Continued impasse in Perry case's discovery dispute: Walker's order for ACLU and Equality California to show why he should not cite them in contempt
Order by Judge Walker on discovery dispute, filed 04/17/10
Prop, 8 proponents' response to April 17, 2010 Order, and declaration and exhibits, filed 4/22/2010
Statement of Objectors (ACLU) re April 17, 2010 order ) with 2 attachments (Exhibits A and B), filed 4/22/2010
Plaintiffs' response to April 17, 2010 order with 3 Attachments (Exhibit A, B and C), filed 4/22/2010.
Proponents' motion for Leave to File Motion to Strike and/or Reconsider prior discovery order (Perry I), filed on 4/23/10
[update: Order to show cause why No on 8 groups should not be held in contempt. Sets hearing for 4/28/2010. (filed 4/25/10)]
(I am grateful for links to these documents from Kathleen Perrin, and for an update from California attorney Rick Xiao.)
Judge Vaughn Walker has been trying to resolve an ongoing discovery dispute in the Perry case that has already lasted longer than the trial. The dispute originates with two discovery orders in March. Magistrate Judge Joseph Spero ordered several No on 8 groups - including Equality California and the ACLU - to produce documents that Prop. 8 proponents ("Proponents") demanded. The groups objected, but Walker sustained Spero's ruling. The orders require the Equality California and the ACLU to produce private communications on campaign strategy and messaging that member individuals exchanged among the themselves and their counterparts in organizations belonging to the No on 8 - Equality For All coalition. The No on 8 groups appealed the orders by Judges Spero and Walker, claiming a First Amendment privilege from compelled disclosure of these communications.
In its second discovery ruling in the case, a 9th Circuit panel decided that the No on 8 groups had not met criteria for the Court to review their objections. Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (“Perry II”) As a result, No on 8 groups could not appeal their objections until Judge Walker cited them for contempt over failure to produce the ordered documents.
The Perry II ruling addresses the scope of the First Amendment privilege from compelled disclosure of internal campaign communications. In Perry I, the 9th Circuit panel held that the privilege applies to "communications among the core group of persons engaged in the formulation of campaign strategy and messages.” "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) (emphasis in original). The context then concerned what campaign communications the Proponents - the "core group" - could exempt from discovery. But could they exclude only those communications on campaign strategy or messaging internal to ProtectMarriage.com? The question was not raised at the time, although Proponents reserved, on other grounds, their concerns about First Amendment privilege.
In Perry II, the panel clarified application of the privilege to persons in member organizations of a very different core group - the Equality for All coalition:
On April 13th, Judge Walker ordered the Proponents to show cause why the record of evidence should not be closed. Proponents responded that it should not be closed because the No on 8 groups had not complied with the March orders to produce the campaign communications subject to the orders. The No on 8 groups and Proponents had tried to craft a compromise that would allow discovery to proceed. The former would agree to an amendment of Walker's March 22nd order that substantially limited their disclosure obligation to the requirements of the Perry II clarification. Proponents then demanded an "evenhanded" application of that guidance to all of their qualifying campaign documents already entered into the record of evidence, so that they could then ask Walker to remove these documents from the record. The plaintiffs reserved a right to object to Proponents' demand. The compromise fell apart. Proponents recommended that Walker cite the No on 8 groups for contempt. (Prop. 8 and the Right to Marry / Keen News Service)
On April 17th, Walker discharged his April 13th order to allow Proponents and the No on 8 groups time to "confer and negotiate in order to reach a stipulation that will resolve remaining discovery issues." A second round of discussion ensued, but never rose to the level of a real negotiation. Positions instead hardened. The No on 8 groups claimed that "there can be no question" that Walker and Spero had "misapprehended" the scope of their First Amendment privilege. To correct the error, the groups would stipulate to an amended discovery order by Walker that allows them to exclude "communications solely among the core group of persons engaged in the formulation of campaign strategy and messages for the No on 8 - Equality for All campaign, whether or not they are members of a single organization or entity." The No on 8 groups say that Walker should accepts their stipulation, without resolving a related dispute between plaintiffs and Proponents over whether Proponents can revisit Proponents' previous document production.
Proponents would have accepted this stipulation, but only if the proposed amended order allowed them to remove from evidence a large number of their internal campaign communications already in the record of evidence. According to plaintiffs, Proponents would, in fact, have Walker "strike from the trial record virtually every document that they originally tried, unsuccessfully, to shield from discovery."
Plaintiffs responded that they could not accept the latest terms of a reprised compromise. They have asked Walker to order the nonparties, Equality California and the ACLU, to "produce the required documents in three days, or else be held in contempt," and order "Proponents to supplement the trial record within seven days, if at all, upon expiration of the [nonparty] production deadline before the Court closes the evidentiary record."
Plaintiffs have the following objections to the compromise. First, plaintiffs claim that Walker and Spero did not err when they ordered the No on 8 groups to produce campaign communications. Plaintiffs read the March orders as entirely consistent with the subsequent, Perry II clarification. But even if the judges had erred, theirs was not a clear error. Suppose that they had meant that “the [First Amendment] privilege cannot apply to persons who are part of a political association spanning more than one organization or entity.” Perry II, slip op. at 9. Spero had still afforded these groups opportunity to show that their campaign participants functioned as a core group of persons engaged in developing campaign strategy or messaging, so that participant campaign communications could qualify for First Amendment protection. The No on 8 groups did not provide information showing that their individual members functioned as core group of persons, So plaintiffs contend that the groups can not now object that they are entitled to withhold the contested communications.
Second, Proponents want to use the Perry II guidance to reopen discovery orders in January, with a request that Walker remove from evidence many documents Proponents produced. The plaintiffs argue that Walker should reject Proponents' request. Even if the Perry II guidance applies to documents they produced, Proponents failed "to prove and preserve a privilege for any individuals in any organization other than ProtectMarriage.com. Furthermore, Proponents at trial allegedly "conceded that ProtectMarriage.com’s First Amendment privilege did not extend to separate religious organizations" whose members participated in the campaign. (In fact, Proponents said that the religious character of these organizations raised a different question of First Amendment protection.)
Why are plaintiffs concerned about gaps in the record of evidence that would arise if Walker granted Proponents' request? Have a look at the types of documents that Proponents would have removed. My cursory review suggests that the communications at issue were between ProtectMarriage.com and ministers or leaders of religious organizations. Unfortunately, I do not have time to investigate the individual documents, so I can not say whether they stand out for hateful, anti-gay messaging.
What can we expect at this point? Walker might decide that he has no viable option but to issue a contempt citation against Equality California and the ACLU, because he has given them and Proponents reasonable opportunity to resolve their differences. At any rate, expect continued delay in the progress of the case toward closing arguments and a final judgment.
update: Walker has just ordered the ACLU and Equality California to show cause why he should not hold them in contempt for failing to produce documents subject to the March discovery orders. They have until April 27th to submit their written arguments, for a hearing on April 28th. (Keen News Service)
Prop, 8 proponents' response to April 17, 2010 Order, and declaration and exhibits, filed 4/22/2010
Statement of Objectors (ACLU) re April 17, 2010 order ) with 2 attachments (Exhibits A and B), filed 4/22/2010
Plaintiffs' response to April 17, 2010 order with 3 Attachments (Exhibit A, B and C), filed 4/22/2010.
Proponents' motion for Leave to File Motion to Strike and/or Reconsider prior discovery order (Perry I), filed on 4/23/10
[update: Order to show cause why No on 8 groups should not be held in contempt. Sets hearing for 4/28/2010. (filed 4/25/10)]
(I am grateful for links to these documents from Kathleen Perrin, and for an update from California attorney Rick Xiao.)
Judge Vaughn Walker has been trying to resolve an ongoing discovery dispute in the Perry case that has already lasted longer than the trial. The dispute originates with two discovery orders in March. Magistrate Judge Joseph Spero ordered several No on 8 groups - including Equality California and the ACLU - to produce documents that Prop. 8 proponents ("Proponents") demanded. The groups objected, but Walker sustained Spero's ruling. The orders require the Equality California and the ACLU to produce private communications on campaign strategy and messaging that member individuals exchanged among the themselves and their counterparts in organizations belonging to the No on 8 - Equality For All coalition. The No on 8 groups appealed the orders by Judges Spero and Walker, claiming a First Amendment privilege from compelled disclosure of these communications.
In its second discovery ruling in the case, a 9th Circuit panel decided that the No on 8 groups had not met criteria for the Court to review their objections. Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (“Perry II”) As a result, No on 8 groups could not appeal their objections until Judge Walker cited them for contempt over failure to produce the ordered documents.
The Perry II ruling addresses the scope of the First Amendment privilege from compelled disclosure of internal campaign communications. In Perry I, the 9th Circuit panel held that the privilege applies to "communications among the core group of persons engaged in the formulation of campaign strategy and messages.” "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) (emphasis in original). The context then concerned what campaign communications the Proponents - the "core group" - could exempt from discovery. But could they exclude only those communications on campaign strategy or messaging internal to ProtectMarriage.com? The question was not raised at the time, although Proponents reserved, on other grounds, their concerns about First Amendment privilege.
In Perry II, the panel clarified application of the privilege to persons in member organizations of a very different core group - the Equality for All coalition:
Under Perry I, the privilege applies to the core group of persons engaged in the formulation of strategy and messages, whether or not they are members of a single organization or entity. The operative inquiry is whether they are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity. (slip. op., at 9)Judges Walker and Spero determined that the First Amendment privilege does not extend to internal communications among or between separate organizations that belonged to Equality for All. Given the Perry II clarification, is it clear that the judges erred? The 9th Circuit panel said that it is unclear whether Walker and Spero meant "that the privilege cannot apply to persons who are part of a political association spanning more than one organization or entity."
On April 13th, Judge Walker ordered the Proponents to show cause why the record of evidence should not be closed. Proponents responded that it should not be closed because the No on 8 groups had not complied with the March orders to produce the campaign communications subject to the orders. The No on 8 groups and Proponents had tried to craft a compromise that would allow discovery to proceed. The former would agree to an amendment of Walker's March 22nd order that substantially limited their disclosure obligation to the requirements of the Perry II clarification. Proponents then demanded an "evenhanded" application of that guidance to all of their qualifying campaign documents already entered into the record of evidence, so that they could then ask Walker to remove these documents from the record. The plaintiffs reserved a right to object to Proponents' demand. The compromise fell apart. Proponents recommended that Walker cite the No on 8 groups for contempt. (Prop. 8 and the Right to Marry / Keen News Service)
On April 17th, Walker discharged his April 13th order to allow Proponents and the No on 8 groups time to "confer and negotiate in order to reach a stipulation that will resolve remaining discovery issues." A second round of discussion ensued, but never rose to the level of a real negotiation. Positions instead hardened. The No on 8 groups claimed that "there can be no question" that Walker and Spero had "misapprehended" the scope of their First Amendment privilege. To correct the error, the groups would stipulate to an amended discovery order by Walker that allows them to exclude "communications solely among the core group of persons engaged in the formulation of campaign strategy and messages for the No on 8 - Equality for All campaign, whether or not they are members of a single organization or entity." The No on 8 groups say that Walker should accepts their stipulation, without resolving a related dispute between plaintiffs and Proponents over whether Proponents can revisit Proponents' previous document production.
Proponents would have accepted this stipulation, but only if the proposed amended order allowed them to remove from evidence a large number of their internal campaign communications already in the record of evidence. According to plaintiffs, Proponents would, in fact, have Walker "strike from the trial record virtually every document that they originally tried, unsuccessfully, to shield from discovery."
Plaintiffs responded that they could not accept the latest terms of a reprised compromise. They have asked Walker to order the nonparties, Equality California and the ACLU, to "produce the required documents in three days, or else be held in contempt," and order "Proponents to supplement the trial record within seven days, if at all, upon expiration of the [nonparty] production deadline before the Court closes the evidentiary record."
Plaintiffs have the following objections to the compromise. First, plaintiffs claim that Walker and Spero did not err when they ordered the No on 8 groups to produce campaign communications. Plaintiffs read the March orders as entirely consistent with the subsequent, Perry II clarification. But even if the judges had erred, theirs was not a clear error. Suppose that they had meant that “the [First Amendment] privilege cannot apply to persons who are part of a political association spanning more than one organization or entity.” Perry II, slip op. at 9. Spero had still afforded these groups opportunity to show that their campaign participants functioned as a core group of persons engaged in developing campaign strategy or messaging, so that participant campaign communications could qualify for First Amendment protection. The No on 8 groups did not provide information showing that their individual members functioned as core group of persons, So plaintiffs contend that the groups can not now object that they are entitled to withhold the contested communications.
Second, Proponents want to use the Perry II guidance to reopen discovery orders in January, with a request that Walker remove from evidence many documents Proponents produced. The plaintiffs argue that Walker should reject Proponents' request. Even if the Perry II guidance applies to documents they produced, Proponents failed "to prove and preserve a privilege for any individuals in any organization other than ProtectMarriage.com. Furthermore, Proponents at trial allegedly "conceded that ProtectMarriage.com’s First Amendment privilege did not extend to separate religious organizations" whose members participated in the campaign. (In fact, Proponents said that the religious character of these organizations raised a different question of First Amendment protection.)
Why are plaintiffs concerned about gaps in the record of evidence that would arise if Walker granted Proponents' request? Have a look at the types of documents that Proponents would have removed. My cursory review suggests that the communications at issue were between ProtectMarriage.com and ministers or leaders of religious organizations. Unfortunately, I do not have time to investigate the individual documents, so I can not say whether they stand out for hateful, anti-gay messaging.
What can we expect at this point? Walker might decide that he has no viable option but to issue a contempt citation against Equality California and the ACLU, because he has given them and Proponents reasonable opportunity to resolve their differences. At any rate, expect continued delay in the progress of the case toward closing arguments and a final judgment.
update: Walker has just ordered the ACLU and Equality California to show cause why he should not hold them in contempt for failing to produce documents subject to the March discovery orders. They have until April 27th to submit their written arguments, for a hearing on April 28th. (Keen News Service)
Wednesday, April 21, 2010
Recent news and commentary
Perry v. Schwarzenenger
Andy Pugno, General Counsel of ProtectMarriage.com, posts an "update" on the case, and promises "more discussion of our legal defense of traditional marriage in coming emails."
Cole v. Arkansas
Law professor Arthur Leonard has commentary on a ruling that invalidates an Arkansas ban on adoption and foster care by same-sex couples. Law professor John Culhane also comments on the ruling.The Alliance Defense Fund plans to appeal the ruling. (ADF press release)
Greene v. County of Sonoma
Greene v. County of Sonoma et al., complaint, No. SPR-81815 (Cal. Sonoma County Super. Ct. filed Mar. 22, 2010)
"(San Francisco, CA, April 19, 2010) — Today, NCLR launched a national media campaign to bring visibility to a tragic new case where Sonoma County, California officials separated an elderly gay couple and sold their worldly possessions despite the measures the men had taken to protect their relationship." (04/19/10 press release by National Center for Lesbian Rights) For additional coverage, see The New York Times, The Bilerico Project, and HRC Back Story.
Andy Pugno, General Counsel of ProtectMarriage.com, posts an "update" on the case, and promises "more discussion of our legal defense of traditional marriage in coming emails."
Cole v. Arkansas
Law professor Arthur Leonard has commentary on a ruling that invalidates an Arkansas ban on adoption and foster care by same-sex couples. Law professor John Culhane also comments on the ruling.The Alliance Defense Fund plans to appeal the ruling. (ADF press release)
Greene v. County of Sonoma
Greene v. County of Sonoma et al., complaint, No. SPR-81815 (Cal. Sonoma County Super. Ct. filed Mar. 22, 2010)
"(San Francisco, CA, April 19, 2010) — Today, NCLR launched a national media campaign to bring visibility to a tragic new case where Sonoma County, California officials separated an elderly gay couple and sold their worldly possessions despite the measures the men had taken to protect their relationship." (04/19/10 press release by National Center for Lesbian Rights) For additional coverage, see The New York Times, The Bilerico Project, and HRC Back Story.
Saturday, April 17, 2010
Prop. 8 proponents in Perry case seek order of contempt against California Equality and ACLU over discovery dispute, and aim to expand the dispute
Perry v. Schwarzenneger, Prop. 8 proponents' response to April 13, 2010, order to show cause why record of evidence should not be closed, and motion for contempt, No. 09-cv-2292 (N.D.Cal. Apr. 16, 2010), and exhibits
(I wish to thank a kind reader of this site for forwarding the referenced filings.)
On April 13th, Judge Walker ordered Prop. 8 proponents in the Perry case to show cause why the record of evidence should not be closed, and he set an April 16th deadline for them to do so. In their response, they contend that the Court must keep the record open because No-on-8 groups - including Equality California and the ACLU - failed to produce documents that two discovery orders in March required them to produce.
The orders apply to a category of nonpublic, campaign communications that individuals within Equality California and the ACLU exchanged with coalition partners of the Equality for All Campaign. The only private communications subject to the orders concern formulations of No-on-8 campaign strategy and messaging. The orders further limit document production to private communications that the No-on-8 groups exchanged; it excepts communications internal to each of the organizations.
The No-on-8 groups lost their appeal of the March discovery orders. (Prop. 8 and the Right to Marry) They had claimed that the documents the orders compelled them to disclose were not relevant to identifying or clarifying the intent of voters who approved Prop. 8. At Courage Campaign's Prop. 8 Trial Tracker, Brian Leubitz says that the issue of relevancy has been "the focus" of objections by Equality California and the ACLU. However, the central issue of concern involves the extent to which the First Amendment protects certain campaign communications from compelled disclosure.
In fact, the No-on-8 groups also claimed that Judges Walker and Spero clearly misinterpreted a previous appellate holding on the scope of First Amendment privilege from compelled disclosure. In January, a 9th Circuit panel had held that "the First Amendment privilege is ... limited to [internal, private] communications among the core group of persons engaged in the formulation of campaign strategy and messages." "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010). At the time, this holding protected from discovery the internal campaign communications of individuals within a "core group" - the ProtectMarriage / Yes-on-8 campaign of the official Proponents. In his March 5th discovery order, Magistrate Judge Joseph Spero applied the holding to document production in a different context - to a category of campaign communications that Proponents seek from the No-on-8 groups. On March 22nd, Judge Walker sustained Spero's order against objections by the No-on-8 groups, and required them to complete a "rolling production" of the relevant documents by March 31st.
The same 9th Circuit panel in Perry I issued a stay of the March discovery orders until it dismissed the appeal on April 12th. The panel decided that its prior First Amendment holding does not preclude a First Amendment privilege for private communications on campaign strategy and messaging, exchanged among a "core group of associated persons spanning more than one [campaign] entity." "The operative inquiry," the panel said, "is whether they are part of an association subject to First Amendment protection." (italics in the original) Walker and Spero had not clearly erred in this matter because the N0-on-8 groups never provided information to show that it was the function of their organizations to associate in a coalition. Because Walker and Spero had not clearly erred (and for other reasons), the panel concluded that the 9th Circuit Court lacked mandamus jurisdiction to hear the appeal. The No-on-8 groups could not seek relief until they failed to produce the required documents and Judge Walker cited them for contempt.
Proponents now seek an order of contempt against Equality California and the ACLU for their continuing failure to produce documents subject to the March discovery orders. The March 22nd order required Proponents to assess the document production and determine, by April 12th, which documents would be relevant to enter into the case's evidentiary record. Having received no documents, Proponents contend that the evidentiary record must remain open until the No-on-8 groups produce the documents.
Proponents also acknowledge that the No-on-8 groups offered a "compromise proposal" to end the discovery dispute. The groups expressed a willingness to comply with an amended discovery order. What amended order would satisfy them? Judge Walker would have to rule that their exchanged campaign communications qualify for First Amendment protection under the latest guidance of the 9th Circuit panel. Proponents countered, saying that they would accept the compromise proposal, but only if Walker "evenhandedly" applied the guidance to "the Court’s prior discovery and evidentiary rulings with respect to Proponents’ claims of privilege." In other words, Proponents would want Judge Walker to revisit his pre-trial discovery orders, so that the Proponents could exclude from the record of evidence any private campaign communications on strategy or messaging that Proponents exchanged with allied organizations.
As matters now stand, the No-on-8 groups have filed no motion to set out their compromise proposal. If the groups do file that motion, the Perry plaintiffs say that plaintiffs "reserve the right to weigh in with the district court regarding the content of" an amended order." (Exhibit H) Moreover, whatever the groups do, Proponents plan to file a motion asking that Walker revisit his pre-trial discovery orders: "If the No-on-8 Groups do come forward with a motion for further relief, then Proponents will promptly respond so that the issue can be considered in tandem with Proponents’ own forthcoming motion for similar relief consistent with the Ninth Circuit’s further guidance."
So Proponents are using the discovery position of the No-on-8 groups to outmaneuver the plaintiffs on what campaign communications will ultimately remain in the case's record of evidence. Proponents hope to expand the discovery dispute, but I am convinced that they are not simply manufacturing a pretext to delay closing arguments and final judgment by Walker. They defend the idea that the content of private campaign speech, rather "core group" membership, must determine the scope of First Amendment privilege. (Prop. 8 and the Right to Marry) I find their defense not just plausible, but compelling, and they are pursuing it through a U.S. Supreme Court petition now on hold. (Prop. 8 and the Right to Marry) Law professor Nan Hunter faults the petition as "weak," but on grounds that do not convince me. If anyone has followed me this far (!), I would welcome comment on why I am wrong.
(I wish to thank a kind reader of this site for forwarding the referenced filings.)
On April 13th, Judge Walker ordered Prop. 8 proponents in the Perry case to show cause why the record of evidence should not be closed, and he set an April 16th deadline for them to do so. In their response, they contend that the Court must keep the record open because No-on-8 groups - including Equality California and the ACLU - failed to produce documents that two discovery orders in March required them to produce.
The orders apply to a category of nonpublic, campaign communications that individuals within Equality California and the ACLU exchanged with coalition partners of the Equality for All Campaign. The only private communications subject to the orders concern formulations of No-on-8 campaign strategy and messaging. The orders further limit document production to private communications that the No-on-8 groups exchanged; it excepts communications internal to each of the organizations.
The No-on-8 groups lost their appeal of the March discovery orders. (Prop. 8 and the Right to Marry) They had claimed that the documents the orders compelled them to disclose were not relevant to identifying or clarifying the intent of voters who approved Prop. 8. At Courage Campaign's Prop. 8 Trial Tracker, Brian Leubitz says that the issue of relevancy has been "the focus" of objections by Equality California and the ACLU. However, the central issue of concern involves the extent to which the First Amendment protects certain campaign communications from compelled disclosure.
In fact, the No-on-8 groups also claimed that Judges Walker and Spero clearly misinterpreted a previous appellate holding on the scope of First Amendment privilege from compelled disclosure. In January, a 9th Circuit panel had held that "the First Amendment privilege is ... limited to [internal, private] communications among the core group of persons engaged in the formulation of campaign strategy and messages." "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010). At the time, this holding protected from discovery the internal campaign communications of individuals within a "core group" - the ProtectMarriage / Yes-on-8 campaign of the official Proponents. In his March 5th discovery order, Magistrate Judge Joseph Spero applied the holding to document production in a different context - to a category of campaign communications that Proponents seek from the No-on-8 groups. On March 22nd, Judge Walker sustained Spero's order against objections by the No-on-8 groups, and required them to complete a "rolling production" of the relevant documents by March 31st.
The same 9th Circuit panel in Perry I issued a stay of the March discovery orders until it dismissed the appeal on April 12th. The panel decided that its prior First Amendment holding does not preclude a First Amendment privilege for private communications on campaign strategy and messaging, exchanged among a "core group of associated persons spanning more than one [campaign] entity." "The operative inquiry," the panel said, "is whether they are part of an association subject to First Amendment protection." (italics in the original) Walker and Spero had not clearly erred in this matter because the N0-on-8 groups never provided information to show that it was the function of their organizations to associate in a coalition. Because Walker and Spero had not clearly erred (and for other reasons), the panel concluded that the 9th Circuit Court lacked mandamus jurisdiction to hear the appeal. The No-on-8 groups could not seek relief until they failed to produce the required documents and Judge Walker cited them for contempt.
Proponents now seek an order of contempt against Equality California and the ACLU for their continuing failure to produce documents subject to the March discovery orders. The March 22nd order required Proponents to assess the document production and determine, by April 12th, which documents would be relevant to enter into the case's evidentiary record. Having received no documents, Proponents contend that the evidentiary record must remain open until the No-on-8 groups produce the documents.
Proponents also acknowledge that the No-on-8 groups offered a "compromise proposal" to end the discovery dispute. The groups expressed a willingness to comply with an amended discovery order. What amended order would satisfy them? Judge Walker would have to rule that their exchanged campaign communications qualify for First Amendment protection under the latest guidance of the 9th Circuit panel. Proponents countered, saying that they would accept the compromise proposal, but only if Walker "evenhandedly" applied the guidance to "the Court’s prior discovery and evidentiary rulings with respect to Proponents’ claims of privilege." In other words, Proponents would want Judge Walker to revisit his pre-trial discovery orders, so that the Proponents could exclude from the record of evidence any private campaign communications on strategy or messaging that Proponents exchanged with allied organizations.
As matters now stand, the No-on-8 groups have filed no motion to set out their compromise proposal. If the groups do file that motion, the Perry plaintiffs say that plaintiffs "reserve the right to weigh in with the district court regarding the content of" an amended order." (Exhibit H) Moreover, whatever the groups do, Proponents plan to file a motion asking that Walker revisit his pre-trial discovery orders: "If the No-on-8 Groups do come forward with a motion for further relief, then Proponents will promptly respond so that the issue can be considered in tandem with Proponents’ own forthcoming motion for similar relief consistent with the Ninth Circuit’s further guidance."
So Proponents are using the discovery position of the No-on-8 groups to outmaneuver the plaintiffs on what campaign communications will ultimately remain in the case's record of evidence. Proponents hope to expand the discovery dispute, but I am convinced that they are not simply manufacturing a pretext to delay closing arguments and final judgment by Walker. They defend the idea that the content of private campaign speech, rather "core group" membership, must determine the scope of First Amendment privilege. (Prop. 8 and the Right to Marry) I find their defense not just plausible, but compelling, and they are pursuing it through a U.S. Supreme Court petition now on hold. (Prop. 8 and the Right to Marry) Law professor Nan Hunter faults the petition as "weak," but on grounds that do not convince me. If anyone has followed me this far (!), I would welcome comment on why I am wrong.
Tuesday, April 13, 2010
9th Circuit panel dismisses appeal by California Equality and ACLU of order compelling them to disclose Prop. 8 campaign communications
Filings
Perry v. Schwarzenneger, order of dismissal, No. 10-15649 (9th Cir. Apr. 12, 2010)
Perry v. Schwarzenneger, order to show cause re closing of evidentiary record, No. 09-cv-02292 (N.D.Cal. Apr. 13, 2010)
Hollingsworth v. Perry, petition by Prop. 8 proponents, No. 09-1210 (U.S. Apr. 5, 2010), at 2010 WL 1436438 [04/14/10 update: In her insightful comment on the petition, law professor Nan Hunter includes an extended excerpt.]
(Special thanks to site collaborator Rick Xiao for alerting me to the first two filings.)
Comment
Yesterday a 9th Circuit panel dismissed the appeal of the latest discovery order in the Perry case. California Equality, the ACLU, and other No on 8 groups brought the appeal because they claimed that the order would compel them to disclose private campaign communications protected under the First Amendment. (AP) A key issue in the appeal concerns a prior holding ("footnote 12") by the panel on an appeal by Prop. 8 proponents of a previous discovery order in the case. Perry v. Schwarzenegger, 591 F.3d 1147, 1165 n.12 (9th Cir. 2010) The panel held that "the First Amendment privilege is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Appellants and appellees argued that Judges Walker and Spero clearly erred when they interpreted this instruction to mean that the First Amendment privilege does not protect individuals outside the "core group" from compelled disclosure of their campaign communications. Appellants maintained that the judges had not properly examined the function of the privilege - to protect the "associational interests" of individuals who belong to the No on 8 groups, and who formulated campaign strategy and messages.
[04/15/10 update: Brian Leubitz, of Courage Campaign's Prop. 8 Trial Tracker, claims that appellants focus "on relevancy rather than any notion of privilege of free communication within a campaign." Read their brief to see if that's an accurate representation. I don't think that it is.]
Appellees - the Prop. 8 proponents - went even further, questioning not just the application, but the validity of the holding ("the vailidity issue"). They argued that the First Amendment privilege protects individuals not according to their rank or status within campaign associations, but according to the content of their political speech. In yesterday's order of dismissal, the 9th Circuit panel did not reach this question of their prior holding's validity. Instead they clarified the scope of footnote 12's application:
Finally, notwithstanding these developments, Judge Walker today issued an order to show cause why the evidentiary record in the case should not be closed. Parties in the Perry case have until April 16th to respond. Walker clearly wants to remove another cause of delay to closing arguments and a final judgment.
Perry v. Schwarzenneger, order of dismissal, No. 10-15649 (9th Cir. Apr. 12, 2010)
Perry v. Schwarzenneger, order to show cause re closing of evidentiary record, No. 09-cv-02292 (N.D.Cal. Apr. 13, 2010)
Hollingsworth v. Perry, petition by Prop. 8 proponents, No. 09-1210 (U.S. Apr. 5, 2010), at 2010 WL 1436438 [04/14/10 update: In her insightful comment on the petition, law professor Nan Hunter includes an extended excerpt.]
(Special thanks to site collaborator Rick Xiao for alerting me to the first two filings.)
Comment
Yesterday a 9th Circuit panel dismissed the appeal of the latest discovery order in the Perry case. California Equality, the ACLU, and other No on 8 groups brought the appeal because they claimed that the order would compel them to disclose private campaign communications protected under the First Amendment. (AP) A key issue in the appeal concerns a prior holding ("footnote 12") by the panel on an appeal by Prop. 8 proponents of a previous discovery order in the case. Perry v. Schwarzenegger, 591 F.3d 1147, 1165 n.12 (9th Cir. 2010) The panel held that "the First Amendment privilege is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Appellants and appellees argued that Judges Walker and Spero clearly erred when they interpreted this instruction to mean that the First Amendment privilege does not protect individuals outside the "core group" from compelled disclosure of their campaign communications. Appellants maintained that the judges had not properly examined the function of the privilege - to protect the "associational interests" of individuals who belong to the No on 8 groups, and who formulated campaign strategy and messages.
[04/15/10 update: Brian Leubitz, of Courage Campaign's Prop. 8 Trial Tracker, claims that appellants focus "on relevancy rather than any notion of privilege of free communication within a campaign." Read their brief to see if that's an accurate representation. I don't think that it is.]
Appellees - the Prop. 8 proponents - went even further, questioning not just the application, but the validity of the holding ("the vailidity issue"). They argued that the First Amendment privilege protects individuals not according to their rank or status within campaign associations, but according to the content of their political speech. In yesterday's order of dismissal, the 9th Circuit panel did not reach this question of their prior holding's validity. Instead they clarified the scope of footnote 12's application:
"The operative inquiry is whether [individual members of campaign organizations who formulate campaign strategy and messages] are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity."Will that clarification satisfy the Prop. 8 proponents? They have reserved the "validity issue" for consideration by the U.S. Supreme Court. (See the referenced petition above, and Hunter's comment that "it's a weak cert petition that the Court will probably deny.")
Finally, notwithstanding these developments, Judge Walker today issued an order to show cause why the evidentiary record in the case should not be closed. Parties in the Perry case have until April 16th to respond. Walker clearly wants to remove another cause of delay to closing arguments and a final judgment.
Saturday, April 10, 2010
Opening briefs filed in 9th Circuit Court appeal of Perry discovery order
Perry v. Schwarzenneger, opening brief by appellants Equality California et al., No. 10-15649 (9th Cir. Apr. 9, 2010)
Perry v. Schwarzenneger, opening brief by appellees Prop. 8 proponents, No. 10-15649 (9th Cir. Apr. 9, 2010)
Perry v. Schwarzenneger, plaintiffs-appellees brief, No. 10-15649 (9th Cir. Apr. 9, 2010)
In March, Judge Vaughn Walker upheld a discovery order in the Perry case that requires California Equality, the ACLU, and other "No on 8" organizations to provide Prop. 8 proponents certain types of campaign communications, even though the organizations are not parties in the case. These groups appealed Walker's ruling to the 9th Circuit, alleging that it violates their First Amendment protection of political speech and participation. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), a 9th Circuit panel overturned a discovery order that would have required Prop. 8 proponents to disclose internal campaign communications, other than those by "rank-and-file" members. The same panel has been assigned to this latest appeal, and ordered parties to file briefs by April 9th.
In their opening brief, appellants argue that the Court has "finality" jurisdiction to review their appeal now rather than wait for them to appeal it later, after Judge Walker effectively resolves the question of "finality" jurisdiction by citing them for violating the recent discovery order. Appellants also argue that, under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) and another precedent, the Court has mandamus jurisdiction because Judge Walker clearly erred when he sustained the discovery order: they allege that the required document production violates the First Amendment right of their members, and would chill political speech in future campaigns. "To cite but one obvious example, the district court’s holding that there is no constitutional protection at all for [private] communications between individuals working for different groups as part of a common and coordinated effort to achieve a particular political result is, we suggest, both wholly indefensible and vast in its implications for the conduct of future elections."
In their opening brief, Prop. 8 proponents seek clarification of a footnote in the panel's ruling on the scope of First Amendment protection from compelled disclosure of political speech and association. Footnote 12 states, in relevant part, that the panel's "holding [on the First Amendment privilege] is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Id. at 1165 n.12. Does this holding apply to individuals who formulated campaign strategy and messages, regardless of their status or importance to the campaign, and thus regardless of their membership in a "core" group? Proponents claim that it must under First Amendment jurisprudence:
If the 9th Circuit holding extends First Amendment protection to any individual who formulated campaign strategy and messages, then it bars the very "types of [private] documents and information that the district court has ordered both Proponents and Petitioners to disclose - confidential political speech shared among associates in a campaign" - whether or not they belong to a "core" group. Otherwise, Judge Walker has not clearly erred with respect to discovery orders in the case, and appellants must defer their appeal until Walker cites them for violating the latest discovery order.
Not surprisingly, the Perry plaintiffs do not want this appeal to succeed. They argue that Judges Walker and Spero have carefully followed the panel Court's instruction on First Amendment privilege when Spero crafted the latest discovery order. The Perry plaintiffs contend that the panel does not have jurisdiction to review the First Amendment claims of California Equality and the ACLU.
Perry v. Schwarzenneger, opening brief by appellees Prop. 8 proponents, No. 10-15649 (9th Cir. Apr. 9, 2010)
Perry v. Schwarzenneger, plaintiffs-appellees brief, No. 10-15649 (9th Cir. Apr. 9, 2010)
In March, Judge Vaughn Walker upheld a discovery order in the Perry case that requires California Equality, the ACLU, and other "No on 8" organizations to provide Prop. 8 proponents certain types of campaign communications, even though the organizations are not parties in the case. These groups appealed Walker's ruling to the 9th Circuit, alleging that it violates their First Amendment protection of political speech and participation. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), a 9th Circuit panel overturned a discovery order that would have required Prop. 8 proponents to disclose internal campaign communications, other than those by "rank-and-file" members. The same panel has been assigned to this latest appeal, and ordered parties to file briefs by April 9th.
In their opening brief, appellants argue that the Court has "finality" jurisdiction to review their appeal now rather than wait for them to appeal it later, after Judge Walker effectively resolves the question of "finality" jurisdiction by citing them for violating the recent discovery order. Appellants also argue that, under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) and another precedent, the Court has mandamus jurisdiction because Judge Walker clearly erred when he sustained the discovery order: they allege that the required document production violates the First Amendment right of their members, and would chill political speech in future campaigns. "To cite but one obvious example, the district court’s holding that there is no constitutional protection at all for [private] communications between individuals working for different groups as part of a common and coordinated effort to achieve a particular political result is, we suggest, both wholly indefensible and vast in its implications for the conduct of future elections."
In their opening brief, Prop. 8 proponents seek clarification of a footnote in the panel's ruling on the scope of First Amendment protection from compelled disclosure of political speech and association. Footnote 12 states, in relevant part, that the panel's "holding [on the First Amendment privilege] is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Id. at 1165 n.12. Does this holding apply to individuals who formulated campaign strategy and messages, regardless of their status or importance to the campaign, and thus regardless of their membership in a "core" group? Proponents claim that it must under First Amendment jurisprudence:
"The First Amendment creates no castes. Its protection is not doled out based on some perceived rank within a political campaign or organization. Instead, the First Amendment protects the rank-and-file campaign volunteer no less than the campaign manager, the reticent or fleeting speaker no less than the campaign press secretary, the individual on a soapbox no less than the campaign executive committee."Proponents have also filed a petition in the Supreme Court to test their interpretation of the holding in footnote 12. In their Supreme Court petition, they contend that footnote 12's "'core group' limitation runs afoul of the First Amendment." (at 12) The Supreme Court case is Hollingsworth v. Perry, No. 09-1210) Proponents asked the Supreme Court to hold the petition pending the outcome of the case brought by Equality California, ACLU, and other No on 8 groups.
If the 9th Circuit holding extends First Amendment protection to any individual who formulated campaign strategy and messages, then it bars the very "types of [private] documents and information that the district court has ordered both Proponents and Petitioners to disclose - confidential political speech shared among associates in a campaign" - whether or not they belong to a "core" group. Otherwise, Judge Walker has not clearly erred with respect to discovery orders in the case, and appellants must defer their appeal until Walker cites them for violating the latest discovery order.
Not surprisingly, the Perry plaintiffs do not want this appeal to succeed. They argue that Judges Walker and Spero have carefully followed the panel Court's instruction on First Amendment privilege when Spero crafted the latest discovery order. The Perry plaintiffs contend that the panel does not have jurisdiction to review the First Amendment claims of California Equality and the ACLU.
Thursday, April 8, 2010
Recent news and commentary
Perry v. Schwarzenneger
Theodore Olson addressed a group of law students and answered their questions about the case. He said that the Supreme Court didn't tip its hand when it decided to disallow a televised broadcast of the trial. He appears to take it for granted that the case will ultimately reach the Supreme Court. The legal team will not target specific Supreme Court judges (like Anthony Kennedy!) for their arguments. He repeated his reasons for bringing the case last year rather than wait on an incremental strategy. He faulted the Prop. 8 proponents for failing to demonstrate any harm from marriage equality to the institution of marriage. And he told a reporter that the case "will affect the rest of the world." (The Blog of Legal Times)
Gill v. OPM
"On Thursday, May 6, 2010, the Federal District Court in Boston will hear oral arguments on the constitutionality of the federal Defense of Marriage Act (DOMA), in the case of Gill v. Office of Personnel Management, brought by GLAD in March 2009." (GLAD press release)
Adoption - Cole v. Arkansas
"The American Civil Liberties Union and the ACLU of Arkansas will ask a Pulaski County circut court to rule in its favor in its challege to Act One, a 2008 law that bans any unmarried person who lives with a partner from serving as an adopting foster parent in Arkansas." (KTHV, Little Rock, cross-posted by ADF Alliance Alert) The ACLU makes its selected filings available here, and the Alliance Defense Fund links its briefs to this press release. Lamda Legal also has a press release.
Divorce
"So why are we talking about a same-sex couple married in Massachusetts and now divorced in Texas? It's a new area of law and divorce attorneys in Chicago and all across the country likely are taking cues from this case and ones in other states." (Steven Tanner for the Chicago Family Law Blog)
Civil Unions
"Bill in NH" writes a powerful, eloquent reply to an article on civil unions legislation, which a state Pennslvania Representative recently introduced. Bill uses his experience to defend the legislation and marriage equality laws, like the one in Massachusetts that allowed him to marry his husband before he passed away. He describes how his marriage spared him the risks of many legal conflicts at a vulnerable time. He also describes the emotional and legal problems survivors still encounter even if they enjoy the protections of their status as spouses or civil-union partners.
Theodore Olson addressed a group of law students and answered their questions about the case. He said that the Supreme Court didn't tip its hand when it decided to disallow a televised broadcast of the trial. He appears to take it for granted that the case will ultimately reach the Supreme Court. The legal team will not target specific Supreme Court judges (like Anthony Kennedy!) for their arguments. He repeated his reasons for bringing the case last year rather than wait on an incremental strategy. He faulted the Prop. 8 proponents for failing to demonstrate any harm from marriage equality to the institution of marriage. And he told a reporter that the case "will affect the rest of the world." (The Blog of Legal Times)
Gill v. OPM
"On Thursday, May 6, 2010, the Federal District Court in Boston will hear oral arguments on the constitutionality of the federal Defense of Marriage Act (DOMA), in the case of Gill v. Office of Personnel Management, brought by GLAD in March 2009." (GLAD press release)
Adoption - Cole v. Arkansas
"The American Civil Liberties Union and the ACLU of Arkansas will ask a Pulaski County circut court to rule in its favor in its challege to Act One, a 2008 law that bans any unmarried person who lives with a partner from serving as an adopting foster parent in Arkansas." (KTHV, Little Rock, cross-posted by ADF Alliance Alert) The ACLU makes its selected filings available here, and the Alliance Defense Fund links its briefs to this press release. Lamda Legal also has a press release.
Divorce
"So why are we talking about a same-sex couple married in Massachusetts and now divorced in Texas? It's a new area of law and divorce attorneys in Chicago and all across the country likely are taking cues from this case and ones in other states." (Steven Tanner for the Chicago Family Law Blog)
Civil Unions
"Bill in NH" writes a powerful, eloquent reply to an article on civil unions legislation, which a state Pennslvania Representative recently introduced. Bill uses his experience to defend the legislation and marriage equality laws, like the one in Massachusetts that allowed him to marry his husband before he passed away. He describes how his marriage spared him the risks of many legal conflicts at a vulnerable time. He also describes the emotional and legal problems survivors still encounter even if they enjoy the protections of their status as spouses or civil-union partners.
Wednesday, April 7, 2010
Recent news and commentary
Perry v. Schwarzenneger
Chad Griffin is President of the American Foundation For Equal Rights, the organization that funds representation of the Perry plaintiffs. On the cover of its May issue, The Adovocate features Griffin as a standout among "Forty Under 40." (LBGT POV)
Lewis v. Harris II
Do Lewis plaintiffs have compelling evidence that marriage inequality in New Jersey gravely harms same-sex couples and their children? A columnist for NewJersey.com dismisses the evidence: "What evidence? Emotional, unverified testimony by gay and lesbian couples that they had been denied rights to which they were entitled. Plus a report by the Legislature’s own Civil Union Review Commission ... Plainly put, the commission was stacked." (NewJersey.com)
Varnum v. Brien
"On Tuesday, April 13 at 7:30 p.m., Cornell will host Brad Clark, Campaign Director for One Iowa, and Kate and Trish Varnum, plaintiffs in this historic Supreme Court case." (Cornell College Press Release)
Domestic partnerships
“Western Kentucky University officials announced Friday that the school will begin offering health insurance to qualifying dependents — including domestic partners — of its employees, starting next year.” (Courier Journal, cross-posted by ADF Alliance Alert) Kentucky has a super-DOMA amendment. I cannot assess the odds of a legal challenge by the Alliance Defense Fund or a sister organization in the state, or the odds of a lawsuit's success.
Related News
A recent poll shows that a slim majority of Californians now support marriage equality (Los Angeles Times) "Registered voters younger than 30" support it by a margin of 3 to 1. Law professor John Culhane believes that support from younger Americans will ultimately transform public perception of same-sex marriage. (WordinEdgewise) Given strong opposition by Americans older than 64, Darrin Hurwitz, HRC Assistant General Counsel, agrees that it is "not difficult to see where public opinion is headed." (HRC Back Story)
California state legislators have advanced legislation to repeal an unenforced, 1950 law that classifies gays and lesbians as 'sexual deviants' and requires the state Department of Mental Health to conduct research on "deviations conducive to sex crimes against children." (ABC News) Hurwitz said that "[t]he existence of such a law, unnoticed by many, is a sharp reminder of where attitudes towards LGBT rights used to be and, notably, of the progress that has been made since then." He predicts that "[w]hile challenges certainly remain, eventually both the 1950 sex crimes law and the 2008 anti-marriage initiative will likely be ones for the history books in California. (HRC Back Story)
Later this month, Marriage Equality New York will honor Shannon Minter among other advocates of marriage equality. (Marriage Equality New York / The Daily Gotham)
Chad Griffin is President of the American Foundation For Equal Rights, the organization that funds representation of the Perry plaintiffs. On the cover of its May issue, The Adovocate features Griffin as a standout among "Forty Under 40." (LBGT POV)
Lewis v. Harris II
Do Lewis plaintiffs have compelling evidence that marriage inequality in New Jersey gravely harms same-sex couples and their children? A columnist for NewJersey.com dismisses the evidence: "What evidence? Emotional, unverified testimony by gay and lesbian couples that they had been denied rights to which they were entitled. Plus a report by the Legislature’s own Civil Union Review Commission ... Plainly put, the commission was stacked." (NewJersey.com)
Varnum v. Brien
"On Tuesday, April 13 at 7:30 p.m., Cornell will host Brad Clark, Campaign Director for One Iowa, and Kate and Trish Varnum, plaintiffs in this historic Supreme Court case." (Cornell College Press Release)
Domestic partnerships
“Western Kentucky University officials announced Friday that the school will begin offering health insurance to qualifying dependents — including domestic partners — of its employees, starting next year.” (Courier Journal, cross-posted by ADF Alliance Alert) Kentucky has a super-DOMA amendment. I cannot assess the odds of a legal challenge by the Alliance Defense Fund or a sister organization in the state, or the odds of a lawsuit's success.
Related News
A recent poll shows that a slim majority of Californians now support marriage equality (Los Angeles Times) "Registered voters younger than 30" support it by a margin of 3 to 1. Law professor John Culhane believes that support from younger Americans will ultimately transform public perception of same-sex marriage. (WordinEdgewise) Given strong opposition by Americans older than 64, Darrin Hurwitz, HRC Assistant General Counsel, agrees that it is "not difficult to see where public opinion is headed." (HRC Back Story)
California state legislators have advanced legislation to repeal an unenforced, 1950 law that classifies gays and lesbians as 'sexual deviants' and requires the state Department of Mental Health to conduct research on "deviations conducive to sex crimes against children." (ABC News) Hurwitz said that "[t]he existence of such a law, unnoticed by many, is a sharp reminder of where attitudes towards LGBT rights used to be and, notably, of the progress that has been made since then." He predicts that "[w]hile challenges certainly remain, eventually both the 1950 sex crimes law and the 2008 anti-marriage initiative will likely be ones for the history books in California. (HRC Back Story)
Later this month, Marriage Equality New York will honor Shannon Minter among other advocates of marriage equality. (Marriage Equality New York / The Daily Gotham)
Monday, April 5, 2010
Latest appeal of discovery order in Perry v. Schwarzenneger: parties to file briefing by April 9th
Perry v. Schwarzenneger, order on briefing schedule, No. 10-15649 (9th Cir. Mar. 31, 2010)
On March 22nd, Judge Walker granted an interim stay of his decision in Perry v. Schwarzenneger to uphold a discovery order by Magistrate Judge Joseph Spero . The discovery order requires Equality California and the ACLU - two of the "No on 8" groups - to produce documents that concern "arguments for or against Prop. 8," even though they are not parties to the case. Prop. 8 proponents argued that the documents may clarify the intent of those who voted for Prop. 8, and may reveal the extent of political power of gays and lesbians. Equality California and the ACLU claimed that the documents are not relevant; that a First Amendment privilege applies under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); and that document production would impose an undue burden on them. Judge Spero ruled that the First Amendment privilege does not apply to communications between Equality California and the ACLU, on the one hand, and certain other No on 8 organizations, on the other. He also found that the documents may contribute to a "mix of information" available to pro-8 voters. And he identified steps to ensure that document production would not impose an undue burden.
On March 25th, Equality California and the ACLU filed an emergency motion for a stay of Judge Walker's decision to sustain Spero's order, together with a motion for expedited appeal. The appeal has been assigned to the same panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). By April 9th, "parties shall file simultaneous briefs addressing solely the issues of whether this court has jurisdiction over this appeal and whether mandamus is appropriate."
On March 22nd, Judge Walker granted an interim stay of his decision in Perry v. Schwarzenneger to uphold a discovery order by Magistrate Judge Joseph Spero . The discovery order requires Equality California and the ACLU - two of the "No on 8" groups - to produce documents that concern "arguments for or against Prop. 8," even though they are not parties to the case. Prop. 8 proponents argued that the documents may clarify the intent of those who voted for Prop. 8, and may reveal the extent of political power of gays and lesbians. Equality California and the ACLU claimed that the documents are not relevant; that a First Amendment privilege applies under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); and that document production would impose an undue burden on them. Judge Spero ruled that the First Amendment privilege does not apply to communications between Equality California and the ACLU, on the one hand, and certain other No on 8 organizations, on the other. He also found that the documents may contribute to a "mix of information" available to pro-8 voters. And he identified steps to ensure that document production would not impose an undue burden.
On March 25th, Equality California and the ACLU filed an emergency motion for a stay of Judge Walker's decision to sustain Spero's order, together with a motion for expedited appeal. The appeal has been assigned to the same panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). By April 9th, "parties shall file simultaneous briefs addressing solely the issues of whether this court has jurisdiction over this appeal and whether mandamus is appropriate."
Thursday, March 25, 2010
Recent news and commentary
Lewis v. Harris II
Evan Wolfson is executive director of Freedom To Marry, and Hayley Gorenberg is deputy legal director of Lambda Legal. At Huffington Post, they examine why plaintiff couples in New Jersey have renewed their state Supreme Court case to gain marriage equality.
Perry v. Schwarzenneger
Gloria Borger, a CNN Senior Political Analyst, interviewed Theodore Olson and David Boies, attorneys for the plaintiffs. ("The Odd Couple," 03/25/10 Campbell Brown Blog) Law professor Orin Kerr complains about the perceived absence of comparable profiles of Charles Cooper, attorney for the Prop. 8 proponents. (Volokh Conspiracy) I link to a Cooper profile here.
Marriage equality v. "marriage protection" - a debate in Pennsylvania
Daylin Leach is a Pennsylvania state Senator whose district lies near Philadelphia. He has distinguished himself as a marriage equality advocate by introducing legislation (SB 935) to repeal the state's DOMA and recognize same-sex marriages. (Pittsburgh Post-Gazette) In June, he debated state Senator John Eichelberger, who recently failed to advance his "marriage protection" amendment (SB 707) out of committee. Leach introduced the motion to table it, and the motion was approved. (Proposition 8 and the Right to Marry)
Last night in Harrisburg, he debated Maggie Gallagher, executive director of the National Organization for Marriage. (Freedom to Marry) Pennsylvania Public Radio reporter Scott Detrow moderated the debate, and features sound clips here. He expects PCN to carry a video "at some point." (03/26/10 update: You can watch the debate here.)
Marriage equality - D.C.
Sen. Bob Bennett (R-UT) tried to amend the reconciliation bill on medical insurance, with provision for a referendum on D.C.'s marriage-equality law, but his last-minute maneuver ended in predictable defeat. (Law Dork / Washington Post / AMERICAblog Gay / HRC Back Story) Freedom To Marry finds that the defeat makes marriage equality "safe." That reassurance warrants qualification. Bennett's gambit represented no credible threat, even if he scored political points among partisan supporters in advance of his 2010 primary. More importantly, a pending lawsuit on a marriage initiative will likely reach the Supreme Court, and may yet succeed there. (Proposition 8 and The Right To Marry)
Divorce
Matt Lloyd is a family law practitioner in Austin. At the Texas Family Law Blog, he describes the difficulties of same-sex couples who seek divorces in states that ban same-sex marriage. He discusses two divorce cases in his state, observing that "we may be approaching an interesting family law jurisprudence in Texas."
Evan Wolfson is executive director of Freedom To Marry, and Hayley Gorenberg is deputy legal director of Lambda Legal. At Huffington Post, they examine why plaintiff couples in New Jersey have renewed their state Supreme Court case to gain marriage equality.
Perry v. Schwarzenneger
Marriage equality v. "marriage protection" - a debate in Pennsylvania
Daylin Leach is a Pennsylvania state Senator whose district lies near Philadelphia. He has distinguished himself as a marriage equality advocate by introducing legislation (SB 935) to repeal the state's DOMA and recognize same-sex marriages. (Pittsburgh Post-Gazette) In June, he debated state Senator John Eichelberger, who recently failed to advance his "marriage protection" amendment (SB 707) out of committee. Leach introduced the motion to table it, and the motion was approved. (Proposition 8 and the Right to Marry)
Last night in Harrisburg, he debated Maggie Gallagher, executive director of the National Organization for Marriage. (Freedom to Marry) Pennsylvania Public Radio reporter Scott Detrow moderated the debate, and features sound clips here. He expects PCN to carry a video "at some point." (03/26/10 update: You can watch the debate here.)
Marriage equality - D.C.
Sen. Bob Bennett (R-UT) tried to amend the reconciliation bill on medical insurance, with provision for a referendum on D.C.'s marriage-equality law, but his last-minute maneuver ended in predictable defeat. (Law Dork / Washington Post / AMERICAblog Gay / HRC Back Story) Freedom To Marry finds that the defeat makes marriage equality "safe." That reassurance warrants qualification. Bennett's gambit represented no credible threat, even if he scored political points among partisan supporters in advance of his 2010 primary. More importantly, a pending lawsuit on a marriage initiative will likely reach the Supreme Court, and may yet succeed there. (Proposition 8 and The Right To Marry)
Divorce
Matt Lloyd is a family law practitioner in Austin. At the Texas Family Law Blog, he describes the difficulties of same-sex couples who seek divorces in states that ban same-sex marriage. He discusses two divorce cases in his state, observing that "we may be approaching an interesting family law jurisprudence in Texas."
Wednesday, March 24, 2010
Judge Vaugn Walker grants stay of discovery order pending appeal in Perry v. Schwarzenneger
"Equality California has filed a motion for a stay in response to Judge Vaughn Walker's ruling ordering Equality California and the American Civil Liberties Union to turn over internal strategy emails and campaign materials from the No on Proposition 8 campaign." (Equality California, cross-posted by Straight Talk on Marriage. See also the ACLU press release.) In their motion, Equality California and the ACLU rely on a recent 9th Circuit ruling in the case - Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) - to argue that Judge Walker misinterprets their private, campaign communications as falling outside the scope of First Amendment protection. Judge Walker has granted the stay until March 29th to allow the organizations opportunity to appeal.
"The legal wrangling could slow the historic trial still unfolding before Walker." (San Jose Mercury News) Equality California and the ACLU do not want to delay the lawsuit, but they claim that they are "defending issues of a fundamental nature under the First Amendment with consequences not merely for this case but for future election campaigns of all sorts."
Geoff Kors, Executive Director of Equality California, accuses Prop. 8 proponents of having "cherry-picked the three organizations from the [No on 8] campaign that they feel are the biggest threat to their anti-equality agenda."
"The legal wrangling could slow the historic trial still unfolding before Walker." (San Jose Mercury News) Equality California and the ACLU do not want to delay the lawsuit, but they claim that they are "defending issues of a fundamental nature under the First Amendment with consequences not merely for this case but for future election campaigns of all sorts."
Geoff Kors, Executive Director of Equality California, accuses Prop. 8 proponents of having "cherry-picked the three organizations from the [No on 8] campaign that they feel are the biggest threat to their anti-equality agenda."
Monday, March 22, 2010
Recent news and commentary
Perry v. Schwarzenneger
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.” But "having a trial," said Theodore J. Boutrous Jr., a lawyer for the plaintiffs in the Proposition 8 case, "is precisely the process that has been used time and time again throughout American history to decide landmark civil rights cases." (NY Times) Charles Cooper, lead counsel for Prop. 8 proponents, claimed that "we can’t find that any of the marriage cases, the dozen or so that have proceeded around the country, actually submitted issues of fact to trial." Evan Wolfson commented on Cooper's claim. Wolfson represented same-sex couples in the seminal Hawai'i litigation that tested, at trial, the constitutionality of the state's marriage ban. (Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), and Baehr v. Miike, No.91-1394-05, 1996 WL 694235). "There is a lot of déjà vu here," Wolfson said. "In the 14 years since Hawaii, the anti-gay forces have not come up with a good argument."
Developments abroad
"Portugal’s President Anibal Cavaco Silva has said he forwarded a gay marriage bill to the nation’s Constitutional Court because he has 'doubts' about its constitutionality, Portugal’s Jornal de Noticias reported." (On Top Magazine, cross-posted by Gay Marriage Watch) "On 13 March, Cavaco Silva sent it to the Constitutional Court for review, and the court must act on the review by 8 April. The bill then will return to the president, who will have 20 more days to mull it over. If he signs it, it becomes law. If he vetoes it, Parliament is expected to pass it again, which would then force Cavaco Silva to sign it." (Pink Paper, cross-posted by Gay Marriage Watch)
Last week, plaintiffs' attorney Steve Bomse tried to convince Judge Walker that he should overturn a discovery order by Magistrate Judge Joseph Spero. Spero's order requires the ACLU and Equality California, among other organizations, to produce certain types communications during their 2008 campaign against Prop. 8. As Bomse tried to make his argument, Walker walked out of the court room. (Cal Law Legal Pad) So it's hardly surprising that Walker has decided to uphold the order. (LGBT POV / AP / San Jose Mercury News) An appeal may follow of Walker's decision.
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.” But "having a trial," said Theodore J. Boutrous Jr., a lawyer for the plaintiffs in the Proposition 8 case, "is precisely the process that has been used time and time again throughout American history to decide landmark civil rights cases." (NY Times) Charles Cooper, lead counsel for Prop. 8 proponents, claimed that "we can’t find that any of the marriage cases, the dozen or so that have proceeded around the country, actually submitted issues of fact to trial." Evan Wolfson commented on Cooper's claim. Wolfson represented same-sex couples in the seminal Hawai'i litigation that tested, at trial, the constitutionality of the state's marriage ban. (Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), and Baehr v. Miike, No.91-1394-05, 1996 WL 694235). "There is a lot of déjà vu here," Wolfson said. "In the 14 years since Hawaii, the anti-gay forces have not come up with a good argument."
Developments abroad
"Portugal’s President Anibal Cavaco Silva has said he forwarded a gay marriage bill to the nation’s Constitutional Court because he has 'doubts' about its constitutionality, Portugal’s Jornal de Noticias reported." (On Top Magazine, cross-posted by Gay Marriage Watch) "On 13 March, Cavaco Silva sent it to the Constitutional Court for review, and the court must act on the review by 8 April. The bill then will return to the president, who will have 20 more days to mull it over. If he signs it, it becomes law. If he vetoes it, Parliament is expected to pass it again, which would then force Cavaco Silva to sign it." (Pink Paper, cross-posted by Gay Marriage Watch)
Friday, March 19, 2010
Recent news and commentary
Perry v. Schwarzenneger
Dan Levine of The Recorder reports on Judge Walker's display of impatience as, earlier this week, plaintiffs' attorney Steve Bomse asked Judge Walker to overrule a discovery order by Magistrate Judge Joseph Spero. (Cal Law Legal Pad) The latest discovery dispute may delay Walker's final judgment in the case, as Walker appears likely to uphold the order, and the plaintiffs may appeal.
Divorce
In his brief, Texas Attorney General Greg Abbott told the state's 5th Court of Appeals that it didn't need to hear oral argument on whether a same-sex couple may divorce. (In the Matter of the Marriage of J.B. and H.B.) But the Court has scheduled argument on April 21st, prompting this comment by Ken Upton, a senior staff attorney at Lambda Legal: "If I were the panel, I would want arguments, because if they follow the law, as opposed to following the political pressure, it’s a winning argument. If I were the appellate court, I’d feel in a bind maybe, because the law really is supportive of the people trying to get a divorce, and they’re faced with big, hot-button issues." J.B.'s attorney, Pete Schulte, believes that the Court can decide the question without considering whether the state's constitutional ban on same-sex marriage would violate due process and equal protection under the 14th Amendment. (Dallas Voice, cross-posted by Gay Marriage Watch)
Dissolution of civil union in New York
Law professor Arthur Leonard discusses a case in which a New York appellate court ruled that the trial court has jurisdiction to consider a petition to dissolve a Vermont civil union. (Leonard Link)
Related news - the preference for marriage; parenting
"More than a quarter (26%) of LGBT partners have gotten married, even though only five states grant marriage licenses to same-sex couples. Many (63%) say they would marry if there was a federal law allowing gay marriage." (Market Watch, cross-posted by Gay Marriage Watch)
"We recently undertook a systematic review of the scientific research — 81 studies spanning the past 20 years — to see what it actually says about how parents’ gender affects child-rearing outcomes. We found no evidence to support the claim that children need both a mother and a father." (Sociology professors Timothy Biblarz and Judith Stacey, USC Politics and Society, cross-posted by Straight Talk on Marriage, "Their article 'How Does the Gender of Parents Matter?' appeared in the February issue of the Journal of Marriage and Family.)
Dan Levine of The Recorder reports on Judge Walker's display of impatience as, earlier this week, plaintiffs' attorney Steve Bomse asked Judge Walker to overrule a discovery order by Magistrate Judge Joseph Spero. (Cal Law Legal Pad) The latest discovery dispute may delay Walker's final judgment in the case, as Walker appears likely to uphold the order, and the plaintiffs may appeal.
Divorce
In his brief, Texas Attorney General Greg Abbott told the state's 5th Court of Appeals that it didn't need to hear oral argument on whether a same-sex couple may divorce. (In the Matter of the Marriage of J.B. and H.B.) But the Court has scheduled argument on April 21st, prompting this comment by Ken Upton, a senior staff attorney at Lambda Legal: "If I were the panel, I would want arguments, because if they follow the law, as opposed to following the political pressure, it’s a winning argument. If I were the appellate court, I’d feel in a bind maybe, because the law really is supportive of the people trying to get a divorce, and they’re faced with big, hot-button issues." J.B.'s attorney, Pete Schulte, believes that the Court can decide the question without considering whether the state's constitutional ban on same-sex marriage would violate due process and equal protection under the 14th Amendment. (Dallas Voice, cross-posted by Gay Marriage Watch)
Dissolution of civil union in New York
Law professor Arthur Leonard discusses a case in which a New York appellate court ruled that the trial court has jurisdiction to consider a petition to dissolve a Vermont civil union. (Leonard Link)
Related news - the preference for marriage; parenting
"More than a quarter (26%) of LGBT partners have gotten married, even though only five states grant marriage licenses to same-sex couples. Many (63%) say they would marry if there was a federal law allowing gay marriage." (Market Watch, cross-posted by Gay Marriage Watch)
"We recently undertook a systematic review of the scientific research — 81 studies spanning the past 20 years — to see what it actually says about how parents’ gender affects child-rearing outcomes. We found no evidence to support the claim that children need both a mother and a father." (Sociology professors Timothy Biblarz and Judith Stacey, USC Politics and Society, cross-posted by Straight Talk on Marriage, "Their article 'How Does the Gender of Parents Matter?' appeared in the February issue of the Journal of Marriage and Family.)
Tuesday, March 16, 2010
Recent news and commentary
Perry v. Schwarzenneger
Matt Coles is Director of the ACLU's LGBT Project. In this second of his two-part series, he explains why Justice Anthony Kennedy doesn't represent a predictable vote against a national or limited form of marriage equality.
Constitutional amendments - Pennsylvania
John Eichelberger is a Pennsylvania state Senator whose district includes Blair County, about 100 miles east of Pittsburgh. In February, he introduced a resolution (SB 707) to amend the state constitution so that it limits marriage to opposite-sex couples. The Senate Judiciary Committee has tabled his resolution. (press release, ACLU of Pennsylvania /PenLive.com / Philly.com / The [Penn State] Daily Collegian / Lebanon Daily News / Philadelphia Gay News) "Make no mistake, they voted to kill the bill, whatever other excuse they may give," said Eichelberger. (Philly.com) Senator Daylin Leach, who serves a district near Philadelphia, proposed the motion to table the resolution. (Lebanon Daily News) "I believe," he said, "that Senate Bill 707 is the antithesis of what Pennsylvanians need and want, and I am happy that the majority of my colleagues agree with me."Last year, he became the first state legislator to introduce marriage-equality legislation (SB 935).
The two Senators have debated each other on the merits of their legislation. (Prop. 8 and the Right to Marry), and Senator Leach honored this site with a guest contribution. I remain hopeful that Senator Eichelberger will find time comment here on his proposed "marriage protection" amendment.
Divorce - Oklahoma
The Oklahoma Court of Civil Appeals has upheld a dismissal of a divorce lawsuit by Cait O’Darling. C. O'Darling v. S. O'Darling, No. 106732, slip. op. (Okl. Ct. Civ. App. Div. I, Mar. 11, 2010) She had appealed a trial court's decision that she failed to present proof of her Canadian marriage to another woman. The lower court also ruled that even if she could document a valid marriage, the court had no authority to grant her divorce petition. Okl. Const., Art.2, §35(B) bars recognition of same-sex marriages in other states, and the court rejected petitioner's argument that it does not apply in her case. The appellate court did not reach the question of whether a trial court may deny a divorce petition when the petitioner has demonstrated a valid marriage. (press release, Alliance Defense Fund / FindLaw Courtside / Tulsa World)
Divorce - Texas
"The Texas Office of the Attorney General, represented by Texas Solicitor General James Ho, filed a reply brief March 12 in a Dallas same-sex divorce case, In the Matter of the Marriage of J.B. and H.B." (Texas Lawyer Blog)
Divorce - Maryland and D.C.
Two family law practitioners - Amy Strent and Jennifer Fairfax - discuss the right to divorce for same-sex spouses in Maryland and D.C.. (WJLA.com, cross-posted by Alliance Defense Fund Alert)
Matt Coles is Director of the ACLU's LGBT Project. In this second of his two-part series, he explains why Justice Anthony Kennedy doesn't represent a predictable vote against a national or limited form of marriage equality.
Constitutional amendments - Pennsylvania
John Eichelberger is a Pennsylvania state Senator whose district includes Blair County, about 100 miles east of Pittsburgh. In February, he introduced a resolution (SB 707) to amend the state constitution so that it limits marriage to opposite-sex couples. The Senate Judiciary Committee has tabled his resolution. (press release, ACLU of Pennsylvania /PenLive.com / Philly.com / The [Penn State] Daily Collegian / Lebanon Daily News / Philadelphia Gay News) "Make no mistake, they voted to kill the bill, whatever other excuse they may give," said Eichelberger. (Philly.com) Senator Daylin Leach, who serves a district near Philadelphia, proposed the motion to table the resolution. (Lebanon Daily News) "I believe," he said, "that Senate Bill 707 is the antithesis of what Pennsylvanians need and want, and I am happy that the majority of my colleagues agree with me."Last year, he became the first state legislator to introduce marriage-equality legislation (SB 935).
The two Senators have debated each other on the merits of their legislation. (Prop. 8 and the Right to Marry), and Senator Leach honored this site with a guest contribution. I remain hopeful that Senator Eichelberger will find time comment here on his proposed "marriage protection" amendment.
Divorce - Oklahoma
The Oklahoma Court of Civil Appeals has upheld a dismissal of a divorce lawsuit by Cait O’Darling. C. O'Darling v. S. O'Darling, No. 106732, slip. op. (Okl. Ct. Civ. App. Div. I, Mar. 11, 2010) She had appealed a trial court's decision that she failed to present proof of her Canadian marriage to another woman. The lower court also ruled that even if she could document a valid marriage, the court had no authority to grant her divorce petition. Okl. Const., Art.2, §35(B) bars recognition of same-sex marriages in other states, and the court rejected petitioner's argument that it does not apply in her case. The appellate court did not reach the question of whether a trial court may deny a divorce petition when the petitioner has demonstrated a valid marriage. (press release, Alliance Defense Fund / FindLaw Courtside / Tulsa World)
Divorce - Texas
"The Texas Office of the Attorney General, represented by Texas Solicitor General James Ho, filed a reply brief March 12 in a Dallas same-sex divorce case, In the Matter of the Marriage of J.B. and H.B." (Texas Lawyer Blog)
Divorce - Maryland and D.C.
Two family law practitioners - Amy Strent and Jennifer Fairfax - discuss the right to divorce for same-sex spouses in Maryland and D.C.. (WJLA.com, cross-posted by Alliance Defense Fund Alert)
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