Marriage battles ramping up; NH repeal bills introduced

Two New Hampshire legislators have introduced bills to repeal the state’s marriage equality law, even though Republican leaders said such a repeal is not a party priority in 2011. And several other states saw legislative moves toward or away from equality in the past week.

Two New Hampshire legislators have introduced bills to repeal the state’s marriage equality law, even though Republican leaders said January 13 that such a repeal is not a party priority in 2011. And several other states saw legislative moves toward or away from equality in the past week.

New Hampshire: State Rep. David Bates (R-Windham) and 11 cosponsors filed a bill that would repeal marriage equality and prevent New Hampshire from recognizing the marriages of same-sex couples contracted outside the state. New Hampshire same-sex couples who married in the state before the bill became effective would continue to be recognized as married. Same-sex couples who married in another state would no longer be recognized.

The bill’s stated purpose is that, because most children “are conceived by acts of passion between men and women—sometimes unintentionally,” New Hampshire has “a unique, distinct, and compelling interest” in promoting committed marriages between men and women “so as to increase the likelihood that children will be born to and raised by both of their natural parents.”

That is the essentially the same argument used—unsuccessfully—by the defense in the federal district court trial that struck down California’s Proposition 8 ban on same-sex marriage.

State Rep. Leo Pepino (R-Manchester) and five cosponsors filed a separate bill that would repeal marriage equality and prohibit civil unions or any other form of legal recognition for same-sex couples.

The Associated Press reported January 25, however, that Pepino will ask the committee hearing the bill “to retain it until next year when they have more time.”

Bills cannot be killed in committee in New Hampshire, unlike in many other states. But a committee may choose to retain a bill for further study (in essence, tabling it), thus blocking consideration of it on the floor.

Governor John Lynch (D), who signed the original marriage equality bill into law, has said he would veto a repeal bill. But Republicans hold a veto-proof majority in both houses.

Mo Baxley, executive director of New Hampshire Freedom to Marry (NHFTM), said in an interview that she thinks supporters of the law can sustain the governor’s veto by finding supporters among older, more libertarian-leaning Republicans.

“It’s going to be a horse race,” said Baxley. She noted that the national gay marriage opposition group, D.C.-based National Organization for Marriage (NOM), spent over a million dollars trying to defeat Lynch in the last election, “and they want what they paid for.”

NOM is working in conjunction with an in-state group Cornerstone Action. Kevin Nix, director of communications for NHFTM, said that both NOM and Cornerstone are trying to “appear more tolerant,” and appeal to “people in the middle.”

“The public is solidly on our side,” Baxley asserted, but cautioned, “We can’t just presume that we’ve got the votes . . . . We’ve got to be full throttle out there.”

Baxley said that, with the state’s 400 House districts containing only about 3,100 people each, her group’s members are taking a “very grassroots” approach. They have been holding a series of town hall meetings with “a real mix” of attendees, gay and straight. They are also preparing for a public hearing on the bill.

She said state Republicans also plan to introduce a bill next year for a ballot measure that would amend the state constitution to prohibit same-sex marriage. With a spotlight on New Hampshire’s first-in-the-nation presidential primary, she said, a ballot fight in 2012 could help motivate a stronger conservative turnout.

Maryland: Marriage equality bills were introduced into both the Senate and House in the past week. Democrats have a majority in both chambers. Governor Martin O’Malley (D) has said he would sign the bill if it reaches his desk.

Cosponsor Senator Jamie Raskin (D-Montgomery) said in a press briefing January 21 that he expects a fight on the Senate floor and will need 29 votes out of 47 to break a filibuster. An up-or-down vote on the bill, after the filibuster is broken, will require 24 votes. Democrats have a 35 to 12 majority in the Senate.

A public hearing on the Senate bill is scheduled for February 8.

Hawaii: The full Senate on January 28 passed a bill to legalize civil unions for same- and opposite-sex couples. It now heads to the House, where it is expected to pass. Governor Neil Abercrombie (D) has said he will sign it.

Illinois: Governor Pat Quinn (D) signed a civil union bill January 31 giving same- and opposite-sex couples many of the same rights as married ones.

Iowa: The House Judiciary Committee passed a bill January 24 that would allow voters to decide on a state constitutional amendment banning same-sex couples from marriage, civil unions, or domestic partnerships. A public hearing on the bill was scheduled for Monday, January 31.

In the Senate, however, Senator Kent Sorenson (R-Indianola) attempted to bypass Senate rules and bring to the floor a vote on the Senate version of the bill. Democrats, who hold a 26-24 majority, voted down the attempt. Senate Majority Leader Mike Gronstal (D-Council Bluffs) had said he would block a vote on the bill.

New Mexico: Three bills were introduced in the House and one in the Senate that would variously put before voters a constitutional amendment banning same-sex marriage and ban New Mexico from recognizing such marriages enacted outside the state.

Wyoming: The House passed a measure January 25 to prevent the state from recognizing same-sex marriages contracted elsewhere. The next day, the state Senate passed a bill that would allow voters to decide whether to amend the state constitution to ban same-sex marriage.

A civil union bill introduced by openly gay State Rep. Cathy Connolly (D-Laramie) failed by one vote to make it out of committee January 28. A separate bill by Connolly, for full marriage equality, died without a motion to vote.

Supreme Court refuses appeal by opponents of equal marriage in D.C.

The U.S. Supreme Court Tuesday refused to hear the appeal of a group of clergy in Washington, D.C., who want to put the city’s new marriage equality law on the ballot.

The U.S. Supreme Court Tuesday refused to hear the appeal of a group of clergy in Washington, D.C., who want to put the city’s new marriage equality law on the ballot.

The denial of review appears to the end of the line now for opponents of equal marriage rights in Washington, D.C.

Washington, D.C., enacted its marriage equality law in March of last year, but not before a group of clergy tried to stop the law from going into effect by requesting an emergency order from the U.S. Supreme Court. The high court refused that request, in Jackson v. D.C., but the group came back with this second effort aimed at undoing the marriage equality law.

What the group sought, in Jackson v. D.C. II, was a ruling from the high court saying the D.C. government could not bar an initiative regarding whether to repeal the marriage equality law.

The question before the Supreme Court, however, was not about marriage on the surface. On the surface, the question was whether the city’s law governing initiatives can bar voters from considering an initiative that violates the city’s human rights act.

Important to the case was the fact that Washington, D.C., is not a state but a unique District, controlled by the Congress to serve as the nation’s center of government. But in recognition of the needs of citizens who reside in the District of Columbia and who raise and school children there and require routine services such as fire and police protection, Congress, in 1973, provided for the formation of a D.C. Council to govern its citizens under a “Home Rule Act,” or D.C. Charter.

Congress also approved an amendment to the Charter, in 1978, that incorporated the D.C. Council’s laws spelling out how it would govern its own elections, including initiatives. The following year, the D.C. Council then approved the legislation necessary to implement that Charter amendment. And there lies the rub.

The implementing law—the Initiative Procedures Act—stipulated that the Elections Board “shall refuse to accept [a proposed initiative] if the Board finds that it . . . authorizes, or would have the effect of authorizing, discrimination” prohibited under the city human rights law.

The D.C. Human Rights Law prohibits discrimination based on sexual orientation so, when the group of clergy sought a ballot measure to overturn its marriage equality law, the city Board of Election refused to accept the measure, and the city’s highest court, the D.C. Court of Appeals, upheld that decision.

The Alliance Defense Fund, representing Harry Jackson, Walter Fauntroy, and the other petitioners, argued that this limitation violates the Charter itself, which provides for initiatives. And, after the D.C. Court of Appeals, its last resort was an appeal to the U.S. Supreme Court.

When the Alliance initially sought U.S. Supreme Court intervention, it filed a request for an emergency order to Chief Justice John Roberts, who handles emergency requests from the District of Columbia. Roberts denied that request last March and the marriage equality law went into effect on March 3, 2010.

But in denying the emergency request, Roberts said he thought the clergy coalition’s challenge to the restriction on initiatives had “some force.”

The clergy group took Justice Roberts’ note to heart and, with the help of the Alliance Defense Fund, a right-wing legal group, filed this new challenge. The new challenge argued that the decisions by the D.C. Courts “approved a Council-imposed limitation on the people’s Charter-based initiative power.”

The D.C. Court of Appeals, in upholding the D.C. Council’s right to include a limitation on the city’s initiative process, “allowed the Council to usurp a congressional grant of power,” argued the Alliance. And, said the group, it “bestows unapproved and extensive authority upon the Council to further erode the people’s initiative power, or otherwise alter Congress’s division of legislative power within the District of Columbia.”

“Congress is the source of all legislative power over the District,” argued the Alliance in its petition to the Supreme Court in October.

But Congress, dominated in both houses by Democrats, did not use its authority in December 2009 to disapprove of the D.C. Council’s passage of the marriage equality law. Nor did it disapprove of the D.C. Council’s establishment of a restriction on ballot measures, in 1979.

The Alliance argued that “Congress’s failure to reject or overturn” the restriction on D.C. initiatives “does not amount to implicit congressional approval of that measure.”

But attorneys for the D.C. government, in their brief opposing acceptance of the Alliance’s case by the Supreme Court, said the D.C. Council had authority to enact this restriction as part of the Charter amendment approved by both Congress and the voters of D.C. And they noted Congress had authority to disapprove of the Initiative Procedures Act but did not do so.

Further, the D.C. attorneys argued that the restriction on initiatives is a narrow one and that conflict before the high court was “of exclusively local concern” involving “no important questions of federal law.”

In order to hear an appeal at the U.S. Supreme Court, four justices must agree to take the case up for review and, generally speaking, the case must present a question concerning federal law. However, as in the case of California’s Proposition 8, state laws can end up in federal court when they are challenged as violating some federal constitutional provision.

Nan Hunter, a gay legal scholar who blogs at hunterforjustice.com, said that, if the Supreme Court had agreed to hear the Jackson case and overturned the D.C. Court of Appeals decision, the result would have been like “an East Coast rerun of Prop 8.”

9th Circuit punts key Prop 8 question to California Supreme Court

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday when it suddenly issued five documents relating to the case. But there was no decision Tuesday in Perry v. Schwarzenegger.

Ted Olson

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday when it suddenly issued five documents relating to the case.

But there was no decision Tuesday in Perry v. Schwarzenegger, the landmark case testing whether voters in California violated the U.S. Constitution when they amended the state constitution to ban marriage licenses for same-sex couples.

The bottom line of the documents was that the three-judge panel that heard arguments in an appeal of the case punted a critical question regarding legal standing to the California Supreme Court.

The panel said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether Yes on 8 proponents of the initiative have an “authoritative” entitlement to represent the voters who passed the initiative in the appeal in federal court.

The announcement frustrated and disappointed many.

“It is frustrating that this will slow the case down, especially since there is nothing in California law that gives initiative proponents the power to force an appeal when the official representatives of the state have determined that doing so is not in the best interests of the state,” said Shannon Minter of the National Center for Lesbian Rights.

The development struck some as odd. It appears the federal court is asking a state court whether Yes on 8 has standing to appeal a lower federal court ruling that struck down Proposition 8.

“I don’t think it was necessary to ask the California Supreme Court to rule on that issue,” said Minter, “and I am disappointed the Ninth Circuit did so.” But Ted Olson, a lead attorney on the team challenging Proposition 8, organized by the American Foundation for Equal Rights, said it’s not uncommon.

And it was not really a surprise to learn the panel is struggling with the question of standing. During oral argument on December 6, all three judges seemed troubled by the idea that a state governor or attorney general could, in essence, acquire an ability to veto a measure passed by voters by simply refusing to defend a challenge to its constitutionality in court. The California constitution does not provide the governor or attorney general a right to veto voter-passed initiatives.

Both Judge Stephen Reinhardt, widely perceived to be the most liberal of the panel, and Judge Randy Smith, the most conservative, seemed concerned that the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. Judge Michael Hawkins expressed frustration during argument that the panel might be prevented from rendering a decision about the constitutionality of Proposition 8 “so it’s clear, in California, who has the right to marry and who doesn’t.” The panel seemed prepared, on December 6, to ask the California Supreme Court to weigh in on the issue and it is a curiosity that it waited one month before actually doing so.

In its 21-page order to the California Supreme Court, the three-judge panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement …refuse to provide such a defense.”

Olson, in a telephone conference call with reporters soon after the court released its order, said that, if the California Supreme Court determines that there is no authority under state law for Yes on 8 to have standing to represent voters in the appeal, the 9th Circuit would be bound to accept that determination. However, the ruling on standing could still be appealed to the U.S. Supreme Court, he said.

If the California Supreme Court determines Yes on 8 does not have standing and the 9th Circuit rules accordingly, then the decision of U.S. District Court Judge Vaughn Walker on August 4 will become the law throughout California, making it possible for same-sex couples to obtain marriage licenses.

Judge Walker ruled that Proposition 8 violates the U.S. Constitutional guarantees to equal protection and due process. Although neither the attorney general nor the governor provided any defense for the initiative during the trial last January, Walker did allow Yes on 8 proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean Yes on 8 has standing to appeal.

If Yes on 8 does appeal a loss on the issue of standing to the U.S. Supreme Court, and the high court rules in its favor, it would then most likely send the case back to the 9th Circuit for a ruling on constitutionality.

Meanwhile, among its other documents Tuesday, the 9th Circuit panel issued a 16-page opinion that Imperial County, California, does not have standing to appeal the district court decision itself. The panel said it was denying the county’s claim for standing on different grounds than did Judge Walker. The panel held that, because the county simply administers the state’s marriage law, it does not have any “interest on its own” to defend. The county has 14 days in which to appeal the panel’s ruling on standing.

The 21-page order released Tuesday said that having standing to defend Proposition 8 in federal district court does not necessarily guarantee that Yes on 8 proponents have standing in federal court. In one of several other documents released Tuesday, the panel denied an effort by Imperial County to gain standing to make the appeal.

The panel’s formal question to the California Supreme Court is: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

“If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative,” stated the order, “then Proponents would also have standing to appeal on behalf of the State.”

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents,” said the order, “and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.”

“It is not sufficiently clear to us, however, whether California law does so,” said the panel. “In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law.”

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case—whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

“Further delay in restoring the freedom to marry in California is a lamentable hardship on couples,” said Evan Wolfson, head of the national Freedom to Marry group. “But I am confident that we will regain the freedom to marry in California soon.”

NCLR’s Minter agreed.

“I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives,” said Minter. “In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage. This will delay,” he said, “but not deny, the day that Proposition 8 is gone for good.”

Prop 8 arguments: Feisty questions on standing and merits for both sides

SAN FRANCISCO — Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel Monday that the reason proponents of Proposition 8 have proffered to justify their ban on same-sex marriage is “nonsense.”

Ted Olson
Ted Olson

SAN FRANCISCO—Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel Monday that the reason proponents of Proposition 8 have proffered to justify their ban on same-sex marriage is “nonsense.”

That reason, said Olson, reading from a page in the argument brief filed by attorneys for the Yes on 8 coalition which promoted passage of California’s ban on same-sex marriage, was that same-sex marriage “will make children prematurely preoccupied with issues of sexuality.”

“If believed,” said Olson, “that would justify the banning of comic books, television, video games, and even conversations between children.”

And that was not exactly the reason Yes on 8 proffered during their successful 2008 campaign to amend the state constitution to ban same-sex marriage. Back then, the primary reason, noted Olson, was “protecting children” from the notion that marriage between same-sex couples was ok.

So, what should the court consider as the reason behind denying same-sex couples the right to marry, asked Judge Michael Hawkins.

“Should we look just at the record in the district court,” he asked, or should we “imagine whether there is any conceivable rational basis” to ban gays from marriage?

Olson urged the court not to use its own imagination to figure out whether there might be any conceivable rational reason but to look at the reasons proffered by the Yes on 8 proponents and to determine whether they “make sense” and whether they are “motivated by fear” or a dislike of gay people.

“Protecting our children,” said Olson, “is not a rational basis. It’s based on the idea there’s something wrong with” gay people.

Both Olson and his legal counterpart, Charles Cooper, argued with greater passion and animation during Monday’s argument before the federal appeals court than they did in January and June before U.S. District Court Judge Vaughn Walker. It was Walker’s ruling in August –that California’s ban on same-sex marriage violated the U.S. Constitution—that brought them to the appeals court in San Francisco December 6. Unlike at the district court trial, where the U.S. Supreme Court forbid any television or web broadcast, the appeals proceedings were carried live on national television by CSPAN and several California stations. Demonstrators crowded outside the federal building in San Francisco under the watchful eye of federal protection service officers. And interested observers and journalists packed the courtroom and watched broadcasts all over the country.

Any pre-courtroom second-guessing that observers may have harbored over the political leanings of the three judges seemed to be put to rest fairly quickly, as the judges vigorously challenged each side’s arguments on both matters before the court—Yes on 8 and Imperial County’s legal qualification (standing) to appeal and the validity of Walker’s declaration that Proposition 8 violates the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution.

Judge N. Randy Smith, an alum of the Mormon-run Brigham Young University, came out swinging hard questions for Cooper over Yes on 8’s claim to have legal standing to press the appeal. Then he pitched equally hard questions to Olson’s comrade David Boies, about the “problem” created for the court by the fact that neither the state’s governor nor attorney general appealed the district court decision themselves. Even though neither has the power to veto an initiative, said Smith, they both nullified the initiative by not appealing it.

Boies tried to make the point that Governor Arnold Schwarzenegger and Attorney General Jerry Brown made their decisions not to appeal after Judge Walker declared the initiative to be unconstitutional.

Judge Stephen Reinhardt, widely perceived to be a staunch liberal, seemed to agree with Smith, saying the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. And should the court find that Yes on 8 and Imperial County both lack the legal qualifications to appeal, the judges said, the appeals court has no cause to rule on the merits of the dispute.

Boies argued that the concern about what the governor and attorney general did was a “different issue” than standing. And on the issue of standing, said Boies, Yes on 8 and Imperial County have no standing to bring the appeal, simply because they can’t meet the standard of demonstrating a real injury from the decision below.

It was not an easy sell. Hawkins expressed frustration that the court might not be able to render a decision on the merits “so it’s clear, in California, who has the right to marry and who doesn’t.”

Yes on 8 attorney Charles Cooper had argued that, because the California Supreme Court had, in an earlier, related court proceeding given Yes on 8 the right to intervene in the Perry v. Schwarzenegger case to defend Proposition 8, it intended to convey standing, too. By the end of the first hour of the proceeding—which was devoted to standing—the panel seemed inclined to ask the California Supreme Court to certify whether it intended Yes on 8 to have standing.

The panel seemed equally uncomfortable with the effort by a deputy clerk of Imperial County, Isabella Vargas, to seek standing to appeal Walker’s decision. The judges, particularly Hawkins, pointedly and repeatedly asked why Imperial County’s deputy clerk was seeking the status, and no explanation was given as to why the county clerk did not.

Robert Tyler, an attorney with a religious advocacy legal firm representing Vargas and Imperial County pro bono, evaded the answer to that question both in and out of the courtroom. At a press conference following arguments, he claimed the answer was a matter of attorney-client privilege.

The three judges were equally tough in questions about the merits of Judge Walker’s decision. As Cooper attempted to read from his prepared statement, Judge Hawkins interrupted almost immediately to ask him whether voters have the right to reinstitute segregation in public schools.

“No,” said Cooper.

“Why not?” asked Hawkins.

“Because it would be inconsistent with the U.S. Constitution,” said Cooper.

“As interpreted by the U.S. Supreme Court,” interjected Hawkins.

“Yes,” conceded Cooper.

But in 1870, the U.S. Supreme Court probably would not have interpreted the constitution to forbid segregation, would it? asked Hawkins.

Cooper conceded that was probably true.

“Well, how is this different?” asked Hawkins.

Judge Smith challenged Cooper using the Loving v. Virginia ruling by the U.S. Supreme Court that said states could not prohibit interracial marriage. He did so by noting that Cooper was arguing that the Supreme Court had already ruled on the right of states to proscribe same-sex marriage in Baker v. Nelson. The high court, in 1972, dismissed the appeal of a gay couple who had sought a marriage license in Minnesota. Dismissing an appeal has more significance than simply refusing to hear an appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case. There is dispute within legal circles as to whether that dismissal means anything today. But Cooper, and others, have tried to make a case that the Baker action is precedent, and that it governs attempts by other states to ban same-sex marriages.

If Baker was precedent, said Smith, then why couldn’t states ban interracial marriage, too?

Cooper had to concede the right of states to decide who can marry is “not an absolute right” and that their right to do so “is limited by the restrictions of the U.S. Constitution.”

When Cooper tried to argue that society has a rational interest in the creation of children and in promoting responsible procreation to ensure that children are adequately cared for, Judge Reinhardt suggested that might be a “good argument for prohibiting divorce.”

Judge Smith jumped in to challenge Cooper on this point, too. He noted that California domestic partnership laws provide same-sex couples with all the same benefits and rights to marriage, including those involving child-rearing. What is the rational reason for denying same-sex couples the designation of the word marriage, he wondered.

Judge Hawkins challenged Cooper to explain how California’s same-sex marriage ban is different from Colorado’s Amendment 2 which said no law could prohibit discrimination based on sexual orientation. The Supreme Court struck down Amendment 2 in Romer v. Evans, saying that the only reason for the law was animus against gay people and that laws may not be justified by animus.

Cooper argued that Amendment 2 had been a “sweeping” denial of protections to gay people, in banking, employment, housing, commercial transactions, and many other areas of life. Proposition 8, he said, was focused just on marriage. And, in marriage, said Cooper, society had an interest to protect unrelated to animus against gay people, and that interest is promoting responsible procreation.

Therese Stewart, the openly gay Chief Deputy City Attorney for San Francisco, tackled that argument head-on, by noting that same-sex couples “do procreate—not in same way [as heterosexual couples], but they do procreate.”

Gay legal activists seemed pleased with how the arguments went Monday.

Evan Wolfson, head of the national Freedom to Marry organization, said that, overall, he thinks “it looks promising, both on standing and on the merits.”

Shannon Minter, senior counsel for the National Center for Lesbian Rights, agreed, saying he was especially encouraged that “at least two of the judges seemed highly critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.” And Ted Olson, he said, “was particularly eloquent and urged the Court to reach the broad question of whether same-sex couples have a fundamental right to marry.”

Jenny Pizer, head of Lambda Legal Defense’s Marriage Project, said she wouldn’t be surprised if the panel’s eventual ruling includes “multiple decisions” on how they reached the same outcome “with different reasonings.”

“And if they conclude Prop 8 is invalid while disagreeing about the details of why,” said Pizer, “that may be just fine.”

The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court—during its almost inevitable appeal—would be 2012.

Two more DOMA court challenges filed; five cases now pending

Two civil rights law firms on Tuesday announced the filing of two major lawsuits aimed at taking down the federal Defense of Marriage Act.

Mary Bonauto
Mary Bonauto

Two civil rights law firms on Tuesday announced the filing of two major lawsuits aimed at taking down the federal Defense of Marriage Act (DOMA). That brings to five the number of federal lawsuits now challenging the law banning recognition of same-sex marriage by the federal government.

The ACLU’s National LGBT Project filed suit in the U.S. District Court for the Southern District of New York to challenge DOMA’s treatment of Edie Windsor, the spouse of the late Thea Spyer, following Spyer’s death. The women had been together as a couple for 44 years and obtained a marriage license in Toronto, Canada, in 2007. Spyer died in 2009, following a long illness. But because DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not able to claim the estate tax deduction available to the spouses of straight married couples. The lawsuit is Windsor v. U.S.

Gay & Lesbian Advocates & Defenders (GLAD) filed suit in the U.S. District Court for the District of Connecticut on behalf of three lesbian couples and one gay man whose spouse recently passed away. The plaintiffs hail from Connecticut, Vermont, and New Hampshire. (Two other couples are to be added as plaintiffs at a later date—both from Connecticut.) This latest lawsuit, Pederson v. OPM, is similar to another, Gill v. OPM, that is on appeal to the 1st Circuit U.S. Court of Appeals. Both lawsuits argue that Section 3 of DOMA—which limits the definition of marriage for federal purposes to one man and one woman—violates the plaintiffs rights to equal protection of the law and is an improper intrusion of the federal government into state marriage laws.

Both organizations announced their lawsuits at 11 a.m. EDT Tuesday—the ACLU at the Gay & Lesbian Community Center in New York City, and GLAD at a hotel in Hartford, Connecticut.

Mary Bonauto of GLAD said her organization wants to “keep the pressure” on efforts to challenge DOMA and the harms it causes same-sex couples. She noted that the Pederson case, filed in Connecticut, would be appealed to a different circuit than the Gill case in Massachusetts. Pederson would be appealed to the 2nd Circuit; Gill has been appealed to the 1st Circuit. (New Hampshire is part of the 1st Circuit, noted Bonauto, but GLAD included a couple from that state because they were able to marry there beginning only this year, after the Gill case had already been filed.)

Edie Windsor lost her partner of 44 years, Thea Spyer, when Spyer died at age 77 in February of last year. Spyer had suffered for many years from multiple sclerosis. The two were married two years earlier in Toronto, and their relationship was the subject of a touching 2009 documentary, Edie and Thea: A Very Long Engagement, that has won numerous awards.

The two lawsuits filed today are now part of a five-lawsuit assault on DOMA. In addition to the two GLAD cases and the one filed today by the ACLU, the Commonwealth of Massachusetts’ case, Massachusetts v. HHS, challenges DOMA as a violation of the 10th amendment right of states to regulate such matters as marriage. And Lambda Legal Defense and Education Fund is representing a lesbian attorney who works for the 9th Circuit U.S. Court of Appeals to secure health benefits for her same-sex partner the same as are provided to attorneys married to opposite-sex spouses. That case is Karen Golinski v. OPM is waiting to be heard in the U.S. District Court in San Francisco.

In a politically controversial, yet expected, move, the Obama Department of Justice in October appealed both cases to the 1st Circuit.

In a strange twist, a Republican member of Congress filed a motion to intervene in the case to defend DOMA. Rep. Lamar Smith of Texas said the Obama administration’s defense of the law thus far had been “anemic arguments” and “faint-hearted advocacy.” Smith quietly withdrew that motion to intervene a week after DOJ filed its appeal to the first circuit, saying he could now provide the court with his arguments via a friend-of-the-court brief.

The ACLU lawsuit seeks to have DOMA declared as a violating of equal protection and to have refunded to Windsor federal estate tax she was required to pay following Spyer’s death.

Iowa justices get the boot

All three Iowa Supreme Court justices up for retention this month have been given the boot. The vote sends a chilling message to other justices who face retention votes and must rule on the constitutionality of laws that adversely affect LGBT people.

scales

All three Iowa Supreme Court justices up for retention this month have been given the boot.

The Iowa Secretary of State website shows only 45 percent of voters said “Yes” to retention 55 percent said “No.”

The vote sends a chilling message to other justices who face retention votes and must rule on the constitutionality of laws that adversely affect LGBT people.

Chief Justice Marsha Ternus and Justices David Baker and Michael Streit agreed with a unanimous opinion of the seven-member bench that ruled in 2009 that the state constitution requires gay couples be treated the same as straight couples when it comes to marriage licensing.

The three justices issued a joint statement, saying it had been their “great privilege” to serve and that they had tried to uphold the law. They urged Iowans to support the state’s “merit selection system for appointing judges.”

“This system helps ensure that judges base their decisions on the law and the Constitution and nothing else,” said the statement. “Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”

Justices in Iowa are appointed by the governor but must stand for “retention” at the end of their first year and the end of each eight-year term. Groups unhappy with the 2009 ruling turned the retention election for into a referendum on same-sex marriage. Those groups included the anti-gay American Family Association, the Family Research Council, and the National Organization for Marriage (NOM).

The Des Moines Register reported last week that NOM has spent $200,000 in television ads to oppose the justices’ retention.

Another coalition—a bipartisan one—formed to support the justices’ retention. It was headed up by Republican former Governor Robert Ray and Democratic former Iowa First Lady Christie Vilsack.

The Register quoted a Vanderbilt University law professor last week as saying “It is virtually unheard of for a judge to lose a retention race.” In fact, noted the Register, this is the first time voters have chosen not to retain a justice.

The paper said that exit polls indicated that voters based their decision on the court’s decision in the gay marriage case.

Interestingly, noted the Register, state district court Judge Robert Hanson, who issued the initial ruling for marriage equality that led to the state supreme court appeal, was retained in voting Tuesday with 66 percent voting yes. Another judge, Scott Rosenberg, who signed a waiver that enabled one gay couple to obtain a marriage license in Iowa before Hanson’s ruling was stayed, was retained with 69 percent of the vote.

No initiatives, but marriage still an issue

There are no anti-gay initiatives or referenda on any statewide ballots November 2, but that doesn’t mean that same-sex marriages is no longer a political hot potato. Quite the contrary.

Barbara Boxer
Barbara Boxer

There are no anti-gay initiatives or referenda on any statewide ballots November 2, but that doesn’t mean that same-sex marriages is no longer a political hot potato. Quite the contrary. In several states this fall, key races are being contested in part by what position each candidate has on same-sex marriage.

And one of the nation’s most vocal anti-marriage equality organizations is funding advertising campaigns—and mobilizing socially conservative voters—in key battleground arenas, dropping millions of dollars in statewide races, to defeat same-sex marriage supporters on election day.

In California, New Hampshire, Iowa, and Minnesota, the National Organization for Marriage (NOM) is spending more than $1 million on its own and even more in partnership with other anti-gay groups.

Pro-equality gubernatorial candidates are under attack in New Hampshire and Minnesota, while three state supreme court justices have caught the ire of NOM and its allies in Iowa, and U.S. Senator Barbara Boxer is being targeted for her support of same-sex marriage rights in California.

“For the first time, NOM is, in a serious way, engaging in substantial political campaign activity—and without disclosing its donors,” said Kevin Nix, director of the Human Rights Campaign’s NOM project, a new initiative of the nation’s largest LGBT civil rights group. NOM, noted Nix, is “challenging campaign finance laws in multiple states—suing to keep their donors secret.

“Its budget went from $500,000 in 2007 to $10 million this year—a significant increase,” said Nix. “The story here is how aggressive NOM is this year and beyond.  It is the number one anti-gay group in the country right now.”

So, even though the economy, jobs, taxes, and health care reform loom as over-riding concern for Americans going into the mid-term elections, social and religious conservatives are still trying to gain traction with the same-sex marriage as wedge issue.

In Iowa, NOM has already allocated $435,000 for television ads, according to state campaign disclosure reports, urging voters to oust three state Supreme Court justices, who ruled in favor of marriage equality, a 2009 decision that was unanimous.

NOM leader Brian Brown said his organization is “throwing every penny we have” into Iowa. In an October 21 fundraising appeal, he also pledged to build “the largest single get-out-the-vote effort by a social-conservative organization in history.” And nationwide, he added, “We will call 7.4 million households identified as conservative and make sure they get to the polls.”

The focus for NOM in Iowa is a routine vote—taken on a rotational basis—on whether members of the state Supreme Court can serve another eight-year term. But the outcome in Iowa’s “justice retention” vote this year has become a tossup, according to a Des Moines Register. The Register polled 550 likely voters from September 19 through 22 and found that only 45 percent of voters were prepared to vote “Yes” to all three justices, while 40 percent were planning to vote to remove all three, and 16 percent say they want to retain only some.  In addition, more than one-fourth likely voters are either undecided or say they will not vote on retention.

But the closeness of the retention battle is already a cause for alarm among legal observers and LGBT civil rights groups.

“Those poll numbers are stunning,” said Brian T. Fitzpatrick, a Vanderbilt University associate law professor, who has who has followed the battle. “It is virtually unheard-of for a judge to lose a retention race,” he also told the Register.

Justices on the ballot include Chief Justice Marsha Ternus and Justices David Baker and Michael Streit. While all three have vowed not to campaign formally, Ternus has said in speeches that judges under political pressure are less likely to be fair and impartial, according to the Register.

And NOM has help in Iowa. The Washington, D.C.-based Family Research Council and the Tupelo, Mississippi-based American Family Association, among other right-wing groups, are set to hold twenty events across the state to rally voters against retaining the justices. The Iowa Independent reports the AFA has promised $200,000 to retention battle, which falls under the group Iowa for Freedom campaign.

In New Hampshire, NOM is spending $425,000, according to local media reports to “hold [incumbent] Gov. John Lynch  [a Democrat] accountable for his abysmal record as governor,” namely his signing a same-sex civil marriage bill into law. The most recent public opinion polling shows Lynch leading his Republican opponent by ten points.

In California, a NOM press release announced a $1 million bus tour to promote the election of the Republican candidate for the U.S. Senate, Carly Fiorina. Fiorina is in a tight race with the incumbent Democrat, Barbara Boxer. NOM also spent $220,000 in California for television ads and expenditures, according the Federal Election Commission. And NOM has invested about $172,000 on television ads critical of Boxer to be broadcast on Spanish-language television stations, according to Southern California Public Radio.  Boxer supports marriage equality while her opponent “believes in the sanctity of a marriage between a man and a woman,” but supports equal benefits for gays through civil unions.

NOM is also very active in Minnesota. Last May, the organization said it would spend $200,000 in Minnesota media buys and coordinate them with the Minnesota Family Council. Since then, NOM has run four sets of television ads to let “the voters of Minnesota to know the facts about their rights and where the candidates stand on marriage.”  But so far NOM has refused to say how much it has spent.

“NOM sees Minnesota as the next key battleground state in the fight to preserve marriage in America,” said Brown in a press statement this spring, adding, “Many Minnesotans are unaware that special interest groups are working to convince activist judges and DFL lawmakers to redefine marriage in the state.”

Earlier this year, same-sex marriage became a hot button issue in Minnesota when lawmakers held the first-ever hearings on a marriage equality bill. And the real possibility of same-sex marriage being adopted through the legislative process with the election of a pro-equality governor irritated social conservatives.

Democrat-Farmer-Labor Party candidate Mark Dayton and the Independent Party’s Tom Horner have said they would sign a same-sex marriage into law if the legislature approved such a bill. But Republican Tom Emmer says he would veto it.  Polling shows Dayton leading but the race is close.

Religious conservatives jumped into the fray, too.  Catholic Archbishop John C. Neinstedt distributed a DVD to more than 400,000 of Minnesota Catholics in defense of traditional marriage.

Without mentioning any gubernatorial candidates by name, Neinstedt urged Catholics to political action to block same-sex marriage.  Many Minnesota Catholics, particularly Democrats, resent being told how to vote for governor and are unhappy that NOM and the Knights of Columbus, a Catholic fraternal organization, support what they perceive to be a blatantly political play by their church.

“We are just astounded,” said lifelong Catholic Darlene White of Edina, a suburb of Minneapolis, “at how low members of the hierarchy can step to retain power.”

GOP “Pledge” honors only “traditional marriage”

Republicans in the U.S. House of Representatives revealed their “Pledge to America,” and it includes a pledge to “to honor families, traditional marriage, life, and the private and faith-based organizations that form the core of our American values.” That reference to traditional marriage was too much for most LGBT leaders and too little for right-wing conservatives.

John Boehner
John Boehner

Republicans in the U.S. House of Representatives revealed their “Pledge to America” Thursday, September 23, and it includes a pledge to “to honor families, traditional marriage, life, and the private and faith-based organizations that form the core of our American values.” That reference to traditional marriage was too much for most LGBT leaders and too little for right-wing conservatives.

The document, unveiled by House Minority Leader John Boehner, is essentially a campaign tool—part of the GOP’s effort to win a majority of seats in the House, where polls show they currently have the better likelihood, compared to the Senate. It is inspired by its predecessor, “Contract with America,” that was issued to help Republicans take back the House in the 1994 elections.

The difference in this year’s document is the promise to “honor…traditional marriage.” The 1994 Contract had no similar statement.

That statement, said Fred Sainz, a spokesman for the Human Rights Campaign, the preeminent LGBT lobby group on Capitol Hill, signals that Republicans “clearly are not going to be supportive of any form of relationship recognition—civil unions, domestic partnerships, or marriage.”

“On the whole,” he said, the Pledge is “very bad for LGBT people.”

“It is the same tired conservative agenda that drove our nation backward, not forward,” said Sainz.

National Stonewall Democrats leader Michael Mitchell agreed.

“For anyone who believed a few weeks ago that the GOP was thawing when it comes to LGBT rights, especially marriage rights, this document is a great object lesson in the lengths the Republicans will go in order to exclude millions of LGBT Americans from their stated vision of ‘greater liberty and wider opportunity’.”

“This Pledge to America is nothing but recycled talking points about policies that have failed again and again and that fail to recognize the greatness of fair-minded Americans,” said Mitchell.

But R. Clarke Cooper, executive director of Log Cabin Republicans, said the Pledge includes “important pro-equality language.”

“It states, ‘We pledge to advance policies that promote greater liberty, wider opportunity, a robust defense, and national economic prosperity’,” noted Cooper. But, he noted, “the Republican party, like the Democratic party, remains on a journey toward completely embracing marriage equality.”

“If there is any silver lining in it,” said HRC’s Sainz, “it’s that there’s no mention of a federal marriage amendment. That’s a victory. There’s no mention of [opposition to] Don’t Ask, Don’t Tell repeal. That’s also a victory.

“But make no mistake about it,” said Sainz. “Under a Republican Congress—Senate or House—LGBT equality legislation will never see the light of day.”

The Pledge also makes not that Republicans would like to eradicate the so-called “marriage penalty” in their taxes.

According to the document, 35 million married couples will pay an average of $595 more in taxes next year “due to a reinstatement of the marriage penalty.” The document says this is because of a $3.8 trillion tax hike that is due to go into effect January 1.

But M.V. Lee Badgett, director of the Center for Public Policy and Administration at the University of Massachusetts-Amherst, notes that many gay married couples suffer an even larger marriage penalty.

According to her recent analysis of federal income taxes paid by same-sex couples in Massachusetts, where they can obtain marriage licenses, 66 percent of gay couples pay an average of more than $2,325 more in taxes because they are not allowed to file federal taxes as “married filing jointly.”

Another 11 percent of same-sex couples would see no change in their federal taxes if they could file married filing jointly. And 23 percent would end up paying about $500 more if they filed as such.

The Pledge makes no mention of the inequity in taxes for married same-sex couples.

Although House Democrats have not staged a press conference, the Democratic Party does have, on its website, a document entitled “What We Stand For.” Under the topic of “Civil Rights,” the post says “Democrats are committed to” enacting the Employment Non-Discrimination Act and repealing the military’s Don’t Ask, Don’t Tell policy “in a sensible way.” It also promises to ensure “civil unions and equal federal rights for LGBT couples, as well as fully repealing the Defense of Marriage Act.”

Rea Carey, head of the National Gay and Lesbian Task Force, said her organization urges “all of our country’s political leaders to support the fundamental rights, dignity and equality of all people.”

“That’s the type of agenda they should be promoting,” said Carey, regarding the GOP Pledge to America. “That’s the type of agenda that celebrates the ideals of America. That’s the type of agenda that will make our country stronger.”

CBS News reported Thursday that some House Republicans, including Republican Conference Chairman Mike Pence of Indiana tried to have the Pledge include a statement supporting the Defense of Marriage Act. CBS said that effort failed. Family Research Council President Tony Perkins issued a statement expressing “disappointment” that the Pledge did not include more specifics, such as support for DOMA.

Kagan’s recusals — potential barrier to pro-gay rulings

At first glance, it might draw a yawn: Elena Kagan, the U.S. Supreme Court’s newest member, has recused herself from some upcoming cases. But ruminate for a few minutes over this list of cases that could be before the court within a few years.

Elena Kagan
Elena Kagan

At first glance, it might draw a yawn: Elena Kagan, the U.S. Supreme Court’s newest member, has recused herself from some cases that are coming before the court. But have a cup of coffee and ruminate for a few minutes over this list of cases that could very well be before the nation’s highest court within a very few years:

Perry v. Schwarzenegger, Gill v. Office of Personnel Management, Massachusetts v. Health and Human Services, Log Cabin Republicans v. U.S., and Witt v. U.S.

If Kagan recuses herself from any of these cases, the probability for a tie is the best the LGBT community can hope for in any of these cases. Rather than pinning hopes on Justice Anthony Kennedy to serve as a swing vote to victory, pro-gay attorneys will be desperate to persuade Kennedy in order to maintain a status quo.

When there’s a tie in the Supreme Court, the lower court ruling stands but applies only to that federal circuit.

So, if the 9th Circuit agrees with District Court Judge Vaughn Walker that California’s same-sex marriage ban is unconstitutional and the Yes on 8 supporters of Proposition 8 appeal to the Supreme Court, the best gay civil rights supporters could hope for—given the current ideological make-up of the court—is to preserve the 9th Circuit ruling for the nine 9th Circuit states.

On the other hand, if the 9th Circuit should disagree with Walker’s ruling, perhaps the worst outcome would likely be that banning same-sex marriage would be considered constitutional in only those nine states.

Kagan, and other justice, also have the option of recusing themselves from votes about whether to take a case for appeal. It takes four justices to agree to an appeal before the Supreme Court will hear it. So Kagan’s vote is also critical to whether the high court will even hear a case brought by a pro-gay advocate.

The number of Kagan recusals for this term has gained notice in several law-oriented blogs. As the Blog of the Legal Times (BLT) noted September 10, Kagan has, thus far, recused herself from 21 of the court’s current 40 cases for the session that begins October 4.

As BLT noted, Kagan said during her confirmation hearing this summer that she would recuse herself from any case in which she “personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position.”

The BLT says the recusals seem to suggest Kagan has made “a determination that her participation at earlier stages [in litigation]—even where her office [as U.S. Solicitor General] did not file a brief—required her to step aside.”

So far, no gay-related case is among the 21 Kagan has recused herself from. But from testimony during her confirmation hearing and elsewhere, one might surmise that Kagan could well decide to recuse herself from the two Defense of Marriage Act (DOMA) cases in Boston and the Don’t Ask Don’t Tell (DADT) case Witt v. U.S. In response to a question during her confirmation hearing, Kagan said she had not been a decision-maker on the DOMA cases because the Solicitor General’s office does not get involved in cases until they reach the federal appeals level. The two DOMA cases were in the district court level during Kagan’s tenure as Solicitor General.

But Kagan acknowledged, during her confirmation hearing, that she participated in discussions on whether to appeal the preliminary ruling in Witt.

For the current term, Kagan has not recused herself from Snyder v. Phelps, a case in which the court is being asked whether a protester has a First Amendment right to use a private funeral service as a staging ground for his or her hate speech against gays.

The family of Matthew Snyder, a Marine killed in Iraq, is bringing their appeal during the court’s first week in session. The Snyders say that the Westboro, Kansas, anti-gay group led by Fred Phelps violated their right to privacy when it held signs saying such things as “God Hates Fags” at their son’s funeral. (There was never any information or suggestion that Matthew Snyder was gay.)

The 4th Circuit U.S. Court of Appeals ruled that Phelps’ anti-gay messages—on placards and a website—are protected speech. The fact that the high court decided to hear the case indicates that at least four of the nine justices believe that ruling may have been in error. The case was accepted for review before Kagan joined the court. It is slated for oral argument on October 6.

Schwarzenegger under pressure from Republicans to defend Prop 8

Supporters of Proposition 8 this month conjured up the ghost of Ronald Reagan to defend the voter-approved state constitutional amendment banning same-sex marriage. But, so far, it hasn’t worked.

Arnold Schwarzenegger
Arnold Schwarzenegger

Supporters of Proposition 8 this month conjured up the ghost of Ronald Reagan to defend the voter-approved state constitutional amendment banning same-sex marriage. But, so far, it hasn’t worked.

The Pacific Justice Institute, a conservative legal group, failed September 1 to get a California appeals court to force current Governor Arnold Schwarzenegger and Attorney General Jerry Brown to sponsor an appeal of the federal district court decision that struck down California’s same-sex marriage ban.

The 3rd Appellate District of California summarily dismissed the lawsuit, Beckley v. Schwarzenegger, without comment. The Pacific Justice Institute (PJI) appealed this decision to the California Supreme Court this week.

Brown and Schwarzenegger have until September 11 to enter a state-sponsored appeal in the 9th Circuit U.S. Court of Appeals of the landmark Perry v. Schwarzenegger decision. Brown has made clear he would not defend the law.

In response to U.S. District Court Judge Vaughn Walker’s decision in Perry, Schwarzenegger issued a statement saying the “decision affirms the full legal protections and safeguards I believe everyone deserves.” Two days later, he issued another statement, urging the judge not to delay enforcement of the decision, saying his administration “believes the public interest is best served by permitting the Court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California.”

“Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect,” said the statement.

But Schwarzenegger has twice vetoed bills from the legislature that sought to allow marriage licenses for same-sex couples, and the Republican Caucus of the California Assembly sent a letter to him August 31, pressuring him to defend Proposition 8.

“The importance of this court case to millions of Californians and indeed to countless other Americans cannot be overstated,” stated the letter. The legislators, like the PJI, argued that the governor’s failure to appeal the decision would jeopardize the “rule of law.”

PJI put it much more dramatically, saying that, by refusing to defend Proposition 8 in court, Attorney General Jerry Brown is creating a “dictatorial precedent whereby he could simply refuse to defend a law in court for which he does not agree.” This, said the PJI, would make the attorney general “more powerful than the legislature, the governor, and the people.”

“We are witnessing what is essentially a coup,” said PJI.

In his brief, PJI attorney Kevin Snider included an affidavit from former U.S. Attorney General Edwin Meese stating, under oath, “Governor Reagan understood it to be his sworn duty to defend all laws and constitutional provisions of the State of California.” He also said Reagan, as governor, “never refused or declined to defend a state law or state constitutional provision, regardless of his own opposition or dislike for a challenged provision.”

The claim may not be untrue, but it ignores the well-known fact that Reagan opposed the 1978 Briggs Initiative that sought to ban gay people from teaching in public schools. And it ignores the irony that Reagan appointed Walker to his federal bench seat at Meese’s recommendation, according to the conservative Cato Institute.

And it ignores the reality that Governor Ronald Reagan criticized the California initiative process when voters rejected a proposition to reduce state income taxes. In an op-ed piece for the National Review in 1973, Reagan sounded very much like marriage equality supporters in 2008. He said opponents of the initiative to reduce taxes had waged a “campaign of distortion and falsehood” against the measure and that many people who voted “no” were “confused by the TV blitz and newspaper advertising campaign staged by the opposition.”

“It was a victory for political demagoguery,” wrote Reagan, “a triumph for the unsubstantiated charge that sounds convincing in a thirty-second television commercial but which does more to confuse than inform.”

Most political observers seem to think there is very little chance Governor Schwarzenegger will involve his administration in the 9th Circuit appeal of Walker’s decision on Proposition 8. The Sacramento Bee newspaper quoted a spokesman for the governor, Aaron McLear, as saying—in response to the Republican caucus letter—that the governor “”has been and will remain neutral in this case.”

Meanwhile, the Yes on 8 coalition’s appeal brief to the 9th Circuit is due September 17. A three-judge panel will hear the appeal—nd the question of whether Yes on 8 has standing to bring the appeal—during the week of December 6.

9th Circuit extends stay, expedites appeal

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional.

scalesA three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday, granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. It also ordered, without being asked, that Yes on 8’s appeal of the Perry v. Schwarzenegger ruling be addressed by the court on an expedited basis.

The panel said it would hear arguments on appeal during the week of December 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.

The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired—at 5 p.m. Pacific time on Wednesday.

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.

Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.

In a dramatic 136-page ruling on August 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay—or delay enforcement—of his decision until August 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.

Evan Wolfson, who was a lead attorney on the first same-sex marriage case—in Hawaii in 1996—called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”

“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.

“The 9th Circuit panel includes two Clinton appointees—Judge Sidney Thomas and Michael Hawkins—and Reagan appointee, Edward Leavey.

The panel set September 17 as the date Yes on 8’s initial argument brief is due.

The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due October 18. And Yes on 8 may reply to plaintiffs’ brief by November 1.

Today’s order means the same-sex marriage ban will stay intact for at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.

Meanwhile, on the east coast, where U.S. District Court Judge Joseph Tauro ruled—in two separate cases—July 9 that the ban on federal benefits to same-sex couples—part of the Defense of Marriage Act—is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.

Judge gives six more days on delay for Prop 8 appeal

There were cheers outside San Francisco City Hall as news emerged that Judge Vaughn Walker had denied a request to delay enforcement of his ruling against Proposition 8. But those cheers were mitigated when details of the judge’s order were revealed: Walker continued to delay enforcement of his decision until August 18.

Judge Vaughn Walker
Judge Vaughn Walker

There were cheers outside San Francisco City Hall at 12:24 Pacific time Thursday afternoon as news emerged that U.S. District Court Judge Vaughn Walker had denied a request to delay enforcement of his ruling against Proposition 8. But those cheers were mitigated a few minutes later when details of the judge’s order were revealed: Walker continued to delay enforcement of his decision until August 18, giving the Yes on 8 supporters of the measure ample time to seek a stay from the 9th Circuit or even the U.S. Supreme Court, if necessary.

The order essentially “split the baby”—giving both sides of the same-sex marriage lawsuit something. Attorneys challenging the anti-gay marriage constitutional amendment wanted Walker to deny the stay and bar the government from enforcing Proposition 8 immediately. Attorneys defending Proposition 8 wanted Walker to grant an extended stay until the 9th Circuit U.S. Court of Appeals could rule on the merits of the case.

Many same-sex couples—who had gathered outside San Francisco city hall and elsewhere around the state since before dawn—attempted to apply for marriage licenses following news of Walker’s order, but news reports from CBS and others indicated that city officials were not yet processing the applications, saying they had not yet received Walker’s ruling.

Parties interested in Proposition 8, which was passed by voters in November 2008, have been waiting since August 4, when Walker issued his ruling that the voter-passed amendment to the state constitution violated the federal constitution’s guarantees of equal protection and due process. Immediately after issuing that ruling, Walker granted a request for a temporary stay—meaning he would not officially “enter” his judgment in Perry v. Schwarzenegger until he had a chance to consider the request for an extended stay.

Many observers believed Walker would issue an extended stay pending a 9th Circuit ruling in the case. But last week’s decision by California Governor Arnold Schwarzenegger and Attorney General Jerry Brown to oppose a stay was seen by many as tipping the balance in favor of denying the extended stay.

Judge Walker’s decision on the merits of the case and on whether to limit the stay until August 18 are likely to be the final words. Attorneys for Yes on 8 have already begun the process of appealing the merits of the decision; they are likely today to appeal Walker’s ruling concerning a stay.

Prop 8 update – a triple waiting game

The waiting game around the Proposition 8 challenge in a federal court in San Francisco grows curiouser and curiouser.

U.S. District Court Judge Vaughn Walker has issued his decision in the case. Now, people interested in the case are waiting again—this time, for Judge Walker’s decision on whether to approve a permanent “stay” until the 9th Circuit U.S. Court of Appeals can weigh in on the merits of the case.

Jon Davidson
Jon Davidson

The waiting game around the Proposition 8 challenge in a federal court in San Francisco grows curiouser and curiouser.

U.S. District Court Judge Vaughn Walker has issued his decision in the case. On August 4, he said the voter-approved amendment to the state constitution that barred same-sex marriages in California is unconstitutional. He said it violates the federal constitution’s guarantees of equal protection and due process. He also issued a temporary “stay”—or delay of the enforcement of his decision.

Now, people interested in the case are waiting again—this time, for Judge Walker’s decision on whether to approve a permanent “stay” until the 9th Circuit U.S. Court of Appeals can weigh in on the merits of the case.

That decision—on whether to extend the stay on when to make his ruling enforceable—could come any day now. Some thought it might come as early as Friday, when briefs were due from attorneys challenging Proposition 8. Those attorneys—from the Ted Olson-David Boies legal team and the city of San Francisco—did not support a stay.

But the bigger surprise Friday was that California Governor Arnold Schwarzenegger and state Attorney General Jerry Brown also opposed the stay. Schwarzenegger had twice vetoed bills from the legislature that sought to allow marriage licenses for same-sex couples. As governor, he and the attorney general are, technically speaking, the defenders of the state constitution, including Proposition 8. In court, they were identified as the defendants.

In the Perry v. Schwarzenegger lawsuit, however, the state declined to defend Proposition 8. And in the governor’s brief concerning the stay, his attorneys say there is no burden on the state to implement Walker’s ruling now and that “implementing the Court’s order now, without further delay, serves the public interest.” A briefer document from Attorney General Brown essentially agrees.

If Walker denies the request for the extended stay, then same-sex couples can begin seeking marriage licenses again in California—at least until a higher court reverses Walker’s ruling—something that may or may not happen.

Jon Davidson, legal director for Lambda Legal Defense and Education Fund, told reporter Karen Ocamb (at LGBTPOV.com) that Schwarzenegger and Brown’s filings opposing a stay “have dramatically changed the likelihood” that Walker will grant the stay.

“This is an unusual situation,” said Davidson, because the state, which Walker’s ruling orders to stop enforcing Proposition 8, has asked Walker to deny the stay.

More importantly, noted Davidson, the Olson-Boies team and San Francisco argue that Yes on 8 may have no right to appeal Walker’s ruling.

When the California government declined to defend Proposition 8, Yes on 8, the coalition that campaigned for the amendment, took over that role. Yes on 8 was identified in court as “defendant-intervenor” and “proponents.”

Because the government-defendants, California’s government, are apparently not going to appeal Walker’s decision, said Davidson, “there will be a legal question of whether, when those who are ordered to do something don’t appeal, someone not ordered to do anything has any right to appeal.”

“To understand this,” Davidson told Ocamb, “one has to appreciate a few things about federal courts.”

“Federal courts can only hear cases where there is what’s called a ‘case or controversy’,” explained Davidson. So, to have an appeal heard, the party that requests the appeal must show that it has a “direct stake in the outcome” of the appeal decision. And, said Davidson, it must also show that it has been “injured” by the lower court ruling in a “concrete manner that is particularized to that party and different from citizens at large who may not like the judge’s ruling.”

In a case involving Arizona’s constitutional amendment declaring English the ‘official language’ of the state, noted Davidson, the U.S. Supreme Court said it had “grave doubts” about whether proponents of that ballot initiative could appeal lower court decisions that found the initiative unconstitutional. The Arizona government did not appeal. In that case, Arizonans for Official English v. Arizona, the Supreme Court, in 1997, decided the case on other grounds, “but its comments,” said Davidson, “strongly indicate that the proponents may have no right to appeal if the other defendants do not.”

“A definitive ruling on whether the proponents have a right to appeal if the defendants do not,” said Davidson, “is not likely to be made in connection with” the ruling about the Proposition 8 stay. But, he said, “Judge Walker or a higher court may comment on the issue” and “…if [Yes on 8 has] no right to appeal, they obviously can’t show they likely would prevail on an appeal.”

So, if the California government—the defendants—do not appeal Walker’s ruling on the merits of the case within 30 days from the day the judge actually “enters” his judgment in the case (which has not yet happened), “then the plaintiffs and San Francisco could file a motion to dismiss the appeal that has already been filed by [Yes on 8] on the ground that the proponents have no right to appeal.”

Therefore, three issues are now in waiting: whether Walker will issue a more extended stay, whether the government will file an appeal on the merits, and whether the 9th Circuit will take the appeal filed by Yes on 8.

If the 9th Circuit does take Yes on 8’s appeal, it will first be heard by a three-judge panel and then, almost certainly, by the 9th Circuit sitting en banc. While, in some circuits, sitting en banc means every judge of the circuit hears the case, in the 9th’s unusually large circuit, said Davidson, it means “a panel of 11 randomly assigned” judges.

If the 9th Circuit refused to hear an appeal from Yes on 8, the group could appeal to the U.S. Supreme Court. The group, said Davidson, “could ask the Supreme Court to decide whether they have a right to appeal. ”

“If the Supreme Court declines to hear that,” said Davidson, “the case is over. If the Supreme Court agrees to consider the question, it could decide that [Yes on 8 has] no right to appeal and, again, the case would be over.”

But if the Supreme Court said Yes on 8 does have a right to appeal, said Davidson, it would “likely” send the case back to the 9th Circuit for three judges to rule on the merits of the appeal, “resulting in a delay of the final determination of the validity of Prop 8 for some time.”

Davidson said that, even if Walker does deny Yes on 8’s request for a stay, he could extend his temporary stay for a brief period of time (a week or so) in order to give the proponents time to ask for a stay from the Ninth Circuit while there’s a temporary stay in place.

“The Ninth Circuit would then apply the same test as Judge Walker did in deciding whether or not to issue a stay of Judge Walker’s order pending the appeal,” said Davidson. “If they deny a stay as well, the proponents could ask Supreme Court Justice Anthony Kennedy (who reviews such matters arising out of the Ninth Circuit) to issue a stay pending the appeal. If he also denies a stay, the proponents could seek a stay from the full Supreme Court.”

Meanwhile, at least a couple of dates are penciled in. The 9th Circuit has given Yes on 8 until November 12 to file its appeal brief, and given the plaintiffs until December 13 to file their response. Davidson said Yes on 8 would then have until January 12 to file any brief in response to plaintiffs.

Any oral argument of the appeal, said Davidson, would “not likely” happen until late 2011.

“It is not unusual for it to take more than a year from the date of argument until the appeal is decided by the Ninth Circuit,” said Davidson. “Once the case is decided, the losing party can seek review” en banc, and “that could add another year or more before the case is even in a position for a party to seek Supreme Court review.”

“Thus, if the appeal is not dismissed, it is possible that a request to the Supreme Court to hear the case might not even have been made by the time of the November 2012 elections,” said Davidson. “If an effort to repeal Prop 8 is made that year and succeeds, it could ‘moot’ the case (meaning that there would no longer be any “live” dispute because Prop 8 would no longer be in effect) and the appeal could be dismissed for that reason.

Walker: Same-sex marriage ban is ‘an artifact’ of the past

In an historic, potent, and eloquent decision, U.S. District Court Judge Vaughn Walker ruled Wednesday, August 4, that California’s constitutional amendment banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law.

Judge Vaughn Walker
Judge Vaughn Walker

In an historic, potent, and eloquent decision, U.S. District Court Judge Vaughn Walker ruled Wednesday, August 4, that California’s constitutional amendment banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law. The opinion represents the first major victory for legal challenges against state bans on same-sex marriage in any federal court.

“Race and gender restrictions shaped marriage during eras of race and gender inequality,” wrote Walker, in his 136-page opinion, “but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

“[T]he exclusion [of same-sex couples from marriage] exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” wrote Walker. “That time has passed.”

A few minutes after issuing the decision, Walker also approved a temporary stay of its impact and gave attorneys challenging Proposition 8 until August 6 to submit their reasons for opposing the continuation of the stay until a federal appeals court can weigh in on the case.

The decision in Perry v. Schwarzenegger, which has been much anticipated by both sides of the same-sex marriage debate, says supporters of the November 2008 ballot measure failed to establish any rational reason for prohibiting same-sex couples from having marriage licenses.

Judge Walker, an appointee of Republican President George H.W. Bush, said Proposition 8, because it burdens the fundamental right to marry, must pass the most difficult judicial standard—known as strict scrutiny. But he said the law failed to pass even the simplest standard—that of identifying at least one rational reason for treating a group of people differently.

“Even if California had an interest in preferring opposite-sex parents to same-sex parents,” wrote Walker, “…Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.”

Shannon Minter, legal director for the National Center for Lesbian Rights, called the decision “a tour de force—a grand slam on every count.”

“The court held that Prop 8 violates the fundamental right to marry and discriminates on the basis of both sex and sexual orientation in violation of the equal protection clause.”

“The court,” said Minter, “held that laws that discriminate based on sexual orientation must be subject to the highest level of constitutional review, but that Prop 8 would fail even the lowest test, because it is based solely on moral disapproval of gay people.”

“This is without a doubt a game-changing ruling,” said Minter. “Today’s decision is the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court.”

Longtime lesbian legal activist and law professor Nan Hunter was somewhat more reserved in her reaction.

“It’s a thorough analysis and a comprehensive review of the factual and quasi-factual bases for each side’s arguments in the marriage debates,” said Hunter.

“Is it a watershed, either legally or culturally?” asked Hunter in her blog Hunter of Justice. “Too soon to know.”

Two other lawsuits challenged state bans on same-sex marriage in federal courts but both were dismissed and were not appealed.

Two federal cases challenging part of the federal Defense of Marriage Act (DOMA) won critical district court victories just last month in Boston and both are expected to be appealed to the 1st Circuit U.S. Court of Appeals. Perry and these two cases are expected to eventually reach the U.S. Supreme Court and are on track to arrive at approximately the same time.

There is little doubt that Judge Walker was keenly aware of how important his decision would be, and he seemed to make a concerted effort, during trial, to allow supporters of Proposition 8 to enter whatever evidence they could to defend the law. The State of California declined to defend the law, so the group that campaigned for the initiative—Yes on 8—hired a legal team to do so. But that legal team relied primarily on “legal conclusions and cross-examinations of some of plaintiffs’ witnesses,” noted Walker, “eschewing all but a rather limited factual presentation.”

“At trial,” said Walker, Yes on 8 attorneys, led by conservative Charles Cooper, “presented only one witness, David Blankenhorn, to address the government interest in marriage.” Walker said Blankenhorn’s testimony “provided no credible evidence to support any of the claimed adverse effects” of allowing same-sex couples to obtain marriage licenses.

Walker said, “California has no interest in differentiating between same-sex and opposite-sex unions” and that “domestic partnerships lack the social meaning associated with marriage” and do not provide gays and lesbians with “a status equivalent to marriage….”

The absence of Proposition 8 does not require any religious group to recognize marriage for same-sex couples, but the existence of “Proposition 8 places the force of law behind stigmas against gays and lesbians.” “Proposition 8 singles out gays and lesbians and legitimates their unequal treatment,” said Walker. It “perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.”

Walker agreed that gays and lesbians have “been the victims of a long history of discrimination” and that “no credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Those findings are important to establishing a requirement that Proposition 8 be able to withstand a strict judicial scrutiny.

Walker ruled that Proposition 8 violates both the due process and equal protection clauses of the U.S. Constitution’s 14th amendment. The 14th amendment states, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

When governmental law burdens a fundamental right, such as marriage, said Walker, the law must withstand strict scrutiny. And Proposition 8, he said, could not withstand even the simplest judicial review—rational basis.

“The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household,” wrote Walker. While an “initiative measure adopted by the voters deserves great respect,” said Walker, the voters’ determinations “must find at least some support in evidence.”

“Conjecture, speculation and fears are not enough,” wrote Walker. “Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.” The evidence presented at trial, he said, “demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval.”

The U.S. Supreme Court, in Romer v. Evans, ruled in 1996 that animus against any particular group could not be used to justify a law that disadvantages that group.

Yes on 8 attorneys, apparently anticipating a loss at the district court level, filed a motion with Judge Walker on Tuesday night, asking that, if the court rules against them, to issue a stay of the impact of his decision pending their expected appeal to the 9th Circuit U.S. Court of Appeals. Attorneys for the two gay couples challenging Proposition 8—Kristin Perry and Sandra Stier and Paul Katami and Jeff Zarrillo—submitted a letter, prior to release of the decision, saying the request was premature.

Judge Walker, in approving a stay of the impact of his decision, gave plaintiffs’ attorneys until August 6 to file their formal response to the request for a stay, pending a decision from the 9th Circuit. He did not schedule an in-court proceeding to hear arguments concerning the stay but simply said that the temporary stay would remain in effect until he rules on the request.

Meanwhile, pre-planned rallies to celebrate—or protest—Wednesday’s ruling were scheduled to take place in major cities across the country Wednesday evening, even before the decision was released. Rallies were planned in a number of major cities around the country following release of the decision –including Atlanta, Boston, Dallas, West Hollywood, and San Diego.

The Perry decision comes less than two months after Walker heard closing arguments in the case, but six months after the close of testimony in a three-week-long trial in the U.S. District Court of Northern California in San Francisco.

The legal team challenging Proposition 8 was led by two of the country’s most prominent and respected attorneys—conservative Ted Olson and liberal David Boies. The challenge was organized and funded by the newly formed Americans Foundation for Equal Rights, headed by Democratic activist Chad Griffin.

Griffin organized the challenge shortly after California voters, in November 2008, approved Proposition 8, amending the state constitution to bar recognition of same-sex marriage. The California Supreme Court had ruled, only six months earlier, that the state constitution required same-sex couples be treated the same as heterosexual couples in state marriage licensing. More than 18,000 same-sex couples obtained marriage licenses before Proposition 8 became law and those marriages are considered valid. Opponents of the new amendment challenged it in state court but the California Supreme Court ruled that the measure was valid. It also ruled that the 18,000 marriage licenses would also remain valid.

The case drew widespread national attention, not only because of the high profile legal team and the irony of such a conservative icon as Olson leading the case, but also because national gay legal and political groups were initially hostile to the effort. The groups said they felt a lawsuit taking the issue of same-sex marriage to the U.S. Supreme Court was too risky, given the likelihood the case would reach the high court at a time when the court is considered to increasingly conservative.

Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, and the ACLU were also denied the right to serve as a party to the case –a development that caused considerable chagrin within the LGBT community. But the groups did contribute to the litigation, providing advice on expert witnesses that delivered a wealth of ammunition against the ballot measure. All three groups filed briefs in support of the plaintiffs. And all three, of course, applauded the result of Wednesday’s decision.

Jenny Pizer, head of Lambda’s National Marriage Project, said Judge Walker’s decision was “historic,” and applauded his “methodical assessment of the evidence presented at trial.” She predicted the decision would have “immense positive implications as the case advances, and in the national struggle for full LGBT equality.”

“The right-wing excuses for denying same-sex couples the right to marry have had an all-too-familiar and ugly ring, echoing the defamatory stereotypes used against us in past decades to deny jobs and other basic rights. Today’s decision,” said Pizer, “examines and explodes each of these lies about us, yielding yet another important legal ruling justly concluding that constitutional guarantees of liberty and equality must require equal treatment under a state’s marriage laws.”

“Judge Walker’s ruling,” said NCLR Executive Director Kate Kendell, “is complete vindication for the most bedrock principles this nation is built on: a majority cannot strip a minority of fundamental rights, we do not permit bare prejudice or even discomfort to provide the basis for sweeping and damaging discrimination, and protecting loving families and couples is the humane and just thing to do. Prop 8 was a major stain on the kind of nation we strive to be, good riddance.”

James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, called the decision “a huge victory for LGBT people of America.”

“For the first time, a federal court has conducted a trial and found that there is absolutely no reason to deny same-sex couples the fairness and dignity of marriage,” said Esseks, in a statement released Wednesday. “At the same time, we know that this is not the end.”

The end, of course, could be an eventual U.S. Supreme Court decision—something that is not necessarily guaranteed. Thousands of cases are petitioned to the high court every year, but the court hears only a tiny fraction. The likelihood the court would take an appeal on this case—once the 9th Circuit appeals court has weighed in—is probably enhanced by the high profile, wide-spread fight over same-sex marriage bans nationally and by the involvement of such a high-profile and well-respected legal team as Olson and Boies. But it may also be diminished, depending on whatever the 9th Circuit says. Ultimately, at least four justices must ask to hear the case before the Supreme Court will take it for review.

Meanwhile, the expected confirmation of Solicitor General Elena Kagan to the Supreme Court is not likely to change the conservative lean of the current court, given that she replaces one of the court’s most liberal justices, John Paul Stevens.

PROP 8 DECISION: Big victory, but stayed

U.S. District Court Judge Vaughn Walker ruled Wednesday that California’s ballot measure banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law.

Judge Vaughn Walker
Judge Vaughn Walker

U.S. District Court Judge Vaughn Walker ruled Wednesday that California’s ballot measure banning same-sex marriage violates the federal constitution’s guarantees to equal protection and due process of law. A few minutes after issuing the decision, Walker also issued a temporary stay of its impact and directed attorneys challenging the initiative to respond to request by August 6.

The 136-page decision, which has been much anticipated by both sides of the same-sex marriage debate, says supporters of Proposition 8 failed to establish any rational or legitimate reason for prohibiting same-sex couples from having marriage licenses.

Judge Walker, an appointee of Republican President George H.W. Bush, applied simple rational basis review in making his decision. He said that, “Even if California had an interest in preferring opposite-sex parents to same-sex parents …Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law.”

“This is a tour de force—a grand slam on every count,” said Shannon Minter, an attorney with the National Center for Lesbian Rights. “The court held that Prop 8 violates the fundamental right to marry and discriminates on the basis of both sex and sexual orientation in violation of the equal protection clause.”

“The court,” said Minter, “held that laws that discriminate based on sexual orientation must be subject to the highest level of constitutional review, but that Prop 8 would fail even the lowest test, because it is based solely on moral disapproval of gay people. The court made detailed findings of fact about all of the evidence presented and the credibility of the witnesses.

“This is without a doubt a game-changing ruling,” said Minter. “Today’s decision is the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court.”

The opinion represents the first major victory for legal challenges against state bans on same-sex marriage in federal court. Two other state-related cases in federal courts have been dismissed. Two federal cases challenging part of the federal Defense of Marriage Act (DOMA) won a critical district court victory last month in Boston and are expected to be appealed to the 1st Circuit U.S. Court of Appeals. All three of these cases are expected to eventually reach the U.S. Supreme Court and are on track to arrive at approximately the same time.

Yes on 8 attorneys filed a motion with Judge Walker on Tuesday night, asking that, if the court rules against them, to issue a stay of the impact of his decision pending their expected appeal to the 9th Circuit U.S. Court of Appeals. Walker, thus far, has not responded to that request.

Meanwhile, pre-planned rallies to celebrate—or protest—Wednesday’s ruling are scheduled to take place in major cities across the country Wednesday evening. Rallies are planned in a number of major cities around the country following release of the decision—including New York (7 p.m. NYC Supreme Court), Boston (6 p.m. Copley Square), West Hollywood (6 p.m. West Hollywood Park), Dallas (6 p.m. at Legacy of Love Monument), Atlanta (7 p.m. 10th and Piedmont) and San Diego (6 p.m. LGBT Community Center).

Walker heard testimony for three weeks in January and closing arguments in June. The legal team challenging Proposition 8 was led by two of the country’s most prominent and respected attorneys—conservative Ted Olson and liberal David Boies. The challenge was organized and funded by the newly formed Americans Foundation for Equal Rights, headed by Democratic activist Chad Griffin.

Conservative attorney Ted Olson, who along with liberal attorney David Boies, led the challenge against Proposition 8, is holding a press conference in San Francisco now.

Prop 8 loss: The parents weren’t all right

Proposition 8 passed in November 2008 because parents with kids living at home were scared and the LGBT community did nothing to assuage that fear.

David Fleischer
David Fleischer

Proposition 8 passed in November 2008 because parents with kids living at home were scared and the LGBT community did nothing to assuage that fear.

That’s the conclusion of an exhaustive, 448-page analysis of the vote on California’s Proposition 8, which passed by 52 percent to 48 percent—or barely 600,000 votes in an election in which 13.7 million votes were cast.

But those 500,000 of those 600,000 votes were ready to side with the LGBT community against Proposition 8 up until the last six weeks of the campaign. During those last six weeks, explained the report’s author, David Fleischer, the Yes on 8 campaign saturated the television airwaves with advertisements that borrowed from the 30-year-old Anita Bryant “Save the Children” campaign from 1977.

The advertisements—also used successfully in 2009 in Maine—told parents that the legalization of same-sex marriage would require public schools to teach children that same-sex marriage is a viable option for them. The No on 8 campaign failed to respond directly and quickly to that claim and, thus, lost the vote.

Fleischer’s analysis—“The Prop 8 Report: What Defeat in California Can Teach Us about Winning Future Ballot Measures on Same-sex Marriage,”—was released August 3 and drives home the point that “anti-gay forces know how to exploit and stimulate anti-gay prejudice, and the LGBT community has difficulty facing and responding to the attack.”

“Recycling a lie as old as Anita Bryant’s ‘Save the Children’ campaign in 1977,” said Fleischer, “the anti-gay Yes on 8 campaign whipped up fears about kids to move voters to its side.”

Fleischer rejected analyses proffered by other political observers who suggested that African American voters had been the deciding factor in the Proposition 8 vote. He also rejected a recent analysis by political scientist Patrick Egan, who said spending large amounts of money on ad campaigns has no impact because most voters’ minds on gay ballot measures are made up long before election day.

Instead, Fleischer lays the passage of Proposition 8 at the feet of “parents with children under eighteen living at home,” saying that about 500,000 such voters switched from No to Yes on 8 in the closing weeks. And he says the No on 8’s ad campaign could have made a difference if it had responded quickly and directly to the fears parlayed by the Yes on 8 ads.

The most effective Yes on 8 ads, said Fleischer, was one showing a little girl coming home and telling her mother that she had just learned in school that a prince can marry a prince and that she could marry a princess. The narrator then claimed that, “When Massachusetts legalized gay marriage, schools began teaching second-graders that boys can marry boys.”

“The courts ruled parents had no right to object,” said the narrator.

“The lesson of the Yes on 8 campaign,” said Fleischer, is that “when parents hear that their kids are in danger, even if it’s a lie, some of them believe it—particularly when the lie largely goes unanswered.”

“Those ads are fear-mongering directed at parents to make them think their children are in danger,” said Fleischer, during a conference call with reporters Tuesday. Fleischer noted that daily polling data showed that adults with no children at home did not show any change in their plans to vote against Proposition 8 once the so-called “Princes” ad started airing, but adults with children at home changed their plans—from voting against to voting for Proposition—in dramatic numbers.

The “Princes” ad was on the air by October 7, just a week after Yes on 8 had begun airing another TV ad in which San Francisco Mayor Gavin Newsom was shown telling a crowd that gay marriage is “going to happen—whether you like it or not.”

Prior to those ads going up, said Fleischer, polling showed a virtual tie on the Proposition 8 question.

“Yes on 8’s fear-mongering about children was particularly effective because No on 8 waited seventeen of the thirty days remaining until the election was over to directly respond,” said Fleischer.

“[W]hen an anti-LGBT campaign alleging indoctrination of kids unfolds on TV; and when that campaign is well-funded enough that the average voters sees ads exploiting anti-gay prejudice five or more times each week for four to five weeks; then the ads generate, awaken, reawaken, or reinforce a response among some voters that moves them to vote against the LGBT community,” wrote Fleischer in his report.

The report can be viewed in its entirety at Prop8Report.org.

Fleischer spent many years training openly gay candidates to run for elective office, as a part of the Gay & Lesbian Victory Fund and then the National Gay and Lesbian Task Force. He notes, in the report, that he has participated in more than 100 campaigns to “preempt, stop, delay, and overcome anti-LGBT ballot measures.”

His analysis examined more than 10,000 pages of data and related documents and included more than 40 hours of interviews with No on 8 officials. Fleischer also analyzed the use and penetration of every television ad aired by both the pro- and anti-gay campaigns in Proposition 8.

Fleischer says data shows that the initiative, approved by a margin of about 600,000 votes, secured 687,000 votes in the last six weeks of the campaign. More than 500,000 of these crucial last-minute shifters were parents with children under 18 living at home.

Parents, noted Fleischer, comprised about 30 percent of the 13.7 million voters in California in November 2008. While Yes on 8 initially had only a two-point lead over No on 8 in this 4 million-strong demographic group, it had a 24-point lead on election day.

“Overall, parents with kids under 18 at home began the campaign evenly divided on same-sex marriage,” said Fleischer, “but ended up against us by a lopsided margin.”

But they weren’t the only groups to shift away from a pro-gay position.

“Other groups that moved significantly in favor of the ban on same-sex marriage included white Democrats (by 24 points), voters in the greater Bay Area (31 points), voters age 30-39 (29 points), and Independent voters (26 points).”

Fleischer criticized the No on 8 campaign for delegating “too much of the thinking and therefore too much of the de facto decision-making” to consultants. And he said its message to voters was “vague, inconsistent, and too often de-gayed, reducing its power to persuade.”

No on 8 took too long to respond to the “Princes” ad, said Fleischer, because its decision-makers “did not choose to directly respond to the attack.” There had been a change in leadership in the No on 8 campaign just a week before “Princes” began airing, and the new decisions-makers also hired a new media firm to create their ads. But their failure to act quickly and directly was hardly anything new.

“The LGBT community has historically avoided responding directly to the issue of kids,” said Fleischer, “in part out of the belief that no response will defuse the issue, and in part out of a wish not to have to face this unfair, untrue defamation.” But that failure to respond, said Fleischer, amounts to a “decision not to defend LGBT people as trustworthy.”

Ballot measures over gay civil rights issues have been taking place throughout the United States since 1974, but pro-gay ballot campaigns didn’t even use the word “gay” until 2002 and didn’t use an openly gay spokesperson until 2004.

Although acknowledging that he had not studied Maine as thoroughly as California, Fleischer also criticized the No on 1 campaign that fought an initiative to repeal the state’s marriage equality law. He said the No on 1 campaign also avoided responding directly to the “kids are in danger” ads and even avoided using the word “gay” in all but one of their own ads. Rather than respond to the Yes on 1’s claim that marriage equality would put the kids of voters in danger, noted Fleischer, No on 1 talked about the need to protect gay kids and children with gay parents.

Post-election data from Maine’s campaign—which repealed its marriage equality law in 2009—suggested the parents’ concerns there were not that kids would experiment with being gay. Instead, said Fleischer, parents were concerned their kids would accept gay couples and that other kids would be raised by gay parents.

Fleischer strongly recommended that the LGBT community not return to the ballot box “until we are prepared to vitiate this [child-related fear-mongering] attack.” He also urges future campaigns to adopt a more modern approach to campaigning—one that calls for quick, direct, and forceful responses to attacks.

Fleischer’s analysis was not entirely critical of the No on 8 campaign. He credited the campaign with enlisting a “record-breaking” number of volunteers and dollars, and making “a series of smart choices that maximized the number of dollars raised and volunteers involved.”

Kate Kendell, one of the best known No on 8 leaders, said of Fleischer’s report, “I think we need to learn all we can about how to win these campaigns and we need to digest all the info we get to do that.”

Meanwhile, Equality California, which was a key component of the No on 8 campaign in 2008, issued a press release July 20 indicating it plans to organize for a ballot measure to repeal Proposition 8 in 2012.

D.C. marriage victory: Supreme Court and Congress still loom

scalesIn yet another important win for marriage equality, the District of Columbia’s highest court ruled July 15 that the city government acted lawfully when it rejected a local minister attempt to place a referendum before voters that sought to roll back equal marriage rights for gay couples in the nation’s capital.

The ruling leaves intact marriage equality legislation, in effect in the District City Council since early March.

But the ruling may not be the end of the battle for Washington, D.C. The U.S. Supreme Court and Congress may have the final word.

There were two questions before the D.C. Court of Appeals, which is the equivalent of a state supreme court. First, whether the proposed ballot measure was discriminatory or not, and second, whether the D.C. City Council had the authority to restrict a ballot initiative that violated a provision of city’s Human Rights Act, which bans discrimination based on the basis of sexual orientation and other categories.

All nine justices of the Court of Appeals agreed on one point: The proposed ballot measure would be discriminatory. They split, 5 to 4 on the second question. Court of Appeals Associate Judge Phyllis Thompson, writing for the majority said the Council’s restriction was “not inconsistent” with the city’s charter, its equivalent of a state constitution.

Marriage equality opponents, led by Harry R. Jackson Jr., the pastor of a local church, sought the referendum and, with the aid of the conservative Alliance Defense Fund, took the battle to court. The Alliance issued a statement after the ruling, indicating it is considering whether to petition the Court of Appeals decision to the U.S. Supreme Court.

“The decision from the District of Columbia Court of Appeals means that those living in our nation’s capitol are being denied their most fundamental freedom –the right to vote,” said Alliance Senior Legal Counsel Austin Nimocks. “We are considering our options to right this wrong, which include asking the Supreme Court of the United States to consider this case.”

The dissent, which agreed in part with the Alliance, said the particular restriction on the initiative process—that no initiative have the potential to violate the city Human Rights Act—is not one explicit or even implied in the city charter.

The Human Rights Act, said the dissent, “is not part of our local ‘constitution.’” And while the charter instructs the D.C. Council to provide for a right to an initiative process, said the dissent, “It did not grant any license to restrict those rights….”

It said the D.C. Council had no authority to restrict the initiative process, as it did.

“The prospects of the Supreme Court granting a review are probably low at this stage,” said Paul Ainsworth, an associate at the law firm Covington & Burling, during a July 22 conference call with reporters. The firm filed a brief in support of the District of Columbia and other groups and individuals supporting the marriage equality law in the case.

One reason the high court is unlikely to consider any review, he said, is the D.C. Appeals Court’s “avoiding issues of U.S. constitutional law” in its opinion. The decision, Ainsworth added, focused on “the text of the District’s [Home Rule] Charter,” the equivalent of a state constitution, and “the legislative history of the Charter and amendments.”

And yet, “One question we considered,” added Covington & Burlington partner Jean Vita, “is whether there was some federal constitutional right to have an unfettered right to … participate in an initiative?” The answer to that question, she said, “I think is ‘No.’”

Still, said Ainsworth, “We’ll have to see how [the Alliance] frames the petition.”

The Alliance, Jackson, and supporters have until mid-October to file for Supreme Court review.

Meanwhile, Congressional intervention, through a variety of venues, including a D.C. appropriations bill or rider or some other piece of legislation, poses a greater threat.

“Unlike judicial review,” Ainsworth explained, “there is no expiration in Congressional control over local D.C. matters.”

The likelihood of Congressional intervention could pivot on this fall’s midterm elections.

“If the Democrats lose the House or the Senate,” the situation on Capitol Hill “could all turn around,” cautioned local gay civil rights activist Peter Rosenstein, a board member of the local advocacy group, Campaign for All D.C. Families. Rosenstein also participated in the telephone conference call.

The District “is such a different place,” he said.

D.C. is not a state but a federally controlled district, over which Congress has the authority to exercise considerable control.

Two giant blows against DOMA

In an enormous victory for same-sex marriage, a federal judge in Boston Thursday, July 8, ruled—in two separate lawsuits—that a critical part of the federal Defense of Marriage Act is unconstitutional.

Mary Bonauto
Mary Bonauto

In an enormous victory for same-sex marriage, a federal judge in Boston Thursday, July 8, ruled—in two separate lawsuits—that a critical part of the federal Defense of Marriage Act is unconstitutional.

In one lawsuit, Commonwealth of Massachusetts v. Health and Human Services, Judge Joseph Tauro, of the U.S. District Court in Boston, ruled that DOMA violated the Tenth Amendment to the U.S. Constitution by taking from the states powers that the Constitution gave to them. In the other lawsuit, Gill v. Office of Personnel Management, he ruled that DOMA violates the equal protection principles embodied in the due process clause of the Fifth Amendment in an effort to “disadvantage a group of which it disapproves.”

The Massachusetts lawsuit was led by Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, and the Gill case was led by Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders (GLAD). Bonauto and GLAD also led the landmark lawsuit that won equal marriage rights for Massachusetts couples in November 2003.

Both of the lawsuits heard by Tauro targeted Section 3 of DOMA. That section states that, for federal government purposes, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Neither lawsuit challenged the section of DOMA that enable any state to ignore valid marriage licenses issued to a same-sex couple in other states.

In ruling Section 3 of DOMA unconstitutional in Gill, Tauro stated that he could not find “any identifiable legitimate purpose or discrete objective” for DOMA to treat same-sex couples differently. DOMA, he said, “is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.”

That finding was important because, in 1996 decision, in Romer v. Evans, the U.S. Supreme Court ruled that animus cannot be used to justify a law.

GLAD legal director Gary Buseck noted that GLAD made the argument “very strongly” that DOMA was motivated by animus for gay people and that it gains considerable credibility from its confirmation by Tauro, a Nixon appointee whom Buseck describes as “very centrist and conservative.”

GLAD’s Bonauto had argued that the court should apply an even more stringent level of scrutiny—heightened scrutiny. But she said she was not disappointed that Tauro applied only rational basis in striking down DOMA.

“His ruling on rational basis alone,” said Bonauto, “is consistent with judicial minimalism in constitutional cases and deciding no more than is necessary.” Bonauto said GLAD would continue to argue for heightened scrutiny at the First Circuit, assuming the decision is appealed.

“It is a very strong opinion and very carefully reasoned,” said Bonauto, during a phone conference with reporters Thursday.

Attorney General Martha Coakley, who joined the conference call only very briefly at the beginning, called the Tauro decisions “a landmark step” for marriage equality and a “victory for civil rights in Massachusetts.”

Buseck said that, “as a technical matter,” the Gill decision involves just the eight plaintiff couples that participated in the lawsuit, though the state’s lawsuit could be seen as encompassing all gay married couples in Massachusetts. But before the ruling in either case extends beyond Massachusetts, he noted, it will require a ruling from the 1st Circuit U.S. Court of Appeals. A 1st Circuit ruling would extend to Massachusetts, New Hampshire, Rhode Island, Maine, and Puerto Rico. A U.S. Supreme decision would affect the country.

As of deadline, attorneys for the federal government on the two cases had not yet filed notice of appeal or a request that the judge stay the effect of his decision until an appeal can be decided. But the Obama administration has made clear that it intends to defend DOMA and an appeal is considered virtually inevitable.

Most legal observers believe both cases will eventually be appealed to the U.S. Supreme Court for resolution, including Supreme Court nominee Elena Kagan who, during her confirmation hearing last week, declined to respond to questions concerning DOMA, noting that cases challenging the law were “on the road” to the high court.

The only other marriage case in federal court right now is the Proposition 8 marriage case in a federal district court in San Francisco. Judge Vaughn Walker heard closing arguments in that case in June and has not yet issued his decision. That case, challenging a state law banning the right to obtain a marriage license in California as violating the equal protection, will likely be appealed to the much larger 9th Circuit, which covers California and eight western states.

Both the Massachusetts and Gill cases were argued in May, and the decisions released today are relatively quick turnarounds, given that some judges take almost a year to decide cases.

Tauro noted, in particular, that the Massachusetts case posed a “complex constitutional inquiry” about the power of the state to determine marital status versus “whether Congress may siphon off a portion of that traditionally state-held authority for itself.”

But, he concluded, “DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens” and “imposes [on the states] an unconstitutional condition on the receipt of federal funding.”

“It is a fundamental principle underlying our federalist system of government,” wrote Tauro in the Massachusetts decision, “that ‘[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.’ And, correspondingly, the Tenth Amendment provides that ‘[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’.”

Tauro also noted that the 1st Circuit U.S. Court of Appeals has upheld federal regulation of state family law “only where firmly rooted in an enumerated federal power.”

Tauro acknowledged that attorneys for the federal government argued that the authority for DOMA was grounded in the U.S. Constitution’s “Spending Clause.” That clause says Congress has the power to collect taxes and pay debts to promote the “general welfare” of the country.

But Tauro noted that DOMA goes far beyond provisions related to federal spending

“The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges,” wrote Tauro.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” concluded Tauro in the Massachusetts opinion. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.”

“By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals,” wrote Tauro in the conclusion of the Gill opinion. “To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, ‘there is no reason to believe that the disadvantaged class is different, in relevant respects’ from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

Federal Judge Rules Part of DOMA Unconstitutional

In an enormous victory for same-sex marriage, a federal judge in Boston today ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act unconstitutional.

Mary Bonauto
Mary Bonauto

In an enormous victory for same-sex marriage, a federal judge in Boston today (Thursday July 8), ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act unconstitutional.

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage—one man and one woman—violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders, a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law. Both cases were argued, separately, in May, and the decision released today is a relatively quick turnaround, given that some judges take almost a year to decide cases.

GLAD attorney Mary Bonauto told Tauro that DOMA constitutes a “classic equal protection” violation, by taking one class of married people in Massachusetts and dividing it into two. One class, she noted, gets federal benefits, the other does not. Just as the federal government cannot take the word “person” and say it means only Caucasians or only women, said Bonauto, it should not be able to take the word “marriage” and say it means only heterosexual couples. Bonauto said the government has no reason to withhold the more than 1,000 federal benefits of marriage from same-sex couples, and noted that a House Judiciary Committee report “explicitly stated the purpose of DOMA was to express moral disapproval of homosexuality.”

Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Judge Tauro that Section 3 of DOMA—the section that limits the definition of marriage for federal benefits to straight couples—violates the state’s right under the federal constitution to sovereign authority to define and regulate the marital status of its residents. Healey called DOMA an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.”

Christopher Hall, representing HHS, said Congress should be able to control the meaning of terms, such as “marriage,” used in its own statutes, and should be able to control how federal money is allocated for federal benefits provided to persons based on their marital status. Tauro essentially replied that the government’s power is not unlimited.

Both Bonauto at GLAD and Healey at the Attorney General’s office urged Tauro to apply heightened scrutiny in considering whether the federal government had any legitimate need for DOMA. Heightened scrutiny requires the government to come up with a fairly significant reason for treating gay couples differently under the law. In both cases, however, the judge said that DOMA failed to meet even the most simple judicial review, rational basis—in other words, there was no justifiable reason to the federal government to treat same-sex couples differently.

Both lawsuits are very precise legal attacks against DOMA—targeting just Section 3—and most legal observers believe both cases will eventually be appealed to the U.S. Supreme Court for resolution. The only other marriage case right now that has that same potential is the Proposition 8 marriage case in a federal district court in San Francisco. Judge Vaughn Walker heard closing arguments in that case in June and has not yet issued his decision. The next step for all three cases is the U.S. Court of Appeals.

Could victory in court mean loss in public support?

An informal survey by the Washington Post published June 18 asked a tiny number of well-placed experts—six—to say what they think will happen if federal Judge Vaughn Walker overturns California’s ban on same-sex marriage. Two of the six pointed to existing polling data to warn of the potential for a negative impact.

Patrick Egan
Patrick Egan

An informal survey by the Washington Post published June 18 asked a tiny number of well-placed experts—six—to say what they think will happen if federal Judge Vaughn Walker overturns California’s ban on same-sex marriage. Two of the six pointed to existing polling data to warn of the potential for a negative impact.

Scott Keeter, director of survey research at the Pew Research Center, said Pew’s previous polling data predicts “backlash.” Those polls, and others, have historically shown LGBT victories in court lead to an increase in public opposition to same-sex marriage. It happened after the U.S. Supreme Court struck down state sodomy laws (in June 2003). It happened after the Massachusetts Supreme Judicial Court ruled gay couples had a constitutional right to marriage equality (in November 2003). And even before Walker issues his decision, said Keeter, polls indicate the public opinion climate “remains chilly” for same-sex marriage.

Joe Mathews, a senior fellow at the New America Foundation, a political think tank, said that, while public opinion is trending in favor of marriage equality, “a divisive court decision that gets too far ahead of voters could prolong the fight over same-sex marriage for a generation or more. . . .”

“If judges strongly support overturning Prop 8 at each stage of the appeal, this emerging judicial consensus that gay-marriage bans are unconstitutional would speed acceptance of such unions across the country,” wrote Mathews. “But if Prop 8 is overturned by a narrowly and nastily divided U.S. Supreme Court, say 5 to 4, such a decision could conceivably do more harm than good.”

So, where is public opinion on same-sex marriage right now?

Two recent reports shed some light on that, and some doubt.

First, the light: The 2010 Values and Beliefs survey, which Gallup conducts every May, indicated that 52 percent of adults surveyed consider “gay and lesbian relations” to be “morally acceptable,” compared to 43 percent who said they are “morally wrong.” Five percent had no response or had some other opinion. The results were based on random telephone interviews with 1,029 adults conducted between May 3 and 6, 2010. The margin of error is plus or minus 4 percentage points.

The 52 percent saying “morally acceptable” was up three points over 2009, when 49 percent said “morally acceptable.” And the percentage saying “morally wrong” was down four points—from 47 percent in 2009 to 43 percent this year. (Five percent no opinion or other response in 2009.)

This year was the first time since Gallup began asking the question that more than 50 percent of Americans said they believe “gay and lesbian relations” are morally acceptable.

“What’s different this year is that the spread between ‘morally acceptable’ and ‘morally wrong’ is a whole lot bigger,” says Lee Badgett, a professor of Economics at UMass Amherst, and the research director at the Williams Institute for Sexual Orientation Law and Public Policy at UCLA. It was a nine-point spread this year, compared to only a two-point spread last year.

“The question is,” said Badgett, “will that turn out to be a tipping point or not?”

Gallup polling data shows the “morally acceptable” response has been on a steady trend upward since 2004. It took a six-point dive in 2004, just six months after the Massachusetts high court issued its landmark marriage equality decision.

The percentage of Americans who consider gay relations to be “morally wrong”—43 percent—is the lowest it’s been in a decade. And also for the first time, a larger percent of men said “morally acceptable” than women—53 percent of men and 51 percent of women now believe “gay and lesbian relations” are morally acceptable.

The change in men’s attitudes was striking. In May 2006, 39 percent of men polled said they felt “homosexual relations” were morally acceptable. By this year, that number had jumped to 53 percent. That’s a 14-point jump, while, over the same period, acceptance among women increased just 2 percent.

Gary Gates, a demographer at UCLA who studies the LGBT population, cautions against putting too much stock in one poll. But, he says, “a variety of polls have been showing, depending on the wording, increased amounts of acceptance towards LGB and, in some cases, T people. That acceptance has gone up in both men and women.”

To a certain degree, the improvements could have something to do with the fact that Gallup’s wording changed in 2008, from “homosexual relations” to “gay and lesbian relations.” According to Gates and Badgett, people respond differently in polls on gay issues depending on the way questions are asked. Questions about “homosexuals” tend to receive more of a negative reaction than the same questions about “gays and lesbians.”

“The closer you get to people having to think about sex,” said Gates, “the worse gay people do in polls.”

But experts agree say there is probably no single reason for this change in how men are polling, but rather a number of contributing factors.

“Some of it is exposure,” says Mark Stevens, a psychologist at California State University in Northridge. “Guys are growing up where they have friends who are gay. There is a little bit more in the media, on the TV. And it’s kind of cool to be a little bit more liberal and a little bit more accepting.”

Gates agrees that exposure is likely a big part of it, though not just for men.

“We know that a higher proportion of gay people are being more open and being more open at younger ages. And we do know that knowing gay people or having a relationship with an LGBT person does actually have an impact on people’s broader attitudes.”

Age is, and always has been, a factor, something that was clear in the survey’s results. Younger men (like younger women) are generally more accepting than their parents and grandparents.

In addition to the increase in acceptance among men, the Gallup poll also found improved attitudes towards gays and lesbians among every other sub-group polled: from Catholics to Protestants, Democrats to Independents, moderates to conservatives.

Though the degree to which those views shifted differed greatly, it’s evident that there is a steady, gradual shift taking place in the way Americans view gay and lesbian relationships and civil rights for gay people. In fact, Gallup’s polling this year shows the public views “gay and lesbian relations” as more morally acceptable than doctor-assisted suicide (46 percent) and less than having a baby outside of marriage (54 percent).

But what about legalizing marriages for same-sex couples?

While the Gallup poll showed 52 percent of people said they consider “gay and lesbian relations” to be “morally acceptable” and 58 percent said those relations should be “legal,” only 44 percent said such marriages should be recognized. That is up four points from 2009, and up 16 points since 1996, when Gallup first began asking about gay marriage specifically. The Gallup polling on gay marriage is now approximately where it was for interracial marriage in the late 1970s and early 1980s. The balance in favor interracial marriage crossed its tipping point with the 1991 survey –when 48 percent approved and 42 percent disapproved marriage between blacks and whites.

But do people’s attitudes necessarily translate into how they are likely to vote on an issue? Not as reliably as one might expect.

Political scientist Patrick Egan, who has done considerable polling on gay-related political issues, examined the results of 167 pre-election polls on 32 different ballot measures concerning either same-sex marriage or domestic partnerships. He found that pre-election polls “consistently underestimated” the number of people who would vote for a ban on same-sex marriage—by an average of seven points. And, “the share of the public saying they intend to vote for or against these measures typically changes very little over the course” of the ballot measure campaigns.

This gap between how voters say they will vote and what they actually do in the voting booth does not appear to be a product of wanting to give the a poll-taker a socially desirable response of supporting equality for all, said Egan. He could find no evidence for that. For instance, he said, in states with large gay populations, one would expect many people who wanted to ban gay marriage would tell a pollster that they were against the ban. Voters in California, for instance, would be more likely than voters in Mississippi to say they were going to vote against the ban and then vote for it. But there was no such correlation and no other evidence emerged in Egan’s analysis to explain the gap.

Still, it’s clear Americans are becoming increasingly open and accepting and experts and polling data suggest this trend will continue—unless something happens to set opinion back.

“You never know how society is changing, and sometimes it’s not very obvious because it’s very subtle,” says Stevens. While the reasons such a shift is occurring now “might not be necessarily explainable,” he says, “it’s really good to see.”

Lisa Keen contributed to this report.