Voter ‘animus’ to be issue in Calif marriage case
When the U.S. Supreme Court overturned an amendment to the Colorado Constitution that outlawed discrimination protections for gay people, same-sex couples could not enter into civil unions or domestic partnerships anywhere in the nation, much less get married. But as they seek to persuade a federal judge to strike down California’s ban on gay marriages, lawyers for two unmarried gay couples are using that 13-year-old decision as their road map — one they expect will eventually lead the high court to take up the marriage issue. In the Colorado case, Romer v. Evans, the Supreme Court majority held that voters’ dislike of gays and the laws that several cities had approved to shield them from bias motivated the state amendment. Such “animus,” it said, was incompatible with the section of the U.S. Constitution that requires the government to treat its citizens equally absent a compelling reason to do otherwise. The attorneys behind the challenge to California’s Proposition 8 plan to argue during a pretrial hearing Thursday that by stripping gays of the right to wed, the voter-approved ban runs afoul of America’s founding framework in the same way — and for the same reason. “Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right,” said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. “And there was no justification or rationale other than disapproval by that majority of that group.” U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court. Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8’s ballot history demonstrates the measure had “discriminatory intent.” California Attorney General Jerry Brown, a defendant in the case, has sided with gay rights advocates and declined to defend the ban, which overturned a California Supreme Court ruling that had legalized same-sex marriages. The state Supreme Court five weeks ago upheld the measure, saying it represented a valid exercise of voters’ authority to amend the California Constitution. Proposition 8’s sponsors, a coalition of religious conservative groups called Protect Marriage, has been given permission to intervene in the federal case. In court papers, the group’s lawyers rejected the assertions that anti-gay attitudes fueled the November measure and that the 1996 Colorado case was applicable. “Nothing in California law, either Proposition 8 or otherwise, indicates that Californians harbor animus towards gay and lesbian individuals,” they wrote. Since the U.S. Supreme Court’s 6-3 decision, attorneys for gay rights and Christian conservative groups have debated whether the Romer decision could be used to expand gay rights. The ruling marked the first time the Supreme Court determined that the Constitution’s equal rights guarantees extended to gays and lesbians. “The basic point of Romer is that government cannot ever act out of hostility toward a group of people, and whether that is in the context of marriage or anti-discrimination law, the point carries over,” said Suzanne Goldberg, who worked on the case and now directs Columbia Law School’s Sexuality and Gender Law Program. The ruling has been cited, though so far unsuccessfully, in past challenges to gay marriage bans in Nebraska and Florida. At the same time, gay rights groups mostly have shied away from pursuing federal marriage cases in favor of pursuing marriage rights in state courts. Legal observers on both sides of the debate agree, however, that California’s Proposition 8 presents novel questions that could make the issue ripe for federal action.
San Francisco Chronicle
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Gay Groups Prepare For Prop. 8 Decision
Gay groups across the nation are preparing for Tuesday’s ruling by the California Supreme Court on the state’s controversial gay marriage ban, Proposition 8. The court announced Friday it would hand down its decision Tuesday morning at 10AM. Justices will rule on a lawsuit that seeks to invalidate the November results of a referendum that placed a gay marriage ban in the California Constitution. Proposition 8 effectively overturned the high court’s 4 to 3 decision that legalized gay marriage last May and put an end to the thousands of gay and lesbian marriages that took place during the June-to-November “summer of love” when gay marriage was legal. The court will also rule on the fate of 18,000 marriages. Gay marriage proponents began preparing for the decision in March, shortly after the court heard oral arguments. The largest event is being organized by veteran gay activists Robin Tyler and Andy Thayer. The Day of Decision is a large, multi-state demonstration scheduled to take place on Tuesday night, just hours after gay activists learn whether they will be celebrating or protesting the court’s decision. California activities connected to the event include: In San Francisco a prayer service at Grace Cathedral is scheduled for Monday at 7PM, while a blessing on Tuesday at St. Francis Lutheran Church begins at 8:30AM; On Tuesday in Los Angeles, a rally will take place outside the County Marriage License Office at 12AM and a rally and march begins at 7PM in the West Hollywood neighborhood; Activists will gather at 7PM Tuesday for a rally at the Palm Springs Courthouse; And San Diegans will rally Tuesday at 5PM at Balboa Park.
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Lambda Legal Marks First Anniversary of Historic California Marriage Victory
‘…denying marriage to loving and committed same-sex couples is morally wrong…’
(Los Angeles, May 15, 2009) — On the first anniversary of the California Supreme Court’s historic ruling in In re Marriages, Lambda Legal Marriage Project Director Jennifer C. Pizer issued the following statement:
“One year ago today many thousands of lesbian and gay Californians became full citizens for the first time when the state supreme court ruled that we all are equal under law and everyone – gay and straight alike – must have the same right to marry the person they love. For some of us who’d worked on the case for years, the court’s clarion clear decision gave real meaning to the California Constitution’s promise of equality. And then, as more than 18,000 same-sex couples jubilantly exercised that right all over the state, family and friends shared their joy, cried during their vows, and were changed for the better.
The court’s historic decision also paved the way for the high courts of Connecticut and Iowa, which in turn gave great boosts to the legislatures in Vermont, Maine, New Hampshire and the District of Columbia. Awareness now is dawning for great numbers of Americans that denying marriage to loving and committed same-sex couples is morally wrong and inflicts real harms—government should not be in the business of discrimination. Public opinion is shifting fast toward fairness. But no minority should have to depend on the generosity of the majority to enjoy basic rights. Proposition 8’s theft of our right to marry has advanced a broadly pernicious recasting of “equal protection” that, if upheld, puts every California minority at risk. It was a sad, knee-jerk response to the sight of couples in love celebrating their happiness.
Paper is the traditional first anniversary gift and there are two obvious examples — our constitution, torn asunder by Prop 8’s antigay exception, and the high court’s imminent decision that we hope will mend that tear. Today’s anniversary reminds us that we win in court and in life when we publicly celebrate our truth, love and joy in equal measures.”
Jennifer C. Pizer is Director of Lambda Legal’s Marriage Project and co-counsel in the cases that established same-sex couples’ right to marry in California and the pending challenge to Proposition 8.
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Asian Pacific Islander Equality Closely Watches Oral Arguments on Marriage Equality
Los Angeles – On March 5, 2009, the California Supreme Court will hear oral arguments on Proposition 8, a measure revoking marriage rights for lesbian, gay, bisexual, and transgender (LGBT) people. API Equality – LA, an organization that has worked diligently for Marriage Equality rights since 2005, hopes the Supreme Court will invalidate the proposition, one that affects the lives of thousands of Asian and Pacific Islanders.
“The real threat of Prop. 8 is not just against lesbian, gay, bisexual, and transgender Californians, it is against all Californians,” said Karin Wang, Vice President of Asian Pacific American Legal Center and API Equality – LA steering committee member. “A core purpose of the California Constitution is to ensure that the law treats all people equally, including minority groups. If upheld, Prop. 8 will set a dangerous precedent, where a simple majority vote is able to strip away the fundamental rights of a protected minority group.”
According to the Williams Institute, a LGBT think tank based at UCLA, there are approximately 66,000 LGBT Asian and Pacific Islanders living in California—the largest in the nation. If Prop 8 is allowed to stand , the fundamental right of same-sex couples to marry will be stripped from them.
API Equaltiy - LA is a coalition of organizations and individuals working to build support for equal marriage rights and fair treatment of lesbian, gay, bisexual and transgender (LGBT) people in the greater Los Angeles Asian and Pacific Islander community. For more information, call 323-860-7348 or visit, http://apiequalityla.org/
Please view the “Our Stories” section of the website to read stories about API’s and how Prop 8 affected their lives: http://www.apiequalityla.org/ourstories.php
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Attorneys Urge California Supreme Court To Invalidate Prop 8
(San Francisco, CA, March 5, 2009) Attorneys for same-sex couples, civil rights organizations and the state Attorney General’s office appeared before the California Supreme Court today to urge the court to strike down Proposition 8, which took away the right of same-sex couples the right to marry. At issue in the case is whether the ballot initiative process can be used to take away a fundamental right only for one group of Californians based on a trait – in this case sexual orientation – that has no relevance to the group’s ability to participate in or contribute to society. Because the case has serious implications for the constitutional rights of all Californians, it has generated unprecedented support from many national and state civil rights groups as well as California legislators, local governments, bar associations, business interests, labor unions, and religious groups. The California Supreme Court, which has struck down several other initiatives in the past, is expected to issue a decision within 90 days.
“Proposition 8 jeopardizes not just the right of same-sex couples to marry, but the rights of all Californians to be treated as free and equal citizens of this state,” said Shannon P. Minter, Legal Director of the National Center for Lesbian Rights (NCLR), who argued the case before the Court. “Our Constitution is based on the principle that majorities must respect minority rights. But if a majority can change the Constitution to take away a fundamental right from one group, then it can take away fundamental rights from any group. Our government will have changed from one that respects minority rights to one in which the power of the majority is unlimited.”
NCLR, Lambda Legal, and the ACLU filed the legal challenge on November 5, after Proposition 8 was approved by just 52 percent of the voters on Election Day. In court today, the groups argued that it was improper for the proponents of Proposition 8 to use the ballot initiative process to strip same-sex couples of the fundamental right to marry. The groups contend that changes to the Constitution that alter its core requirement of equal protection by selectively depriving minorities of fundamental constitutional rights cannot be accomplished through a simple majority vote. Such major changes of core structural principles are revisions to the Constitution that can only be put on the ballot by a two-thirds vote of both houses of the legislature.
“It is simply wrong—legally and socially—to short-circuit the California Constitution and its equal protection guarantees,” said Jennifer C. Pizer, Marriage Project Director for Lambda Legal and co-counsel in the legal challenge to Proposition 8. “Proposition 8 is no ‘garden variety’ amendment that changes a tax or zoning or safety rule in a way that affects everyone equally. This is a radical attempt to strip a cherished constitutional right from just one targeted minority group and then to stop the courts from doing their most basic job of upholding the constitutional promise of ‘liberty and justice for all’.”
The case before the court is unprecedented because no other initiative-amendment has successfully taken away a fundamental right only for a particular minority. Because Proposition 8 would, for the first time, change the Constitution in a way that strips a minority group of its constitutional right to equal treatment under the law, California Attorney General Jerry Brown agrees that Proposition 8 should be struck down. The Attorney General’s office argued that the right to marry is an “inalienable right” that can not be selectively eliminated from one group without compelling reasons.
“The Court has a solemn responsibility to enforce our state constitution and to protect the rights of all people, regardless of popular opinion,” said Elizabeth Gill, a staff attorney with the ACLU of Northern California. “This case isn’t just about marriage, and it’s certainly not just about gay and lesbian couples. If the Court strikes down Proposition 8, it will be protecting the civil rights of all Californians.”
An unprecedented 43 friend-of-the-court briefs, representing hundreds of religious organizations, civil rights groups, and labor unions, and numerous California municipal governments, bar associations, and leading legal scholars, were filed in the case, urging the court to strike down the initiative. Because the issues at stake have such important implications for other minority groups, Raymond Marshall of Bingham McCutchen, who represents the Asian Pacific American Legal Center, the California State Conference of the NAACP, the Equal Justice Society, the Mexican American Legal Defense and Educational Fund, and the NAACP Legal Defense and Educational Fund, asked and was given permission to appear in court today. He argued that allowing Proposition 8 to stand could be detrimental to other minority groups who could easily become the targets of initiative campaigns seeking to take away their rights.
“Our state Constitution was created to ensure equal treatment under the law for every Californian,” said Geoff Kors, Executive Director of Equality California. “Prop 8 changes that fact by taking away a fundamental freedom from one particular group and mandating government discrimination against a minority. We hope the court upholds the Constitution’s promise of equality.”
The National Center for Lesbian Rights, Lambda Legal, and the ACLU are representing Equality California, whose members include many same-sex couples who married between June 16 and November 4, 2008, and six same-sex couples who want to marry in California. The arguments today also included two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney.
Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP.
The case is Strauss et al. v. Horton et al. (#S168047). For more information, go to: http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm
The California Supreme Court must issue its decisions within 90 days of oral argument.
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Case Against Prop 8 — Oral Argument and Telephone Briefing Today!
Today another historic argument will be made before the state Supreme Court in California to protect the constitutional guarantee of equal protection for all and to fight to restore marriage equality. Lambda Legal, NCLR, the ACLU and others have been working for months to prepare for today’s oral argument in our historic case against Prop 8. And now you can be among the first to know what happened in the courtroom. By making a gift to Lambda Legal, you can join our members–only telephone briefing immediately following the argument.
At 3 pm PST (6 pm EST), Lambda Legal’s National Marriage Project Director Jenny Pizer and our Legal Director Jon Davidson will discuss the latest developments in the Strauss v. Horton case. If you’re interested in watching the argument, we have learned that it will be aired on California’s Public Access TV and streamed online. (High traffic at the site may impair viewing.)
Upholding the California Constitution’s promise to protect the rights of minorities is important for all Americans. In January, hundreds of religious organizations, civil rights groups and labor unions, and dozens of California municipal governments, bar associations and leading legal scholars agreed that the rights of all vulnerable minorities are at stake as they collectively urged the California Supreme Court to strike down Prop 8. The California Attorney General has also argued that Prop 8 is invalid.
Be in the know, every step of the way. With your support, we are making history. Take this final opportunity to join Lambda Legal and receive instructions on how to sign up for today’s conference call. Join us as we discuss the justices’ questions and what may come next in this fight to uphold the constitution and our equal freedom to marry in California!
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URGENT CALIFORNIA ACTION ALERT: Call Legislature Now!
Anti-equality groups are currently flooding the Capitol with threatening phone calls demanding members of the Senate and Assembly Judiciary committees oppose the two resolutions to overturn Prop 8 when they come up for a vote on Tuesday. We cannot let their attacks and threats go unanswered! We need to make sure that legislators hear from those who support equality. Please call key members of the Senate and Assembly Judiciary Committeeswho have supported LGBT equality in the past (sample script and phone numbers are below). Ask them to support the resolutions to overturn Prop 8 to protect all minorities from the risk of losing their rights at the ballot box. If passed, the two EQCA-sponsored resolutions, SR 7 and HR 5, authored by two of our champions in the Legislature, Senator Mark Leno and Assemblymember Tom Ammiano, will put the California Legislature on record as supporting the invalidation of Prop 8, declaring it an illegal revision to the state constitution. This is our fourth of five actions leading up to our giant lobby day to overturn Prop 8 on Tuesday, the day of the vote, when over 2,000 activists will come together at the Capitol to urge their lawmakers to support these critical resolutions. Take Action Today! Call Now!
Sample Script Thank you for past support for equality. My name is [Your Name] and I am calling to ask for you to vote in favor of SR 7 / HR 5 because Prop 8 is a drastic and radical revision to the California Constitution that puts all Californians at risk. I believe in equal protection under the law and do not want a simple majority of voters to be able to take fundamental rights away from any minority. Thank you. [Your Name] If you live in Northern California, please call: Senate Judiciary Committee members (for SR 7) Assembly Judiciary Committee members (for HR 5) If you like in the Central Valley, please call: Senate Judiciary Committee members (for SR 7) Assembly Judiciary Committee members (for HR 5) If you live in Southern California, please call: Assembly Judiciary Committee members (for HR 5)
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Equality California to Bring Over 2,000 Californians to Sacramento for Lobby Day to Support the Invalidation of Prop 8
Equality California is sponsoring Lobby Day where a diverse group of volunteers and activists will urge legislators to support Equality California-sponsored companion resolutions SR 7 (Leno) and HR 5 (Ammiano), in the State Senate and Assembly. The resolutions would put the legislature on record as opposing Prop 8 as an invalid revision to the California Constitution. More than 2,000 volunteers have already registered to participate.
When: Tuesday, February 17, 9 a.m. to 4 p.m.
10:30 a.m.: Assembly judiciary committee hearing on HR 5
12:15 p.m. Rally
12:30 p.m. Senate Judiciary hearing on SR 7
1-4 p.m.: lobby visits
Where: California State Capitol, 10th Street and Capitol Mall, Sacramento, CA 95814
Who: Lobby day will bring together diverse civil rights and faith leaders, community members and allies from across the state and a number of elected officials, including Senator Mark Leno (D-San Francisco), Senator Christine Kehoe (D-San Diego), Senator Gloria Romero (D-Los Angeles), State Assemblymember John A. Pérez (D-Los Angeles) Assemblymember Tom Ammiano (D-San Francisco), and Assemblymember Bonnie Lowenthal (D-Long Beach).
Lobby Day will follow a series of coordinated actions supporting marriage for same-sex couples over President’s Day weekend. On Monday, February 16, EQCA will also co-sponsor a rally with Equality Action NOW, Marriage Equality USA, and California Outreach at the Capitol.
EQCA works to achieve equality and secure legal protections for LGBT people. To improve the lives of LGBT Californians, EQCA sponsors legislation and coordinates efforts to ensure its passage, lobbies legislators and other policy makers, builds coalitions, develops community strength and empowers individuals and other organizations to engage in the political process. www.eqca.org
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EQCA Sponsors Lobby Day Urging Invalidation of Proposition 8
Equality California will sponsor a lobby day where participants will urge legislators to support companion resolutions, SR 7 (Leno) and HR 5 (Ammiano), in the State Senate and Assembly that would put the legislature on record as opposing Proposition 8 as an invalid revision to the California Constitution. More than 1,000 people have already registered to participate. The day is set for Tuesday, February 17. Rally at 12:15 p.m. and lobby visits from 1 to 4 p.m. at the California State Capitol.
Lobby day will bring together diverse civil rights and faith leaders, community members and allies from across the state and a number of elected officials, including Senator Mark Leno (D-San Francisco), Senator Christine Kehoe (D-San Diego), Senator Gloria Romero (D-Los Angeles), State Assemblymember John A. Pérez (D-Los Angeles) Assemblymember Tom Ammiano (D-San Francisco), and Assemblymember Bonnie Lowenthal (D-Long Beach).
Lobby Day will follow a series of coordinated actions supporting marriage for same-sex couples over President’s Day weekend. On Monday, February 16, EQCA will also co-sponsor a rally with Equality Action NOW, Marriage Equality USA, and California Outreach at the Capitol.
The lobby day is free and open to all who support equality. Each participant will receive lobbying training, advocacy materials and will be assigned to an experienced team leader before heading off to meetings at the Capitol. Participants can register online at: http://www.eqca.org/2009lobbyday.
EQCA works to achieve equality and secure legal protections for LGBT people. To improve the lives of LGBT Californians, EQCA sponsors legislation and coordinates efforts to ensure its passage, lobbies legislators and other policy makers, builds coalitions, develops community strength and empowers individuals and other organizations to engage in the political process. www.eqca.org
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California Supreme Court to Hear Oral Arguments in Prop 8 Legal Challenge on March 5
Attorney General, Governor, and nation’s top civil rights groups agree: Invalidate Prop 8
(San Francisco, CA, February 3, 2009) The California Supreme Court announced today that it will hear oral arguments on Thursday, March 5, 2009 in the Proposition 8 legal challenge. The National Center for Lesbian Rights, Lambda Legal, and the ACLU—with support from civil rights groups, religious organizations, labor unions, and legal scholars—argue that Proposition 8 is invalid because the people of California have established strict safeguards that prohibit the underlying principles of the California Constitution from being changed by a simple majority vote. By taking away a right only from one group, Proposition 8 violates the most basic principle of our government: that all people are entitled to equal treatment under the law.
California Attorney General Jerry Brown is also asking the Court to invalidate Proposition 8 on the ground that certain fundamental rights, including the right to marry, are inalienable and can not be put up for a popular vote.
On November 10, 2008, Governor Arnold Schwarzenegger stated that he hoped the Court would overturn Proposition 8. On CNN, he said of Proposition 8’s passage, “It’s unfortunate, obviously, but it’s not the end, I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area.”
On November 19, 2008, the California Supreme Court agreed to hear the legal challenges to Proposition 8 and set an expedited schedule. Briefing in the case was completed on January 21, 2009.
The California Supreme Court must issue its decisions within 90 days of oral argument.
On January 15, 2009, 43 friend-of-the-court briefs urging the Court to invalidate Prop 8 were filed, arguing that Proposition 8 drastically alters the equal protection guarantee in California’s Constitution and that the rights of a minority cannot be eliminated by a simple majority vote. The supporters represent the full gamut of California’s and the nation’s civil rights organizations and legal scholars, as well as California legislators, local governments, bar associations, business interests, labor unions, and religious groups.
In May of 2008, the California Supreme Court held that laws that treat people differently based on their sexual orientation violate the equal protection clause of the California Constitution and that same-sex couples have the same fundamental right to marry as other Californians. Proposition 8 eliminated this fundamental right only for same-sex couples. No other initiative has ever successfully changed the California Constitution to take away a right only from a targeted minority group. Proposition 8 passed by a bare majority of 52 percent on November 4.
The National Center for Lesbian Rights, Lambda Legal, and the ACLU filed this challenge on November 5, representing Equality California, whose members include many same-sex couples who married between June 16 and November 4, 2008, and six same-sex couples who want to marry in California. The California Supreme Court has also agreed to hear two other challenges filed on the same day: one filed by the City and County of San Francisco (joined by Santa Clara County and the City of Los Angeles, and subsequently by Los Angeles County and other local governments); and another filed by a private attorney.
Serving as co-counsel on the case with NCLR, Lambda Legal, and the ACLU are the Law Office of David C. Codell, Munger, Tolles & Olson LLP, and Orrick, Herrington & Sutcliffe LLP.
The case is Strauss et al. v. Horton et al. (#S168047). For more information, go to: http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm
EQCA works to achieve equality and secure legal protections for LGBT people. To improve the lives of LGBT Californians, EQCA sponsors legislation and coordinates efforts to ensure its passage, lobbies legislators and other policy makers, builds coalitions, develops community strength and empowers individuals and other organizations to engage in the political process. www.eqca.org
The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. www.nclrights.org/overturn8
Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work. www.lambdalegal.org
The American Civil Liberties Union is America’s foremost advocate of individual rights. It fights discrimination and moves public opinion on LGBT rights through the courts, legislatures and public education. www.aclu.org
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