Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban
Whatever Chief U.S. District Judge Vaughn Walker winds up deciding on Proposition 8, it’s clear he wants an airtight trial record to support it.
Holding his first hearing Thursday on the controversial measure that outlawed same-sex marriage, Walker repeatedly stressed the importance of establishing a record that will stand the test of time.
He told a packed courtroom that he was “reasonably sure” that the challenge launched by two high-profile litigators is “only touching down in this court” and merely a “prelude” for things to come.
“How we do things here,” Walker said, “is more important than what we do.”
He noted that other courts have rendered decisions on same-sex marriage without holding full trials, which he suggested was a “problem.”
Perry v. Schwarzenegger, 09-CV-2292, was filed in May by Theodore Olson, who represented George W. Bush in the landmark Bush v. Gore case, and David Boies, who represented Al Gore. Boies wasn’t present on Thursday. The suit attacks Prop 8 on equal protection and due process grounds.
Walker had already issued a tentative order allowing Prop 8 proponents to intervene and denying a preliminary injunction (pdf). He stood by both orders during Thursday’s 50-minute session.
Olson, a partner in Gibson, Dunn & Crutcher’s Washington, D.C., office who has argued before the U.S. Supreme Court 55 times, nonetheless made a fleeting attempt to persuade Walker to change his mind on the injunction.
“Every day that Prop 8 is enforced perpetuates a tragic injustice” on gays and lesbians, he argued, saying it “brands” them as “second-class citizens, unworthy and different.”
“The Supreme Court,” Olson argued, “has held again and again and again that the right to marry is the most important relationship in life.”
Representing the Prop 8 proponents, Washington attorney Charles Cooper, who was a top Justice Department lawyer during the Reagan administration, warned that the lawsuit could “sweep away” not only Prop 8, but the definition of marriage in 43 states and the federal government.
The Cooper & Kirk partner also argued that marriage has by tradition always been the union of a man and a woman, and said that every Supreme Court case that describes marriage has noted that its central purpose is procreation.
See Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban Above the Law
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LA Times Editorial: A court battle California doesn’t need
The Supreme Court’s ruling last week in the case of a grandiosely unethical West Virginia justice opened a new field of constitutional review — the high court may now consider when an elected state court jurist has been so tainted by politics that due process requires him to recuse himself from a case.
In West Virginia, a coal executive spent more than $3 million to unseat a sitting state Supreme Court justice; it was money well spent, as the justice was defeated by voters and replaced by Brent Benjamin. Benjamin then did what was expected of him and cast a deciding vote in overturning a $50-million jury award against the executive’s coal company.
Indeed, California has wrestled with this problem before — and quite possibly could again.
California’s system for selecting Supreme Court justices is much better than West Virginia’s. Candidates for the court here are nominated by the governor, confirmed by a state commission and then placed on the bench. They must periodically stand for retention, but they are not, as they are in West Virginia, subject to direct challenge by rival candidates. A retention election can cost a justice his or her seat, but it does not let voters kick out one justice and install their own replacement.
California’s rules have helped balance the judiciary’s independence with the public’s fair insistence on accountability, but even this state’s reasonable retention process has been subject to tilt. Most notable was the 1986 retention election that removed Chief Justice Rose Bird and two associate justices, Cruz Reynoso and Joseph Grodin. Much reflection has gone into that race in the decades since, and opinions differ on its merits. Two truths, however, stand the test of deep inquiry: The forces arrayed against Bird were not motivated solely by her opposition to the death penalty — that was cover for a second complaint, which was her defense of consumer rights against corporate power — and Reynoso and Grodin were victims of a special-interest crusade against a vulnerable chief.
Would that we could relegate that episode to California’s history. In fact, the state rumbles with discontent over its high court and chief, and those stirrings contain alarming echoes of the battle of 1986.
At issue are the court’s rulings on same-sex marriage and Proposition 8, and its chief justice, Ronald M. George. In May 2008, the court overturned the state’s ban on gay marriage, striking a victory for civil rights in the grandest tradition of constitutional protection of minorities. A few months later, after voters approved Proposition 8 and amended the state Constitution to ban the same institution that the court had upheld, George and his colleagues upheld the amendment. Both times, George wrote for the majority. He thus angered opponents of gay marriage in 2008 and supporters of it in 2009.
By California’s rules, George faces a retention election in 2010, and some predict that he could face challenges from either side — or even both — in this polarizing debate.
That would be a shame for the state’s judiciary, an unfortunate attack on judicial independence and an unfair castigation of one of this state’s most principled and admirable public officials. In the gay-marriage cases, George’s votes demonstrated conscience, professionalismand restraint. He voted to uphold same-sex unions out of the strong conviction — which this page shares — that the Constitution does not allow society to deny the protection of marriage to gay couples any more than it once denied it to those united across race. The ruling was right on the law, and will certainly be validated over the long march of history.
Months later, voters tacked in the other direction, narrowly rejecting gay marriage and amending the Constitution to allow California to recognize only the unions of heterosexual couples. That was challenged, naturally, and the lawsuit offered the court the opportunity to extend its earlier ruling, though on shaky constitutional grounds — advocates for same-sex marriage argued that Proposition 8 was such an affront to the rights of Californians that it revised the Constitution rather than merely amending it. Scholars split on the merits of that argument, and although the strong consensus of legal opinion rejectedit, an opportunistic justice might have seized the chance to solidify his legacy.
Instead, George subordinated his politics — as evidenced by his writing — to the weight of constitutional opinion. He voted to uphold the proposition, even though it undid his own work. Permitted latitude within the strictures of the Constitution in the first case, George was able to vote his conscience; bound by the Constitution in the second case, he yielded.
Such is the lot of a principled judicial officer, but those concerned only with results already have signaled their unhappiness with George. The moneyed interests that supported Proposition 8 last fall are considering whether to finance a campaign against George next year. Supporters of gay marriage, who championed his heroism in 2008, were bitterly disappointed when the court upheld the hateful initiative.
This is not West Virginia. Corporate interests are not knocking off justices who disagree with them and seating more accommodating replacements. But intimidation has no place in our judicial life any more than it does in Appalachia. The 1986 campaign against Bird and her colleagues now stands for many as a reminder that well-intentioned systems of accountability may be hijacked by special interests, a lesson learned too often and at great cost in California. It was misguided in its first iteration; it would be regrettable in its second.
See A court battle California doesn’t need
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CA AG Brown again says Prop. 8 should be struck down
California Atty. Gen. Jerry Brown once again refused to defend Proposition 8’s ban on same-sex marriage Friday, telling a federal judge that it violated the U.S. Constitution and should be struck down.
Brown made his arguments in response to a federal lawsuit against the state by two gay couples who contend the initiative violates federal due process and equal protection guarantees.
Brown’s willingness to fight a state law that has been upheld by the state’s highest court contrasted sharply with President Obama’s decision this week to oppose a federal challenge to the U.S. Defense of Marriage Act brought in Orange County.
In that case, a married gay couple, Arthur Smelt and Christopher Hammer, has challenged the constitutionality of both Proposition 8 and the 1996 federal law that prohibits extension of federal benefits to same-sex couples.
See AG Brown again says Prop. 8 should be struck down
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LGBT Legal And Advocacy Groups Decry Obama Administration’s Defense of DOMA
We disagree with many of the administration’s arguments, for example, that DOMA is a valid exercise of Congress’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.
We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.
When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.
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Prop 8 ruling moves to federal court
(San Francisco, California) Hours after California’s top court upheld Proposition 8, the voter approved ban on same-sex marriage, a federal lawsuit was filed arguing that Prop 8 violates the U.S. constitutional guarantee of equal protection and due process.
The lawsuit seeks a preliminary injunction against California’s Proposition 8 until the case is resolved.
The …
Tags: California Court, Constitutional Guarantee, Due Process, Federal Lawsuit, Injunction Against, marriage, Preliminary Injunction, same sex marriage, San Francisco CaliforniaA Gay Justice?
Former Stanford Law School dean Kathleen Sullivan is, according to the National Law Journal, one of the 100 most influential lawyers in America. She’s a nationally prominent scholar and teacher of constitutional law, and author of the nation’s leading casebook in constitutional law.
Stanford Law School professor Pamela Karlan clerked for former Supreme Court Justice Harry Blackmun, is founding director of Stanford’s Supreme Court Litigation Clinic, and is a leading expert on voting and the political process.
Sullivan and Karlan are both frequently mentioned as possible Supreme Court nominees for President Obama.
Both women also happen to be openly lesbian. … Peter Sprigg, a senior fellow at the conservative Family Research Council, says that “the real issue would not be the person’s private life but the issue would be would they be imposing their personal ideology upon the court. In this case would they be imposing a pro homosexual ideology, a pro-same sex marriage ideology.”
Sullivan, for instance, joined a friend of the court brief arguing that same sex marriage should be legal even if the “equal protection” clause “would not always have been interpreted by the courts to forbid discrimination against gay people.” Not allowing same sex marriage is a violation of “both due process and equal protection; the former because the right to marry is a form of liberty and the latter because the restriction treats lesbians and gay men differently from straight individuals.”
That she believes that because she’s lesbian, and not because she believes the refusal to allow same sex marriage constitutes unconstitutional discrimination, is another matter.
Either way, discussion about a Justice Sullivan or a Justice Karlan comes at a time when the Obama administration is hearing some impatience voiced by gay and lesbian activists on other issues.
“I think there is some disappointment in the gay community that (President Obama) hasn’t in this initial period spoken more directly and more forcefully about some of the issues he spoke about on the campaign,” Richard Socarides, a former adviser to President Bill Clinton on gay and lesbian issues, told us for Good Morning America today. “Specifically the ‘Don’t ask/Don’t tell’ policy in the military.” See Gay Justice?
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Church of Scotland magazine backs gay partnerships
A potential rift within the Church of Scotland over gay relationships emerged yesterday after the Church’s house magazine backed civil partnerships and openly gay ministers.
Accusing religious traditionalists of selectively quoting the Bible to support their attacks on homosexual relations, the editorial in Life And Work urged the Kirk to show strong leadership on an issue that has threatened to split the Church of England and could prove just as divisive in Scotland.
The article, which was written by the magazine’s editor, Muriel Armstrong, comes ahead of next month’s General Assembly in Edinburgh and has been timed to influence a key debate on whether openly homosexual ministers can be appointed to the Church.
Ms Armstrong rounds on the “selective literalists” who use parts of the Bible to bolster their own views but ignore other parts that undermine them. She says that these commentators “presumably no longer accept biblical teaching on sexual matters such as polygamy and sex with slaves” but are happy to quote Leviticus 18:22 on homosexuality: “Thou shalt not lie with mankind, as with womankind: it is abomination.”
The Church said yesterday that the magazine was editorially independent. “It is not the voice of the Church of Scotland, which is not trying to steer debate on this important issue,” the Rev Angus Morrison, convenor of the council of mission and discipleship said. He added that he had already received “a couple” of e-mails expressing concern that the magazine was interfering in the “due process” of the Church.
Senior figures within the Church fear that the issue of gay partnerships could prove as damaging for the Presbyterian ministry as the row that has split the Anglican Church.
A minority in the Presbytery of Aberdeen has already challenged the appointment of an openly gay minister, the Rev Scott Rennie, to Queen’s Cross Church in the city. They have appealed to the Commission of the General Assembly, with a final decision on the matter to be made next month.
In her editorial Ms Armstrong also champions the right of gay ministers to serve in the Church. She said said that two years ago the Church had effectively shelved its decision on the issue and that the moment had come to challenge those who use the “familiar arguments” of tradition, orthodoxy and the “plain meaning of scripture”.
“The question of the integrity of a relationship didn’t enter the \ argument. It has been suggested that if the Kirk stuck its neck out on this one it would upset other churches that are still in a reflective no man’s land on this issue. Isn’t it time for leadership?
“What is clear to the lay-person is that not everything Biblical is Christ-like. Every student of the Bible is a selective literalist. Those who swear by the anti-homosexual laws in the Book of Leviticus wouldn’t publicly advocate slavery or stoning women taken in adultery. They presumably no longer accept Biblical teaching on sexual matters such as polygamy and sex with slaves.
“And yet there are many who continue to be bound by a few Biblical verses — none of them in the Gospels — about homosexuality, nowadays understood as a matter of genetics rather than lifestyle.”
The debate on gays in the Church will involve members from every Presbytery, drawn from Scotland and overseas. It is likely to polarise opinion, just as it has in other Churches.
See Church of Scotland magazine backs gay partnerships Times Online
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ACLU Asks Court To Strike Down Arkansas Parenting Ban
At a press conference at the Arkansas State Capitol this morning, several of the plaintiffs described how Act 1, which is set to go into effect on January 1, impacts their families and why they decided to be part of the case.
Stephanie Huffman, who already adopted one child from the state in 2004, was one of the plaintiffs who spoke at today’s press conference. Huffman and her partner of 10 years, Wendy Rickman, want to adopt another child or a pair of siblings through the Department of Children and Family Services, but now can’t because of Act 1. “The state already knows we’re good enough parents that they placed one child with us before Act 1 passed,” said Huffman. “Who knows how many children are now cut off by this law from loving homes?”
In the lawsuit filed today, the ACLU argues that Act 1 violates the federal and state constitutional rights to equal protection and due process. Participating in the case are 29 adults and children from over a dozen different families, including a grandmother who lives with her same-sex partner of nine years and is the only relative able and willing to adopt her grandchild who is now in Arkansas state care, several married heterosexual couples who have relatives or friends disqualified by Act 1 who they want to adopt their children if they die, and a heterosexual woman who wants to be a foster or adoptive parent but can’t because she lives with her partner of five years. The complaint was filed this morning in Pulaski County Circuit Court.
“Ever since the election, we’ve been hearing from all corners of the state from dozens of families who are panicking about how Act 1 impacts them,” said Rita Sklar, Executive Director of the ACLU of Arkansas. “This law hurts families and children in many ways – it takes away parents’ right to decide for themselves who will adopt their children if they die, it denies the many children in Arkansas state care a chance at the largest possible pool of potential foster and adoptive homes, and denies couples who are living together but unmarried the chance to provide loving homes to children who desperately need them.”
Sheila Cole: Sheila lives in Tulsa, Oklahoma with Jennifer, her partner of nine years. Sheila’s adult daughter from an earlier relationship had a baby girl in May of 2008 who was placed in the Arkansas foster care system when she was two months old. Sheila wants to adopt her granddaughter and is the relative best able to take in the baby. Every week she makes a four-hour round trip to Bentonville for two hours of visitation with her granddaughter. Sheila has taken foster parenting classes with Oklahoma’s DHS and has passed a home study. She is now waiting for approval from Arkansas, but she’s worried she might not be approved to adopt her own granddaughter because of Act 1.
Stephanie Huffman and Wendy Rickman: Stephanie and Wendy have been together for 10 years and are raising two sons together, one of whom is a 7-year-old with special needs whom Stephanie adopted from the state in 2004. Stephanie and Wendy want to adopt another child, or perhaps a pair of siblings, but can’t because of Act 1.
Cary and Trina Kelley: Cary and his wife, Trina, have two young daughters and live across the road in Fayetteville from Cary’s mother Vickie Kelley and her partner Sophia Estes. Sophia and Vickie have been together 16 years, and cumulatively have three children and six grandchildren. If anything were to happen to Cary and Trina, who held their wedding in Vickie and Sophia’s backyard, they want Vickie and Sophia to be able to adopt their children. Trina, Cary’s wife, spent many years of her childhood in state care and she feels very strongly that children who need homes shouldn’t be cut off from loving relatives like Sophia and Vickie.
Kaytee Wright: Kaytee Wright lives on a farm in Cabot with her partner of five years, Alan Leveritt. Kaytee helps Alan raise his eight-year-old daughter from his previous marriage, of whom he has joint custody. Together she and Alan are also providing a home and financial assistance to a mother and her two young children through a Little Rock shelter for the working homeless. Kaytee was adopted from state care when she was just four weeks old, and she feels very strongly that good homes should be provided to children in the state system. Kaytee would like to adopt a child but cannot because she and Alan aren’t married.
For a complete list of all the plaintiff families and more detailed profiles, please visit http://www.aclu.org/lgbt/parenting/38199res20081230.html
The plaintiffs are represented by Christine P. Sun, Rose Saxe, and Leslie Cooper of the American Civil Liberties Union, Stacey Friedman, Garrard Beeney, and Jennifer Sheinfeld of Sullivan & Cromwell LLP, and Marie-Bernarde Miller and Daniel J. Beck of Williams & Anderson PLC on behalf of the ACLU Foundation of Arkansas.
The case is Cole, et al. v. Arkansas, et al. For more information on the case, including today’s complaint, visit http://www.aclu.org/lgbt/parenting/38199res20081230.html
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Iowa Justices Hear Same-Sex Marriage Case
In a case that could make Iowa the first Midwestern state to legalize same-sex marriage, the Iowa Supreme Court on Tuesday pressed lawyers for both sides with sharp questions on topics like the 4,000-year-old history of marriage and whether a ruling favoring gay couples would open the door to polygamy.
The legal core of the case, Varnum v. Brien, is whether the state’s 10-year-old law defining a “valid” marriage as only “between a male and female” violates the Iowa Constitution’s guarantees of equal treatment and due process.
A trial court judge ruled last year that the law was unconstitutional and that a dozen gay men and lesbians had been wrongly denied marriage licenses in Polk County, which includes the state capital, Des Moines. The state appealed the ruling, leading to Tuesday’s oral arguments.
But the technical details of the law and the Constitution were only part of a free-wheeling discussion lasting nearly two hours in which the seven justices repeatedly interrupted the lawyers, demanding that they parse and defend their positions.
See Iowa Justices Hear Same-Sex Marriage Case
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