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AFER attorney confident in Prop 8 case and brief filed to 9th Circuit Court of Appeals

Cross-posted from LGBTPOV.

By Karen Ocamb

Ted BoutrousThe American Foundation for Equal Rights held a conference call on Tuesday to discuss the brief they filed with the Ninth Circuit Court of Appeals. The legal team believes that US District Court Judge Vaughn Walker was correct in his ruling that – as AFER’s Yusef Robb put it- Proposition 8 is “clearly and unequivocally unconstitutional.”

Lead attorney Ted Boutrous (pictured) told reporters that the US Supreme Court has already held in 14 cases that “marriage is a fundamental right of all persons and it’s a fundamental relationship – the most important relationship in life.” He said when you put cases such as Loving v Virginia (right to marry), Lawrence v. Texas (individual liberty), and Evans v Romer (equal protection) together with the marriage cases, “the law is overwhelmingly on our side.”

Boutrous said that the Prop 8 proponents failed to provide any factual evidence at trial. “Their arguments got narrower and narrower once their lawyer admitted he did not know what harm would occur as a result of same sex couples getting married.” Additionally, he said, the Prop 8 proponents “really distorted” what happened at the trial in their brief.

Last Thursday, Oct. 14, UC Irvine Law School Dean Erwin Chemerinsky expressed concern in a conference call sponsored by Equality California that a new governor or attorney general would decide to defend Prop 8 – as Republicans Meg Whitman and Steve Cooley have promised to do, if elected. The noted law professor said a court might feel the case needs a defendant with standing if the Defendant-Interveners are found to lack standing to appeal Judge Walker’s ruling. At the very least, their friend-of- the-court briefs could influence the final ruling.

But Boutrous said the plaintiffs’ team is not concern – “whatsoever.”

“First, I’m not sure procedurally they could do it. But we’re not afraid of anyone’s arguments and anyone getting their views across in this case because we think we’re right on the law and we’re right on the facts. We think if there is a new attorney general and a new governor and they express their views, we’ll address it and deal with it. But that doesn’t concern us at all.”

The Ninth Circuit will hear oral arguments in December.

UPDATE BY EDEN: More from Lisa Leff at the Associated Press:

In a brief filed with the 9th U.S. Circuit Court of Appeals late Monday, the attorneys for the couples who successfully sued to strike down Proposition 8 countered arguments that Chief Judge Vaughn Walker of the U.S. District Court in San Francisco conducted a one-sided trial.

They say the evidence was overwhelmingly in their favor because lawyers for the voter-approved measure’s sponsors decided to call only two witnesses compared with the plaintiffs’ 17, and they failed to provide credible studies or convincing corroboration for their claim that marriage should be limited to a man and woman to promote responsible childbearing.

Those proponents “now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court,” the couples’ lawyers said. “The tactic is unfortunate, unbecoming and unavailing.”

25 Comments October 19, 2010

BREAKING: AFER files brief to 9th Circuit; Plaintiffs defend Judge Walker’s Prop 8 decision

By Eden James

A few minutes ago, the American Foundation for Equal Rights filed its response brief to the U.S. 9th Circuit Court of Appeals just before the midnight deadline.

Kathleen, as usual, has Scribd the document for the P8TT community:

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AFER has also posted the brief on its web site at:

Here is the press statement from AFER that accompanied the brief:

OCTOBER 18, 2010 — The plaintiffs in the landmark Perry v. Schwarzenegger case that overturned Proposition 8 filed their brief with the 9th Circuit Court of Appeals today, reiterating the clear unconstitutionality of the initiative that led to its being struck down by a federal district court after an exhaustive trial comprising overwhelming legal arguments, expert witnesses and first-hand testimony.

“Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as ‘persons’ under the 14th Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution,” attorneys Theodore B. Olson and David Boies wrote in their filing.

“Our Constitution requires the government to treat every American equally under the law,” said Chad Griffin, the Board President of the American Foundation for Equal Rights. “Only full federal marriage equality would fulfill the requirements of our Constitution. That is why we are pressing this case through the Supreme Court.”

I’m sure Trial Trackers will enjoy digesting this document tonight and in the morning. Please let us know what you think in the comments!

UPDATE: Here is the full introduction to the main case brief, as just posted on AFER’s web site:


This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978), and equality, the most bedrock principle of the American dream, from the Declaration of Independence, to the Gettysburg Address, to the Fourteenth Amendment.

Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

The unmistakable, undeniable purpose and effect of Proposition 8 is to select gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are different, that their loving and committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” After an expensive, demeaning campaign in which voters were constantly warned to vote “Yes on 8” to “protect our children”—principally from the notion that gay men and lesbians were persons entitled to equal dignity and respect—Proposition 8 passed with a 52% majority and Proponents’ stigmatization of gay and lesbian relationships as distinctly second-class thus became the official constitutional position of the State of California.

Class-based balkanization and stigmatization of our citizens is flatly incompatible with our constitutional ideals. “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). The tragic time has long-passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment—even imprisonment—because those in power deemed gay relationships deviant, immoral, or distasteful. Proponents’ own expert acknowledged that the principle of “equal human dignity must apply to gay and lesbian persons.” SER 287. “In respect of civil rights, all citizens are equal before the law.” Plessy, 163 U.S. at 559 (Harlan, J., dissenting).

Thus, the Constitution now fully embraces the truth that, no less than heterosexual persons, “[p]ersons in a homosexual relationship” enjoy the “constitutional protection to personal decisions relating to marriage.” Lawrence v. Texas, 539 U.S. 558, 574 (2003). The district court readily and correctly recognized that Proposition 8 and its demeaning of the personal autonomy of gay men and lesbians with respect to marriage was of a piece with the anti-miscegenation statutes struck down years ago in Loving v. Virginia, 388 U.S. 1 (1967). And just as the Supreme Court properly vindicated those foundational principles of freedom and equality in Loving, so, too, does the decision of the district court invalidating Proposition 8 make this nation, in the words of Proponents’ expert, “more American . . . than we were on the day before.” SER 287.

From the very first sentence of their opening brief, Proponents make clear that their case hinges upon application of a version of rational basis review that a court might apply to everyday economic legislation. Under this type of rational basis review, Proponents contend, a state may “draw a line around” its gay and lesbian citizens and exclude them from the entire panoply of state benefits, services, and privileges so long as one can imagine a conceivable set of facts that would justify providing those benefits to heterosexual persons.

Application of Proponents’ version of rational basis review to Proposition 8 would be profoundly unjust and absolutely incompatible with our Nation’s tradition of equality as articulated in numerous decisions of the Supreme Court. Categorical exclusions from “the most important relation in life” cannot possibly be equated with zoning or economic regulations that adjust in nice gradations the economic benefits and burdens of life in American society. And a person’s sexual orientation is not a species of conduct that may readily be adjusted to conform to the government’s changing priorities; the court below, based on ample expert analysis, found that a gay man or lesbian cannot simply choose to be attracted to the opposite sex and thereby avoid the sting of Proposition 8, to say nothing of the other acts of discrimination and violence frequently directed at gay and lesbian persons. Heightened scrutiny thus properly applies to laws targeting persons based on their sexual orientation and gender, just as it does to laws classifying persons on the basis of race, ancestry, sex, illegitimacy, alienage, and religion.

Even under Proponents’ preferred standard of review, however, Proposition 8 fails. There is no legitimate interest that is even remotely furthered by Proposition 8’s arbitrary exclusion of gay men and lesbians from the institution of marriage. Indeed, Proponents can offer nothing but unproven assertions and tautologies.

Proponents argue that stripping gay men and lesbians of their right to marry advances governmental interests in “responsible procreation” and preventing the “deinstitutionalization” of marriage—two phrases that, tellingly, the Yes on 8 campaign never saw fit to urge upon California voters. To determine whether these rationales and others proffered from time to time by Proponents legitimately could justify Proposition 8, the district court held a trial at which it considered evidence and expert testimony. Plaintiffs presented 17 witnesses, including nine leading experts in history, political science, psychology, and economics, and hundreds of trial exhibits, including more than 250 exhibits related to messages transmitted to voters as part of the Proposition 8 campaign.

Proponents, on the other hand, denounced from the start the notion that their assertions might be subjected to adversarial testing, resisting the very idea of a trial, and ultimately insisted their assertions did not need to be supported by any evidence whatsoever. In the end, they presented just two witnesses, including a supposed expert on marriage who derived the substance of his opinions concerning the harms same-sex marriage might cause to “traditional” marriage from a “thought experiment” in which he essentially did little more than chronicle the responses provided by an unscientifically selected audience. ER 81. When asked by the district court to identify what harms would befall opposite-sex married couples if gay and lesbian couples could marry, Proponents’ counsel candidly acknowledged, “I don’t know.” ER 44.

Based on that factual record—undoubtedly the most detailed ever assembled in a case challenging legislation targeting gay and lesbian persons—the district court issued a 136-page opinion that meticulously examined each of the parties’ factual assertions and the evidence supporting those assertions. The district court found that “Proponents’ evidentiary presentation was dwarfed by that of plaintiffs,” and concluded that Proponents “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” ER 46. In light of Proponents’ inability to identify a single legitimate interest furthered by Proposition 8, the court concluded that, under any standard, Proposition 8 violated both the Due Process and Equal Protection Clauses.

Proponents and their amici now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court. The tactic is unfortunate, unbecoming and unavailing. The governmental interests Proponents assert have been affirmatively disavowed by California, or have no basis in reality, or both. The fact is, as the testimony of 19 witnesses and 900 trial exhibits introduced into evidence amply demonstrates, there is no good reason—indeed, not even a rational basis—for California to exclude gay men and lesbians from the institution of civil marriage, the most important relation in life.

The district court’s judgment is predicated squarely on the fundamental principles established by the Supreme Court in Loving and its other decisions explaining the constitutional meaning of marriage, as well the Court’s decisions in Lawrence and Romer, which together make clear that Proposition 8 flatly violates the constitutional commands of due process and equal protection of the laws. That judgment—and the injunction against the enforcement of Proposition 8 that necessarily must follow—should be affirmed.

UPDATE: AFER also filed a brief in the case of the appeal filed by Imperial County. Check it out (h/t Kathleen):

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88 Comments October 18, 2010

BREAKING: Prop 8 legal team files argument to 9th Circuit attacking Judge Walker

By Eden James

The defendant-intervenors filed their written arguments to the U.S. 9th Circuit Court of Appeals shortly after 9 p.m. PST — just 3 hours before the court’s deadline. We will be posting it here ASAP.

According to Lisa Leff at the Associated Press, it targets Judge Vaughn Walker for being “egregiously selective and one-sided.” More to come.

UPDATE: Here it is (h/t to both Kathleen, in this thread, and Ann S. in the previous thread, where the news broke almost immediately in the comments):

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More from the Associated Press:

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.

Trial Trackers are quickly digesting the document and posting their thoughts in the comments. Below are some of the best comments posted so far.

James UK:

I’ve just read the Proponents brief. The problem I think that they have is the cursory treatment given to Lawrence v Texas, and to a lesser extent, Romer v Evans, which cases have so changed the landscape regaring the classification of lesbian and gay people, to the extent that Baker v Nelson is unlikely any longer to be good law. Whilst Lawrence specifically did not mandate recognition of gay marriage, which it could not and was not required to do, since the subject matter under discussion was a Texas criminal statute, it did not foreclose such a finding in future cases. It merely left that argument to be made in future cases. Lawrence did not apply standard rational review. It applied some higher level of scrutiny, whether rational review with bite or intermediate scrutiny. Thus the Propents complaints on rational basis review are probably nothing to the point.

The brief is noticeably silent on Justice Scalia’s dissent in Lawrence too, where he asserted, rightly, that if moral approbation was not an acceptable basis upon which to legislate against lesbians and gays as a class, then same sex marriage could not be prevented either, because procreation was not and never has been a requirement for marriage.

Justice Ginsberg’s recent note in Christian Legal Soc v Martinez that the USSC”s recent jurisprudence does not distinguish between behaviour and status as regards lesbians and gays also goes unmentioned.

“Lightning Baltimore” posted this gem of a quote from page 33 of the brief:

The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws. Heller, 509 U.S. at 320 (emphasis added). To the contrary, the State’s “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

Here is Kathleen Perrin’s response to the above quote:

It’s true that it can be based on rational speculation…. but the key word here is “rational.”

IF the standard of review is only “rational basis”, then the court can actually come up with its own rationale for the law, even if the parties have not presented one. However, neither the Proponents nor Walker could come up with any justification for the law that was “rationally related” to a “legitimate” government interest.


They wrote: “The trial proceedings were skewed from the outset, given that four of Proponents’ expert witnesses refused to testify…”

Basically they are claiming that the fact that the judge videotaped the proceedings EVEN THOUGH NOT FOR BROADCAST scared away the experts. And THAT is why they had no evidence! The fact that they were unable to explain properly to their own witnesses that this was for court records, not broadcast is why this should be overturned.

This leaves me somewhat speechless. I think that Olson and Boies must be laughing their asses off somewhere right now, as they read this.

UPDATE (h/t to Kathleen): Imperial County just filed their brief on the standing issue:

[scribd id=37663952 key=key-1a408vi8q9pbfhqpidzr mode=list]

Finally, AFER released the following statement shortly after the Prop 8 legal team filed their brief earlier tonight:

Statement from Chad Griffin, Board President, American Foundation for Equal Rights

“Regardless of the defendant-intervenors’ protests, the fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial. There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “We are eager to proceed with affirming the unconstitutionality of Prop. 8, and the equality of all Americans, in the Ninth Circuit and the Supreme Court.”

The American Foundation for Equal Rights is the sole sponsor of the Perry v. Schwarzenegger case. After bringing together Theodore Olson and David Boies to lead its legal team, the Foundation successfully advanced the Perry case through Federal District Court and is now leading it through the Ninth Circuit Court of Appeals before the case is brought to the United States Supreme Court.


257 Comments September 17, 2010

Courage Campaign blasts efforts to force Governor and Attorney General to defend Prop 8

By Andy Kelley

A conservative legal group is attempting to use the courts to force California Governor Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8 in court.

As reported late this afternoon by the Associated Press:

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require state officials to appeal a ruling that overturned Proposition 8.

Chief U.S. District Judge Vaughn Walker struck down the voter-approved measure as unconstitutional last month.

Its sponsors have appealed. But doubts have been raised about whether they have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

Though the state of California has until September 11th to file an appeal of Judge Walker’s ruling, both Schwarzenegger and Brown have stated they have no intention to do so.

Rick Jacobs, Founder and Chair of the Courage Campaign Institute called their lawsuit “the height of hypocrisy…frivolous and desperate” and released the following statement questioning why California taxpayers should be forced to defend a law which has already been declared to violate the United States Constitution:


Jacobs calls Conservative Groups’ lawsuit “the height of hypocrisy…frivolous and desperate”

LOS ANGELES: Earlier today, the conservative Pacific Justice Institute petitioned California’s 3rd District Court of Appeals to force Governor Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a Federal District Court ruling that declared California’s Proposition 8 unconstitutional.

Proponents of the law have pledged to appeal the District Court ruling—which found California’s ban against same-sex marriage to be a violation of the 14th Amendment to the U.S. Constitution—to the 9th Circuit Court of Appeals. Both Brown and Schwarzenegger have publicly declined to appeal the District Court ruling.

In response to today’s events, Courage Campaign Founder and Chairman Rick Jacobs has issued the following statement:

“With California laying off teachers, police and firefighters amidst an unprecedented budget crisis, it is the height of hypocrisy for so called ‘conservatives’ to demand that California taxpayers foot the bill to defend a discriminatory law that has already been declared unconstitutional in federal court. This frivolous action shows just how out of touch and desperate those who seek to limit the freedoms of loving American families have become.”

More updates to come as news develops…

UPDATE BY EDEN: Karen Ocamb has quotes from the Pacific Justice Institute, Lambda Legal and Equality California along with some incendiary footage from Right-Wing Watch:

In a blog on their website, PJI posits failure to uphold Prop 8 as a “constitutional crisis:”

“California is teetering on the precipice of a constitutional crisis. Former bodybuilder, turned Governor, Arnold Schwarzenegger, along with former Governor, turned Attorney General, Jerry Brown, are putting their shoulders down to push California’s voters over the cliff. With them, the state’s republican form of government will fall.”

Lambda Legal’s Legal Director Jon Davidson makes an excellent point about “judicial activism:”

“This latest, desperate move by antigay recognizes that, without an appeal by Gov. Schwarzenegger or Attorney General Jerry Brown, the Perry case may be over and Prop. 8 a relic of the past. It’s ironic that groups that regularly attack the judiciary are now asking judges to second guess the highest members of the state’s executive branch who correctly have decided that Prop. 8 so clearly violates the U.S. Constitution that it cannot in good faith be defended. Those officials swore to uphold the federal Constitution which, under our federal system of government, overrides state law.”

Equality California Executive Director Geoff Kors issued this statement in response to the PJI action:

“This is an outrageous attempt to try and force elected officials who have sworn to uphold the United States Constitution to defend a law that the Federal Court has found to be unconstitutional. It demonstrates their acknowledgement that the proponents of Proposition 8 lack standing to appeal, that the case should be dismissed and loving same-sex couples should be allowed to exercise their constitutional right to marry.”

Right Wing Watch reminds us how PJI President Brad Dacus at a Protect Marriage/Yes on 8 rally on Oct. 28, 2008 said “failure to pass Prop 8 in California would be akin to failing to stop Hitler.”


296 Comments August 31, 2010

New Field poll: Prop 8 will be short for this world… one way or another

by Brian Leubitz

Today, the Field Poll released their latest study on California opinions regarding marriage equality (PDF). It’s good news on the whole, with a slight majority favoring marriage equality. But there are some caveats:

The poll’s results – 51 percent in favor, 42 percent opposed, 7 percent undecided – show big differences among age groups, geography and party affiliation.

The results were close to those the Field Poll found in May 2008, six months before voters banned gay marriage by approving Proposition 8, 52 to 48 percent.

The current survey also found that support for same-sex marriage drops below a majority when voters are given another option – civil unions.(SacBee)

So, yes, there is 51% support, but that support is soft. Basically, we are back where we were two years ago. Prop 8 repeal can pass, but there is still a lot of work to be done. This time we have to run a better campaign to get our message out, be proactive and not just respond to the other side’s phony attacks. And of course, talk with our fellow Californians directly. We can, and should, win in 2012, but it will not be easy by any stretch of the imagination.

Of course, there’s still this Prop 8 trial going on, so I’ll just take a look at what one of the big California-centric pundits had to say. Dan Walters is the big California columnist at the Sacramento Bee. While I frequently disagree with his take on governance and other issues, he does offer an interesting perspective. But in today’s column, he just misunderstands the law. From today’s Bee:

In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal “Defense of Marriage Act,” which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.

Although Tauro’s ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states’ rights, to decide whether to recognize same-sex marriage, and the federal law “offends” those rights.

Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states’ rights matter, neither could they overturn California’s anti-gay marriage law, Proposition 8. (SacBee)

From a simple reading of a summary of the cases, that would appear to be the case, but once you delve into the law, that sort of fades away. Judge Tauro’s decision actually strikes down Section 3 of DOMA under two constitutional provisions. First, he does it under the more expected Fifth Amendment of the Constitution, ruling that DOMA has no rational basis. This is the first of the two combined cases, the Gill v OPM case.

It is very clear that this part of the two decisions is clearly not a setback whatsoever. This decision argues that the marriage ban on same-sex couples violates the Bill of Rights. The Fifth Amendment has generally been considered to apply most of the Fourteenth Amendment equal protection jurisprudence to the federal government. In other words, the fifth amendment equal protection clause in Gill is, for our purposes, functionally the same as the fourteenth amendment’s protections in the Prop 8 case. Rather than hurting the challenge to Prop 8, Gill affirmatively argues for Prop 8 to be struck down.

Now, to the Massachusetts case, there the court says that the federal government cannot block the states from defining marriage as they wish due to the Tenth Amendment. Now, first, let’s just say that this part of the ruling is on some shaky legal footing. While some of the TEA-baggers are fond of the tenth amendment, it simply doesn’t have much standing in the legal world. The tenth is rarely enforced in any substantive way, and this component of the case very well may well get some new reasoning on appeal if it is upheld. In some exceptional cases, the federal government has been batted down as over-reaching. But the bar is high, and essentially applies only to Congressional action, in other words, legislation.

The final point here is that the Equal Protection Clause applies to both the states (14th) and the federal government(5th). Whether or not the federal government has a right to tell the states through legislation how to define marriage, the states still have no right to violate the equal protection clause. So, long story short, far from being a back-handed gift to the proponents of Prop 8, the DOMA decision supports the plaintiffs case in Perry.

To bring it back around…Prop 8 is going to be short for the California law books, whether it goes down via judicial action or electoral.

53 Comments July 20, 2010

This Is Why They Build Courthouses

by Robert Cruickshank

Over the holiday weekend, two op-eds appeared in the New York Times and the Washington Post criticizing the Perry v. Schwarzenegger case. The op-eds, by Jonathan Rauch and Jonathan Capehart, have been getting a lot of attention – and even approving words from Maggie Gallagher.

But are the arguments in these op-eds valid? As I’ll explain, they’re far from it. Both present a deeply flawed assessment of the case itself, the politics of the case, and of the purpose of the judiciary itself.

First up is Jonathan Rauch, whose op-ed in Saturday’s NYT titled “A ‘Kagan Doctrine’ on Gay Marriage” kicked off the recent debate:

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

Rauch is guilty of the “both sides are the same” fallacy, calling those of us who support marriage equality “absolutists” alongside those who wish to deny equal rights. In Rauch’s mind, our arguments are essentially the same, and “serious” people like himself should stand apart from this debate entirely – or find some sort of half-solution that doesn’t provide equal rights, but avoids the need to have the necessary debate and battles to achieve equality.

He argues that Kagan is right that equal rights must be balanced against letting the voters decide matters, and that “judicial restraint” must be considered as well as equality.

It’s unclear whether Kagan would use this statement to rule against equality if and when Perry v. Schwarzenegger reaches the Supreme Court. But it is very clear that Rauch would like her to do exactly that:

This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.

Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.

Ms. Kagan seems to reject both forms of absolutism. Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”

Notice what Rauch does here. He equates our side of the case – we who oppose Prop 8 – and the defendants in order to discredit us both. Instead of assessing the merits of the arguments, he seeks a moderate position which, like most moderate positions, actually serves the ends of the right-wing.

Rauch makes it sound like the desire to have the US Supreme Court step in and enforce the Constitution when a state is ignoring it is somehow “absolutist” or undermines the courts. This is a ridiculous claim which flies in the face of nearly 200 years of judicial precedent. Going all the way back to 1819 and the case McCulloch v. Maryland, the US Supreme Court has held that the Constitution is supreme to state law, with a few exceptions.

It’s worth nothing one of those exceptions is not the 14th Amendment. I’ve always felt it is one of THE most important amendments, maybe even more important than the First Amendment. The key phrase is as follows, bolding is mine:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These two clauses, known as the “due process” clause and the “equal protection” clause, are at the heart of this trial. The plaintiffs argue – correctly – that they have been denied equal protection of the laws because of Prop 8, which discriminates against them and is therefore invalid under the 14th Amendment. Rauch would prefer we ignore this argument and let discrimination stand for the sake of “judicial restraint.” Notice also that the amendment specifies “states” – unlike some other amendments, whose applicability to the states has been uncertain, the 14th was always intended to apply directly to the states, giving the federal courts a role in enforcing the amendment over what a state or its voters might do.

Importantly, we’ve been here before. Within 10 years of the passage of the 14th Amendment, the US Supreme Court began refusing to implement the amendment. Their argument was that the courts needed to show “judicial restraint,” but in cases like US v. Cruikshank (no relation) the Supreme Court refused to apply the 14th Amendment, arguing that the amendment should have only a limited application to the states. In Plessy v. Ferguson the Supreme Court even ruled that “separate but equal” was permissible. As a result, Jim Crow became established in the South as persistent discrimination and segregation was the law of the land.

In 1954, after over a decade of shifting judicial philosophies, the Supreme Court began to revive the 14th Amendment in the landmark Brown v. Board of Education case, which as you know ruled that school segregation violated the 14th Amendment and expressly overturned the “separate but equal” formulation. At the time, critics of the decision felt that it had gone too far, that it had improperly shed “judicial restraint.” The same charge was leveled at the Supreme Court in 1967 when they overturned all bans on interracial marriage in Loving v. Virginia, a case explicitly cited by Olson and Boies in their original lawsuit filing.

What we see is that Rauch’s argument legitimates discrimination. By placing “judicial restraint” above the 14th Amendment’s imperative to prevent state discrimination and denial of equal protection of the laws, he is repeating the hoary arguments made to oppose the Supreme Court’s decisive action that enabled the Civil Rights Movement to tear down the barriers of legalized segregation.

Rauch claims that the voters have a right to decide these questions, and that courts would be wrong to overstep those concerns. Yet the Supreme Court has already rejected that argument. The mandatory school segregation that was overturned in Brown and the interracial marriage bans that were overturned in Loving were the product of democratically-elected legislatures, and one could credibly argue that they were the expression of the will of the voters (keeping in mind of course than in many Southern states, African Americans were denied the right to vote).

In fact, when it comes to LGBT rights, the Supreme Court has already ruled that the Constitution trumps the voters. In 1996, the Supreme Court, led by Anthony Kennedy, handed down the Romer v. Evans decision, overturning a constitutional amendment approved by Colorado voters in 1992 that prevented Colorado from doing anything to protect or advance LGBT rights. Kennedy slammed Amendment 2 as being “unprecedented” and clearly motivated by animus toward LGBT people – one of the main reasons why that very issue has become so important in the Prop 8 trial.

This all goes back to a core principle of the US Constitution. Contrary to what Rauch seems to believe, the Constitution’s authors did not envision a democracy that was all-powerful. The Constitution’s very purpose was to both define as well as limit what government – and therefore, what the voters – could do. It absolutely did not suggest that the “will of the voters” was absolute or even of primary importance. Instead the Constitution produced strict limits on what both the government and the voters could do in the interest of protecting basic rights.

The 14th Amendment stems from this basic principle, and since the 1940s has been correctly interpreted by the Supreme Court to trump state laws and, therefore, the voters who either approved those laws or elected the legislators who passed those laws.

Rauch goes further and revives another talking point from the opposition to the 1950s Civil Rights Movement: that the Supreme Court was moving too fast and that we should slow down, wait, and let the public come to equality all on its own:

But the gay-marriage debate, while assuredly a civil rights argument, is much more than that. It is also a debate about the meaning of marriage, about the pace of change in a conflicted society and about who gets to decide. Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.

Dr. Martin Luther King, Jr, Thurgood Marshall, and other Civil Rights leaders rejected this thinking. They argued, correctly, that it was the job of the courts to protect the rights of Americans whether it was the popular thing to do or not, whether the political system and the society were “ready” for it or not.

Of course, as we know from the recent history of what happens when marriage equality is put to a vote, it doesn’t seem that politics is “doing its job.” Instead we should let the courts do their jobs. This is why they build courthouses – to enable those being denied their equal rights to petition to force the courts to step in and provide relief.

Rauch’s argument flies in the face of this legal history and these political facts, and would permit discrimination to stand. It’s no wonder, then, that Maggie Gallagher praised Rauch’s op-ed:

This column by Jonathan Rauch is a real act of integrity: How many men in a legal same-sex marriage would publicly call on the Supreme Court not to strike down Prop 8, at least not yet? He calls Prop 8 unfair and unwise policy, but a judgment the people of California are entitled to make.

Right now, civil-union laws are being used to strike down marriage laws in courts; if you pass a civil-union law, gay-marriage advocates will use it in court to argue that only bigotry could explain why you are withholding marriage.

Rauch, on the other hand, recognizes that what he and others seek is not access to a merely legal construct, something created by government alone, but recognition by society of the value of his union as a marriage. Don’t short-circuit the conversation now taking place, he urges.

On that we agree.

Not surprisingly, Gallagher is wrong here – what marriage equality supporters seek is the recognition of their right to get married to a person of the same sex as themselves, a right that seems obvious under the 14th Amendment’s definition of “equal protection” and the precedents of cases like Loving v. Virginia. But it’s a telling sign of just how flawed Rauch’s op-ed was that Gallagher was quick to see in it an argument that boosted her defense of Prop 8.

Finally, there was Jonathan Capehart’s post at the Washington Post site on Monday, titled Could impending Prop 8 decision doom same-sex marriage? In it, Capehart takes Rauch’s op-ed and uses it as a basis to argue that the entire effort to undermine Prop 8 in the courts is too risky:

Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Capehart repeats Rauch’s error in seeing the “will of the people” as being more important than the US Constitution. But Capehart’s real concern is that a favorable ruling from Judge Walker could spark a backlash that would undermine marriage equality:

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.

Capehart doesn’t assess the alternative, which is to simply let discrimination continue indefinitely. There’s no doubt that risks are involved with the legal strategy. But in a case like this, where Prop 8 is so flagrantly unconstitutional, and with two of the top constitutional lawyers in America – Ted Olson and David Boies – leading the case, it is a risk well worth taking. Again, these are why the federal courts exist – to take cases like this and apply the Constitution to ensure protection of rights.

Adam Bink has a good take on this over at Open Left, writing that:

As one colleague put it to me, we are creating the climate and momentum for a win, and must continue to do so.

That’s exactly right. Our movement must be ready for whatever Judge Walker rules, and whatever the Supreme Court ultimately rules. And part of being ready is building the movement and shaping the climate to favor a win. It’s how the Civil Rights Movement overcame the “go slow” advocates of “judicial restraint” in the 1950s and 1960s, and it’s what the LGBT rights movement needs to do here in the 2010s.

89 Comments July 6, 2010

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