A ban on same-sex marriage in the state of California has been declared unconstitutional by a federal appeals court on Tuesday. The measure ruled unconstitutional is known as Proposition 8, which could now hit the United States Supreme Court.

The decision came down at 2-1 by a panel of three judges. Those judges sit on the Ninth Circuit Court of Appeals in the city of San Francisco. The panel of judges, with its ruling, agreed with a judge from a lower court who declared that the ban was a violation of gay and lesbian people’s civil rights back in 2010.

“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” Stephen Reinhardt wrote for the ruling.

“Although the constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently,” explains the ruling from the court.

“There was no such reason that Proposition 8 could have been enacted.”

The ruling from the panel also stresses that this only applies to the state of California. Gay marriage was previously allowed prior to Proposition 8, which has jurisdiction in nine states out West.

“Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question,” said the court’s judges. “We need not and do not answer the broader question in this case.”

The founder and the president of the group Freedom to Marry, Evan Wolfson, exclaimed:

“Today’s powerful court ruling striking down the infamous Prop 8 affirms basic American values, and helps tear down a discriminatory barrier to marriage that benefits no one while making it harder for people to take care of their loved ones. The ninth circuit rightly held that a state simply may not take a group of people and shove them outside the law, least of all when it comes to something as important as the commitment and security of marriage.”

Proposition 8 was passed by voters in the state of California back in 2008. Vaughn Walker, a federal judge, ruled that it was unconstitutional in 2010. The ban on Proposition 8 has stood in tact since then because a stay was placed on the ruling by the ninth circuit.

Marriage for same-sex couples within the state will not be allowed until after February 28, which is the deadline for supporters of Proposition 8 to appeal to a larger panel of judges at the Ninth Circuit.

A lawyer who was against Proposition 8, Ted Olson, also is a former solicitor general. He said that the case against Proposition 8 dealt with “equality and freedom and dignity and fairness and decency … It is about us. It is about every one of us … Today we are more American because of this decision.”

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The California Supreme Court has heard oral arguments on the right of advocacy groups to defend Proposition 8. The question has come up because after last year’s ruling in support of gay marriage by Judge Vaughn Walker, then-governor Schwarzenegger and former attorney general and now-governor Jerry Brown also backed the ruling. This leaves defendant-intervenors Project  Marriage and other groups to defend the measure.

Read the original article here:

California high court hears arguments on standing in Proposition 8 case

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California Proposition 8, the ban of same-sex marriage in California, has repeatedly not been defended by state officials.  Monday, March 14, supporters of Prop 8 asked the California Supreme Court to let them defend Prop 8 since it was not being defended by the state.

The court announced last month that it would decide if the pending federal appeal of the invalidation of Prop 8 could continue.  The proponents argue that all of the work that they have done in creating, defending, and supporting the proposition has created a “personal, particularized interest in the validity of their initiative entitling them to defend the initiative as real parties in interest if it is challenged in court.”  They also argue that the entitlement that they have to appeal is taken from state law, and that “…allowing official proponents to intervene to vindicate the People’s interest in successful initiatives when public officials will not do so is necessary to preserve the People’s initiative power…”

The initiative has been undefended again and again by state officials, and an appeals court in California last September held that it is not necessary for them to defend it.  If it is ruled by the Supreme Court of California that these proponents are not allowed to defend Prop 8 under state law, then the case will most likely be dismissed by the court of appeals.

The stay that prohibited gay couples from marrying was requested to be lifted earlier this month by Attorney General of California, Kamala Harris.  She felt that it was irrational to continue the stay, and that the appeal would not likely succeed.  She also feels that laws about sexual orientation should be given a higher standard of review.  The stay is still in force as of this writing, and was originally ordered last August after an appeal was being decided on by the court after Prop 8 was overturned last year by a federal judge.

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California voters banned same-sex marriage through Proposition 8 in November 2008. That came just months after the state Supreme Court had legalized same-sex unions, which resulted in an estimated 18,000 gay couples getting married in the state.

In his ruling Thursday, Walker said that proponents of the ban failed to convince him that anyone would be harmed by allowing same-sex marriages to resume.

“The evidence at trial showed, however, that Proposition 8 harms the state of California,” Walker said.

Gov. Arnold Schwarzenegger, who along with Attorney General Jerry Brown support same-sex marriage, said Judge Walker’s decision to lift the stay “provide all Californians the liberties I believe everyone deserves.”

According to the AP, the case will now go before a special “motions panel” that consists of three judges at the appeals court.

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In his ruling, U.S. District Chief Judge Vaughn R. Walker of San Francisco ruled Proposition 8 violated the 14^th Amendment of the Constitution because it limits the ability of gays and lesbians to marry the partners of their choice, the Associated Press reports.

“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” the judge wrote. “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

The ruling is expected to be appealed to the U.S. 9^th Circuit Court of Appeals and could wind up before the Supreme Court. Proposition 8 was approved by 52.3 percent of California voters in November 2008.

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The defense is represented by Charles Cooper, partner in the firm Cooper & Kirk. On Monday, the defense will call its first witness, who is an expert on the voter initiative process. Four of the expert witnesses originally scheduled to appear have withdrawn from the trial, leaving the defense with only two, so the next part of the trial could go quickly.

Judge Walker has said he wants time to review the evidence after the defense closes its case before he hears final arguments.

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The vote came down on familiar ideological lines, with the Roberts, Scalia, Thomas, Alito and Kennedy in the majority. The per curiam decision was based on the failure of Judge Walker to give adequate notice to the public or allow sufficient time for public comment before amending a local court rule prohibiting broadcast of any trial beyond “the courtroom or its environs”.

The dissenting opinion, written by Justice Breyer and signed by the other three members of the liberal wing, Ginsburg, Stevens and Sotomayor, argued first that the time allotted was sufficient for public comment and that the parties in the dispute in particular had ample notice, and then went on to argue that the Court should never have granted cert in the first place since the case “…is not the kind of legal question that this Court would normally grant certiorari to consider. There is no conflict among the state or federal courts regarding the procedures by which a district court changes its local rules. Cf. this Court’s Rules 10(a)–(b). The technical validity of the procedures followed below does not implicate an open ‘important question of federal law.’ . . . Nor do the procedures below clearly conflict with any precedent from this Court. . . . “

It’s a disappointing decision for advocates of televised trials, particularly since the Court based its ruling not on the merits of allowing greater access to the justice system but rather on a limited interpretation of procedural rules involving public notification of amendments to local court rules.

The per curiam opinion and dissent can be found here and you can follow a written account of the trial here.

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Supporters of Prop 8, which amended the California Constitution to strip same sex marriages of any legal recognition in the state, argued that broadcasting the trial would be unfair to witnesses and could lead to intimidation. Justice Breyer, who dissented from the order, said he was not persuaded that Prop 8′s supporters would suffer any harm from the broadcast.

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The trial is set to begin on January 11, and features the all star duo of David Boies and Ted Olson, who argued against each other in the Supreme Court case Bush v Gore, as co-attorneys for the plaintiffs. For more of our coverage of this case, Perry v. Schwarzenegger, click here.

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Almost exactly one year after the California Supreme Court heard arguments regarding the right for gay couples to marry, many of the same lawyers will be back on Thursday to argue if the state’s recent same-sex marriage ban should stand or be revoked.

This Thursday, the Supreme Court will hold three hours of oral arguments from 9:00 AM to noon on three lawsuits aimed at overturning Proposition 8, the voter approved ban on gay marriage approved in November of 2008.

Lawyers representing-same sex couples – 18,000 have been married since last year – and a group of local governments will get 90 minutes to present their arguments.  Those lawyers include Shannon Minter, legal director of the National Center for Lesbian Rights, Chief Deputy City Attorney Therese Stewart and Michael Maroko, a partner of Los Angeles lawyer Gloria Allred.

Sponsors of Proposition 8 have an hour. They are being represented by Pepperdine law school dean Kenneth Starr.  California Attorney General Jerry Brown has declined to argue the state’s position.  Deputy Attorney General Christopher Krueger will be arguing for the state.

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“The attorney general is inviting this court to declare a constitutional revolution,” reads a brief co-written by Kenneth Starr, dean of Pepperdine University’s law school. Starr previously exhibited his medieval moral code and complete lack of ethics as the independent counsel who investigated President Bill Clinton.

Brown initially said he would defend the measure in his role as attorney general. But in a dramatic reversal, he changed course two weeks ago and joined same-sex marriage supporters in asking the court to void Proposition 8, and to uphold the estimated 18,000 same-sex unions sanctioned during the four months gay marriage was legal in the state.

Brown argues that the amendment is unconstitutional because the Supreme Court established marriage as a fundamental right in its May decision striking down previous one man-one woman marriage statutes.

Starr and co-counsel Andrew Pugno maintain that the attorney general is asking the court to assume powers not granted by the Constitution. ”The judiciary is entirely a creature of the Constitution, not an independent, freestanding guardian of minority rights or natural law,” they wrote.

Brown responded that it was the sponsors of Proposition 8 who have misunderstood the role of the courts in a democratic society. ”Mr. Starr ignores the fundamental doctrine of judicial review and the historic duty of the Supreme Court to guard our fundamental liberties,” he said.

Lawyers for San Francisco and five other counties, as well as for gay couples who married during the four-month window, have asked the court to let stand the existing marriages even if it upholds Proposition 8.

Proposition 8′s sponsors have argued that the 14-word measure, which holds that “only marriage between a man and a woman is valid or recognized in California,” effectively bars the state from acknowledging any same-sex marriages, regardless of when they were sanctioned.

The groups have yet to announce if they plan next to go after interfaith marriages, non-Christian marriages, interracial marriages,  or marriages between people who cannot reproduce. All of these are also banned by The Bible.

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Proposition 8 was a California ballot proposition that changed the state Constitution to restrict the definition of marriage to a union between a man and a woman, and eliminated the right of same-sex couples to marry. The proposition did not affect domestic partnerships in California. The Church of Jesus Christ of Latter-day Saints publicly supported the proposition, along with other religious organizations.

It seems that an advertisement [PDF] recently appeared in the New York Times that was signed by one of the UM Law School’s professors, Douglas Laycock. It read, in part:

The violence and intimidation being directed against the LDS or “Mormon” church, and other religious organizations – and even against individual believers – simply because they supported Proposition 8 is an outrage that must stop. …

Regrettably, some public voices have even sought to excuse the threats and disruptions simply as “demonstrations” that got out of hand. Perhaps that’s true in some cases. Far too many, however, have never been demonstrations in the first place, but more nearly mobs, seeking not to persuade but to intimidate.

In fact, various media outlets have documented civil rights demonstrations against the LDS Church and others, and civil rights groups attempts to “out” Prop. 8 supporters. But even the group behind the ad can’t identify a single documented case of violence, short of anonymous petty vandalism.

The UMLS Outlaws LGBT Students & Friends Association response:

Outlaws and the Law School want to use this occasion to stress that Michigan Law School is an institution that is welcoming of LGBTQA students and that the Law School values the diversity that our community helps provide.

And from Sarah C. Zearfoss, Assistant Dean and Director of Admissions:

Bottom-line, if you are concerned, based on Professor Laycock’s signing of the letter in the New York Times, that the University of Michigan Law School is a place where a prospective LGBTQ law student wouldn’t feel welcome or would feel under siege, then I think your concerns are misplaced. We have an excellent and very active Outlaws student group, and a faculty and administration that are committed to maintaining LGBTQ diversity at this Law School.

The fact is, Proposition 8 was hateful, and opposition to gay marriage is bigotry, no matter the basis for your beliefs. Californians, and all Americans, have the inalienable right to protection from enforced religious law. If homophobes were being victimized with violence, that would absolutely be wrong, although some blame would have to rest with the “victims,” whose “victimizers” would never have even known of their existence if the “victims” had not interfered with their private lives. But that scenario is not playing out. At all.

Having your political contributions publicized is not harassment, violence or intimidation. Protests at public locations, even angry protests, are not harassment, violence or intimidation.

Activists who wish to use the government to enforce their religious beliefs on others should instead do some soul-searching, and ask why they seek to overthrow the religious and personal liberties this nation was founded upon.

- Erik David Even

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