Olson/Boies witness list includes Frank Shubert, Ron Prentice and Jim Garlow

12/08/09 LGBT POV, by journalist Karen Ocamb:

UPDATED – SEE THE COMPLETE BRIEF [of Perry plaintiffs] AND WITNESS LIST AT THE END OF THE POST.

Late Monday, Ted Olson, David Boies and the team of lawyers representing two California couples in a federal lawsuit seeking to overturn Prop 8, filed a brief explaining their position and a list of witnesses they may call during the trial, set for a nonjury trial Jan. 18.

In the brief, they told U.S. District Judge Vaughn Walker that they intend to prove that Prop 8 is ”irrational, indefensible and unconstitutional.”

12/08/09 KTUV.com / Bay City News:

Proposition 8 supporters in an opposing trial brief claimed there are numerous reasons for a traditional definition of marriage. One of the reasons, their lawyers wrote, is "promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation."

I have updated my list of Perry filings later today to include a link to the brief of Prop. 8 proponents. Thanks to California attorney Rick Xiao and Phillip Minton of Unite the Fight for their help.

Today's U.S. Supreme Court ruling may affect whether Prop. 8 proponents will be required to disclose internal campaign communications in Perry case

Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___ (slip op. Dec. 8, 2009) / SCOTUS Wiki

Last week, a 9th Circuit panel heard oral argument in Perry v. Hollingsworth, No. 09-17241. Charles Cooper, counsel for Prop. 8 proponents, argued that a First Amendment privilege protects internal campaign communications that Judge Walker had ordered them to disclose to Perry plaintiffs. (See Parenthetical Greg's perceptive summary of the oral argument here.) Among other issues, the 9th Circuit panel considered two separate questions about whether it has jurisdiction to hear the appeal brought by Prop. proponents. Can the panel review an immediate, pre-trial appeal of discovery orders based on proponents' claims of First Amendment privilege, or must proponents wait until entry of a final judgment to make their appeal? Does the First Amendment claim present exceptional circumstances warranting a writ of mandamus by the panel, when ordinarily proponents could not pursue appellate review of the discovery orders until entry of a final judgment?

The U.S. Supreme Court has just issued a ruling that may affect the first of these jurisdictional questions. Here is what Parenthetical Greg has to say about the Mohawk ruling, written by Justice Sotomayor:

The panel will now (presumably) have to deal with today's Supreme Court decision in Mohawk Industries v. Carpenter. The court considered and rejected the contention that the attorney client privilege was appropriate for a collateral-order appeal.

The panel hearing the Perry appeal mentioned that this case was dangling over their heads (metaphorically, of course).

Even if they accept that Mohawk should govern (ruling out the appeal), the Ninth Circuit could issue a writ of mandamus in the alternative.

Either way, the panel may end up revisiting their opinion at this point.

(Thanks also to Tyler Rosenbaum for his comment on the case.)

Religious liberty exemptions in the amended NJ marriage-equality legislation - at odds with the state's anit-discrimination law?

New Jersey Freedom of Religion and Equality in Civil Marriage Act, S.1967, amended 12/07/09

As a result of yesterday's hearing, the New Jersey Senate Judiciary Committee amended marriage-equality legislation to provide the following religious liberty exemptions:

Sec.5

...

b. No religious society, institution or organization in this State serving a particular faith or denomination shall be compelled to provide space, services, advantages, goods, or privileges related to the solemnization, celebration or promotion of marriage if such solemnization, celebration or promotion of marriage is in violation of the beliefs of such religious society, institution or organization.

c. No civil claim or cause of action against any religious society, institution or organization, or any employee thereof, shall arise out of any refusal to provide space, services, advantages, goods, or privileges pursuant to this section. No State action to penalize or withhold benefits from any such religious society, institution or organization, or any employee thereof, shall result from any refusal to provide space, services, advantages, goods, or privileges pursuant to this section.

d. Nothing in this act shall be construed to limit the effect of section 2 of P.L.1979, c.428 (C.18A:35-4.7). [This law allows parents to exempt their children from public school lessons involving "health, family life education, or sex education" if in conflict with the parents' religious beliefs.]

With one critical exception, these exemptions resemble those the D.C. Council provided in its recently adopted legislation [Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (Bill 18-482, as revised November 10th; enrolled version not online].

Like the D.C. Council's Committee on Public Safety and the Judiciary, the NJ Senate Judiciary Committee decided to extend the exemptions to religious organizations even if they followed the contested example of a NJ religious organization and rented their wedding facilities to heterosexual couples, but not same-sex couples. But with respect to services of religious organizations that "promote marriage," the D.C. Council Judiciary Committee limited their exemptions to just "religious programs, counseling, courses, or retreats." The NJ Senate Judiciary Committee does not limit the scope of its exemptions in this way. As a result, a NJ religious organization would be free to deny same-sex couples any service "related to the promotion of marriage" - unless the state's public accommodation law (N.J.S.A. 10:1-5, described here) protects the right of gays and lesbians to receive that service.

Hearing by the NJ Senate Judiciary Committee on marriage equality legislation, and vote to approve

12/08/09 Philly.com:

The Senate Judiciary Committee approved the legislation by a vote of 7-6 after nearly eight hours of debate and testimony that was at times emotional and eloquent. The approved bill included an amendment intended to clarify that religious organizations would never be forced to sanction or participate in a marriage they disagreed with.12/07/09

WordInEdgewise, by law professor John Culhane:

This just in: By a 7-6 vote, the New Jersey Senate Judiciary Committee voted out the marriage equality bill, with what appear to be appropriate protections for religious organizations whose beliefs teach against same-sex unions. (I’m trying to get a copy of the bill so that I can independently analyze its terms.) Its fate in the full Senate (and beyond) may be decided on Thursday, and is unclear.

12/07/09 WordInEdgewise, by law professor John Culhane:

Here’s the scene from New Jersey today, where supporters and opponents of the marriage equality bill [version as introduced 06/09/08] gathered in advance of the Senate Judiciary committee meeting. Write your own caption ... I’ll be back with a summary and a preview of Thursday’s vote later.

The OPM-Ninth Circuit Dispute, Disentangled

12/07/09 LawDork, by attorney Chris Geidner

There has been much written about Office of Personnel Management Director John Berry’s comments this weekend about Ninth Circuit Judge Alex Kozinski’s order relating to a same-sex couple’s health benefits. What’s not being written about is the other Ninth Circuit judge considering a similar dispute, Judge Stephen Reinhardt.

Looking at both of their actions should help disentangle this debate, much of which has been over-inflated and devoid of careful analysis of what is actually going on with the dispute.

House of Representatives of Ireland debates Civil Partnership Bill 2009

12/03/09 Human Rights in Ireland:

December 3 saw the second stage debate on the Civil Partnership Bill 2009, which will establish new schemes for the legal recognition of co-habiting couples and same-sex civil partnerships. The Bill, in [Justice] Minister Dermot Ahern’s words[,] "creates for the first time in Irish law a scheme under which a same sex couple can formally declare their allegiance to each other, register their partnership under new provisions in the Civil Registration Act 2004, commit themselves to a range of duties and responsibilities and at the same time be subject under new law to a series of protections in the course of their partnership in the event of a failure of either party to maintain the other and in the event of disputes between them as to ownership of property."

Judge upholds anti-bullying curriculum of California school district designed to protect LGBT students, and students of non-traditional families

Order Denying Petitioners' Petition for Writ of Mandamus, filed 12-01-09, in Balde v. AlamedaUnified School District , No. RG09-468037 (Cal. Alameda County Super. Ct.)

Petitioners in this lawsuit include parents of Alameda, California, who sought to exempt their children from a curriculum of the local school district. On May 26th, the Alameda School Unified School District (AUSD) Board adopted the Safe School Community Curriculum - Lesson 9. They took this action in response to episodes of bullying against students who are members of gay and lesbian families. Lesson 9 introduces kindergarten through fifth-grade students to differences among familes, so that by the fifth grade students not only understand family diversity and LGBT family structures, but are ready to learn about prejudicial stereotypes. Lesson 9 was thus designed to prevent bullying and harassment against LGBT students, and students of non-traditional families, including families with gay and lesbian parents.

Objecting on religious grounds to Lesson 9, plaintiff parents asked AUSD officials to exempt their children from the program. The parents claimed that Lesson 9 represents "health instruction," and that Cal. Educ. Code Sec. 51240 allows them to exercise an "opt-out" of their children from any "health instruction" lesson that violates their religious beliefs. When AUSD officials informed them that the Lesson 9 curriculum has no opt-out provision, counsel for the parents - the Pacific Justice Institute - filed a petition with the Alameda County Superior Court to compel AUSD to honor their exemption demand. Pacific Justice Institute filed the petition on August 12th.

Yes on 8 and Yes on 1 proponents in California and Maine, respectively, told voters that marriage-equality would advance public-school "indoctrination" in same-sex marriage. In this context, I thought that marriage-equality opponents might exploit Balde in the next campaign to repeal Prop. 8. If banning marriage equality in California does not stop some school districts from adopting programs like Lesson 9, they could "warn" voters, imagine what incentive school districts would have if voters repealed the ban!

It took Judge Frank Roesch relatively little time to rule against the parents and order them to pay AUSD's legal costs. He found no intent by the State legislature to define a "school's instruction in health" by standards petitioners identified as relevant - the Health Education Content Standards for California Public Schools, as adopted by the California Department of Education. And even if these standards were relevant, Judge Roesch found nothing more than incidental overlap at each grade level between Lesson 9 and the Health Education Content Standards:

[C]ontrary to the Petitioners' assertion, the Lesson 9 curriculum does not closely track the Health Ed Content Standards on a grade-by-grade basis. The Lesson 9 curriculum has a distinct and focused purpose tied to preventing discrimination against young students based on the LBGT structures of their families, and any overlap with Health Ed Content Standards is not significant and does not support Petitioners' claimed right to opt out of instruction for their children in the Lesson 9 curriculum.

Finally, the Court agrees with the District that Petitioners' position would expand the scope of the opt out right under Education Code section 51240 to include any anti-discrimination or anti-harassment instruction that deals with families or tolerance of persons with differences. The result would be that parents who object to instruction in tolerance of individuals or families of other races or of mixed races, of persons with disabilities, or of persons or families of other races, ethnicity, or religion, would have the right to have their children excused from instruction on those topics. This result could not have been contemplated by the Legislature, since it substantially hinders the ability of schools to supplement California's policy under Education Code section 233 to provide equal rights and opportunities in public schools to all persons, regardless of sexual orientation, disability, gender, nationality, race or ethnicity, or religion. [9-10]