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Filed under: Briefs

Support for marriage equality hits all-time high in CA as Prop 8 case deadline looms for Obama

By Jacob Combs

A new Field poll released today finds that California voters favor marriage equality by a 61 percent to 32 percent margin, with an increase in support among all age groups and ethnic groups and also in all areas of the state, the Sacramento Bee reports.

“The dynamic that has occurred in the last three years kind of spans all populations,” Mark DiCamillo, the poll’s director, told the Bee. “It’s almost as if it’s a societal change.”

The Field poll’s results found a dramatic increase in support for equal marriage rights since 2010, with a 10 percentage point increase in approval.  Democrats and nonpartisan voters favor marriage equality by an identical 71-25 percent split (an increase for nonpartisans of 19 percent over the last three years) and while Republicans remain opposed to equal marriage rights with 39 percent approving and 53 percent disapproving, their support has nevertheless increased 13 percentage points since 2010.

A remarkable 78 percent of respondents aged 18 to 39 support marriage equality, as do 56 percent of those aged 40 to 64.  While a majority of respondents older than 65 does not favor equal marriage rights, a plurality of 48 percent does, with 44 percent disapproving.

Women in California are more likely to support same-sex couples’ marriage rights, although a majority of men do as well.  A majority of the state’s Latinos support marriage equality, as do a majority of its Catholics.  Support is highest in the Bay Area, but is strong in Los Angeles County and in other regions around the state as well.

The propitious timing of the Field poll’s release on the same day that Supreme Court briefs in support of the legal challenge against Prop 8 are due demonstrates that California is ready for marriage equality.  Obviously, a Supreme Court decision restoring marriage rights to California’s same-sex couples would be the best and quickest route to equality in the state, but if the Court were to uphold Prop 8, a campaign to repeal the constitutional amendment would seem likely to start out with a significant advantage.

Writing in Metro Weekly, Justin Snow yesterday raised the question, “Where are Congressional Democrats on Prop 8?”  Snow noted that House and Senate Democrats have been clear in their opposition to the Defense of Marriage Act, but while party leaders have spoken out against Prop 8 in the past, they have yet to file a friend of the court brief arguing that such marriage bans violate the U.S. Constitution.

And, of course, the biggest question today is whether President Obama will weigh in on the constitutionality of Prop 8 and marriage equality bans in general.  It seems highly unlikely that Obama and his Justice Department will sit out the case entirely, especially after the news that over 100 high-profile Republicans plan to file their own brief arguing in favor of marriage equality.  Check back throughout the day for updates on the briefs that are filed in the case–it could end up being quite an interesting news day!

2 Comments February 28, 2013

Prominent Republicans to sign Supreme Court brief in support of marriage equality

By Jacob Combs

AP photo
Justice Anthony Kennedy, the oft-sought after swing vote on the Supreme Court.

More than 70 well-known Republicans have added their names to a legal brief that will be filed later this week with the Supreme Court arguing that Proposition 8 is unconstitutional and that gays and lesbians have a constitutional right to marry, the New York Times reported late last night.

The brief, which was filed in consultation with Republican legal star Ted Olson, who is representing the plaintiffs in the case, will argue that marriage equality furthers the conservative values of “limited government and maximizing individual freedom.”

Among the signatories to the brief are Meg Whitman, who supported Proposition 8 during her failed 2010 gubernatorial campaign, U.S. Representatives Ileana Ros-Lehtinen (R-FL) and Richard Hanna (R-NY), and several former Republican governors such as Christine Todd Whitman of New Jersey, Jane Swift of Massachusetts and Jon Huntsman, Jr. of Utah.  Last week, Huntsman wrote an article in the American Conservative titled “Marriage Equality Is a Conservative Cause.”

According to the Times, which obtained a copy of the brief in advance of its filing, the document “cites past Supreme Court rulings dear to conservatives, including the Citizens United decision lifting restrictions on campaign financing, and a Washington, D.C., Second Amendment case that overturned a law barring handgun ownership.”

“As opposition to the freedom to marry becomes increasingly isolated and the exclusion from marriage increasingly indefensible, Americans all across the political spectrum are saying it’s time to end marriage discrimination, do right by families, and get our country on the right side of history,” said Evan Wolfson, the president of the national marriage equality organization Freedom to Marry, in a statement.

The Supreme Court frequently receives several friend-of-the-court briefs when considering litigation, especially cases that are as high profile as the Prop 8 challenge.  In general, legal experts are skeptical of the extent to which the Court is swayed by such outside filings.  But as the Times notes, this particular brief could be an exception to the rule, particularly when seen through the eyes of the men likely intended as the focus of its arguments: the Court’s conservative members, particularly Justice Anthony Kennedy and Chief Justice John Roberts.

Tom Goldstein, the publisher of the Supreme Court-watching website SCOTUSblog, told the Times the Republican brief “has the potential to break through and make a real difference”:

“The person who is going to decide this case, if it’s going to be close, is going to be a conservative justice who respects traditional marriage but nonetheless is sympathetic to the claims that this is just another form of hatred. If you’re trying to persuade someone like that, you can’t persuade them from the perspective of gay rights advocacy.”

Earlier this month, the Respect for Marriage Coalition briefly ran a print and TV ad campaign featuring statements in support of marriage equality by former First Lady Laura Bush, former Vice President Dick Cheney and former Secretary of Defense Colin Powell.  The ad was pulled a few days after it debuted at the request of Laura Bush.

The Republican brief that will be filed later this week, which demonstrates changes of heart for former supporters like Whitman, is not the first instance of significant conservative figures shifting towards support of equal marriage rights.  Last summer, David Blankenhorn, the founder of the Institute for American Values and one of the two witnesses who testified in favor of Prop 8 before the district court, announced in a New York Times op-ed that he had changed his mind on the issue.  In his piece, Blankenhorn wrote, “Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.”

If the arguments in this upcoming brief can persuade Anthony Kennedy to add his name to the list of Republicans in support of marriage equality, it will be a hugely significant sign of the watershed taking place within the Republican Party on the issue of equal marriage rights.

We will publish the brief here at EqualityOnTrial when we obtain a copy.

2 Comments February 26, 2013

Prop 8 trial: New brief filed citing Ed & Derence and delay in the case

By Adam Bink

A new brief filed by Love Honor Cherish in the case, opposing a rehearing by the 9th Circuit Court of Appeals was recently filed. In it is this:

Plaintiffs and Plaintiff-Intervenor have prosecuted this case diligently and have argued emphatically for expedited consideration at every stage in this lawsuit. Recognizing this urgency, this Court’s motions panel gave the case expedited consideration in the same order in which it stayed enforcement of the District Court’s injunction. To encumber the fundamental right to marry through protracted litigation is tantamount to depriving gay and lesbians couples of that right. For some, this deprivation will be permanent. In the time that this litigation has been pending,many gay and lesbian couples have quite literally not lived to see the day when they could get married. These words are not just rhetoric. The harm wrought by this years-long delay in resolving the status of marriage equality is tragically illustrated by the case of Derence Kernek and Ed Watson, a couple in their late seventies who had been in a loving relationship for over forty years. Ed was diagnosed with Alzheimer’s disease in summer 2010, and his mental condition was deteriorating rapidly. Derence and Ed posted a video on the Internet in which they expressed their hope that they could be married while Ed’s health still permitted. Unfortunately, Ed passed away shortly thereafter, on December 7, 2011. They were never able to marry.Undoubtedly, there are countless other loving couples like Ed and Derence who will not be able to marry in their lifetimes – or do so in the presence of their family and friends – because of the duration of this case. Indeed, members of Love Honor Cherish have experienced the heartbreak of the fact that life is not eternal.

The full brief can be found here, or embedded below. It’s fairly short and to the point.

[scribd id=83426643 key=key-rg981lezvc0f7j2eon7 mode=list]

h/t Kathleen in Quick Hits

13 Comments March 10, 2012

Prop 8 trial: New amicus brief filed in support of rehearing by 9th Circuit

By Adam Bink

From, surprise surprise, Eagle Forum Education and Legal Defense Fund:

[scribd id=83425930 key=key-1to7uesrfhl04gdzo536 mode=list]

Over in Quick Hits, peterplumber pulls out the most glaring sections and what’s wrong with them in the comments.

h/t Kathleen in Quick Hits

39 Comments March 6, 2012

Prop 8 trial update: a look at the plaintiffs’ and San Francisco’s motions against an en banc hearing

By Jacob Combs

Last week brought us the Prop 8 proponents’ blast to the past brief arguing why the 9th Circuit should reconsider last month’s panel ruling striking down California’s marriage ban.  Today, the plaintiffs and the City and County of San Francisco filed their response briefs, which can be read below, in which they carefully and persuasively lay out why there is no need for a larger panel of the court to take up the case.  Here’s a look at the arguments they make.

To begin with, the proponents argued that the panel’s reliance on the Supreme Court decision Romer v. Evans, which struck down a Colorado constitutional amendment that would have prohibited legal protections for gays and lesbians, should be reconsidered by the en banc panel.  According to them, because the law struck down in Romer was a broadly worded provision that would have stripped many rights from gays and lesbians but Prop 8 only took away the term ‘marriage,’ the two laws are distinguishable, and the panel erred in citing Romer as precedent in striking down Prop 8.  But as San Francisco rightly points out in its brief, that argument focuses too much on the details of the Romer case and fails to take into account the underlying philosophy of the Supreme Court’s decision.  Colorado’s Amendment 2 served no rational governmental interest, and could therefore only be seen as an unconstitutional expression of moral disapproval of gays and lesbians.  The most important aspect of Amendment 2 was not that its broad effect, it was its inability to further any governmental purpose.

In the same way, it is almost impossible to argue that Proposition 8 served any specific government interest.  It left intact the many rights that gays and lesbians in California have regarding the recognition of their relationships and their ability to raise children, taking away only the right to call their unions ‘marriages.’  As San Francisco argues, “The panel correctly refused to ‘credit a justification for Proposition 8 that is totally inconsistent with the measure’s actual effect and with the operation of California’s family laws both before and after its enactment.'” (9)

The city also points out that the proponents are incorrect in arguing that Baker v. Nelson, a 1972 Supreme Court case brought by a gay couple seeking to marry that was summarily dismissed, should be controlling precedent prohibiting the 9th Circuit from addressing the issue of marriage equality.  Because the panel’s decision does not address the inherent constitutionality of marriage bans in any state (let alone those that do not allow gays and lesbians to marry), it is not in conflict with Baker v. Nelson.  Indeed, as the plaintiffs argue in their brief, even Judge Smith, is his dissent from the overall opinion, wrote, ‘the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the ‘specific challenges’ raised in Baker.” (10)  Instead, as San Francisco point out, the panel’s decision conforms with every other case that has considered state laws that provide ‘separate by equal’ status to gay and lesbian couples, as California did before marriage equality was enacted by the case In re Marriage Cases.  “Courts evaluating these laws,” San Francisco writes, “have consistently held they violate state due process and equal protection guarantees, even under rational basis. (13)

In their brief, the plaintiffs go one step further, in effect arguing that if the court were to grant an en banc review, it could be necessary for it to rule on aspects of the case that the panel chose not to address.  For instance, if the en banc panel were to uphold Proposition 8, they would have to address whether or not there is an inherent constitutional right to marriage equality, which the 3-judge panel declined to consider.  In addition, the 3-judge panel did not address the exhaustive findings of fact that Judge Walker included in his original district court ruling striking down Proposition 8.  In rehearing the case, the en banc panel might have to make a decision regarding the level of deference (if any) to be given to those findings of fact.  In essence, the plaintiffs’ argument here is that the 3-judge panel was correct in showing great restraint when it upheld Judge Walker’s ruling, and that a rehearing in the 9th Circuit could possibly wade into areas of the case that the court does not necessarily need to consider.

Reading these two briefs side-by-side with the proponents’ briefs, it is extremely difficult to find any compelling reason why the 9th Circuit should vote for a rehearing of the panel’s February ruling.  The proponents’ arguments rely on outdated law and a reading of Romer that only takes into account the specific facts of that case while refusing to extrapolate what those facts could mean for the Prop 8 case.   As the plaintiffs and San Francisco make clear, the 9th Circuit’s first ruling on Prop 8 should be its last.

Below, you can find the full briefs (via Scribd, h/t to Kathleen for getting us these) of the plaintiffs and San Francisco.

[scribd id=83387688 key=key-8e5mkbtoq3yc2ak9q6n mode=list]

[scribd id=83400670 key=key-8177bztl5epfuso57z5 mode=list]

32 Comments March 1, 2012

The Prop 8 proponents’ motion to rehear: a blast to the (legal) past

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By Jacob Combs

This Tuesday, the proponents of Prop 8 filed a motion to have their appeal of Judge Walker’s decision striking down Prop 8 reheard by a larger en banc panel of the 9th Circuit’s judges.  In their 50+ page brief, the proponents lay out the reasons why they think the 2-judge majority that upheld Judge Walker’s decision earlier this month erred in their ruling, and attempt to make a case with which they can prevail before a larger appeals panel.  Here’s a look at the petition, the proponents’ arguments, and why they’re unlikely to succeed in the next step of the process.

In their brief, the proponents essentially make two major arguments: 1) that the 9th Circuit panel erred in relying on the Supreme Court case Romer v. Evans in making its decision to strike down Prop 8 and 2) that Prop 8 should pass a rational review test because it encourages society’s vital interest in ‘responsible’ procreation.  I will consider each of these claims in turn.

The proponents make their most intriguing arguments on the subject of Romer v. Evans.  In that case, decided in 1996, the Supreme Court struck down Amendment 2, a Colorado constitutional amendment that would have prohibited state jurisdictions from taking any legislative, judicial or executive action to afford legal protections to gays and lesbians.  In its ruling, authored by Justice Anthony Kennedy, the Supreme Court wrote:

[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

The 9th Circuit relied heavily on Romer when it invalidated Prop 8 earlier this month, seeking to point out the similarities between the two laws.  Quoting from Romer, Judge Stephen Reinhardt wrote:

Proposition 8 is remarkably simliar to Amendment 2.  Like Amendment 2, Proposition 8 “singles out a certain class of citizens for disfavored legal status….”  Like Amendment 2, Proposition 8 has the “peculiar property” of “withdrawing from homosexuals, but no others,” an existing legal right–here, access to the official designation of ‘marriage’–that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place.  Like Amendment 2, Proposition 8 denies “equal protection of the laws in the most literal sense” because it “carves out” an “exception” to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had preiovusly enjoyed, from the scope of that constitutional guarantee.  Like Amendment 2, Propsition 8 “by state decree…puts homosexuals in a solitary class with respect to” an important aspect of human relations, and accordingly “imposes a special disability upon homosexuals alone.”  And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it “only by enlisting the citizenry of the state to amend the State Constitution” for a second time.  (44-5, internal quotations and edits omitted)

What Judge Reinhardt does here is very powerful: he takes the logic the Supreme Court applied to a case that is similar but has some significant differences, and applies that logic to the new facts of the Prop 8 case.  This is what judges are supposed to do.  He goes on to acknowledge that Amendment 2’s effect was much broader than Proposition 8’s, but nevertheless recognizes that Prop 8 does “work a meaningful harm to gays and lesbians” that “must be justified by some legitimate state interest” (46).  In his opinion, Judge Reinhardt argues that it was unconstitutional for California’s citizenry to revoke gay and lesbian couples’ right to marry after it had already been afforded to them by the California Supreme Court.

Prop 8’s proponents will have none of this, arguing, “the panel majority’s reading of Romer would bring the case squarely into conflict with Crawford v. Board of Education, which expressly “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” (7)  In their eyes, the timing of Prop 8 and the California Supreme Court decision that legalized marriage equality in the state is essentially irrelevant.  That court decision, In re Marriage Cases, was decided in May of 2008; Prop 8 was passed in November of the same year.  In their brief, the proponents argue that Prop 8 was simply an attempt by California’s citizenry to restore a traditional definition of marriage that had been undermined by a judicial decision, writing, “Certainly nothing in Romer so much as hints that the Federal Constitution bars the People of a State from restoring a longstanding law that has been briefly set aside by their courts.” (14)

But the proponents then go on to undermine this very assertion, noting that “the decision in the Marriage Cases was issued after Proponents had collected the necessary signatures to qualify Proposition 8 for the ballot and did not become final until after Proposition 8 had been officially qualified for the ballot.” (12-13)  Had the California Supreme Court stayed its decision pending the outcome of the Prop 8 initiative, the proponents argue, marriage equality would never have been legal in California.

This is pure hypocrisy.  Either Prop 8 represented the citizenry’s desire to amend the state constitution following what they saw as judicial overreach, or it predated the court decision, and was in no way a response to it.  The proponents cannot have it both ways, although they try hard to.  Taking their words (at least on pages 12-13) at face value, then, I would reject the argument that Prop 8 was a response to a judicial decision, and instead would argue that it was an attempt to go further than Proposition 22, the voter-approved law banning marriage equality that would be struck down in In re Marriage Cases, by enshrining a prohibition on marriage equality in the state constitution.

In their brief, the proponents do bring up the good argument that it would be difficult to view Romer as a case that prohibits a state from taking away any right that it had chosen to offer before.  Nevertheless, they are mistaken in believing that Judge Reinhardt’s decision is only based on the idea of taking away a previously bestowed right.  On the contrary, the 9th Circuit’s decision goes much further by refuting the proponents’ argument that Prop 8 was related to a rational governmental interest.  This brings me to the proponents’ second argument: that Prop 8 promotes responsible procreation. Follow me to the extended entry for more on that.


27 Comments February 23, 2012

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