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Analysis: 9th Circuit Appears Ready to Grant Proponents Standing to Appeal

by Robert Cruickshank

The 9th Circuit Court of Appeals today issued a “ruling” of sorts on the appeal of Judge Vaughn Walker’s ruling that found Prop 8 to be unconstitutional*. The “ruling” was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker’s decision. Here’s the question they want answered:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

We understand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision.

A further reading of the document suggests that the 9th Circuit is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here’s what the 9th Circuit said:

If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State….

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”…

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so….

Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government, with its own sovereign power. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say “yes, the proponents do have standing” or “no, the proponents do not have standing,” or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes’ longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.

In which case, the 9th Circuit would then rule on the issue of Prop 8’s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing. Still, that’s just my view, and we should prepare for any outcome.

The 9th Circuit also concurrently ruled that Imperial County does not have standing to appeal Judge Walker’s decision, a ruling that was widely expected in the wake of the farcical appearance before the 9th Circuit court by Imperial County officials.

The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule. Whatever the outcome of the Prop 8 case, it’s time to bring some sense and sanity to ballot initiatives here in California.

*Somehow I doubt that the 14th Amendment will be read out on the House floor this week by Republicans, who hate the 14th Amendment and want to pretend it doesn’t exist.

Robert Cruickshank worked at the Courage Campaign from November 2007 to November 2010, when he stepped down as Public Policy Director. His analysis represents his views alone.

156 Comments January 4, 2011

Courage Campaign website blocked by Dept. of Defense computers in Iraq

by Robert Cruickshank

We recently heard from a Californian deployed to Iraq that the Courage Campaign’s Progressive Voter Guide – and in fact, our entire website – is being blocked by Department of Defense computers in Iraq, whereas right-wing sites remained available. Today a reporter for The Hill confirmed the story:

Courage Campaign, a 700,000-member grassroots organization, has demanded in a letter to Defense Secretary Robert Gates that access to its site be provided before the Nov. 2 Election Day….

In contrast, the group said a number of web sites that espouse conservative views can be accessed on Defense Department computers.

The Hill independently confirmed that the Tea Party Express site can be accessed on Defense Department computers while the Courage Campaign site cannot be accessed. Courage campaign said it has received information that web sites affiliated with the Traditional Values Coalition, California Election Forum and Christian Voter Guide through the Defense Department computers in Iraq.

Courage Campaign acted on a tip from a prospective Californian voter deployed to Iraq.

“It is an enormous problem because the election on California is extremely important,” Rick Jacobs, the founder of Courage Campaign, said in an interview.

Earlier this week Jacobs wrote to Defense Secretary Robert Gates demanding that access to our website be restored. Courage Campaign has not received a response. The letter was cc’d to President Obama, Senators Dianne Feinstein and Barbara Boxer, and key members of the California Congressional delegation. Here’s the letter:

[scribd id=40498901 key=key-2hcgvamkebvap29us95y mode=list]

The Hill posits a possible explanation for the blockage:

However, there could be other possible explanations for the blocked site, such as an automatic filter that sifts through specific words. The Courage Campaign site uses multiple references to “sex” (as in same-sex marriages) and “gay” (as in anti-gay, or gay rights). The site also contains information and action items on the repeal of the military’s ban on openly gay service members.

However, other sites that also use the words “sex” and “gay” – including the right-wing sites listed above – are not blocked. Hell, if you are going to merely block a site because it has multiple references to “gay” and “sex” you’d be blocking the New York Times, CNN, and Wikipedia, to name just a few.

We at Courage Campaign have been given no explanation for what is going on here. Needless to say, it is extremely troubling. Voters have a right to access our guide, and soldiers and other support personnel in Iraq (or anywhere else, for that matter) have a right to access our site and others like it. If this is a matter of political censorship, it has no place in our armed forces.

With Tuesday’s election looming and our troops filling out ballots in Iraq, we are going to stop at nothing to make the site – and our voter guide – accessible to American soldiers who want to vote.

67 Comments October 30, 2010

Argentina Recognizes Marriage Equality

by Robert Cruickshank

Marriage equality marches onward around the globe, with Argentina’s Senate voting last night to approve a bill backed by President Cristina Fernández de Kirchner to legalize same-sex marriage:

Argentina legalized same-sex marriage Thursday, becoming the first country in Latin America to declare that gays and lesbians have all the legal rights, responsibilities and protections that marriage brings to heterosexual couples.

After a marathon debate in Argentina’s senate, 33 lawmakers voted in favor, 27 against and 3 abstained in a vote that ended after 4 a.m. Since the lower house already approved it and President Cristina Fernandez is a strong supporter, it becomes law as soon as it is published in the official bulletin, which should happen within days.

The bill’s passage early this morning led to the following scenes of joy in the Argentine capital, Buenos Aires:

The Catholic Church fought hard to block this bill, but Argentina joined other Catholic countries such as Spain and Portugal in ending discrimination against same-sex couples. One Catholic priest even vowed to defy the Vatican by supporting the marriage equality bill.

Argentina is reputed to be a socially conservative country. So why did President Fernández and the Senate buck the Church on this?

Glenn Greenwald provides the answer in an excellent post at Salon:

Argentinian politicians acted in the face of “polls showing that nearly 70 percent of Argentines support giving gay people the same marital rights as heterosexuals.” That’s what is most striking here: this is not happening in some small Northern European country renown for its ahead-of-the-curve social progressivism (though gay marriage or civil unions are now the norm in Western Europe). Just as is true for Brazil, which I’ve written about before with regard to my personal situation, Argentina is a country with a fairly recent history of dictatorships, an overwhelmingly Catholic population (at least in name), and pervasive social conservatism, with extreme restrictions on abortion rights similar to those found on much of the continent. The Catholic Church in Argentina vehemently opposed the enactment of this law. But no matter. Ending discrimination against same-sex couples is understood as a matter of basic equality, not social progressivism, and it thus commands widespread support.

Greenwald contrasts this with the United States, where national political leaders are reluctant to support marriage equality and where President Obama’s campaign pledge to overturn DOMA is languishing. Greenwald suggests that one reason Argentina supports marriage equality is that its recent history of dictatorship and pervasive abuse of human rights has sensitized the population to questions of equality. This might help explain marriage equality in Spain and Portugal, which were also ruled by repressive, socially conservative dictatorships until the mid-1970s, and where activism in support of LGBT rights became prominent as soon as Franco’s and Salazar’s regimes fell.

What Argentina shows us is the power of a movement, and the importance of organizing. 70% of Argentinians did not embrace marriage equality overnight. But through diligent organizing, Argentina’s LGBT rights movement refused to take “no” for an answer and showed how marriage equality was a question of basic fairness and equality in a country that well understood those values.

Despite our problems here in the United States, we too have a heritage that values equality and fairness. We also have a heritage of systematically denying those things on the basis of race, gender, and sexual orientation. But as we have seen in states like Iowa, Massachusetts, and for a brief moment, California, the better half of our angels can be mobilized to bring marriage equality to this country. We are going to win more victories across the country, and eventually a national victory, by persistently building a movement to show enough Americans that it is simply wrong to deny equality to people.

93 Comments July 15, 2010

NOM Launches “Summer for Marriage” Tour – And We’re Going to Track Them

by Robert Cruickshank

Maggie Gallagher, the Chair of the National Organization for Marriage (NOM), was beside herself last Thursday after a federal court judge ruled that the “Defense of Marriage Act” (DOMA) was unconstitutional. As she said in a press release last Thursday:

Does this federal judge want to start another culture war? Does he really want another Roe. v. Wade?… Only an incompetent defense could have lost this case. We expect to win in a higher court.

Maggie Gallagher and NOM’s supporters on the religious right know that the DOMA ruling is a serious setback and a troubling sign that momentum is slipping away from them. They also know that, in the battle for hearts and minds, state-by-state, community-by-community, they are losing.

So, taking a page from the Tea Party, NOM is launching an unprecedented “Summer for Marriage: One Man, One Woman” tour across the country this Wednesday to rally their troops, change the narrative in the media, and swing momentum back to their side.

We’re can’t let NOM go unchallenged. That’s why we are sending our staffers on the road for the next month to track every moment of NOM’s month-long tour — and tell the truth to the American people. You’ll be able to see it all on a new NOM Tour Tracker that we’re going to launch as part of this blog.

The NOM Tour Tracker campaign is the next phase in our “Testimony: Equality on Trial” year-long project to bring the federal Prop 8 trial into the lives of the American people. Here’s how we’re going to track this tour.

Working closely with Freedom to Marry and our friends organizing for equality in communities across the country, our staffers will do much more than just hold NOM accountable for their propaganda campaign. Our NOM Tour Trackers will also:

• Mobilize Courage members in each community to organize their own events at each tour stop, in collaboration with local organizations

• Collect the “testimony” of people and families impacted by the lack of full equality in America

• Organize and present live reenactments of the Prop 8 trial, which you’ll see on our Equality on Trial website

I saw that some of you have already been discussing this in the comments, and some have already donated. On behalf of the Courage Campaign, we thank you for that support. We’ve budgeted $35,000 to track the NOM tour. An anonymous donor has offered to put up $17,500 if we can raise enough money to match it.

Please help us launch this project by making a tax-deductible contribution today.

Here’s the list of locations the NOM tour is going to hit. (Note: the link takes you to the NOM site, so you may want to have some hand sanitizer and clothespins ready.) The tour is focused on the Northeast and the Midwest, perhaps a sign that NOM feels these areas are moving toward equality and away from their discriminatory agenda. It concludes on August 15 on the steps of the US Capitol in Washington DC.

Courage Campaign staff and local equality advocates along the route will be tracking this tour and bringing you the stories and statements – the testimony – of this tour. Thanks to those of you who have already donated to help us launch this project. I hope others can make a tax-deductible contribution as well, so that we can get this project under way!

214 Comments July 12, 2010

Historic DOMA Ruling Could Help Repeal Prop 8

by Paul Hogarth

Part 3 of the Defense of Marriage Act (DOMA) was found unconstitutional on Thursday, by a 79-year-old Federal District Court Judge in Boston. Joseph Tauro, the longest serving Nixon appointee on the bench, ruled in a pair of cases that gay couples who were married in Massachusetts are denied equal protection. Part 3 of DOMA denies gay couples (even if a state recognizes their marriage) any of the 1,000-plus federal marriage rights – such as Social Security benefits, immigration or joint tax returns. Tauro noted how DOMA radically intruded in an area (marriage) that has long been the province of the states. As California awaits a federal court ruling that challenges Prop 8, Tauro’s decision paves the way for marriage equality – by proving that a court doesn’t need to rule under “strict scrutiny” to find DOMA unconstitutional. This is a departure from earlier California cases on marriage equality, and should guide the federal case to repeal Prop 8.

The two cases challenging DOMA – one by GLAD (Gay & Lesbian Advocates & Defenders) on behalf of gay couples, the other by Massachusetts Attorney General Martha Coakley – were both smart lawsuits, targeted at making incremental progress for marriage equality. Massachusetts has had gay marriage since 2004, but couples there still don’t have full equality – because DOMA prevents them from accessing any of the federal rights that come with marriage.

In fact, I had argued back in January that this suit was preferable to the federal case against Prop 8, because the odds of success were better. Because so much of the tangible benefits that come with marriage are federal, going to federal court was always inevitable – but civil rights lawyers had avoided it for years, for fear of the U.S. Supreme Court’s conservative bent. I even worried that a bad Prop 8 ruling could sabotage our challenge to DOMA.

But after reading Judge Tauro’s decision in the GLAD case, the federal court has improved the likelihood of repealing Prop 8. Rather than declare gays to be a “suspect class” and reject DOMA on “strict scrutiny” grounds, the ruling said that was unnecessary – because DOMA doesn’t even pass the more lenient “rational basis” test. The federal courts have never found gays to be a “suspect class,” but now we have a map for overruling Prop 8 on similar grounds.

When a law discriminates against a group of people, the first question a court generally asks is if that group is a “suspect class.” If so, the law must pass “strict scrutiny” – which means it’s presumed to be unconstitutional, unless the government defines a compelling public interest and the law is narrowly tailored through the least restrictive means. If not, the law is fine – as long as the court can literally dream up a “rational basis” that the law is legitimately related to. If there is no rational basis, it is “irrational” – and thus illegal.

What was so special about prior cases in California, Connecticut and Iowa is that those state Supreme Courts found sexual orientation to be a “suspect class” – and thus found on “strict scrutiny” grounds that gays must have the right to marry. But here, Judge Tauro writes: “DOMA fails to pass constitutional muster, even under the highly deferential rational basis test … There exists no fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate government objective.”

Why is this so important? Because having live-blogged the Prop 8 trial, I’ve become very concerned about how we could get the federal courts to strike it down – if no federal court has ever found gays to be a “suspect class.” Without such a finding (and it’s naïve to count on any federal court to do so), anti-gay laws like DOMA and Prop 8 are presumed constitutional – unless we can prove they have no rational basis, and are motivated solely by animus.

How did Judge Tauro find no rational basis for DOMA? First, he went through the four reasons Congress gave for passing it in 1996 – which even the Obama Administration won’t argue anymore: (a) the purpose of marriage is to procreate, (b) government must defend and promote straight marriage, (c) Congress morally disapproves of gays and (d) DOMA preserves scarce government resources. Needless to say, he disposed of all four – by explaining how denying benefits to gay married couples did not achieve these goals.

Then, he looked at the “reasons” that the Justice Department currently gives for keeping DOMA on the books – (a) preserving the status quo, and (b) administrative efficiency.

On preserving the status quo, Tauro wrote: “the government assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits and privileges.” But the definition of who gets married has always been up to the states, and not all states have the same standards. All the federal government needs to know is that a couple legally wed under the laws of their state.

“Importantly,” he wrote, “the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage.” Arguably, it’s the second time – Congress made polygamy a crime in 1865.

As for administrative efficiency, Tauro explained that it’s just a subterfuge for the old argument that DOMA was to preserve scarce resources: “it strains credulity to suggest that Congress might have passed DOMA – touching every single federal provision that includes the word marriage or spouse – simply for the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits.” Besides, now that states like Massachusetts allow gays to be married, DOMA adds an unnecessary layer of confusion.

In the absence of a rational basis, it is fair to conclude that the only reasons are irrational – and so the Federal Court Judge overruled Part 3 of DOMA. Gay marriage advocates hope that we’ll see a similar verdict in Prop 8 – where the opposing side presented very weak evidence at trial on any rational to deny gay couples the right, besides bigotry.

Will Judge Tauro’s decision be appealed? Everyone expects it to, just as we presume Judge Vaughn Walker’s ruling on Prop 8 – which we anticipate any day now – to be as well. The right-wingers at NOM even went so far as to pray “with God’s help” there will be five U.S. Supreme Court justices to uphold Prop 8, and their press release over the DOMA ruling yesterday was equally hysterical. Expect this to be unresolved for years.

But with DOMA thrown out on “rational basis” grounds in a federal court, it should give hope to gay marriage advocates here in California that Prop 8 will suffer a similar fate.

153 Comments July 10, 2010

US Federal Judge In Massachusetts Rules Part of DOMA Is Unconstitutional

by Robert Cruickshank

UPDATE: Here’s the PDF of the ruling, via GLAD. Original post begins here:

As we await the ruling from Judge Vaughn Walker on Perry v. Schwarzenegger, we just received word about a decision in two marriage equality suits. A federal judge in Massachusetts just ruled that Section 3 of the Defense of Marriage Act, the federal law passed in 1996 that bars federal recognition of same-sex marriage and enables states to withhold recognition of same-sex marriages performed in other states, is unconstitutional.

The ruling in the cases, Commonwealth of Massachusetts v. Health and Human Services and Gill v. Office of Personnel Management, does not strike down DOMA in its entirety. But what it does appear to do is to remove the ban on the federal government’s recognition of same-sex marriage.

Bay Windows, New England’s largest GLBT newspaper, provides a very useful overview:

In an enormous victory for same-sex marriage, a federal judge in Boston today (Thursday, July 8) ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act (DOMA) unconstitutional.

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage — one man and one woman — violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders (GLAD), a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law.

Adam Bink at Open Left offers the key section from Judge Tauro’s ruling in Commonwealth:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

In other words, Judge Tauro’s ruling in Commonwealth is that the 10th Amendment prevents Congress from defining marriage, a right that the states held until 1996. It should be noted that there is considerable precedent, including Loving v. Virginia, giving the US Supreme Court the right to overturn bans on certain kinds of marriage, so this case should not be construed to limit the federal courts’ ability to provide for marriage equality.

The other suit, Gill v. OPM, further establishes that Section 3 of DOMA was passed with discriminatory intent and is invalid. The outcome of that suit would appear to mandate that the federal government provide benefits to couples in a same-sex marriage that is sanctioned by the state. This may lead to same-sex spouses being able to file a joint return with the IRS, something that has been denied to them (including the 18,000 same-sex couples married in California between May and November 2008) under DOMA.

Early reaction is in from Evan Wolfson at Freedom to Marry:

Today’s historic ruling strikes down federal marriage discrimination enacted under the so-called “Defense of Marriage Act” in 1996. DOMA created two classes of marriage – those the federal government respects and some it doesn’t – denying married same sex couples and their families equal treatment and depriving them of the crucial safety-net that marriage brings. In Gill et al. v. Office of Personnel Management, eight married same-sex couples and three widowers, represented by the Gay & Lesbian Advocates & Defenders, demonstrated that federal marriage discrimination harms gay and lesbian couples who are trying to make ends meet and protect their families.

Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional. The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason. Today’s ruling provides increased momentum to the national movement to end exclusion from marriage and Freedom to Marry’s Roadmap to secure the freedom to marry nationwide. The crucial work of changing hearts and minds and winning the freedom to marry in more states is more urgent than ever as we build on today’s momentum and encourage other decision-makers to do the right thing and end exclusion from marriage.

We’ll have more updates as we learn more about the ruling and its likely implications. It will be interesting to see what, if any, bearing this ruling has on Judge Walker’s decision in Perry v. Schwarzenegger.

UPDATE 2: More from Judge Tauro’s decision:

But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.

This is a very sensible and effective response to the silly argument that same-sex marriage somehow limits or undermines heterosexual procreation.

Adam Bonin has a good analysis up over at Daily Kos.

A key upcoming question is whether the Obama Administration will appeal this decision. It would be wise of them to not do so.

410 Comments July 8, 2010

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