JD Journal » same sex marriage

California Court Rules Proposition 8 Unconstitutional

jim — Wed, 08 Feb 2012 01:14:49 +0000

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.”

Washington State Senate Passes Same-Sex Marriage Measure

jim — Fri, 03 Feb 2012 00:39:33 +0000

On Wednesday, the state senate in Washington passed a bill that would legalize same-sex marriage. This sets the stage for Washington to become the seventh state in the nation to allow lesbian and gay couples to marry.

The bill now visits the House, which many believe will approve it. The state’s governor, Chris Gregoire, approves of the measure and has said that he will sign it into law. Opponents of the measure have vowed to challenge it at the ballot with a referendum.

The measure was passed by the Senate by a vote of 28-21 on Wednesday night, which came after an hour and a half of debate on the floor. There were four Republicans who crossed party lines to vote with majority Democrats. There were three Democrats who voted against the measure.

Ed Murray, a Democratic Senator and the sponsor of the bill, said that he knew same-sex marriage “is as contentious any issue that this body has considered in its history.”

He also described lawmakers who vote against same-sex marriage “are not, nor should they be accused of bigotry” he said.

“Those of us who support this legislation are not, and we should not be accused of, undermining family life or religious freedom,” said Murray. “Marriage is how society says you are a family.”

Dan Swecker, a Republican Senator from Rochester, argued that the proposed measure alters the definition of marriage and “will lead to the silencing of those who believe in traditional marriage.”

Opponents to the law have promised to fight the issue, but this cannot be done until it is passed by the full Legislature and then signed into law by Gregoire. The opponents must then provide 120,577 signatures by June 6. Should opponents not be able to collect enough signatures, same-sex couples will be able to start marrying in June. The opponents would then have to wait until elections in November to make a move against the bill.

An opponent of gay marriage, Jane Sterland, said that she was disappointed by the small turnout of opponents to the issue.

“It saddens me that there aren’t more Christians here tonight,” she said. “I’m just very grieved about this whole thing. I want to be here for prayer support against this issue.”

Alex Guenser drove to Olympia from Redmond to watch the Senate debate with his boyfriend.

“I feel like this is the hill, the crest of the marriage equality fight. And after this passes (in the Senate), it’s all going to be smoother sailing from now on,” Guenser said. “I’m really excited to have Washington pass this. I’m excited for my state.”

The other states that legalized same-sex marriage include New Hampshire, Massachusetts, New York, Iowa, Connecticut, Vermont and the District of Columbia. Three other states are debating gay marriage this year including New Jersey and Maryland, while a proposal could be on the November ballot in Maine.

Supporters of Proposition 8 Argue for Right to Appeal

aostler — Tue, 15 Mar 2011 22:48:41 +0000

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.

Prop 8 Argument Recap

joshua — Tue, 07 Dec 2010 15:53:04 +0000

Legal giants David Boies and Ted Olson appeared once again on behalf of their clients to argue that California’s Proposition 8, which effectively banned same sex marriages, is unconstitutional. This time that forum was the 9th Circuit Court of Appeals and this time it was televised live. The oral arguments in the case lasted nearly three hours and were divided between procedural issues and the issues directly involved in the case. While it is always difficult to make predictions based on the questions that judges ask, I’ll go out on a limb and do so anyway. I would expect the three judge panel to find that the supporters of the initiative, but not the deputy clerk of Imperial County, have standing to appeal by carving out an exception to the standing rules for sponsors of ballot initiatives that are being challenged in court. Furthermore, I believe the three judge panel, composed of one moderate conservative, one very liberal and one center-left judge will uphold the lower court’s injunction barring the enforcement of Prop 8. My best guess is that they will limit the scope of the ruling based either on the fact that California once gave same sex couples the right to marry so taking it away is particularly offensive to the 14th amendment, or based on the fact that California gives gay couples all the rights and benefits of marriage and so denying them just the name is a clear equal rights violation. Either way, the ruling won’t go so far as to say that gay marriage is a constitutional right.

You can read live blogs covering the arguments here and here or see an expanded version of my analysis here.

Morning Roundup

joshua — Fri, 13 Aug 2010 12:17:15 +0000

Good morning everyone! Today is Friday, August 13th. Here’s a quick look back at yesterday’s stories.

Baker McKenzie reported its revenues were flat but profits were up…

Ventricelli joined Capstone Advisory Group LLC as Managing Director…

The stay was lifted in California same-sex marriage ban…

Brinks Hofer laid off 18 workers this week…

Law Firm Best, Best, & Krieger was subpoenaed by the Attorney General’s office during its investigation of overpaid employees in the city of Bell…

A top compliance officer from BAE Systems joined Covington & Burling as a partner…

Stay Lifted in California Same-Sex Marriage Ban

joshua — Thu, 12 Aug 2010 20:46:47 +0000

A federal judge who last week ruled California’s same-sex marriage ban was unconstitutional moved Thursday to suspend gay weddings until Aug. 18 at 5 p.m. The ruling by Judge Vaughn Walker allows opponents of same-sex marriage the time to gain a decision from the 9^th Circuit on whether gay marriage should allowed to resume, the Associated Press reports.

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.

Judge Rules Against California’s Same-Sex Marriage Ban

joshua — Wed, 04 Aug 2010 23:06:18 +0000

A federal judge Wednesday struck down California’s controversial Proposition 8 voter-approved ballot measure that banned same-sex unions.

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.

SF Chronicle Outs Judge Walker

joshua — Tue, 09 Feb 2010 17:08:29 +0000

Judge Vaughn Walker, the presiding judge in the trial over California’s Prop 8, has been outed by the San Francisco Chronicle. “The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay”, says a column in Sunday’s edition.

It may have been an open secret in some circles, but for much of the country it will come as a surprise to find out that the judge presiding over a trial to determine the constitutionality of an initiative to ban gay marriage is himself gay. Judge Walker has refused to confirm or deny the story, and in fact has been viewed in the past with distrust by the gay and lesbian community for work he did as an attorney for the US Olympic Committee in challenging the Gay Olympics’ use of the trademarked word “Olympics”.

The question now is, assuming he is in fact gay, will that affect his decision in the case?

We are all colored by the events that compose our lives and it is difficult to imagine that Judge Walker isn’t similarly affected by his accumulated experiences. But in what way? Much ado was made in the trial about the persecution felt by gay men and women and the need for constitutional protections. Vaughn Walker is a federal judge, a position of authority and respect. Will he discount the notion that he needs special protections? On the other hand, he’s a private person who has never openly admitted to being gay – does he wish that he could be more open about who he is without fearing his career would be in jeopardy?

If the final outcome rests on he degree of persecution felt by gays, then it seems self evident that Judge Walker’s backgroun will bias him in one direction or the other. But would a straight judge be any less biased?

Prop 8 Trial: The Plaintiffs Rest Their Case

joshua — Fri, 22 Jan 2010 22:45:09 +0000

Arguing on behalf of two gay couples challenging the constitutionality of California’s Proposition 8, Ted Olson and David Boies have rested their case. Greg Herek, a professor of psychology at UC Davis, was the final witness for the plaintiffs. He was called to help make the argument that homosexuals face high levels of discrimination and to discuss the nature of homosexuality. On cross examination, the defense continued to advance the idea that homosexuality is a choice and not a born trait, and therefore not deserving of special legal protections.

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.

Supreme Court Blocks Broadcast of Prop 8 Trial

joshua — Tue, 12 Jan 2010 01:11:12 +0000

Last week we told you that Judge Walker approved a plan to broadcast the Proposition 8 trial on youtube.com over the objections of some of Prop 8′s supporters. The Supreme Court has ordered that footage of the trial, which began today in San Francisco, not be released until it has had time to consider the issue. The order also blocks an further orders implementing televised proceedings of the trial until the Court takes the matter under review.

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.

California’s Proposition 8 Trial Will be Broadcast

joshua — Wed, 06 Jan 2010 21:29:02 +0000

The 9th Circuit recently put in place new rules that give federal judges in the circuit the option of allowing trials to be broadcast. Judge Vaughn Walker announced today that he will allow the upcoming trial over the constitutionality of California’s proposition 8, which amended the California Constitution to ban same sex marriages, to be broadcast on youtube. Defenders of proposition 8 objected to the judge’s ruling, saying that it could lead to witness harassment.

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.

Morning Roundup

joshua — Thu, 03 Dec 2009 16:20:42 +0000

Good morning everyone! It’s Thursday December 3 and this is your morning review.

The New York Senate has rejected a bill that would have permitted same sex marriages…

Two firms have announced bonus schedules that are a little different… but not much…

Sidley Austin is opening in Silicon Valley with the help of some laterals…

and while Dubai World melts down, a few British firms are scoring big…

New York Senate Rejects Same Sex Marriage

joshua — Thu, 03 Dec 2009 01:48:24 +0000

The New York Assembly keeps passing it, and the Senate keeps rejecting it. The vote was expected to be close but in the end eight Democrats, including two members of the leadership, joined the Republicans who unanimously voted against it. The final tally was 38-24. Governor Patterson took the unusual step of speaking on the Senate floor after the vote urging the legislature to keep trying. Meanwhile a new poll from Marist college echoed one done earlier by Qunnipiac University, finding that same sex marriage is favored by a 51-41 spread among New York residents.

Gay Marriage Defeated in Maine

joshua — Wed, 04 Nov 2009 14:24:32 +0000

Yesterday, voters in Maine cast ballots on Proposition 1. Proposition 1 was a “voter veto” bill, which means it was written to strike down a law passed by the legislature that would have allowed gay marriage within the state. The final tally was 53-47 in favor of striking down the law. Because this has the same effect as a veto, the legislature can override it in their next session if they choose to do so.

Five states currently allow same sex marriages, Iowa, Massachusetts, Vermont, New Hampshire and Connecticut, but all five are the result of legislative or court decisions. Gay marriage has been denied in each of the 31 states where the decision has been left to popular vote.

California Supreme Court To Hear Arguments Regarding Gay Marriage Ban

Erik Even — Mon, 02 Mar 2009 21:18:37 +0000

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.