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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Original source : http://gay_blog.blogspot.com/2009/07/voter-animus-…
Gay Marriage Issue Steering Clear of the Supreme Court
And now there are four. In the space of a week, the number of states allowing same-sex marriage has doubled, with Iowa and then Vermont joining Massachusetts and Connecticut. In California, gay and lesbian couples were exchanging vows for five months before voters put a stop to the practice in November. Californians are still talking it over, though, and loudly. New York and New Jersey may be next to debate the question.
In other contexts, this sort of turmoil might amount to an invitation for the United States Supreme Court to step in. But there are all sorts of reasons the court is likely to keep its distance, and a central one is the endlessly debated 1973 decision that identified a constitutional right to abortion.
“The concern about creating another Roe v. Wade looms large,” said Nathaniel Persily, who teaches law and political science at Columbia. “At least five members of this court, if not more, would probably be reluctant to weigh in on this controversy, especially given the progress that is being made in state legislatures, state courts and public opinion.”
Court decisions on issues like school desegregation, abortion and same-sex marriage can raise questions about the judicial branch usurping the democratic process. But there are strategic issues as well. The Supreme Court not only decides cases but also decides which cases to decide. In jurisprudence as in life, timing is everything.
Even some strong supporters of abortion rights believe, for instance, that Roe went too far too fast and may have been counterproductive. One of them is Justice Ruth Bader Ginsburg.
See Gay Marriage Issue Steering Clear of the Supreme Court
New York Times -
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Lambda Legal Urges Unbiased Nominees to Fill 54 Federal Bench Vacancies
‘The foremost consideration in nominating federal judges should be their commitment to rendering decisions impartially.’
(New York, January 15, 2009) — As inauguration day draws near, Lambda Legal sent a letter to President-Elect Obama and the leadership of the Senate Judiciary Committee, explaining the monumental need for fair and impartial nominees to the federal bench who will address issues facing the gay community without bias.
“In the coming years, a number of key issues that significantly impact the gay community are likely to arise in the federal courts,” said Lambda Legal Executive Director Kevin Cathcart, “The foremost consideration in nominating federal judges should be their commitment to rendering decisions impartially.”
During his two terms, President Bush appointed 326 judges to the federal bench.
“It is no secret that the Bush Administration’s goal was to pack the federal courts at all levels with arch-conservative judges who would be unfriendly to the vigorous protection of civil rights — not only for gay people, but for everyone,” said Cathcart.
“To start, President-Elect Obama will have 54 vacancies to fill and we hope that those nominees can provide balance to what has become a federal system that is often hostile the gay community,” added Cathcart.
Today’s letter is a follow-up to a memo Lambda Legal provided to the Obama Transition Team. It urges President-Elect Obama to nominate federal justices who adhere to precedents established in cases of importance to the gay community- including the right to privacy, protection against laws based on antigay bias, the right to sue in state courts under the Americans with Disabilities Act (ADA) and protections against HIV discrimination, among others.
Finally, the letter seeks to promote judicial integrity through nomination of jurists who represent the nation’s diversity including people who identify as lesbian, gay, bisexual, transgender, people of color, women, and those with public defender and public interest legal backgrounds.
To read the full text of the letter submitted, please visit Lambda Legal’s website www.lambdalegal.org or the email version of this press release includes an attached PDF of the letter.
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State supreme courts to rule in gay marriage cases
(San Francisco, California) Supreme courts this year will rule on cases involving same-sex marriage in Iowa and California.
The Iowa case involves the constitutionality of limiting marriage to opposite-sex couples, while the one in California centers around Proposition 8, the voter-approved amendment to the state constitution that bars same-sex marriage.
In May, …
