This afternoon, the full 9th Circuit Court of Appeals declined to hear an appeal of the Prop 8 case. In February, a three-judge panel of the 9th Circuit struck down Prop 8, finding California's revocation of the right of same-sex couples to marry same-sex marriage ban to be unconstitutional. The 9th Circuit's decision means that either the Supreme Court will take up the case or the 9th Circuit’s decision striking down the law will stand.
The appeals court ruling is on narrow grounds unique to California, where same-sex couples were left with all the state rights of marriage but not the name. It found that taking away gay and lesbian couples’ designation of “marriage” while leaving their rights unchanged did not serve any of the purposes put forth by its defenders. Instead, its only purpose and effect was to lessen a targeted group’s status and dignity by reclassifying their relationship and families as inferior. The Court did not address the larger question of whether gays and lesbians have a constitutional right to marry. While the Supreme Court will be presented with the narrower question as framed by the Ninth Circuit, it is impossible to tell, if it agrees to hear the case at all, whether they will rule on this principle or more broadly on the ability of states to deny lesbians and gays the right to marry.
Virginia’s House of Delegates yesterday rejected the nomination of a state prosecutor to serve as a judge – just because he is openly gay.
Tracy Thorne-Begland, a Navy veteran who has been a prosecutor in Richmond for 12 years, enjoyed bipartisan support in the House of Delegates until, at the last minute, he came under attack from far-right Delegate Bob Marshall and the right-wing Family Foundation. The Richmond Times Dispatch reports:
A late-hour lobbying offensive by social conservatives prevailed in the House of Delegates early Tuesday to torpedo bipartisan support for the judicial nomination of an openly gay Richmond prosecutor.
After a lengthy discussion, the GOP-controlled House of Delegates defeated the nomination of Tracy Thorne-Begland, Richmond's chief deputy commonwealth's attorney. He would have been the first openly gay judge elected in Virginia.
Thorne-Begland received 33 votes, and 31 delegates voted against him. He needed a majority of the 100-member House -- 51 votes -- to secure the judgeship.
In an email blast to supporters late last week, the Christian conservative Family Foundation questioned Thorne-Begland's fitness for the bench given his support for gay marriage, which is not legal in Virginia. Thorne-Begland and his partner, Michael, live together and are raising twins.
Marshall, too had charged that Thorne-Begland pursued an "aggressive activist homosexual agenda.
Opponents of gay rights, in their effort to keep LGBT people out of the public square, have in the past few years gone after several openly gay judges and judicial nominees. Supporters of California’s discriminatory Prop 8 tried to get a federal judge’s ruling against them thrown out because the judge is openly gay. Another judge issued an epic takedown of their argument.
A number of Republican delegates in Virginia, as well as the state’s socially conservative governor Bob McDonnell backed Thorne-Begland’s nomination until Del. Marshall began his onslaught.
Del. Marshall is the one who claimed in 2010 that disabled children are God's punishment for abortion. On Don’t Ask, Don’t Tell – a policy that Thorne-Begland worked to end after his distinguished career in the Navy – Marshall said openly gay troops would distract their fellow servicemembers: "It's a distraction when I'm on the battlefield and have to concentrate on the enemy 600 yards away and I'm worried about this guy whose got eyes on me." Once Don’t Ask, Don’t Tell was repealed, Del Marshall tried to get gay Virginians banned from the state’s National Guard.
Marshall later told the Washington Post that he objected to Thorne-Begland’s brave coming out in protest of Don’t Ask, Don’t Tell:
I would guess — law of averages — we’ve probably nominated people who have homosexual inclinations,” Marshall said. Marshall faulted Thorne-Begland for coming out as a gay Naval officer on “Nightline” two decades ago to challenge the military’s now-repealed ban on gays openly serving in the military. He said that amounted not just to insubordination, but to a waste of taxpayer dollars, since it resulted in his dismissal from the Navy. “The Navy spent $1 million training him,” Marshall said. “That’s cheating the country out of the investment in him.”
In the end, it was Del. Marshall’s arguments that won out in the effort to halt the career of a dedicated Virginia public servant.
Ted Olson, who served as solicitor general under George W. Bush and is now half of the legal team fighting the anti-gay Proposition 8 in California, went on the Rachel Maddow show last night to discuss the marriage equality victory handed down by the Ninth Circuit yesterday.
Asked by Maddow why animus toward gay rights is still so mainstream in Republican politics, Olson gave a defense of marriage equality as a conservative value – one that he says more and more American conservatives are embracing:
Maddow: Why do you think it is that hostility to gay rights is still something that is still so utterly mainstream and expected of both mainstream politicians and mainstream institutions in conservative politics today?
Olson: I don’t know the answer to your question, Rachel, but I think that it’s terribly unfortunate. Marriage is a conservative value. Not that conservatives own it or liberals own it, but the loving relationship between individuals that want to be respected by their society and treated as equals is a conservative value. It involves liberty and privacy and association and identity.
Marriage is the building block of our society. Young people get it. Older people are still getting it. But all of the polls are changing. People more and more are understanding that these are American citizens, these are our brothers and our sisters, we have got to treat them right and we’ve got to treat them decency, and we’ve got to give them the same freedom and justice that we give to other people. More and more people in America are understanding that. I’m pleased to say that more and more Republicans are understanding that.
I’m sad to say – it makes me sad to say – that Republicans haven’t fully understood it. But I think that they will come, and every time that David Boies and I have a chance to address this question, we believe that we’re converting more people, and persuading more people that this is the right thing. It is not a liberal or conservative issue, or Republican or Democrats. When David Boies and I came together on this, our mission was to persuade the American people that this is an issue of American justice, American freedom, American equality. These are the principles, all men are created equal in this country, we have got to get there.
Today, the California Supreme Court ruled that the proponents of Proposition 8 have standing under California law to defend it when government officials decline to. The court is addressing this issue at the request of the U.S. Court of Appeals for the Ninth Circuit, which needed an answer in order to determine if the Prop 8 proponents have standing to pursue their appeal of the federal district court decision striking Prop 8 down.
Since the proponents are now known to have standing under California law, the Ninth Circuit will likely rule that they have a stake in the outcome of the federal case and, therefore, standing for purposes of federal constitutional law.
The court clearly explained that its logic had nothing to do with Proposition 8 in particular, but with ballot initiatives in general. Its reasoning was straightforward:
Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state‘s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.
It is worth noting that other states do not always give initiative proponents the right under their own laws that California recognized today. This is a state court resolving a question of California law.
Yesterday, proponents of California’s Proposition 8 went before a federal judge to argue that the ruling overturning the discriminatory law should be thrown out because the judge who issued it is gay.
Today, they were handed an epic takedown. In an order dismissing the motion to vacate the Prop 8 case, district court judge James Ware tore apart the arguments made by the anti-marriage equality lawyers who claimed that Judge Vaughn Walker’s decade-long same-sex relationship should have disqualified him from hearing the marriage equality case.
The arguments made by Prop 8’s defenders were so ridiculous (for example, see here and here) that it’s hard to pick just one part of Judge Ware’s takedown to quote, so I’ve picked out a few of my favorites.
The Prop 8 camp’s main line of argument was that the problem with Judge Walker wasn’t that he is gay but that he may at some point want to marry someone of the same sex, thereby benefiting from his own pro-marriage equality decision. This led them to partake in some celebrity-magazine style speculation about whether Judge Walker was planning to wed. Judge Ware responds that that type of speculation about a judge’s personal life isn’t enough to disqualify him from a case:
[D]isqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors.
Then there was the argument that Judge Walker’s long-term same-sex relationship “gave him a markedly greater interest in a case challenging restrictions on same-sex marriage than the interest held by the general public.” Judge Ware responds that in cases of fundamental rights, all members of society are affected by the outcome…in a way, turning the logic of the Prop 8 crowd (who argue that straight people will be hurt by gay marriage) on its head:
The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. One of the duties placed on the shoulders of federal judges is the obligation to review the law to determine when unequal treatment violates our Constitution and when it does not. To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally. Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case. The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.
And then Judge Ware tells Prop 8 supporters that not all gay people think in the same way…so they can’t assume that a gay judge will come to a certain conclusion:
Finally, the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.
Ware concludes that requiring judges to recuse themselves under the standard proposed by Prop 8’s backers would lead to a “standard that required recusal of minority judges in most, if not all, civil rights cases.”
Following tweets and transcripts of this morning’s hearing in the Prop 8 case, I started to feel like I was reading a celebrity magazine written by lawyers.
The issue at stake in the hearing was whether now-retired Judge Vaughn Walker, who overturned Prop 8’s ban on gay marriage last year, should have recused himself from the marriage equality case because he himself is gay. Judge Walker’s sexual orientation was widely known at the time of the decision, and certainly didn’t escape the notice of right-wing critics of marriage equality, but lawyers defending Prop 8 decided not to bring it up at the time.
Then, after Walker handed down a powerful ruling against the anti-gay measure, they changed their minds. Perhaps sensing that they couldn’t argue that Judge Walker was disqualified from the case simply because he is gay, Prop 8’s backers instead decided to argue that the judge should have recused himself because he was in a long-term relationship and may someday have wanted to get married, thus benefiting from his own ruling.
This meant that the Prop 8 attorneys first had to somehow prove that Judge Walker intended to marry his partner of many years, and then demonstrate that if he did intend to get married himself he shouldn’t have judged the case. Since Walker hadn’t granted them a tell-all interview, the task of proving that the judge intended to get married became a game of speculation and assumption, and led to exchanges like this one, roughly transcribed with comments by Courage Campaign (W is the judge, James Ware and C is Charles Cooper, the attorney defending Prop 8):
W: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?
C: The fact that he has publicly announced that he is and has been in a relationship with another person?
W: So if you are in a ten year relationship with another person, that is for purposes of marriage?
(laughter—this Cooper is so silly. He should do a Mennen deodorant ad, though. I think he’s still dry.)
W: You would concede that you could be in a long term relationship without being in it for purposes of marriage?
W: What distinguishes it?
C: Very fact that two individuals are in kind of relationship Walker has…
W: What distinguishes between two?
C: There are platonic friendships that do not lead to marriage. [laughter]
W: What do you mean platonic?
C: Non-intimate, non-sexual. Clear understanding of media reports…
W: You are saying that length of relationship alone converts to marriage relationship?
C: Yes. Bespeaks commitment. All of these have been used interchangeably. Take pains to say they are in long term relationships.
W: Their relief was not to stay in long term relationship. Nothing threatened their long term relationship. Neither they nor Walker threatened. They sought to change relationship. What fact would cite to the court that Walker sought to change his relationship?
C: (Stumbles…) There are several points I would make that a reasonable person with knowledge that judge walker would be expected to have an interest in marrying his long time partner. (Thought police, please) Judge Walker similarly situated for purpose of marriage just as plaintiffs.
This is the kind of unsubstantiated speculation about a person’s love life that you’d expect from a celeb magazine profile of Jennifer Aniston, not a serious case in federal court. The basic logic of their argument not only makes no sense in the first place – since they argue that same-sex marriage hurts heterosexual marriage, it follows that heterosexual judges would have to recuse themselves as well (more on that here). But the fact that Prop 8’s proponents have resorted to baseless theorizing about the judge’s personal life truly underscores just how weak a case they have they have.
It is also telling that the “dirt” that Cooper has dug up about Walker isn’t exactly scandalous…in fact, his matter-of-fact assumption that two people in a long-term, committed relationship might want to get married can be seen as a strong argument in favor of letting them do just that.
For their part, the pro-equality camp argued that Judge Walker shouldn’t have had to recuse himself from the case, regardless of who he was planning or not planning to marry.
The judge has promised a decision soon, possibly within a day.
In their latest attempt to stymie marriage equality in the courts, the lawyers defending California’s Proposition 8 are now claiming that Vaughn Walker, the judge who ruled the state’s marriage discrimination unconstitutional, should have been disqualified from the case because he is gay.
The argument that a gay judge shouldn’t be allowed to handle gay rights cases is pretty flimsy to begin with – but now it’s caused the anti-equality attorneys to paint themselves into a pretty tight corner:
Now, as the sponsors of Proposition 8 try to convince the courts that the judge who overturned the measure had a built-in bias as a gay man with a longtime partner, their opponents are invoking that same campaign message: If Prop. 8 was meant to preserve opposite-sex marriages, they argue, then any judge, gay or straight, would have the similar conflict of interest.
In their latest court filing, the measure's supporters reply that they never promoted Prop. 8 as a benefit for married couples - just for society as a whole.
"Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual's existing marriage will be affected," said Charles Cooper, lawyer for the Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage.
"The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd."
Because in the Prop 8 trial last summer, Cooper himself argued that allowing gay people to marry would actively harm heterosexual marriages…by somehow encouraging heterosexuals to cheat on their spouses.
And then there’s the famous ad that Protect Marriage’s major financial backer, the National Organization for Marriage, created to boost Prop 8:
These people sound pretty personally threatened by the prospect of gay people getting married.
Maybe Prop 8’s proponents have changed their minds about the dire consequences of marriage equality. Or maybe they’re just once again running up against the lack of logic behind their case.
Jim Daly, president of the Religious Right group Focus on the Family conceded to an interviewer last week that anti-gay groups have “probably lost” the debate over marriage equality. It’s a big admission by a prominent figure on the Right, but it’s also an acknowledgement of what has become common sense. Poll after poll shows that for the first time majorities of Americans support marriage equality, with the highest numbers among young people. As anti-gay legislation is fought out in the courts and in statehouses, it is accompanied by a sea change in public opinion that threatens to make it archaic.
After last summer’s federal court decision striking down California’s Proposition 8, PFAW’s Michael Keegan noticed that Religious Right activists were beginning to admit defeat on gay rights:
This parade of apoplectic anger is nothing new--the Right has fought every step toward acceptance of gay people with similar Armageddon-invoking tirades. What is remarkable about the reaction to the Prop 8 decision is that within the anger are the beginnings of admissions of defeat. The Right has won many important battles against gay rights, but they are losing the war...and they know it.
A few days after Judge Walker's decision, the pseudo-historian David Barton, founder and president of the right-wing group WallBuilders, explicitly described the nervousness that has been behind much of the Right's outrage. The case against Proposition 8, Barton argued, could win in the Supreme Court...so opponents of marriage equality should sacrifice California in order to save anti-equality laws in 31 other states.
"Right now the damage is limited to California only," Barton told Tim Wildmon, President of the American Family Association during a radio interview, "but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California...the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this.
Last week, I went to a talk with the attorneys arguing the Prop 8 case, Ted Olson and David Boies. Olson said he saw their job as having two parts: presenting the Constitutional case against discrimination in the court of law, and presenting it in the “court of public opinion.”
“If we win this case,” Olson said, “we want people to look at it and say, ‘Of course. It’s about time.’”
Constitutional rights should never be decided by the will of the majority – that’s why we have constitutional rights in the first place. But Olson and Boies are building their case in a country where the rights of gays and lesbians are increasingly accepted as a given. The Religious Right isn’t going to give up its fight against equality anytime soon. But its leaders are beginning to see that they are fighting a losing battle in both the court of law and the court of public opinion.
Proponents of California's Proposition 8 are making another assault against the trial court decision they lost and have appealed. This time, instead of addressing the merits of the case, they are attacking the judge who wrote the opinion. As reported in SCOTUSBlog:
Arguing that the judge who struck down California's ban on same-sex marriage was not impartial, because of his failure to disclose his own long-term gay relationship, the sponsors of Proposition 8 asked a federal judge in San Francisco on Monday to throw out all parts of the ruling and any earlier orders in the famous case. The motion to vacate the ruling by now-retired U.S. District Judge Vaughn R. Walker can be read here.
Since Walker retired, the case has been taken over for any further action in U.S. District Court in San Francisco by the chief judge there, James Ware. The new filing by the Proposition 8 backers said they would seek permission from the Ninth Circuit Court — where Walker's ruling is now under review — for Judge Ware to rule on their new challenge. With the case pending in the Circuit Court, that judge may not have the authority to act without permission. ...
The motion asserted that the opponents were "not suggesting that a gay or lesbian judge could not sit on his case." Rather, they argued that Judge Walker had a personal interest in the outcome of the case, because he may wish to marry his partner if Proposition 8 no longer exists. At a minimum, the motion argued, he should have disclosed that relationship and whether he has any interest in marriage so that the parties in the case could evaluate whether to formally demand that he step aside under federal laws governing such disqualifications.
Right Wing Watch reported last week on The National Review’s Ed Whalen making this same argument.
The claim that Judge Walker had a personal stake in the case that warrants throwing his decision out adds yet another illogical inconsistency to the far right’s arguments against marriage equality. Under this reasoning, since traditional marriage is designed to show societal favor toward monogamous opposite-sex couples, any judge in an opposite-sex relationship has a personal stake in the case that warrants disqualification.
And if same-sex marriage genuinely threatens opposite-sex marriage as the far right claims, then married heterosexual judges (or ones in long-term relationships who might want to marry someday) have a personal stake in the Prop 8 case that could disqualify them from hearing the case.
If anti-equality advocates actually believe the legal principles they espouse, they should apply them across the board, not only when it suits their political agenda. Otherwise, one might be forgiven for thinking that their real goal is to hurt gay people, rather than to protect the integrity of the law.
This morning, Rep. Trent Franks, chairman of the House Judiciary Subcommittee on the Constitution, called a hearing on “Defending Marriage” to examine the Obama Administration’s decision to stop defending the so-called “Defense of Marriage Act” in courts.
Franks is pretty, um, far to the right, so it’s no surprise that one of the three witnesses he called to the hearing was Maggie Gallagher, chair of the National Organization for Marriage.
As Justin wrote earlier, Gallagher hit a bunch of the big themes of the Religious Right’s anti-gay activism, but she also dwelled on one argument peculiar to the anti-marriage equality crowd: that marriage exists solely as a structure for procreation:
If we accept, as DOMA explicitly does, that this is a core purpose of marriage, then treating same-sex unions as marriages makes little sense. If marriage as a public and legal institution is oriented towards protecting children by increasing the likelihood they are born to and raised by the man and the woman whose union made them, then same-sex couples do not fit. If same-sex couples “fit” the public definition of marriage, then marriage is no longer about responsible procreation. Same-sex marriage cuts marriage as a public idea off from these deep roots in the natural family. Over time the law will re-educate the next generation that these ancient and honorable ideals underlying marriage no longer apply. Gay marriage, as Judge Walker ruled in wrongly striking down Prop 8, is based on the idea that neither biology nor gender matters to children. Same-sex marriage repudiates the public’s interest in trying to see that children are, to the extent possible, raised by the man and woman whose bodies made them in a loving single family.
The argument that marriage exists solely for having children is, needless to say, flimsy – and has been pretty well demolished in a few marriage equality trials. I’m just going to share this extended exchange from last year’s Proposition 8 trial, in which Judge Vaughn Walker reduces the lawyer defending Prop 8 into babbling incoherence as he tries to defend the marriage-is-only-for-procreation argument:
THE COURT: And my point was that there are a number of heterosexual couples who do not naturally procreate, who require the intervention of some third party or some medical assistance of some kind.
MR. COOPER: Yes, your Honor. And it is not those opposite-sex couples either that the state is concerned about in terms of -- in terms of the threats to society and the natural concerns that society has from irresponsible procreation.
THE COURT: What's the threat to society of people choosing to have medical assistance in order to conceive children?
MR. COOPER: There isn't one there, your Honor. I mean, it's -- it is the -- again, it's irresponsible procreation. The procreation that comes about casually. And often again, as the Eighth Circuit put it, often by accident, unintentionally, unintentionally. The opposite-sex couple where one of the partners is infertile, for example, or the same-sex couple can't unintentionally procreate, but for reasons that we discussed earlier with respect to the opposite sex but infertile couple, allowing them to marry isn't something that is inconsistent with the purposes of -- the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes and it would just not be possible or realistic, as case after case has said, for the state to try to implement its policy on a more narrow or fitted basis.
And, your Honor, with respect to -- and you asked a question about this in your written questions. Even with respect to the opposite-sex couple where one of the partners is infertile, encouraging that couple to get married, trying to channel that couple into marriage furthers the procreative purposes and policies underlying the traditional definition of marriage in the sense that if that couple gets married, then it -- then all of the social norms that come with marriage to encourage that couple to stay together and to be faithful to one another operate to society's benefit in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.
THE COURT: Why don't those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don't all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe, to use the names that Reverend Tam used.
MR. COOPER: Those purposes, your Honor, are – we haven't suggested there is a distinction among gay and opposite-sex couples with respect to those considerations. There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent -- neither partner in the – with respect to the same-sex couple is -- again, assuming homosexual sexual orientation -- represents a concern about irresponsible procreation with a third party.
To summarize, Cooper, when pressed on the issue, ended up arguing that opposite-sex couples should get married so they don’t go around “irresponsibly procreating” with people they aren’t married to…but same-sex couples aren’t in danger of irresponsibly procreating, so they don’t need to get married….and that somehow, if gay couples were to get married, they would drive heterosexuals away from marriage, resulting in them having babies out of wedlock.
To be clear, this is the primary argument that opponents of marriage equality have in their toolkit.
Earlier today, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued an opinion in the Proposition 8 case, unanimously concluding that they do not have enough information to decide if the Proposition 8 proponents have standing to pursue the appeal. Only if they have standing can the Ninth Circuit even consider the merits of the case.
The answer depends on what California state law is, so they have asked the California Supreme Court for guidance. We will have to wait for that court to respond before we learn if the Ninth Circuit will even get to the merits of the case.
If the Ninth Circuit should eventually overturn Proposition 8, we will doubtless hear accusations from the right that the judges pursued a political agenda to get the desired result at the expense of the law. Today’s decision undercuts any such argument. All three judges deferred making a decision until they could address the basic legal question of standing. This is hardly the move of judges with a political agenda and contempt for law.
The Ninth Circuit Court of Appeals has just begun hearing an appeal of the decision that struck down California’s gay marriage ban. The court will be considering the legal arguments laid out by Judge Vaughn Walker in his decision to strike down Prop 8 in August. As it does so, the Court will rely on the substantial factual record that Judge Walker gathered in the original trial—much of which demolishes the “facts” presented by anti-gay activists.
You can watch the proceedings live here:
...and follow the Constitutional Accountability Center’s live blog at the Huffington Post.
Whatever the Ninth Circuit decides, the case is likely to end up before the Supreme Court. Back in August, People For’s Michael Keegan wrote about the stakes involved for the Right:
For years, the Right has watched its anti-gay agenda lose credibility as public acceptance of gays and lesbians has steadily grown and intolerance has declined. And that trend is going strong, as young people of all political stripes are more likely to know gay people and more willing to grant them equal rights and opportunities, including the right to marriage. A CNN poll this month found that a majority of Americans think gays and lesbians should have the right to marry--the first time gay marriage dissenters had slipped solidly into the minority in a national poll. Even in California, where Proposition 8 passed on the ballot in 2008, a poll earlier this year found a majority now support same sex marriage rights. Indeed, this change is even visible on the Right, where the fight against equality is being waged by an increasingly marginalized movement. Who would have ever thought that Ann Coulter would be booted from a right-wing conference for being "too gay friendly"?
Of course, basic human rights should never be decided by majority vote--they are guaranteed by the Constitution. But, on the issue of gay rights, the Right Wing now finds itself up against both the Constitution and the will of a steadily increasing majority.
Yesterday afternoon, federal Judge Vaughn Walker ruled that Proposition 8 violated the United States Constitution. This is an important milestone.
One reason it is so important is the factual record that was compiled for the case. Judge Walker developed an extremely detailed factual record upon which to base his legal conclusions - a record of the significant harm that marriage inequality causes, of the history of discrimination faced by lesbian and gay people, and of the animus behind Prop 8. In fact, more than 50 pages of the opinion are devoted to his findings of fact.
For instance, there's Fact 55: "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."
Or Fact 56: "The children of same-sex couples benefit when their parents can marry."
Or Fact 66: "Proposition 8 increases costs and decreases wealth for same-sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage. Domestic partnership reduces but does not eliminate these costs."
Or Fact 74: "Gays and lesbians have been victims of a long history of discrimination."
Or Fact 76: "Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships. Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality. No evidence supports these stereotypes."
This factual record is very important, because when Prop 8 supporters appeal the decision, the appellate court will have to accept these facts. Appellate federal courts are generally limited to deciding issues of law, not of fact. Well-supported facts like these will make it much harder for an appellate court to reverse the decision.
More broadly, this case shows us that when the forces of the Right face an independent judge, the arguments that serve them so well on Fox News wither before genuine scrutiny. It also shows the beauty of the American constitutional system, where our independent judiciary protects Equal Justice Under the Law.
California federal judge Vaughn Walker’s opinion yesterday in the case of Perry v. Schwarzenegger—in which he struck down the state’s ban on gay marriage—was a strong defense of the values embodied in the Constitution. But it was also something more. In his 136-page opinion, Judge Walker carefully dismantled dozens of the myths that opponents of marriage equality have attempted to use as legitimate legal arguments against allowing gay people to marry. And unlike the defenders of marriage discrimination, Walker didn’t make up evidence out of whole cloth—in his analysis, he relies on expert testimony, statistics, and the lessons of history. Slate’s Dahlia Lithwick writes:
It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.
The stunning thing is that the feeble arguments that Prop 8 defenders were able to muster against marriage equality were in fact the best they could come up with. Kyle at Right Wing Watch writes that there was some in-fighting among the Right Wing over who would get to defend Proposition 8 in court. The fervently anti-gay Liberty Council tried to wrest the defense away from the equally anti-gay but slightly more street-smart Alliance Defense Fund, because the ADF wanted to base its case partially on factual evidence rather than purely on vitriol. The ADF won out, but they were left with a small problem: there was no factual evidence to be found.
The frailty of the legal arguments against marriage equality was on full display during yesterday’s closing arguments in the Perry v Schwarzenegger trial. The proponents of upholding California’s Proposition 8, which bans same-sex marriage in the state, insisted during the trial that procreation is central to marriage, and that gay couples should therefore not be allowed to marry. The following exchange between Judge Walker and Charles Cooper, the attorney defending Prop 8, speaks for itself:
MR. COOPER: …Marriage is a license to cohabit and to produce legitimate children.
THE COURT: But the state doesn't withhold the right to marriage to people who are unable to produce children of their own.
MR. COOPER: That's true, your Honor, it does not. It does not insist --
THE COURT: Are you suggesting that the state should, to fulfill the purpose of marriage that you have described?
MR. COOPER: No, sir, your Honor. It is by no means a necessary -- a necessary condition or a necessary requirement to fulfilling the state's interests in naturally potentially procreative sexual relationships.
Dante Atkins on the Daily Kos summarizes the circular argument Cooper tried to make:
Let's recap this thread between Cooper and Walker, because it's just embarrassing. Cooper says that opposite-sex couples who can't procreate get the ancillary benefits of marriage, like stability, loving commitment, etc. Walker asks: well, don't same-sex couples get those same things through marriage? And Cooper responds: "but they can't procreate!" And there we are, back at square one. It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage that Judge Walker outlined.
Why did Cooper and his colleagues rely on this weak argument? Because they thought the Court would view it more favorably than the toxic anti-gay rhetoric proponents of Prop 8 used in 2008 to convince California voters that same-sex marriages were a threat to children. Christopher Stroll at Pam’s House Blend writes:
[Plaintiffs’ attorney Ted] Olson hammered home the point that during the election, Prop 8 backers argued that children needed be "protected" from gay people -- but during the trial, the Prop 8 backers did not raise this argument, which echoes themes that anti-gay forces have used for decades to stigmatize and marginalize gay men and lesbians. Instead, the attorneys defending Prop 8 argued that same-sex couples must be excluded from marriage because the purpose of marriage is procreation.
Another baseless argument that backers of Prop 8 made was that gay marriage would “deinstitutionalize” marriage. Olson eloquently debunked that particular right wing myth:
The plaintiffs have no interest in changing marriage or deinstitutionalizing marriage. They desire to marry because they cherish the institution.
Washington Post columnist Ruth Marcus, in a piece titled, “Don’t ask, don’t judge?” gave a rhetorical green light to Religious Right activists who have responded to news that federal judge Vaughn Walker is gay by attacking his ability to rule fairly on the constitutional challenge to Prop. 8, the California ballot initiative that stripped same-sex couples of the right to get married.
Although Marcus concludes in the end that Walker, who was randomly assigned to hear the case, was right not to recuse himself simply because he is gay, she does so after a lot of “squirming” like this:
So when Walker considers claims that the ban on same-sex marriage violates the constitutional guarantees of equal protection and due process of law, it's hard to imagine that his sexuality, if he is gay, does not influence his decision-making -- just as the experience of having gay friends or relatives would affect a straight judge.
In the end, Marcus writes,
In this case, I hope the plaintiffs win and that Walker rules that the same-sex marriage ban violates their constitutional rights. At the same time, I've got to acknowledge: If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start.
But why wouldn’t the deck be considered “stacked” against gay people if a straight judge were deciding the case? By concluding her column that way, Marcus gives credence to the offensive notion that is already being promoted by right-wing leaders that a gay judge cannot be expected to rule fairly in a case involving the legal rights of gay Americans.
Here’s Matt Barber, director of cultural affairs with Liberty Counsel, responding to news that Judge Walker is, in Barber’s words, “an active practitioner of the homosexual lifestyle.”
“At worst, Judge Walker’s continued involvement with this case presents a textbook conflict of interest. At best, it objectively illustrates the unseemly appearance of a conflict.
"If Judge Walker somehow divines from thin air that the framers of the U.S. Constitution actually intended that Patrick Henry had a ‘constitutional right’ to marry Henry Patrick, then who among us will be surprised?
“Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.
"For these reasons, and in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.”
Barber tries to make a case that he is taking a principled stand by saying, “This is no different than having an avid gun collector preside over a Second Amendment case,” continued Barber, “or a frequent user of medical marijuana deciding the legality of medical marijuana.”
Really, Matt? You expect us to believe that you would advocate that judges who collect guns should recuse themselves from cases involving the Second Amendment? What about avid hunters, like Justice Antonin Scalia? Should anyone who owns a gun be assumed not to be able to rule fairly on legal issues involving guns?
The Post’s Marcus concluded that asking Judge Walker to recuse himself would “invite too many challenges to judicial fairness -- Jewish judges hearing cases about Christmas displays, or judges who once represented unions or management presiding over labor disputes.”
What about Christian judges presiding over Christmas displays? Can you imagine the outrage from Matt Barber and his Religious Right colleagues if someone were to suggest that Christian judges should be barred from hearing cases involving legal and constitutional questions about separation of church and state?
In a diverse and pluralistic nation, it’s important that the federal bench reflect that diversity. But what’s far more important than an individual judge’s race, religion, ethnicity, or sexual orientation is his or her judicial philosophy and understanding of the Constitution’s text, history, and role in protecting the rights and opportunities of all Americans.
The unspoken offensive presumption at work here is that people who come to the law with a life experience that is considered “normal” – say, straight white male Christian – are inherently unbiased, or that their life experience somehow gives them a singularly correct way of viewing the law. Others are suspect.
This notion was on ugly display during the Sonia Sotomayor hearings, when her recognition that she would bring her life experience as a Latina to the bench was used to pillory her as a white-male-hating racist. What about all those white male senators, and the white male Supreme Court Justices they had voted to confirm? Samuel Alito’s ethnic pride and empathy were considered valid, while Sotomayor’s was radical and threatening.
Ruth Marcus is no Matt Barber. She is in some ways simply acknowledging the reality that there is still a level of emotional prejudice against gay people that will keep some Americans from believing that a gay judge can be fair. But she is far too sympathetic to the purveyors of that prejudice. Her column validates their bigotry and will encourage more of the kind of divisive rhetoric we see from the likes of Barber.