Jerry Brown may be an excellent Attorney General on marriage equality, but he will be replaced by a new AG after the November election, as he’s now running for Governor. Given the Prop 8 legal process, the stakes in the AG race in California are quite high, as Equality California has done a good job highlighting today and this week.
Simply put, if Los Angeles District Attorney Steve Cooley — a Republican running against San Francisco DA Kamala Harris — becomes Attorney General, it could have very ominous consequences for our side in the Prop 8 case. More on that in future posts.
For now, check out what Cooley just said in a statement in response to current AG Jerry Brown’s motion opposing the stay:
“Barring a law that is unconstitutional on its face, the proper role of an Attorney General is to enforce and defend the will of the People as manifested through the initiative or legislative process. The will of the People should be respected and not overturned easily or lightly. Today’s decision by a federal judge overturning Proposition 8 should be appealed and tested at a higher level of our legal system. The California Supreme Court upheld Proposition 8 by a 6 to 1 vote and declared it to be constitutional. Likewise, if the voters had approved an initiative legalizing same-sex marriage and a federal judge had ruled against it, I would also support an appeal of that decision.”
In an email exchange, I asked Tobias Wolff, University of Pennsylvania Law School Professor, if he could provide some insight to Cooley’s statement on-the-record. If you’re not familiar with Wolff’s relationship to Prop 8, he represented a coalition of civil rights organizations in the first round of litigation over the initiative — including the NAACP Inc. Fund, MALDEF, the Asian Pacific American Legal Center, the Equal Justice Society, and the California NAACP — filing a petition and an amicus brief before the California Supreme Court.
Here’s what Wolff had to say about Cooley’s statement:
In his statement about the proposed stay of Judge Walker’s ruling, Steve Cooley, the Republican candidate for California AG, is misrepresenting the earlier holding of the California Supreme Court when he says that the court “upheld Proposition 8 by a 6 to 1 vote and declared it to be constitutional.”
In that first round of legal challenges to Proposition 8, the California Supreme Court did not rule on the constitutionality of Prop 8 under any provision of the U.S. Constitution. It was asked to decide only one question — whether state law permits a ballot initiative to be used in putting the fundamental rights of a protected minority up for popular vote. Appallingly, the California Supreme Court said that such a use of the ballot was no problem. But that had nothing to do with any of the constitutional issues that Judge Walker ruled on this week.
Either Cooley does not understand the law or he is deliberately misleading people about its content. Neither speaks particularly well of someone running to be the State’s chief law enforcement officer.
Kamala Harris, in contrast, has a long track record of supporting marriage equality, and her understanding of the legal and constitutional issues has always been sharp.
So a number of us (over 200, in fact) waited 45 minutes for Brian Brown’s live chat that was due to start at 7 PM EST, but he never showed, despite asking supporters in an e-mail to come. Wow.Jeremy has some of the awesome chat feed while we were waiting, though.
But Brian did find time to film a video asking for contributions. It makes me nauseous. Watch.
Here at Prop8TrialTracker.com, where we actually do show up when we say we will, day-in and day-out, at all hours, we could use your help supporting the NOM Tour Tracker, Prop 8 coverage. Tomorrow evening, we’ll be coming to you from St. Louis, MO. Getting our trackers to each stop and getting coverage for you up on this site costs money. Please chip in to support this coverage. Plus, if you do so, it’ll be matched 1:1 by a special $25,000 match from Tom Dolby and Drew Frist, just married last year, in honor of today’s decision.
Via Box Turtle Bulletin, Liberty Counsel blames the Alliance Defense Fund for the verdict. Circular firing squads on the right are fun.
Over e-mail, Shannon Minter with National Center for Lesbian Rights- who was lead counsel on the original CA Supreme Court case in 2008- sent this dispatch into colleague Rex Wockner. With permission, he has given permission for it to be published. It’s interesting.
This is a tour de force-a grand slam on every count. The court held that Prop 8 violates the fundamental right to marry and discriminates on the basis of both sex and sexual orientation in violation of the equal protection clause. The court held that laws that discriminate based on sexual orientation must be subject to the highest level of constitutional review, but that Prop 8 would fail even the lowest test, because it is based solely on moral disapproval of gay people. The court made detailed findings of fact about all of the evidence presented and the credibility of the witnesses. This is without a doubt a game-changing ruling. Today’s decision is the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court.
How well put together is this decision?
The decision is meticulously crafted. Judge Walker reviewed the entire record and made detailed factual findings about all of the evidence and the credibility of the witnesses. He also supported his ruling on multiple legal grounds. For example, he found both that laws that discriminate based on sexual orientation are subject to the highest level of constitutional protection, but that Prop 8 would fail even under the lowest level of protection because it serves no legitimate purpose. This is a remarkably careful, thorough, and deliberate decision, obviously written with an eye to presenting appellate courts with the strongest possible factual and legal basis for the ruling.
What’s the impact on higher courts? Why?
The appellate courts are not strictly bound by the court’s factual findings, but they generally give such findings a great deal of deference. The appellate courts also will undoubtedly will give considerable weight to Judge Walker’s careful legal analysis, although they ultimately will make their own independent assessment of what the law requires.
Does the ruling apply only in CA or to all laws that bar ss couples from marriage?
Judge Walker’s decision addressed only the situation in California, which stripped same-sex couples of the right to marry while leaving them with an inferior institution of domestic partnership. He also made many factual findings that are specific to Prop 8. But many aspects of his legal reasoning would also apply to other laws that bar same-sex coupes from marriage or otherwise discriminate against LGBT people.
Obama’s statement (on his birthday, no less): “The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.” Pretty vanilla- kind of reminds me of the one made in response to The Advocate inquiry for a position on No On 1/Referendum 71, actually- but it’s still nice to see. And I do recall the Obama speaking out against Prop 8 back in 2008, and the Obama-directed DNC donate to the cause.
A nice comment came in over e-mail to the team here:
I’m straight and have been in a monogamous marriage for 22 years. “A right you reserve for yourself and deny others is not a right but a privilege”. I want the society that I live in to provide equal rights for all. Thank you for your efforts to provide information and help keeping us up to date. You deserve a big thank you for your efforts. I know this is just another step in our journey but it’s worth taking time to celebrate.
You’re welcome. We really do appreciate the pat on the back. And thanks for being a straight ally!
Includes several videos, including this blast from the past — the deposition of the infamous William Tam:
What’s your favorite Tam quote?
UPDATE FROM EDEN: As Adam noted earlier, Ted Olson and David Boies are being interviewed right now by Rachel Maddow on MSNBC. Interview started at 6:16 PST.
UPDATE FROM EDEN: Caitlin Maloney, the Courage Campaign Institute’s Data Director, is at the San Francisco rally and march. She says there are thousands marching from the Castro to the Civic Center. Pictures may be coming soon!
And here they are, from rally participant Alan Beach-Nelson, marching with Caitlin and company:
(Courtesy of Alan Beach-Nelson)
What an inspiring and moving scene!
In the left-hand lower corner of the photo above, I can see Sarah Callahan, the Courage Campaign Institute’s COO, with her child Jack and Caitlin Maloney, our Data Director (in brown). Wish I was there with the Courage team. (I’m actually only a few miles away, but have to stay on the computer to keep updating the Trial Tracker!).
Harvey Milk’s spirit is alive and well. And he was “represented” at the march as well — check out the black-and-white face above the Castro flag being unfurled for the march above.
(Courtesy of Raffael Alva)
If any of you have links to pictures of video from rallies happening across the country, please post them in the comments!
UPDATE BY EDEN: News coming in (and pics soon hopefully) from the West Hollywood celebration. The L.A. Times is there and interviewed Rick Jacobs, the Courage Campaign Institute’s Chair and Founder:
Celebrators carried signs saying “Equality Now” and waved miniature rainbow flags. Among the participants was Rick Jacobs, founder of the Courage Campaign Institute, an organizing network that pushes for equality.
“The work is just beginning. We have to change the way people think before it gets to the Supreme Court,” Jacobs said. He said they’re working toward that goal with an online project where gays and lesbians can share their stories. “Gay people and lesbians are great parents, partners in marriage and families,” Jacobs said.
With the news out that the grassroots efforts to get a repeal of Prop 8 on the ballot has failed, it increases the importance of Perry v Schwarzenegger and by extension the media coverage of the trial. Going back to the ballot in 2012 is still very much a potential option, but we will absolutely have a verdict in District Court and who knows where we will be at in the appeals process by November of 2012. There are a lot of unknowns.
But there is a lot of exciting organizing going on in California, including around Perry v Schwarzenegger.
Today we released this statement from Rick Jacobs:
We applaud the dedication of grassroots activists who organized across the state this year to try to bring California law into compliance with the 14th Amendment to the Constitution. No American should have to wait one minute for equality, especially when it comes to love. That’s why the Courage Campaign’s focus is on the Proposition 8 federal trial — and it’s why this trial is so important.
With three recent polls now showing a majority of Californians support marriage equality, it is clear that the court of public opinion is increasingly rejecting the lies and hollow arguments that were used to deceive voters in 2008. That’s why the backers of Proposition 8 are working so hard to keep the ongoing federal trial from public view, and why the Courage Campaign remains committed to ensuring the evidence that’s been presented can be heard and judged by all Americans.
Meanwhile, Media Matter’s Karl Frisch was on PBS’ In The Life to talk about the trial. As usual, California native Karl makes some great points about the role of the media.
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