Nearing The End of Proposition 8 (CA)

In an eagerly anticipated order (hovering just on the outskirts of the Prop 8 case) the new Chief Judge of the District Court of Northern California shot down claims by Prop 8 supporters that the gay judge in a committed relationship, who struck down Prop 8 last year, should have recused himself from ruling on a gay marriage case.


A few weeks ago I was attending a memorial day party where there were a number of older gay men.  While they discussed the issue of Prop 8, they truly knew nothing about the case.  I did not correct them, but it made it abundantly clear that even supporters are tragically misinformed on the issue and what legal battles have been raging.  Hopefully this blog post will clear up the issue for everyone who reads it.


BACKGROUND
The battle for same -sex marriage rights began in the mid 1990s with DOMA.  For the most part the Republicans used the issue to their political advantage, accusing liberals (who probably hadn't even thought of the idea) of conspiring to legalize gay marriages.  It was a classic Gingrich era straw man and it worked perfectly.  Bush II used it in both his 2000 and 2004 campaigns.  Everything was going splendidly until February 2004, where our story begins.

In February 2004, Mayor Gavin Newsom, after long planning to take a stand for gays and lesbians, shocked the country by issuing marriage licenses to gay/lesbian couples in San Francisco.  The stunt may not have lasted long (The CA Supreme Court halted the mayors little coup on March 12, 2004), but it hurled CA into the national conversation.  Both sides committed themselves to settling the issue once and for all in CA, long a liberal stronghold.  Either CA was going to continue to be the liberal model for the country, or it was going to prove that same-sex marriage couldn't even win in the most liberal of states.

Four years later, in May 2008, the liberal block scored what we all thought was a knock out punch to same-sex marriage opponents.  In In re Marriage Cases, the CA Supreme Court declared that the CA version of DOMA was incompatible with the State Constitution and struck down the law.  LGBT Advocates cheered the decision as a landmark case, and indeed it was.  New editions of major casebooks were updated to include the decision and it was immediately compared to Lawrence v. Texas (striking down anti-sodomy laws) and Loving v. Virginia (striking down anti-misogyny laws).  Unfortunately, as always seems to be the case, supporters underestimated their opponents.  The decision galvanized an effort to get the issue on the ballot.


PROPOSITION 8

Polls before the election showed Prop 8 losing in decisive fashion, but on November 4, 2008 Proposition 8 passed in California and changed the words of the State Constitution to define marriage as between "one man and one woman."  Following the shock and sting of such a humiliating defeat, marriage advocates challenged the proposition in State Court.  The CA Supreme Court rejected the challenge, but refused to invalidate the marriage licenses granted prior to November.


Marriage proponents then took their case to the Federal Courts, arguing that the State Constitution was in violation of the 14th Amendment of the Federal Constitution (the only law higher than a State Constitution).  The case made national headlines when the (heavyweight?) lawyers from Bush v. Gore joined forces to take the case through the federal system.  The Perry v. Schwarzenegger case was heard by then Chief Judge Vaughn Walker.  In his decision he found that the law violated both the Due Process and Equal Protection clauses of the 14th Amendment.  What was particularly interesting is that he based in analysis on rational basis review (not the more stringent "strict scrutiny" review).  In the District Court's view, there wasn't even a rational basis to support the law.


TWO TRACKS
This is where the issue gets a little more complicated than the average observer might want to figure out, so I'll do my best to make it simple.


1. Motion to Vacate

Soon after the decision it came to light that Judge Walker is, himself, a gay man with a long-term partner.  Opponents immediately jumped on this revelation and demanded that the decision be vacated because of the judges failure to disclose.  Since that isn't a very strong legal argument they switch course and started pushing the argument that Judge Walker had a vested interest in the outcome of the case, since overturning Prop 8 would allow him to marry his partner.  This, they argue, means that he should not have been able to hear the case at all, and the decision should, therefore, be void.


Yesterday (June 14, 2011), the new Chief Judge James Ware DENIED the motion to vacate.  The judge had choice words for Prop 8 supporters:

The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.
(Quote is Compliments of the Rachel Maddow Show Blog)


And so this track has come to an end, and the Walker decision remains binding and good law.  Prop 8 is no longer valid in the Northern District of California.


2. Appeal

This is not to say the issue is dead and buried.  Appeal is almost always an option.  However, there is a wrinkle here also, that is working in favor of LGBT advocate.  The decision of whether to appeal falls to the government through the Governor and his Attorney General, Jerry Brown (now Governor).  In a shocking turn around, the government of CA decided NOT to appeal the District Court's ruling.  This had the effect of officially ending the litigation, and allowing the District Court decision to stand.


The wrinkle is that Prop 8 supporters, then filed an appeal in the 9th Circuit (the Federal Court above the Northern District of CA) without the government.  The 9th Circuit heard arguments on the case, but then bumped the case BACK to the California Supreme Court seeking guidance on whether the Prop 8 supporters can actually appeal instead of their government (this issue of whether a person can sue is called "standing").  The 9th Circuit was curious whether CA state law allowed citizens to sue to enforce state laws.  Surprisingly, not every state allows this practice, instead saying only the government itself has standing to enforce laws.  The Supreme Court agreed to take the case from the 9th Circuit, but a hearing isn't expected until September 2011, and a decision probably won't come until December 2011.


Even if the case goes forward, the Appeals Panel is expected to uphold Walker's decision.  The panel consists of one die-hard liberal, one liberal, and one conservative.  We can assume the decision will certainly be 2-1, and almost certainly upholding the Walker decision.


A SUPREME DECISION?
Unlikely.  There are a number of reasons why the Supreme Court probably will NOT take an appeal from the 9th Circuit's decision.  First of all, the 9th will be the only Circuit to deal with this issue.  Other Circuits have addressed the issue of Marriage, but this is the only instance in which a Constitutional Amendment is being challenged.  In other instances it was state or federal law that was being challenged.   Without a "circuit split" on the issue, it is not likely that the Supreme Court will take up the issue.


The Supreme Court justices are also unlikely to tackle the issue because of Justice Kennedy's notorious unpredictability on issues like this (his was a surprise defection from the conservative block in the Lawrence decision).  Neither the 4 conservatives nor the 4 liberals are likely to rely on him when it comes to this issue so there probably isn't much of a push to grant cert on this issue.


There is also the issue that Justices are VERY hesitent these days to take up highly contentious social issues because of what happened following Roe v. Wade.  Even justice Ginsburg, notorious feminist as she is, has said that cases like Roe should not be taken by the court.  It just causes to many issues when the court tries to settle matters like this, and the court's legitimacy suffers in the process.

So there you have it.  We are nearing the end of the Prop 8 battle and things are looking pretty good.  We have to suffer through another 6 months of stalling because of the standing issue, but after that we should see a final decision from the 9th pretty quickly.  The result is likely to be in our favor, which would set Federal policy for the entire West Coast and leaving many other Anti-Gay Amendments open to being struck down in Federal Court.


In the immortal words of Peter Griffin: "And now we play the waiting game."


Common Sense

Win Back Marriage in CA: 2010 vs. 2012

 vs.  + 

So, for those who have been living in a cave for the past couple months, you might be unaware that there is a deep (and growing) schism between the major LGBT groups in California.  Equality California, arguably the best known organization, has opted to build a foundation and attack Prop 8 in 2012.  Courage Campaign and Love, Honor, Cherish (LHC), two other major players on the LGBT scene, have decided to take the fight to the 2010 ballot, guns blazing, fallout be damned.

Why 2010: It's fast, it's dirty, its the kind of shock and awe campaign that gays and lesbians have been screaming for since November 2008.  Our blood is burning and everyone wants a piece of this action.  The 2010 crowd will have no problem getting volunteers for their signature gathering and for the next year every gay person from San Francisco to West Hollywood is going to be ready to shell out big bucks to punish the mormons, Rush Limbaugh, Glenn Beck, the National Organization for Marriage (NOM), the religious right, the Republicans, and anyone else who ever dared to take away what we fought so hard to achieve (not that it's been much of a fight, but thats a rant for another post).  In short, 2010 is about capitalizing on the rage while its still burning hot.

Why 2012: It's deliberate, it's inclusive, and it's the kind of long-term thinking our community has sorely lacked since the birth of the movement over 40 years ago.  The strategy EQCA has outlined will bring together the elements we lost in 2008 (Blacks, Latinos, and Religious Progressives just to name a few).  They will also use these 3 years to build a monetary base to fight the millions that religious radicals can funnel into the state at a moments notice.  They will also use the time to built a foundation of voter and high ranking support that will be necessary to lasting change in California culture (and eventually American culture).  Where the 2010 people are banking on the hope that lots of noise and fist pounding will force open the doors of change, EQCA is building a big ass ram to smash the door off its hinges.

What do I think:  I think these organizations need to put their pride (forgive the pun) back in the closet and leave it there until this is all over.  I'm sick and tired of hearing the two sides try to one up each other.    Think about it for a second.  Let's say I am EQCA.  I punish CC and LHC because they are being silly and wont agree with me.  I do everything in my power to make things harder for them.  If they win in 2010, I look like the idiot who wouldn't get on board and I go from #1 organization in CA to sad afterthought.  NO ONE will want to donate to us, join our causes, or be our friend.  Now, lets say for a moment they lose... now its my turn.  BUT now CC and LHC are pissed at me and think I lost the 2010 measure because I held out on them.  Rather than coalescing into a unified 2012 campaign, EQCA goes it alone with donors who are worn out and bitter, other organizations who are worn out and bitter, and a voter base that is sick of me because (they think) I let me arrogant sense of my own righteousness get in the way of their victory.

If there is one thing I have learned from my days in politics and the endless days and nights of CNN and Fox News, it is that as long as the question is 2010 vs. 2012, the answer will be we lose.  If we fight amongst ourselves, even behind closed doors, we better hope that people's "hearts and minds" change pretty fast because we aren't impressing anyone.  End of discussion.

Quick Fix:  EQCA needs to get off its butt and get in the game.  I'm not saying they have to give 100% to the 2010 cause, but they need to at least LOOK like they are supporting the cause.  Whether or not they do is for them to decide, but get out there and be the voice of equality in ANY year, not just the year you picked.  If you get asked a question, don't avoid (I HATE avoidance), give a solid answer that supports and affirms the organizations fighting for 2010 but also recognizing that EQCA is doing something bigger than just marriage, they are fighting for both social and political change and that is a longer battle.  Why: Because we are going to lose in 2010.  Everyone knows it.  when that happens EQCA is either going to come out as the hero who had the foresight to prepare for another 2 year fight, or the brat saying "I told you so."

My Advice: LHC and CC, give EQCA a break.  They are just as committed as you, they are just more cautious in preparing for a longer fight.  And also, be ready to suck it up and jump on their bandwagon if you lose.  EQCA, get in the game.  even if it means you have to commit some resources to 2010, if you don't start looking like you are in this pretty soon, you've got no hope of being the savior this movement in CA is going to need in a year.  The fate of this whole deal is really in your hands and you can either play the politically savvy card and be a hero, or you can be stubborn and we are all going to have to get used to not being able to get married in CA.  Not really a hard choice.

Let's use some common sense!