03/07/09 AP (posted to Sacramento Bee):
David Cruz is a constitutional law professor at the University of Southern California. If the California Supreme Court rules in the way many expect, he thinks that the ruling would be opening to challenge under the equal protection clause of the 14th Amendment.
"Having some gay couples allowed to stay married while others are prohibited from saying 'I do' would provide legally plausible, if politically debatable, grounds for an appeal under the equal protection clause of the U.S. Constitution, according to Cruz.
" 'If they say Proposition 8 is valid but it doesn't touch existing marriages, what that raises is the fact that there are now these two groups of couples who are treated differently under the law for no functional reason,' he said."
Tobias Wolff, a University of Pennsylvania constitutional law professor, anticipates significant burdens on married same-sex couples if the Court sustains the validity of their marriages. Jon Davidson, legal director of Lambda Legal, has already referred to this form of unequal burden that such couples can be expected to bear.
IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.
Sunday, March 8, 2009
Saturday, March 7, 2009
Preparation for expected California Supreme Court ruling that upholds Prop. 8 and existing same-sex marriages
03/07/09 Sacramento Bee:
Dennis Mangers was chairman of No on 8 in Northern California, and is a senior advisor to Senate Pro Tem Darrell Steinberg. "When does it seem strategically appropriate to raise the issue again", he asked, if the Court upholds Prop. 8. "Those are discussions going on right now."
03/07/09 LA Times:
This article addresses the effect of the expected ruling on married same-sex couples, and the debate about timing an initiative challenge. "Jon Davidson, legal director for the gay-rights advocacy group Lambda Legal, called the couples 'pioneers' put into 'an unprecedented situation. 'It will be challenging for those 18,000 couples,' Davidson said. 'They are likely to be frequently asked to prove that they are married. . . . They will be going forward where no couple has gone before.' "
03/07/09 LA Times:
In this opinion article, writer Robin Rauzi, who married his gay partner before the November election, may become what he calls a "marriage outlaw":
" I can also revel in the paradox of being married by a state that denies it means anything. Because the paradox is certain to be short-lived. We are in an awkward legal adolescence on this issue, but we will outgrow it."
IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.
Dennis Mangers was chairman of No on 8 in Northern California, and is a senior advisor to Senate Pro Tem Darrell Steinberg. "When does it seem strategically appropriate to raise the issue again", he asked, if the Court upholds Prop. 8. "Those are discussions going on right now."
03/07/09 LA Times:
This article addresses the effect of the expected ruling on married same-sex couples, and the debate about timing an initiative challenge. "Jon Davidson, legal director for the gay-rights advocacy group Lambda Legal, called the couples 'pioneers' put into 'an unprecedented situation. 'It will be challenging for those 18,000 couples,' Davidson said. 'They are likely to be frequently asked to prove that they are married. . . . They will be going forward where no couple has gone before.' "
03/07/09 LA Times:
In this opinion article, writer Robin Rauzi, who married his gay partner before the November election, may become what he calls a "marriage outlaw":
" I can also revel in the paradox of being married by a state that denies it means anything. Because the paradox is certain to be short-lived. We are in an awkward legal adolescence on this issue, but we will outgrow it."
IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.
Thursday, March 5, 2009
Selective roundup of news and attorney comments on oral arguments
UPDATED 03/10/09
Replay court hearing video, Sacramento Bee live blog (free registration required) and at The California Channel (Columbia Law School professor Katherine M. Franke recommends that California Channel viewers "fast forward 15 minutes to skip the Cal. Sup. Ct. promo and get to the real argument.") The California Supreme Court also provides an mp3 audio file.
Legal Newspapers
03/05/09 The Recorder and affiliated Cal Law Legal Pad blog:
"Same-sex marriage is history in California, at least for now. This morning California Supreme Court justices hinted strongly that they will uphold Proposition 8, the November ballot initiative limiting marriage to heterosexual couples." The Recorder article and Cal Law post also suggest that the Court will probably sustain the 18,000 same-sex marriages performed after the Court decided In re Marriage Cases, but before voters passed Prop. 8.
03/05/09 San Francisco Daily Journal (subscription required):
This article - from a legal newspaper that competes with The Recorder - makes the same observation as the Recorder about how the Court will likely decide the Prop. 8 litigation.
Other newspapers
03/05/09 LA Times:
"Reporting from San Francisco and Los Angeles -- The California Supreme Court appeared ready today to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed likely to decide -- perhaps unanimously -- that the marriages of same-sex couples who wed before the election would remain valid."
03/05/09 Oakland Tribune (posted at mercurynews.com):
Ruthann Robson, professor at CUNY School of Law, considers this article "one of the best recaps of the argument I've read so far."
3/05/09 How Appealing Legal Blog :
"California Supreme Court appears likely to uphold gay marriage ban": Howard Mintz of The San Jose Mercury News has this news update.
Comments by attorneys and law professors
03/06/09 Leonard Link:
New York Law School Professor Arthur Leonard makes this observation:
"It seemed likely from their comments that George and Kennard would have difficulty voting to reject the results of the popular initiative vote, narrow as the majority was.It is possible that [Chief Justice] George and [Justice] Kennard were trying out their doubts but will ultimately resolve them against Prop 8, but that result seems unlikely, especially in the case of Kennard, who spent so much time during the argument appearing to explain her position as not being a 'change' in her views about marriage, but rather a reflection of her understanding of the initiative process."
03/06/09 ABA Journal Law News:
In a comment on the Journal's report, San Jose attorney Daniel Chiu finds that the reasoning required to uphold Prop. 8 would involve "judicial gymnastics and bad law."
03/05/09 NY Times:
"Therese M. Stewart, the chief deputy city attorney of San Francisco, who had argued against the proposition in court, said that if the justices uphold Proposition 8, 'we will go back to the ballot box, and we will eventually prevail.' "
"Andrew P. Pugno, co-counsel for proponents of the ban, was upbeat. 'We’ve been confident all along that Proposition 8 will be upheld,' he said. 'We felt good coming in, and we felt good coming out.' "
03/06/09 UC Berkeley The Daily Californian:
"We are definitely dealing with something incredibly controversial," Therese M. Stewart said. "We went out on a limb, not because it's not the law but because it's a new kind of revision case."
03/05/09 MSNBC Interview of San Francisco City Attorney Dennis Herrera:
"[W]hat was very telling was the chief justice‘s questions of Judge Kenneth Starr who, representing the other side, said very, very clearly, that if Prop Eight was allowed to stand, issues such as free speech and other fundamental rights that many of us take for granted would be freely able to be changed by a vote of the people."
03/05/09 Bloomberg News:
“The court is always reluctant to overturn a ballot initiative,” said Vikram Amar, a constitutional scholar and UC Davis law professor. In fact, as the LA Times reports, "[th]e state Supreme Court has rejected at least six revision challenges of initiatives, including measures that reinstated the death penalty, changed tax law (Proposition 13) and imposed term limits." Amar was also interviewed on tonight's PBS News Hour With Jim Lehrer.
03/05/09 Christian Science Monitor:
"The fundamental question that the court has to answer is just how far can the initiative process be used to change the California constitution and can it literally be used to take away any rights, no matter how fundamental," says David Cruz, professor of law at the University of Southern California , and a constitutional law scholar. "The justices might have to break new ground in interpreting the state constitution in order to classify Prop. 8 as either a minor amendment which can be adopted using the initiative process or a more profound revision … which cannot," said Cruz after watching the hearings.
03/05/09 San Diego Tribune opinion article by ADF attorney Glen Lavy:
Glenn Lavy "argued before the California Supreme Court in defense of Proposition 22 and is part of the legal team advising the defenders of Proposition 8 in court. He is a senior vice president and senior counsel for the Alliance Defense Fund (telladf.org)." He contends that if the Court overturns Prop. 8, "it would effectively reduce every future state election to a straw poll."
03/05/09 Opposing Views Lambda Legal article:
The Lambda Legal author has not been identified. The article quotes Jennifer C. Pizer and Eva Paterson.
Pizer is "Marriage Project Director for Lambda Legal and co-counsel in the legal challenge to Prop 8." She said that Prop. 8 represents "a radical attempt to strip a cherished constitutional right from just one targeted minority group and then to stop the courts from doing their most basic job of upholding the constitutional promise of 'liberty and justice for all'."
Paterson is president of the Equal Justice Society, which participated in filing an amicus brief. "We would be making a grave mistake to view Proposition 8 as just affecting the LGBT community," she said. "If the Supreme Court allows Proposition 8 to take effect, it would represent a threat to the rights of people of color and all minorities."
03/05/09 KKGN Peter B. Collins show:
The Recorder identifies Deb L. Kinney as a "leading estate planning attorney within the LGBT community." Collins interviewed Kinney about the oral arguments. The interview of about 8 minutes begins at about 5:50 minutes into Collins' program. Kinney observes that a core issue is "whether a simple majority vote in California can actually strip any minority group of what's been deemed a fundamental right. And I think that's the radical, unprecedented change that's put all of us in California at risk." She adds that if the Court upholds Prop. 8, "I worry for other minority groups. Ken Starr seemed to think that we should be able to take away rights from any group with a very simple majority ... I often wonder if we had to vote on interracial marriage today whether it would pass today."
03/05/09 KGO AM 810 Newstalk 810 Radio:
Frederick Hertz, author of Making it Legal: Considering Same Sex Marriage, Domestic Partnership and Civil Unions, was interviewed about the oral arguments. Unfortunately, online listeners have no option to "fast forward" to the interview segment. This program may not be available after 03/12/09.
03/05/09 Volokh Conspiracy:
Dale Carpenter is a Professor of Civil Rights and Civil Liberties Law at the Unversity of Minnesota. "The main hope, such as it remains, for opponents of Prop 8," he writes, "lies in the recognition of several justices today, including at least one who dissented from last May’s decision (Corrigan), that Prop 8 is unprecedented and thus calls for a new articulation of what constitutes a revision."
03/05/09 Constitutional Law Blog: Ruthann Robson, professor at CUNY School of Law, summarizes the oral arguments.
IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.
Replay court hearing video, Sacramento Bee live blog (free registration required) and at The California Channel (Columbia Law School professor Katherine M. Franke recommends that California Channel viewers "fast forward 15 minutes to skip the Cal. Sup. Ct. promo and get to the real argument.") The California Supreme Court also provides an mp3 audio file.
Legal Newspapers
03/05/09 The Recorder and affiliated Cal Law Legal Pad blog:
"Same-sex marriage is history in California, at least for now. This morning California Supreme Court justices hinted strongly that they will uphold Proposition 8, the November ballot initiative limiting marriage to heterosexual couples." The Recorder article and Cal Law post also suggest that the Court will probably sustain the 18,000 same-sex marriages performed after the Court decided In re Marriage Cases, but before voters passed Prop. 8.
03/05/09 San Francisco Daily Journal (subscription required):
This article - from a legal newspaper that competes with The Recorder - makes the same observation as the Recorder about how the Court will likely decide the Prop. 8 litigation.
Other newspapers
03/05/09 LA Times:
"Reporting from San Francisco and Los Angeles -- The California Supreme Court appeared ready today to uphold Proposition 8, the November ballot measure that banned gay marriage, but also seemed likely to decide -- perhaps unanimously -- that the marriages of same-sex couples who wed before the election would remain valid."
03/05/09 Oakland Tribune (posted at mercurynews.com):
Ruthann Robson, professor at CUNY School of Law, considers this article "one of the best recaps of the argument I've read so far."
3/05/09 How Appealing Legal Blog :
"California Supreme Court appears likely to uphold gay marriage ban": Howard Mintz of The San Jose Mercury News has this news update.
The Sacramento Bee has a news update headlined "Justices hammer both sides in Prop. 8 hearing."
The San Francisco Chronicle has a news update headlined "Court hears Prop. 8 arguments."
And The Associated Press reports that "Calif justices hear arguments in gay marriage case."Comments by attorneys and law professors
03/06/09 Leonard Link:
New York Law School Professor Arthur Leonard makes this observation:
"It seemed likely from their comments that George and Kennard would have difficulty voting to reject the results of the popular initiative vote, narrow as the majority was.It is possible that [Chief Justice] George and [Justice] Kennard were trying out their doubts but will ultimately resolve them against Prop 8, but that result seems unlikely, especially in the case of Kennard, who spent so much time during the argument appearing to explain her position as not being a 'change' in her views about marriage, but rather a reflection of her understanding of the initiative process."
03/06/09 ABA Journal Law News:
In a comment on the Journal's report, San Jose attorney Daniel Chiu finds that the reasoning required to uphold Prop. 8 would involve "judicial gymnastics and bad law."
03/05/09 NY Times:
"Therese M. Stewart, the chief deputy city attorney of San Francisco, who had argued against the proposition in court, said that if the justices uphold Proposition 8, 'we will go back to the ballot box, and we will eventually prevail.' "
"Andrew P. Pugno, co-counsel for proponents of the ban, was upbeat. 'We’ve been confident all along that Proposition 8 will be upheld,' he said. 'We felt good coming in, and we felt good coming out.' "
03/06/09 UC Berkeley The Daily Californian:
"We are definitely dealing with something incredibly controversial," Therese M. Stewart said. "We went out on a limb, not because it's not the law but because it's a new kind of revision case."
03/05/09 MSNBC Interview of San Francisco City Attorney Dennis Herrera:
"[W]hat was very telling was the chief justice‘s questions of Judge Kenneth Starr who, representing the other side, said very, very clearly, that if Prop Eight was allowed to stand, issues such as free speech and other fundamental rights that many of us take for granted would be freely able to be changed by a vote of the people."
03/05/09 Bloomberg News:
“The court is always reluctant to overturn a ballot initiative,” said Vikram Amar, a constitutional scholar and UC Davis law professor. In fact, as the LA Times reports, "[th]e state Supreme Court has rejected at least six revision challenges of initiatives, including measures that reinstated the death penalty, changed tax law (Proposition 13) and imposed term limits." Amar was also interviewed on tonight's PBS News Hour With Jim Lehrer.
03/05/09 Christian Science Monitor:
"The fundamental question that the court has to answer is just how far can the initiative process be used to change the California constitution and can it literally be used to take away any rights, no matter how fundamental," says David Cruz, professor of law at the University of Southern California , and a constitutional law scholar. "The justices might have to break new ground in interpreting the state constitution in order to classify Prop. 8 as either a minor amendment which can be adopted using the initiative process or a more profound revision … which cannot," said Cruz after watching the hearings.
03/05/09 San Diego Tribune opinion article by ADF attorney Glen Lavy:
Glenn Lavy "argued before the California Supreme Court in defense of Proposition 22 and is part of the legal team advising the defenders of Proposition 8 in court. He is a senior vice president and senior counsel for the Alliance Defense Fund (telladf.org)." He contends that if the Court overturns Prop. 8, "it would effectively reduce every future state election to a straw poll."
03/05/09 Opposing Views Lambda Legal article:
The Lambda Legal author has not been identified. The article quotes Jennifer C. Pizer and Eva Paterson.
Pizer is "Marriage Project Director for Lambda Legal and co-counsel in the legal challenge to Prop 8." She said that Prop. 8 represents "a radical attempt to strip a cherished constitutional right from just one targeted minority group and then to stop the courts from doing their most basic job of upholding the constitutional promise of 'liberty and justice for all'."
Paterson is president of the Equal Justice Society, which participated in filing an amicus brief. "We would be making a grave mistake to view Proposition 8 as just affecting the LGBT community," she said. "If the Supreme Court allows Proposition 8 to take effect, it would represent a threat to the rights of people of color and all minorities."
03/05/09 KKGN Peter B. Collins show:
The Recorder identifies Deb L. Kinney as a "leading estate planning attorney within the LGBT community." Collins interviewed Kinney about the oral arguments. The interview of about 8 minutes begins at about 5:50 minutes into Collins' program. Kinney observes that a core issue is "whether a simple majority vote in California can actually strip any minority group of what's been deemed a fundamental right. And I think that's the radical, unprecedented change that's put all of us in California at risk." She adds that if the Court upholds Prop. 8, "I worry for other minority groups. Ken Starr seemed to think that we should be able to take away rights from any group with a very simple majority ... I often wonder if we had to vote on interracial marriage today whether it would pass today."
03/05/09 KGO AM 810 Newstalk 810 Radio:
Frederick Hertz, author of Making it Legal: Considering Same Sex Marriage, Domestic Partnership and Civil Unions, was interviewed about the oral arguments. Unfortunately, online listeners have no option to "fast forward" to the interview segment. This program may not be available after 03/12/09.
03/05/09 Volokh Conspiracy:
Dale Carpenter is a Professor of Civil Rights and Civil Liberties Law at the Unversity of Minnesota. "The main hope, such as it remains, for opponents of Prop 8," he writes, "lies in the recognition of several justices today, including at least one who dissented from last May’s decision (Corrigan), that Prop 8 is unprecedented and thus calls for a new articulation of what constitutes a revision."
03/05/09 Constitutional Law Blog: Ruthann Robson, professor at CUNY School of Law, summarizes the oral arguments.
IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.
Vermont lawmakers will try to enact gay marriage law; Minnesota legislature introduces bill defining marriage as a civil contract between two persons
03/05/09 AP:
"Legislative leaders in Vermont pledged Thursday to push for passage of a gay marriage bill before the session ends in May, saying allowing civil unions was a good start but it's now time to end the "inequality" of existing laws."
03/05/09 StarTribune.com:
The Minnesota legislature may revisit its DOMA with a newly introduced bill that would allow same-sex couples to marry and require the state to recognize same-sex marriages performed in out-of-state jurisdictions. "Debate over the bill is likely to be fierce if the legislature's track record on the issue is any guide."
"Legislative leaders in Vermont pledged Thursday to push for passage of a gay marriage bill before the session ends in May, saying allowing civil unions was a good start but it's now time to end the "inequality" of existing laws."
03/05/09 StarTribune.com:
The Minnesota legislature may revisit its DOMA with a newly introduced bill that would allow same-sex couples to marry and require the state to recognize same-sex marriages performed in out-of-state jurisdictions. "Debate over the bill is likely to be fierce if the legislature's track record on the issue is any guide."
Wednesday, March 4, 2009
Cal Law Legal Pad offers live oral argument updates through Twitter; Jerry Brown takes to Twittering about Prop. 8
03/04/09 Cal Law Legal Pad: The Recorder's blog will offer live updates through Twitter, starting at 9 a.m. tomorrow.
03/04/09 San Francisco Citizen: "It appears that former California Governor Jerry Brown will be a-Twittering away tomorrow to keep Twitter-ees appraised of Proposition 8 developments at the California State Supreme Court in San Francisco."
03/04/09 San Francisco Citizen: "It appears that former California Governor Jerry Brown will be a-Twittering away tomorrow to keep Twitter-ees appraised of Proposition 8 developments at the California State Supreme Court in San Francisco."
Pepperdine University Law Professors Douglas W. Kmiec and Shelley Ross Saxer: "Equality in substance and in name"
03/04/09 SF Chronicle: These law professors would prefer the California Supreme Court to "direct the state to employ non-marriage terminology for all couples - be it civil union or some equivalent," so that the Court can "reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow."
California Lawyer Attorneys of the Year Awards: Shannon Minter and Therese Stewart
03/01/09 California Lawyer: "The California Lawyer Attorneys of the Year Awards recognize lawyers throughout the state whose legal work made a profound impact in 2008." Among the recipients are National Center for Lesbian Rights Legal Director Shannon Price Minter and San Francisco Chief Deputy City Attorney Therese M. Stewart for their successful argument in the landmark ruling, In re Marriage Cases, 43 Cal. 4th 757 (2008). "Other California lawyers noted for their work on the case include Amy Margolin and Bobbie Wilson at San Francisco's Howard Rice Nemerovski Canady Falk & Rabkin, who were heavily involved in the trial strategies and logged hundreds of hours pro bono for the city since 2004, when Mayor Gavin Newsom first ordered the issuing of same-sex marriage licenses."
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