Archives – June, 2012
This post is part of the inaugural legal symposium we at Prop8TrialTracker.com are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.
Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take.
If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!
By Vienna Hagen, aka AnonyGrl
Let me start off with a couple of disclaimers. I am not a lawyer, neither am I a citizen of California. I say that because my opinion is not a legal one, but rather a personal, emotionally driven one.
Let me also say that the wonderful Chris Stoll has the absolute right of it. Chris is completely correct that we have won in this case, and that should be allowed to stand, and Californians should be allowed to marry as soon as possible, they have waited more than long enough. The risks of taking the case to the Supreme Court are unnecessary, and the time frame involved is unbearable.
However… the question, as I read it, is not exactly answered by “what is best for Californians.” The question asks about LGBT rights and the marriage equality movement, which encompasses a much larger group of people, and a much wider cause. And in trying to answer as I see if for the larger cause, I think, perhaps, the benefits of going to the Supreme Court should be looked at.
Across the country, more and more people are becoming aware of Perry v. Brown, or “the Prop 8 case” as most refer to it. While the DOMA cases get a lot of time in the press, somehow they seem less catchy because they revolve around taxes and insurance, while Perry v. Brown is about the right to get married. Not to say that the DOMA cases are unimportant, but when trying to explain the issue to someone new, it is easiest to introduce them to Prop 8 first.
Additionally, hundreds of thousands have seen Dustin Lance Black’s “8”, the spoofy “Prop 8, the Musical”, and all the other publicity and media and internet buzz. It is a more “popular” case in addition to being one that gets right to the heart of the matter… should we be allowed to marry?
And, popularly, the Supreme Court is thought of as the epitome of legal-ness. Americans don’t necessarily understand that by not hearing the case, the Supreme Court actually does make a decision in our favor. The popular misconception is that it has to go to Supreme Court to be the “most” legal. So we are left with a case that average people in the US know about, and the possibility that the highest court in the land will rule on it.
And this leads to the one thing I have always said would win us this war… and that is education. If more people know about it, if we can teach people what it means, we win. If we can show every day folks how discrimination hurts people, families, children, we win. If we get to demonstrate to our neighbors that we are just the same as they are, and only want the same rights they already have, we win. If kids in school grow up being taught tolerance, we win. And not only do WE win at that point, the KIDS win too. They grow up in a world with less prejudice and hate. So everybody wins.
So, while the possibility is that having the Supreme Court grant certiorari does contain a certain risk for Californians, it also has the chance of some big benefits for the entire marriage equality movement. Even if the Supreme Court were to take up the case and simply uphold the Ninth Circuit’s narrow ruling, the benefits are enormous.
All that being said, I would expect nothing less from Mr. Boies and Mr. Olson than to seek for their case not picked up for another year or more of Supreme Court related delays. It is the right thing to do for their clients, and I hope they are successful in their aims of getting this case done NOW. But if it goes to the Supreme Court, let us look to put the simple fact that it does to the best possible use, and continue to spread the good word.
Vienna Hagen, aka AnonyGrl is a New Yorker, longtime P8TT follower, frequent commenter and infrequent commentator.
June 28, 2012
By Jacob Combs
By a 5-2 vote, the California General Assembly’s Committee on Business, Professions and Consumer Protection approved a proposed bill that would ban the use of “reparative therapy,” a counseling method designed to ‘cure’ gay kids, on minors. The bill passed the California Senate in late May with a 23-13 vote, and will now head to the full Assembly.
Writing about the bill’s passage in the Senate, San Diego Gay & Lesbian News noted that the California legislation is the first of its kind in the nation:
If approved by the Assembly and signed by the Governor, Senate Bill 1172, authored by Senator Ted Lieu and co-sponsored by Equality California, the National Center for Lesbian Rights, Mental Health America of Northern California, Gaylesta, and Lambda Legal, would make California the first state in the nation to ban licensed mental health professionals from engaging in sexual orientation change efforts of any kind for a minor patient, regardless of a parent’s willingness or desire to authorize participation in such programs.
“Being lesbian or gay or bisexual is not a disease or mental disorder for the same reason that being a heterosexual is not a disease or a mental disorder,” Lieu said. “The medical community is unanimous in stating that homosexuality is not a medical condition.”
As Joe.My.God. reports, right wingers are sounding the alarm:
“A licensed clinical social worker, a psychologist, a psychiatrist—no one who’s licensed to perform counseling would be permitted, by law if this bill passes, to help a child decrease their same-sex attraction issue,” said Ron Prentice, executive director of the California Family Council.
That’s why six major professional groups oppose the bill.
“One (reason) would be religious liberty. Another would be self-determination of a client,” he said. “And there is absolutely no research which suggests that same-sex attraction is either genetic or that it is fixed and can’t be changed.”
When the California Assembly considers the bill, we’ll be sure to have coverage of the outcome here at P8TT!
June 28, 2012
By Scottie Thomaston
– We are still waiting on the Bipartisan Legal Advisory Group (BLAG) – who is defending DOMA in court – to file their petition for certiorari to the Supreme Court in the Gill/Massachusetts DOMA case. In a filing in another DOMA case last week, BLAG said the petition would be filed by the end of the month.
– Minnesota activists campaigning for an anti-gay amendment are using violent rhetoric to make their case. (They are now claiming they were hacked.)
– In Maryland, anti-gay activists working to put an amendment on the ballot are $88,000 in debt.
– There’s a new poll on Republicans and marriage equality, from the Washington Post.
– Rhode Island passed a transgender-inclusive hate crimes law last month.
– Marriage equality activists in Maine are predicting victory.
June 27, 2012
This post is part of the inaugural legal symposium we at Prop8TrialTracker.com are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.
Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Yesterday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad.
If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!
By Scott Wooledge
California’s Proposition 8, an amendment to the California state Constitution revoking the right of same-sex couples to marry, was passed by popular referendum in November 2008. It has been struck down twice in federal court as unconstitutional, both in trial and on appeal.
On June 5, the Ninth Circuit Federal Court of Appeals denied a motion for a second appeal before a panel of 11 justices. This started the clock on a 90-day window for Prop 8 proponents to petition the Supreme Court for a writ of certiorari to argue the case at their final venue.
Although they have yet to file the paperwork, proponents have been unequivocal in their intention to do so. Alliance Defense Fund attorney Charles Cooper told Metro Weekly’s Chris Geidner:
“We’re pleased to petition the Court to hear this case. The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will review the 9th Circuit’s decision.”
The question becomes, is it preferable for the LGBT movement if the Court grants their request? Or denies it?
The excitement surrounding the Prop 8 case was all about the potential for the case to ultimately affirm a fundamental right to marry to same-sex couples across the entire United States. And it began with that promise, for sure. This was the force driving American Foundation for Equal Rights and co-counsels Ted Olson and David Boies.
But a funny thing happened along the way; that wasn’t what the appeals court found.
The appellate judges managed to sidestep the key question: “Does the Constitution endow LGBT couples with a fundamental right to marriage?” They took pains to make explicit that isn’t what they are saying. From the ruling:
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right has that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. … We need not and do not answer the broader question in this case, however…
The Prop 8 Appeals ruling essentially applies only to the state of California, and only to this particular statute having been enacted under these unique circumstances (having attained the right to marry, then having it taken away by popular vote). These are not circumstances that have been repeated in other states.
Broadly, if the Supreme Court takes the case, the nine justices will have the opportunity to reject the appeals ruling, agree with the appeals ruling, or agree and expand its scope.
Their ruling would need to be more expansive to strike down the 30-odd state gay marriage bans and deliver the universal right to marriage equality to America. This would be the grand prize and, of course, the entire impetus for arguing it before the Supreme Court of the United States. But, I am convinced the chances that the Supreme Court will make such an expansion are, at best, quite remote.
Convincing the Court to expand the appeals ruling outside the bounds of California and beyond this specific statute and specific circumstances will be the task of Olson and Boies, should they get the chance. And I have complete confidence they are the finest team to make that argument.
But all judges are trained and even obliged by judicial restraint to deliver as narrow a ruling as possible. We don’t like it in this case, but it is, in general, a wise guiding principle of jurisprudence (at least we appreciate it for the likes of Justice Scalia).
The nine have been handed on a silver platter a perfect opportunity to say, “Yes, the Ninth got it right, the gays in California can marry. The rest of you, we’re really not sure. Fiddle-dee-dee, we’ll think about that tomorrow.” And given the very tiny, incremental steps we’ve seen in the federal LGBT court cases, the over-abundance of caution, I think they will probably leap at that opportunity.
In fact, on Thursday, civil libertarians lamented that the Supreme Court ducked answering key First Amendment questions raised in two cases: FCC v. Fox and Knox v. SEIU. This is what they do.
Should they duck the fundamental question of whether same-sex marriage is a right, then for a year or more of waiting, the LGBT community won’t have gained any real legal ground that hasn’t already been won. (Granted, it may clear up some of the confusion surrounding appropriate scrutiny levels that apply to the LGBT discrimination. But then again, it may not.)
So ultimately, when I assess the risks (LGBT community loses it all, a Hardwick-level wipeout) and the costs (yet another year plus wait) against the likelihood of snagging the grand prize (universal right to marriage equality affirmed), I find myself thinking it might be for the best if the Supreme Court denies the petition for a writ of certiorari on this case. Sometimes it’s okay to win on points, even if you hoped for a knockout.
And I think the chances are perhaps better than many are predicting that the Court may pass. It’s possible the the justices may decide this dispute over a California law has been adequately settled on trial and appeal, and there is no pressing national interest that compels the SCOTUS to hear it. (Countless LGBT couples feel differently, obviously, but the powers that be have rarely been shy about asking gays to wait and wait.)
The upside of the SCOTUS passing is this whole ugly episode finally will be over, and marriage could resume in California, soon, perhaps even before Washington, Maryland, Maine and Minnesota voters decide similar questions on their ballots. The population of Americans with access to marriage equality would explode overnight. The Lambda Legal Nevada case in federal court still holds the potential to be the gay Loving v. Virginia. And there are still more than 30 other state constitutional bans LGBT legal eagles can start taking a swing at. They can build on what has been learned and where we’ve gained.
The Defense of Marriage Act challenges, which are coming to a full boil, most notably the Gill case in the First Circuit, seem a preferable choice to arrive at the Supreme Court first.
Until we get around to challenging Section 2 of DOMA, these cases also sidestep the question of a fundamental, constitutional right to same-sex marriage. This absolves the justices of the political hot potato of sending an edict to say, Alabama, that they must start letting the gays get married. This would make a favorable ruling, perhaps, a little more likely.
What the DOMA cases do offer is the opportunity to present issues of legalities of same-sex marriage to the justices. We know many of them have not encountered this topic in their professional capacity. They will get a window into the lives of LGBT people that we can’t presume they have ever had. Familiarity with actual gay people is one of the highest indicators a person will be LGBT supportive.
And marriage equality opponents’ arguments vary little whether they are defending DOMA or Prop 8. If they can be shredded on DOMA, we can return to shred them again. And we will.
Whatever popular opinions circulate on the wisdom or folly of the Court granting or denying a Prop 8 hearing, they are likely to have little, if any, persuasive effect on the Nine’s ultimate decision. For now, the task before marriage equality supporters seems clear: keep doing what you’re doing. Tell your stories. We are winning.
—
Scott Wooledge is surviving veteran of the print magazine business. He is an activist and a featured writer at Daily Kos website. He lives in Brooklyn, NY.
Twitter: @Clarknt67
June 27, 2012
By Jacob Combs
While Maryland’s anti-marriage equality activists may have succeeded in filing enough signatures to secure a referendum on the state’s recently passed marriage law, their financial numbers aren’t looking so good. The Maryland Marriage Alliance raised only $5,000 last month, and the campaign apparently owes $88,000 in debt. The largest bill, at $74,000, is from MDPetitions.com, a group that helped marriage equality opponents gather and verify signatures for the referendum effort.
Derek McCoy, executive director of Maryland Marriage Alliance, told the Baltimore Sun that Maryland’s financial disclosure laws permit advocacy organizations to show only a portion of their fundraising specifically slated for signature gathering. The organization, he said, has received other large donations for their anti-marriage equality efforts. Still, Marylanders for Marriage Equality posted a cheeky and enthusiastic tweet about the news: “Have you heard? We raised more today from MD citizens than our opponents have all month!”
In Colorado, the Denver Post reports that a new group called Fight Back Colorado is forming to campaign this November against lawmakers who killed the state’s civil unions bill even though it had majority support and could have passed into law. The Colorado effort is modeled after a similar campaign in New York that sought to defeat anti-gay lawmakers and contributed to the passage of marriage equality in that state.
Brad Clark, director of the pro-LGBT group One Colorado, said the campaign will not just target the Republican leadership and committee members who voted down civil unions. “A lot of folks never got to vote on this, but they allowed their leadership to do this so they had a hand in civil unions being killed.”
June 27, 2012
By Scottie Thomaston
On June 26, 2003, the landmark gay rights case Lawrence v. Texas was decided by a vote of 6-3. Justices Kennedy and O’Connor joined the more liberal justices in striking down Texas’ anti-sodomy statute. There were two written dissents; one came from Justice Thomas saying that while he believes “[p]unishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources” he nonetheless would not have ruled the law unconstitutional, because he claims he is not “empowered to help petitioners and others similarly situated[.]”
The other was written by Justice Scalia and was joined by Justice Thomas and Chief Justice Rehnquist.
Scalia’s dissent is largely an expression of anger at the Court’s willingness to uphold abortion rights in an earlier case, Planned Parenthood v. Casey, while not showing the same ‘respect for precedent’ in his view in the Lawrence case. In the process, though, Justice Scalia warns of the impending dangers of same-sex marriage he foresees as a result of the outcome in Lawrence. Attempting to establish a parade-of-horribles argument against overturning the odious precedent Bowers v. Hardwick, Scalia writes:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
Putting aside the question of whether the right to marry belongs in the same category as the other activities discussed in the passage, it’s interesting that Justice Scalia seems to believe that laws against same-sex marriage are “only” sustainable if Bowers remains good law and if morality can be a rational basis, by itself, for a constitutional law. He then goes further, and suggests that these laws won’t even pass rational basis review, the standard that allows most laws to survive constitutional review:
If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
Moving on to an attack on Justice O’Connor’s concurring opinion, in which she would have invalidated the sodomy law on Equal Protection grounds rather than Due Process grounds, Justice Scalia admits that even if a law targets people based on their sexual orientation, it is still subject to the same “rational basis” – that sexual morality is a perfectly fine basis for a law:
Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.
But again, since the Court says “traditional morality” is not in itself a rational basis, Scalia is suggesting that the opinion opens the door for same-sex marriage. In fact, Justice O’Connor’s concurring opinion suggests that laws upholding “traditional marriage” of opposite-sex couples might be constitutional, to which Justice Scalia replies:
But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.
And moral disapproval, as Scalia notes, is not a rational basis for a law under the Romer/MorenoCleburne standard of rational basis review “with bite.”
Justice Scalia discusses the “homosexual agenda” and how law professors are a part of it and writes that the goal is to “eliminat[e] the moral opprobrium” attached to being gay or lesbian. He then writes:
So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
It’s interesting evidence he provided to show that being pro-gay is not mainstream. He points to the fact that there is no Employment Non-Discrimination Act (ENDA), that Don’t Ask, Don’t Tell exists, and that the Boy Scouts have an anti-gay policy. Of course now, in 2012, LGBT people can now file employment discrimination complaints with the EEOC, gays and lesbians can now serve openly in the military, and a proposal is being introduced for the Boy Scouts to consider revising their policy. So, perhaps there are some other justifications or reasons to suggest we should continue punishing gays and lesbians, but these excuses seem to be diminishing by the day.
When this opinion issued, there were no states with marriage equality. There were significantly less states with employment protections and there were even less companies and corporations willing to protect LGBT employees or offer domestic partner benefits. There were no decisions striking down any laws against marriage equality, and while the Defense of Marriage Act existed, it was not relevant to the discussion since it only became useful after Massachusetts enacted marriage equality through their state courts. So, it’s incredibly difficult to find any justifications to continue discrimination against gays and lesbians.
Citing Canada’s marriage equality law, Scalia writes:
At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
This “progression of thought” is evident from way back when the Court decided Griswold and the cases that came after it. The Court’s main excuse has been that there is no reason for the federal government to get involved in the marriage question – that’s essentially what its summary affirmance in 1972’s Baker v. Nelson held, but Bowers itself put an end to that. The Court addressed gay rights in that case; though they didn’t rule in favor of gay rights, they opened the door to the Court’s involvement in questions related to the freedom and equal protection of gays and lesbians.
Scalia writes:
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6;
Indeed this dissent lays out fairly well the ridiculous nature of the arguments against marriage equality. Scalia says himself that laws banning marriage equality can no longer pass rational basis scrutiny, that tradition and moral disapproval are now improper bases for laws, and that those were the only existing reasons for banning marriage between gays and lesbians. He even suggested this is true whether it’s under Justice Kennedy’s Due Process analysis or Justice O’Connor’s Equal Protection analysis.
He managed to hit on virtually every single argument that is used today. For his last argument, he even suggests that “procreation” is not a rational basis:
what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
I do agree with him there; I don’t know what other justifications there may be, either.
June 26, 2012
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