A profile of Cooper & Kirk's Charles Cooper, attorney for official Prop. 8 proponents in the Perry case

10/06/09 The Recorder:

Charles Cooper, of Cooper & Kirk, represents the official Prop. 8 proponents in the Perry case. According to The Recorder, he is a close friend of plaintiffs' attorney Theodore Olson. Both were colleagues in Reagen's Justice Department.

The Recorder portrays Cooper as "a courtly D.C. insider to - calmly - make [the] case" of Prop. 8 supporters." As evidence, the newspaper describes his conduct during an August 19th hearing, when Judge Vaugn Walker considered and rejected a motion to intervene by proposed defendant Campaign for California Families (CCF). Representing CCF, Liberty Counsel attorney Rena Lindevaldsen claimed that "individuals should be entitled to treatment to change [their] sexual orientation," a position that Cooper did not defend.

The Recorder states that Cooper will likely have as much influence as Olson on the case.

While Kate Kendell, executive director of the National Center for Lesbian Rights, finds the views of Prop. 8 supporters offensive, she told The Recorder:

You can't continue to make appeals, based on what is widely regarded as nothing but pure prejudice, and expect to win. So, faced with that sense of the circumstances, and that changed landscape, you have two choices: either abandon your arguments, understand the error of your ways and support full equality, or you attempt to recruit validators whose views are more palatable and who are not seen as so extreme.

Judge Walker considers televised hearings in Perry case; official Prop. 8 intervenors not enthusiastic

10/05/09 Cal Law Legal Pad:

Turns out Walker wanted to float the idea of broadcasting the January trial [in the Perry case], but not just to an overflow room in the federal building. He wanted to know how the lawyers felt about making the trial available for broadcast on a television station, according to a letter filed in the case.

Thanks to Rick for alerting me to the related filing.

To what extent should Iowa accommodate religious liberty in a post-Varnum law on same-sex marriage?

Ian C. Bartrum, Same-Sex Marriage in the Heartland: The Case for Legislative Minimalism in Crafting Religious Exemptions, 108 Mich. L. Rev. First Impressions ___ (2009), posted 10/01/09 at Social Science Research Network

In Varnum v. Brien, 763 N.W.2d 862 (Ia. 2009), the Iowa Supreme Court ruled that the state's statutory ban on same-sex marriage violates the equal protection clause of the Iowa Constitution. The Iowa state legislature may consider the examples of New England states when it develops legislation to implement the Court's ruling. Several legal scholars on religious liberty sent letters to state governors or legislators in New Hampshire, Connecticut and New York, recommending religious-liberty exemptions in marriage-equality legislation. Law professor John Culhane responded to these recommendations in a four-part series at this site.

In this article, constitutional scholar Ian Bartrum discusses the latest letter by the group of legal scholars to Iowa Governor Chet Culver. Bartrum questions the analogy between religious discrimination based on race and religious discrimination based on sexual orientation. He finds that the "same-sex marriage issue" - or rather the larger issue of prohibiting discrimination against gays and lesbians- resembles the "controversy over abortion." As a result of that controversy, laws exempt hospitals from the Civil Rights Act if their religious affiliation makes abortion objectionable. He favors "legislative minimalism" rather than a law on same-sex marriage whose exemptions anticipate every form of conflict between religious liberty and same-sex marriage:

Courts are well-equipped to craft and evaluate these kinds of balancing tests governing constitutional rights [such as the sincerity of religous objections], and thus the legislature should leave the question of private religious exemptions for later judicial interpretation.

Gay man seeking divorce in Texas tells Good Morning America Weekend that he has received the most "negative feedback" from gay/lesbian legal community

10/04/09 Good Morning America Weekend / 10/04/09 Star Telegram:

J.B., who seeks to divorce his gay spouse, discussed reaction to the ruling in his case that Texas law banning same-sex marriage violates the 14th Amendment. If his had been a "test case," interested parties could have "come on board" at any time, but far from being the "poster boy" in a larger legal battle, he says that he has received the "most negative feedback" from the "legal gay and lesbian community."

“If anybody else had wanted to bring their cause to the table, they could have been there,” he said. “You know, you can’t just jump on when you want to and claim your stake.”

Judge Vaugn Walker in Prop. 8 case orders Yes on 8 to produce communications among political consultants and managers

10/02/09 Cal Law Legal Pad, 10/01/09 San Jose Mercury News, 10/02/02 SF Chronicle and 10/05/09 Pam's House Blend:

Legal Pad provides yesterday's discovery order by Judge Vaugn Walker in the Perry case. (Thanks to this site's co-author Rick for advance notice of the order.) Walker has ordered defendant-intervenors to disclose contested communications among political consultants, directors, and managers of the Yes on 8 campaign. Defendant-intervenors must also produce communications about the campaign's proposed or implemented messages to voters.

As has been widely reported, the Yes on 1 campaign in Maine has engaged Schubert Flint Public Affairs, which was a chief consultant and strategist for Yes on 8. Based on a magazine article by the firm's principals, Judge Walker ruled that the firm's campaign communications do not warrant First Amendment protection:

If harm is threatened from disclosure of proponents’ campaign strategy, it seems likely to have been realized by the candid description of the Prop 8 campaign’s strategy already disseminated by [principals Frank] Schubert and [Jeff] Flint.

Discovery just might turn up explosive, or at least sensational, revelations about development of strategy by the firm and organizers of the Yes on 8 campaign, with potential ramifications for the campaigns in Maine over Question 1. As journalist Karen Ocamb observes, "Walker ... hinted that he might limit the public’s access to the documents."

I would expect defendant-intervenors to demand the same scope of discovery from plaintiffs with respect to the No on 8 campaign.

The financial costs of discriminating against same-sex couples and their families

10/02/09 Marriage Equality New York:

What is the cost of being a second-class citizen? According to the New York Times, anywhere between $41,196 and $467,562. Those are the best- and worst-case extra costs that accrue to same-sex couples over a lifetime. The Times created a hypothetical same-sex couple whose situation would be similar to that of a heterosexual couple, and charted the additional costs they would bear based on varying income and other circumstances.

On the emotional toll discrimination exacts, the reporters also quote attorney Fredrick Hertz, co-author of Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions. Hertz comments on the article here.

Law professor Nancy Polikoff says that the NY Times reporters tell only one part of the story, because they overlook benefits to all couples, married or not, that would result if marriage were no longer accorded special legal status.

For other comments, see this post by attorney Gideon Alper, and this one by Andrew Sullivan.

Commentary on yesterday's ruling by Texas judge Tena Callahan that state's same-sex marriage bans violate 14th amendment

10/02/09 WordinEdgewise, by law professor John Culhane:

Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.

10/02/09 Leonard Link, by law professor Arthur Leonard:

State trial court decisions are interesting in themselves and may affect the rights of the parties if not reversed on appeal, but otherwise have no precedential value. Only appellate courts can issue decisions that are binding on other courts, and only the highest court of a state can issue decisions binding on all the courts of the state, so it will be a while before we can know how important this ruling is.

10/02/09 Alliance Defense Fund press release:

District Judge Tena Callahan issued her ruling in a state court in Dallas yesterday to strike down the Texas marriage amendment, as well as the state DOMA, stating that the state ban on same-sex “marriage” violates the federal constitutional right to equal protection under the Fourteenth Amendment to the U.S. Constitution. This ruling marks the first time that a state court judge has struck down marriage laws based on the U. S. Constitution ... ADF attorneys, who are expected to file a brief in opposition to Callahan’s ruling, are also defending a similar attack on marriage in Oklahoma, where voters approved their state amendment defining marriage as between one man and one woman by 76 percent in 2004. In O’Darling v. O’Darling, a “divorce” is being sought by two women allegedly “married” in Canada. That matter is currently pending before the Oklahoma Supreme Court.

10/02/09 Gay Couples Law Blog, by attorney Gideon Alper:

Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.