1. No, nobody is seeking “two irreconcilable and conflicting definitions” of marriage. Equality activists are seeking *one* concrete definition that doesn’t discriminate on the basis of gender. The ones creating two irreconcilable definitions are those who demand same-sex couples meet all the burden$ of citizenship, yet fail to provide equal protection and due process under the law.
2.The “31 of 31 states” canard: This is so intellectually dishonest. Yes, it’s technically true. However, the vast majority of those states happened at a very different time, when marriage equality was much more untested, the public was much more apt to buy into fear lines, and those who might defend equality in these early states were completely blindsided by the conservative onslaught. We never had a chance then, whereas now we have nothing but opportunity. In fact, in many ways, the crude discrimination attached to this early wave helped us connect the dots for a previously unengaged public.
3.The “adopted by a bipartisan majority of Congress” thing: This is in reference to the 1996 Defense of Marriage Act vote, and it is completely misleading. Sure, more than a few Congressional Democrats of a decade-and-a-half ago voted with the GOP majorities that controlled both chambers, many of them names (Biden, Mikulski) who would surely vote differently today. However, only one Republican — ONLY ONE! — voted against federal DOMA back in the day, an openly gay, retiring Congressman by the name of Steve Gunderson. Other than Gunderson, it was the Democratic party, even then, that put up the resistance to that decade’s vast right-wing wave: A right-wing wave that voted for DOMA by a 277-1 margin!
So yes, again, one can technically call the 1996 vote bipartisan. But the facts are a little more complex than the talking point. More here.
4. President Clinton, like many of the aforementioned Democrats who voted for DOMA, now stands against both DOMA and marriage discrimination in general. If we’re going to talk about the vote of 2012, then let’s talk about 2012 and not a congressional vote held sixteen years before.
5.“Current times”: Our current times includes six states and the nation’s capital with civil marriage equality. Massachusetts has had marriage equality for seven years now. And guess what? NOT ONE OF THE FAR-RIGHT FEAR CLAIMS HAS COME TRUE! Conservatives who are pushing this form of discrimination are going to have to start owning what is real, instructive, and patently obvious!
6.“The people” get to decide: Well no, not on issues pertaining to minority rights they don’t. Or at least they shouldn’t. The “protect marriage” crowd of the here and now might think it’s super fun to toss around the idea that minority rights should be up for a public vote, since they maintain a slight majority in most polling (and certainly rally their hyper-motivated base better on election day). But anyone who considers the implications, based on both a read of history and a consideration of a theoretical future, would hopefully think twice before so casually and carelessly tossing around “let the people vote” claims.
Oh, and it’s pretty funny (read: super annoying) to hear MN For Marriage knocking the idea that politicians would get to decide on marriage, considering the earlier touting of 1996’s Congressional vote on DOMA. Last time I checked, the U.S. Senate and House is also filled with politicians.
7. Judges do not “substitute their values.” That’s not the gig. Judges are tasked with ensuring that our policies are kosher, based on the prescriptions of our state and federal constitutions. Sure, it sounds all nice and scary to call judges “activist” and act as if our independent judiciary is some roving band of liberal foot soldiers out to rob rather than serve “the people.” But doing so is dangerous to our nation, dangerous to “the people,” and quite threatening to our way of life.
8. “Serves the interests of “men and women [and] children”: No, marriage as it exists right now, in most states and on a federal level, DOES NOT serve the interests of all men, women, and children. Same-sex couples and their families are unfairly burdened by a civil marriage system that fails to protect and benefit all, equally. Pointing out the good of marriage is one thing. Pointing out said good while also working to deny it to some? Well that’s just plain cruel!
I wrote a month ago about Goodwin Liu, the UC-Berkeley law professor whose nomination to the 9th Circuit was torpedoed by U.S. Senate Republicans and was recently nominated instead to the California Supreme Court by Gov. Brown. Liu’s confirmation vote is expected tomorrow. Excerpt:
Liu is likely to face a more welcoming reception to the state court. He is set to replace former Associate Justice Carlos Moreno, a strong backer of LGBT rights, who retired from the court earlier this year.
The State Bar’s Commission of Judicial Nominees Evaluation must first review Liu’s nomination before it goes to the Commission on Judicial Appointments, consisting of state Supreme Court Chief Justice Tani Cantil-Sakauye, Attorney General Kamala Harris, and Justice Joan Dempsey Klein, senior presiding justice of the state Court of Appeal.
The three women will consider the proposed appointment at 3 p.m. Wednesday, August 31 in San Francisco. Atkins said she “fully” expects Liu will be confirmed and “will go on to serve with distinction for many years to come.”
It is unclear if he will be seated in time for when the court hears oral arguments on whether Prop 8 can be defended in federal court by its backers. Due to his involvement in the fight over Prop 8 three years ago, it is likely the law’s supporters would request he recuse himself should his nomination be approved prior to the hearing, expected to take place as early as September.
Yesterday, Liu received a strong review from a state bar panel. SF Chronicle:
Goodwin Liu, the UC Berkeley law professor nominated to the state Supreme Court by Gov. Jerry Brown, drew raves Monday from a State Bar panel, which praised his “brilliant intellect … impartiality, integrity, collegiality, and a work ethic second to none.”
Liu, whose nomination by President Obama to the Ninth U.S. Circuit Court of Appeals in San Francisco was derailed by conservative opposition and a Republican-led filibuster, apparently faces no such obstacles to a seat on the state’s high court.
Only supporting witnesses have signed up to testify at Wednesday’s confirmation hearing of the Commission on Judicial Appointments in San Francisco. They include Alameda County District Attorney Nancy O’Malley, a counterweight to the 42 district attorneys from other counties who opposed his federal nomination but did not contact the state commission.
The bar’s Commission on Judicial Nominations Evaluation gave him its highest rating, “exceptionally well-qualified.” He also received supporting letters signed by more than 130 law professors – ranging from fellow liberals to John Yoo, the former Bush administration attorney now teaching at Berkeley – as well as six members of Congress and numerous legal groups.
Judicial Watch did write in to call Liu “radical and inexperienced,” naturally.
I checked on the Commission’s schedule and a confirmation vote is still scheduled for 3 PM tomorrow. It’s expected, though not certain, that if confirmed he would be seated in time for the September 6th hearing on standing in the Prop 8 case at the California Supreme Court. It is worth mentioning that the issue before the court, though, is standing, not the constitutionality of Prop 8, on which Liu has previously spoken out.
Kerry Eleveld takes a look at the anti-gay rhetoric and personal past history of the Republican field, examining how voters might respond, particularly evangelical Christians and gays. What would be interesting is how LGBT people respond. CNN’s exit poll figure from 2008 pegged the number of self-identified gay voters for McCain at a remarkable 27% — a figure that may be off. How will those voters respond to the Bachmanns of the world? Or Huntsman, who seems to be labeled the “compassionate conservative” of the race, at least when it comes to the gays? Now that Obama has a long record on these issues, how will that factor in? Will the 27% go up or down?
I lift out Chemerinsky’s essay from the symposium on marriage equality at SCOTUSblog which many of us have been following with great interest because he, perhaps more than anyone else who has contributed has written, argued and thought so much on this issue. Chemerinsky is the dean of the law school at UC-Irvine. An excerpt from his essay, which closes the symposium:
The second major question that has been debated in these essays concerns the role of the judiciary. I was surprised that even William Eskridge, a supporter of marriage equality, urged the Court to observe the “passive virtues” and declared:
“[I]f the Supreme Court were to take the Perry appeal and reach the merits, the Court ought to issue a narrow opinion that would not purport to settle the constitutional issue one way or the other.”
I very much disagree. It is the role of the judiciary to interpret the Constitution and especially to enforce its protections of liberty and equality. Laws that prohibit same-sex marriage deny gays and lesbians of the right to marry and discriminate against them solely based on their sexual orientation. It is the judicial role to strike such laws down, just as the Supreme Court did in Loving v. Virginia (1967), in invalidating state laws that prohibited interracial marriage. I do not see how the judicial role is any different relative to laws denying marriage equality to gays and lesbians.
Deborah Hellman writes that the Court should do so based on equal protection, but not based on the right to marry. She asks whether a court should be defining marriage. But the Supreme Court already has held that there is a fundamental right to marry. Thus courts must define who is entitled to that right. To say that marriage has always been between heterosexual couples is no more determinative of the constitutional question than it was to say that marriage in Virginia had always required a same-race couple.
Marriage is ultimately about a couple expressing love and commitment and then receiving the benefits the law bestows on those who do so. It has no more to do with the gender of the members of the couple than their race. I agree with Hellman that the Court should find laws denying marriage equality to violate equal protection, but they also deny the right to marry to same-sex couples.
Finally, there is the question of what the Court is likely to do. Perhaps it is that concern which underlies William Eskridge’s plea for the passive virtues. Other supporters of marriage equality, such as David Cruz, express doubts about whether there is a majority on the Court to find a constitutional right for gays and lesbians to marry.
I continue to believe that the Court will rule, five-to-four, in an opinion authored by Justice Anthony Kennedy, that laws prohibiting marriage equality violate the United States Constitution. Kennedy wrote the Court’s opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and I think that he will see his longest-lasting legacy from over a quarter of a century on the Court being in the area of eliminating discrimination against gays and lesbians. I believe that his opinion will emphasize, as he did in Romer and Lawrence, the absence of any legitimate interest for prohibiting marriage by same-sex couples. As in Lawrence, and other opinions, he will point to the trend across the world.
Ultimately, the question for Justice Kennedy, the Court, and society is whether gays and lesbians are entitled to equal dignity and equal treatment under the law. There is only one possible answer to that question.
One of the most common e-mails we get and I see in the comments here at P8TT about the case is about standing, what it is, and how the timeline will work after the hearing on September 6th. AFER has published a helpful layperson’s FAQ on standing in the case. Excerpt:
What’s “standing”?
You can think of “standing” as being like “qualifying.” If someone has “standing” to appeal a decision, that means they are “qualified” to appeal.
A party can only have standing if they have been injured in some way that is both real and specific. (The legal terms are “concrete and particularized” and “actual or imminent.”)
AFER’s plaintiffs clearly have standing. They have been denied marriage licenses by the State of California.
Why do AFER’s plaintiffs have standing but not the Proponents?
Each party must establish standing for themselves. Unlike the Governor and Attorney General, Proponents are not government officials. California law does not allow them to enforce or defend Proposition 8. Therefore, it is impossible for Proponents to establish standing.
Proponents have not been harmed by the decision invalidating Proposition 8. In fact, in finding Proposition 8 unconstitutional, Judge Vaughn Walker wrote, “Proponents … failed to articulate even one specific harm they may suffer.”
The text of Proposition 8 could have given the Proponents the right to defend it in court. But the Proponents chose not to include such language.
Why has the Ninth Circuit asked the California Supreme Court to get involved?
The proponents of Proposition 8 are putting forth an unusual argument in an attempt to establish standing. They claim that, as the official proponents, California law affords them a “particularized interest” in defending the validity of Proposition 8.
Whether or not they have such a “particularized interest” may depend in part on interpretation of California law. The Ninth Circuit is a federal, not state, court; so they have asked the California Supreme Court for guidance.
Has this ever happened before?
Yes. In the 1997 case of Arizonans for Official English v. Arizona, the United States Supreme Court unanimously expressed “grave doubts” about whether the ballot initiative proponents have standing. However, the Court did not definitively resolve the issue.
How and when will the California Supreme Court rule?
The Court will answer either “yes” or “no” within 90 days of oral arguments.
What if the California Supreme Court answers “yes”? Do the Proponents have standing?
Not necessarily. In Arizonans, the Supreme Court of the United States did not definitely resolve the question of whether ballot initiative proponents have standing.
The California Supreme Court may rule that the Proponents have an interest in defending their initiative, but then the Ninth Circuit may find that such an interest still isn’t enough to establish standing under the United States Constitution.
However, if the California Supreme Court answers “yes,” the Ninth Circuit may conclude that the Proponents have standing and then rule on the constitutionality of Proposition 8.
The Ninth Circuit’s eventual ruling could be limited to California, or it could have further-reaching implications. It’s difficult to predict exactly how broad the Ninth Circuit’s ruling will be, or when it will come.
No matter what the Ninth Circuit decides, their ruling is likely to be challenged in the Supreme Court of the United States. The U.S. Supreme Court would not be required to take the case, so the Ninth Circuit’s ruling could be the final say.
It’s hard to predict exactly what effect a U.S. Supreme Court ruling would have because it could range anywhere from full federal marriage equality to something far narrower or simply a ruling on standing.
What if the California Supreme Court Court answers “no”?
If that happens, then the appeal would likely be dismissed. Marriage equality would then return to California in short order.
Is it better for us if they do have standing, or if they don’t have standing?
We believe that either outcome will lead to a victory for our plaintiffs.
For those whose eyes glaze over on this stuff, the two notable pieces I would pull out:
1) The California Supreme Court must rule within 90 days of oral argument. That is a hard and fast rule. By my math, that means November 29th December 6th. The ball is then handed back off to the 9th Circuit to issue its ruling regarding (a) standing and (b) merits (constitutionality of Prop 8, e.g., whether they agree with Judge Walker’s decision or not). There is no set timeline for when the 9th Circuit would issue its decision, but since they put this case on an expedited time frame, observers of the court tell me it is reasonable to expect they will move fairly quickly. That could be anywhere from a few weeks to a few months, but it’s not expected they would delay issuing a decision longer than 5-6 months at the outside.
2) With regard to this answer above:
Marriage equality would then return to California in short order.
It depends on whether there is a stay issued. The 9th Circuit could stay its own decision or the proponents could ask the Supreme Court to stay the decision to give the proponents an opportunity to ask the Supreme Court to review the decision.
Just what are the Prop 8 proponents trying to hide, and why are they afraid to let the public see their witnesses being cross-examined? We may find out after a hearing on Monday. John Boehner’s defense of DOMA is found to be full of junk science, a semi-reprieve for LGBTs fearing deportation, and there’s lots of work still to do in Maine.
By the time you watch this, a judge in San Francisco has probably already heard arguments over releasing the tapes of the Prop 8 trial. The Proponents of Prop 8 have been fighting tooth-and-nail to keep that footage out of public view.
What the Proponents are really trying to hide are all of the admissions that their witnesses made under cross-examination. Both Miller and Blankenhorn lacked knowledge and expertise on the very topics about which they were called to testify.
Miller said he couldn’t remember how much of his testimony had been fed to him by his attorneys, and the Court ruled that his testimony was “entitled to little weight.”
And when Blankenhorn was questioned, he was forced to actually agree with the case against Prop 8, with quotes like “Gay marriage would be a victory for the worthy ideas of tolerance and inclusion” and “we would be more, emphasize more, American on the day we permitted same-sex marriage than we were on the day before.”
In national news this week, John Boehner’s crusade to save the Defense of Marriage Act was dealt a setback by one of the very researchers on whose work he’s based his case. Boehner’s legal filings cite the work of Dr. Lisa Diamond, who this week filed a declaration of her own, calling Boehner’s statements “incorrect.”
But Boehner’s problems don’t stop there. He also cites research by anti-gay activist George Dent, whose papers depend on work by discredited researchers Walter Schumm, Thomas Schmidt, Paul Cameron and George Rekers, whom you’ll remember from last year’s “lifting my luggage” rent boy scandal.
And as if that wasn’t enough, Dent cites work by a phony front group called the American College of Pediatricians. Despite the name, the ACP isn’t a legitimate professional medical organization — it’s a tiny group set up solely to spread false information about LGBTs.
In other news, the Obama administration announced plans to review 300,000 immigration cases, which is likely to lead to a de-prioritizing of cases involving the law-abiding spouses of American citizens. Although this isn’t a long-term solution, the move is expected to provide some temporary relief to foreign-born LGBTs who are legally married to Americans.
And finally this week, Maine is on its way to repealing the state’s marriage ban, with 5,000 signatures collected over the first weekend of signature-gathering. That’s still just a tenth of the minimum required, and only about six percent of the eighty thousand they’re targeting to have by January.
You can help out in Maine, no matter where you are in the world. Go to WhyMarriageMattersMaine.com to find out how you can make a difference.
That’s it for this week’s headlines. Visit AFER.org for the latest on the attempts to release the Prop 8 tapes. And visit MarriageNewsWatch.com for more on all these stories and more. Remember to connect with us on Facebook and Twitter, and sign up for our daily news alerts to be the first to know when news breaks.
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