The Mad Professah Lectures

The U.S. Circuit Court of Appeals for the Fourth Circuit has affirmed a February 2014 district court decision that struck down Virginia's ban on marriage equality. The ruling puts the marriage bans in four sates covered by the 4th Circuit (Virginia, North Carolina, South Carolina and West Virginia) in question. However, it is likely that there will be stay on proceedings in the Fourth Circuit until the U.S. Supreme Court issues a final ruling in the case.

Just a  few weeks ago the Tenth Circuit issued rulings affirming that Utah's and Oklahoma's bans on marriage equality are unconstitutional but this did not stop the Attorney General of Colorado (the Tenth Circuit is physically housed in Denver!) from asserting that Colorado's ban on marriage equality is still intact (even though a state judge and a federal judge has struck it down).

In today's 2-1 decision from the 4th Circuit, the majority says:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

Human Rights Campaign, the nations largest LGBT advocacy group helpfully noes that there have been nineteen consecutive ruling from federal courts affirming marriage equality since June 27, 2013 and lists the state of play in the pending federal lawsuits on marriage equality at the appellate level or higher:

Cases pending before federal appeals courts:

• DeLeon v. Perry, Texas [Argument date at the Fifth Circuit not set]

• Tanco v. Haslam, Tennessee [Arguments at the Sixth Circuit set for August 6]

• Bourke vs. Beshear, Kentucky [Arguments at the Sixth Circuit set for August 6]

• Obergefell v. Kasich, Ohio [Arguments at the Sixth Circuit set for August 6]

• Henry v. Himes, Ohio [Arguments at the Sixth Circuit set for August 6]

• DeBoer v. Snyder, Michigan [Arguments at the Sixth Circuit set for August 6]

• Wolf v. Walker, Wisconsin [Arguments at the Seventh Circuit set for August 26]

• Baskin v. Bogan, Indiana [Arguments at the Seventh Circuit set for August 26]

• Sevcik v. Sandoval, Nevada [Argument at the Ninth Circuit set for September 8]

• Latta v. Otter, Idaho [Argument at the Ninth Circuit set for September]

• Jackson v. Abercrombie, Hawaii [Argument at the Ninth Circuit set for September 8]

• Burns v. Hickenlooper, Colorado [Argument date at the Tenth Circuit not set]

Cases petitioned or likely to be petitioned to the U.S. Supreme Court:

• Kitchen v. Herbert, Utah [Tenth Circuit struck down marriage ban June 25]

• Bishop v. United States, Oklahoma [Tenth Circuit struck down marriage ban July 18]

• Bostic v. Schaefer, Virginia [Fourth Circuit struck down marriage ban July 28]

Basically it's a race now to see if the Supreme Court will get the marriage cases in the 2014-15 term or in the 2015-16 term. Sooner is looking more likely, but maybe we'll need to get a circuit split (an actual federal appellate ruling where marriage equality loses) for that to happen.

Hat/tip to Chris Geidner

Today the 4th U.S. Circuit heard oral arguments in Bostic v. Schaefer (previously Bostic v. Rainey) which is better known as Virginia's marriage equality case. This past February a federal judge struck down Virginia's ban on marriage equality and today's oral arguments were the appellate circuit level appeal of this decision.

You can hear the audio of the oral arguments yourself at this link. The three judges on the panel are Paul Niemeyer (Appointed by President George H.W. Bush), Roger Gregory (Nominated by President Bill Clinton and then George W. Bush),  and Henry Floyd (Nominated by President Obama). The lawyers conducting the argument for the side of marriage equality were Ted Olson (on behalf of American Foundation for Equal Rights), James Esseks (on behalf of the ACLU) and Stuart Raphael (Virginia's Solicitor General).

Most observers seem to think that the panel will split 2-1 in favor of upholding the lower-court ruling, which would then be appealed to the United States Supreme Court, which could decide whether it wants to use this case to decide the question of marriage equality squarely in 2015 or let marriage equality go into effect in the 4th Circuit (Virginia, South Carolina, West Virginia and North Carolina).

Hat/tip to Equality on Trial

The briefs are starting to come in support of the plaintiffs in the Virginia marriage equality case Bostic v. Schaefer (previously Bostic v. Rainey) which will be heard before the 4th U.S. Circuit Court of Appeals next month. In a rare example of the NAACP and the NAACP Legal Defense and Education Fun (LDF) working together, the two have filed a joint brief in favor of marriage equality.

The groups call for marriage equality for lesbians and gay men by invoking the principles set forth in the Supreme Court's iconic 1967 decision in Loving v. Virginia,which struck down laws that prohibited marriage for interracial couples.

"More than fifty years ago, the Supreme Court unequivocally established the right of every individual to marry the person she or he chooses," said Ria Tabacco Mar, Assistant Counsel in the NAACP Legal Defense Fund's Economic Justice Group. "It's long past time to strike down laws that deprive lesbians and gay men of their constitutional rights," Ms. Tabacco Mar added. 

In the brief, the NAACP Legal Defense Fund and the NAACP make clear that Lovingwas not restricted to race: the freedom to marry has long been recognized as a fundamental right "essential to the orderly pursuit of happiness."

"Marriage is a civil right under state law," stated Kim M. Keenan, NAACP General Counsel. “In furtherance of our legacy of advocacy in Loving v. Virginia, we are proud to stand with the NAACP LDF to ensure that every person is treated the same and benefits the same under law."  The NAACP Legal Defense Fund and the NAACP argue that marriage discrimination violates the Equal Protection Clause of the Fourteenth Amendment. Furthermore, the same baseless and offensive accusations proffered by the proponents of Virginia’s marriage ban -- that prohibitions on marriage equality are necessary to protect children -- were also invoked by Virginia in 1967 in defense of its anti-miscegenation law.

The Virginia case is the one that has the involvement of Ted Olson and David Boies, who filed the federal suit that led to the demise of Proposition 8.

In other Virginia news, the senior U.S. Senator from Virginia has today published a joint editorial with his Harvard Law School classmate Evan Wolfson arguing why Virginia's ban on marriage equality needs to go.

When Thomas Jefferson wrote the words "all men are created equal" in the Declaration of Independence, he put in place a moral standard that will always challenge us to be better people. 

Our founders passionately believed in equality, but most saw no contradiction between that belief and slavery. It took 90 years and a civil war to correct that injustice.
The post-Civil War Congress that changed the Constitution to abolish slavery passionately believed in equality, but most saw no contradiction in women's inability to vote. It took nearly 70 years to remedy that injustice. 

Today, Virginians and Americans are advancing Jefferson's equality principle by re-thinking laws that limit the freedom to marry. 

The two of us first became friends in law school more than 30 years ago. Our career and personal paths have taken different directions. But we share a commitment to making people's lives better, their dreams more attainable and their families stronger. 

And we share a commitment to Jefferson's farsighted ideal. That's why we look forward to the day when all loving couples, regardless of sexual orientation, can marry. 

In recent months, 11 out of 11 federal judges have ruled against marriage discrimination. 

In February, a federal judge in Norfolk was one of them.

I think lots of people think the Virginia case is the one that the Supreme Court is going to use to decide the question of whether state bans on same-sex marriage violate the U.S. constitution.

The New Yorker has an interesting blog post up about Jo Becker' new book, Forcing the Spring: Inside the Fight for Marriage Equality which is a behind-the-scenes account of the fight for marriage equality in California from 2009-2013 by the superlawyer team of Ted Olson and David Boies.

There are some interesting quotes from principal players like Michelle Obama, Barack Obama and Joe Biden. In fact, more is reveealed about the role that Ken Mehlman, Bush-Cheney 2004 campaign manager, played in crafting the president's words when Barack Obama endorsed marriage equality in may 2012. This excerpt is today's Queer Quote:

Becker makes it clear that both Obama and his team were deeply conflicted about whether he should announce his support for gay marriage before the 2012 election, to the point where its unresolved, internal debate had resulted in a kind of paralysis. “His political advisers were worried that his endorsement could splinter the coalition needed to win a second term,” Becker writes. In the excerpt, Chad Griffin, the head of a group fighting Prop. 8, recounts a conversation that he had with First Lady Michelle Obama, during the summer of 2011: “Her message, he told his team, was clear: ‘Hang in there with us, and we’ll be with you after the election.’” 

Even though Axelrod says that Obama “has never been comfortable” opposing same-sex marriage, it was not until Biden made some unscripted remarks in support of gay marriage on “Meet the Press,” in early May, 2012, that the President decided that he could no longer stay quiet, no longer occupy a permanent middle ground. His perpetual state of evolution on the issue was an untenable construct that he had maintained perhaps longer than was politically prudent. Biden’s surprise TV remarks were inspired by an emotional question-and-answer exchange that Biden had at an event in Los Angeles, at the home of a gay couple with two children, several days before the interview. Afterward, according to Becker, Valerie Jarrett was furious—even though she supported the President’s new position—and accused Biden of being disloyal for upstaging the President. 

But for Michelle Obama, Becker writes, the whole Biden incident was a “blessing in disguise”: she recounts to aides that she told her husband, “Enjoy the day,” just before his interview with Roberts. “You are free.” 

The President didn’t see it exactly that way, and was careful to couch his views in personal terms—as he has been advised to do by none other than Ken Mehlman, the former Republican National Committee Chairman and President George W. Bush’s political director, who was also working on the Prop. 8 case after having come out as gay. Obama ended up giving what Becker calls a “carefully calibrated and incremental endorsement,” saying in the interview: “I continue to believe that this is an issue that is going to be worked out at the local level, because historically this has not been a federal issue, what’s recognized as a marriage.” While the President’s statement proved hugely beneficial to the marriage-equality movement generally, his caveat ended up being a central element in the brief filed by the supporters of Prop. 8: their point was that even the President of the United States believed that people of good will could feel differently about same-sex marriage—that is, that it was not a simple matter of anti-gay discrimination—and that it was a state question, rather than a federal one.

The piece notes that when the President endorsed marriage equality back in May 2012 there were only 6 states where marriage equality was legal at the time and now there are 17 with 5 states with marriage equality bans that have been struck down by federal judges on hold bending appeals.

The Washington Blade reports that according to tax records, the federal lawsuit to eliminate California's Proposition 8 resulted in some $6.4 million going to the high-powered law firms of Ted Olson and David Boies. Olson and Boies were the unlikely due behind the Perry v. Schwarzenegger lawsuit in May 2009 that eventually became the successful Hollingsworth v. Perry win at the United States Supreme Court in June 2013.

The lawsuit was sponsored by the American Foundation for Equal Rights (AFER) which was created by Chad Griffin at the time the suit was filed. According to the same records, AFER has raised nearly $15 million dollars since its inception and March 31, 2013.

The American Foundation for Equal Rights between 2009 and 2013 paid more than $6.4 million to two law firms that successfully argued against California’s Proposition 8.

Tax filings indicate former U.S. Solicitor General Ted Olson’s law firm – Gibson, Dunn & Crutcher LLP – received $1,691,714 from AFER for “legal and ancillary legal expenses”between April 23, 2009, and March 31, 2010. The organization paid the law firm $958,655between April 1, 2010, and March 31, 2011, and another $2,758,352 between April 1, 2011, through March 31, 2012.

Gibson, Dunn & Crutcher LLP received $537,939 from AFER between April 1, 2012, and March 31, 2013. The organization also paid David Boies’ law firm – Boies, Schiller & Flexner LLP – $468,089 for “legal and ancillary legal expenses” between April 1, 2010, through March 31, 2011.

Some  have questioned why such prominent lawyers did not work on this seminal civil rights lawsuit pro bono, which has generally been the custom in other movements. Others point out that the $15 million raised (and presumably spent) by AFER is much less than a ballot measure campaign to overturn Proposition 8 would have cost. And you may remember in 2009 there were very many people (vocally opposed by  a coalition of groups that included yours truly) who wanted to go to the ballot as soon as possible. Also, no LGBT legal minds thought that a federal challenge to Proposition 8 would succeed and were strongly opposed to the Olson-Boies lawsuit at the time.

Another reason why this is useful information is that AFER is now involved in another federal lawsuit, Bostic v. Rainey, in which they are suing to have Virginia's ban on same-sex marriages invalidated. On Valentine's Day, a federal judge struck down that ban and put a stay on her decision pending a resolution on appeal to the 4th Circuit or above. Lambda Legal and the ACLU have successfully petitioned to intervene in that case, which was opposed by AFER.

There is currently a race to see which federal lawsuit will get to the Supreme Court. Even though a dozen U.S. district courts have struck down marriage bans, no U.S. circuit courts have (yet). Oral argument in the Utah case (Kitchen v. Hebert) before the 10th Circuit and in the Nevada case (Sevcik v Sandoval) in the 9th Circuit are scheduled for April. It will be interesting to see if AFER's profile or reputation will be negatively impacted by these revelations despite their winning track record on restoring marriage to California on a timeline faster than the LGBT establishment expected.

Wow! Huge victory for LGBT rights occurred Thursday night when a federal judge judge ruled in the case Bostic v. Rainey that Virginia's ban on same-sex marriage violates the federal constitution.

In a 41-page ruling issued shortly before 9 p.m. Thursday, U.S. District Court Judge Arenda L. Wright Allen found Virginia’s constitutional amendment defining marriage as between a man and a woman and banning state recognition of legal same-sex marriages performed in other jurisdictions, as well as portions of Virginia code and “any other Virginia law that bars same-sex marriage or prohibits Virginia's recognition of lawful same-sex marriages from other jurisdictions” as unconstitutional. 

"The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry,” the ruling states. “Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family."

This case has an extremely high profile because it is sponsored by the American Foundation for Equal Rights and features the superlawyer odd couple pairing of David Boies and Ted Olson. Just last week, the judge heard oral arguments in this case but she had been expected to rule quickly. Nice touch to do so before Valentine's Day.

Marriages can not begin in Virginia because Judge Wright Allen issued a stay on her decision, realizing that since the Supreme Court ultimately issued a stay when another federal judge struck down a similar ban in Utah last December. The case will now go to the 4th U.S. Circuit Court of Appeals, and most likely, the United States Supreme Court eventually.

Elections have consequences! The sweep of Democrats of the three statewide offices of Governor, Lieutenant Governor and Attorney General in the November 2013 elections in Virginia is having a dramatic impact on the pending federal lawsuit on marriage equality in that state. Attorney General Mark Herring has announced that he believes Virginia's ban on same-sex marriage is unconstitutional and is filing a brief joining the same-sex couples represented by the American Foundation for Equal Rights (the group that filed the federal lawsuit that led to the restoration of marriage equality to California) in arguing that position in court.

The Washington Post reports:

Democrats cheered the move as a victory for civil rights while Republicans blasted it as dereliction of the attorney general’s duty to defend the state constitution. With the support of 57 percent of voters, Virginia amended its constitution in 2006 to ban gay marriage. 

Herring said his chief duty is to defend the U.S. Constitution. 

“The Supreme Court is clear: The United States Constitution is the law of the land, the supreme law of the land,” Herring said at a press conference. “I believe the freedom to marry is a fundamental right and I intend to ensure that Virginia is on the right side of history and the right side of the law.”

Joe.My.God posted video of Herring explaining his position:


Of course, the symbolic significance of Virginia taking a position in favor of marriage equality after arguing in court in 1967 against interracial marriage is not lost on anyone.

Exciting day!

A new poll indicates that Virginia's ban on marriage equality, enacted by voters in 2006, would not survive if voters could vote again on the measure in next month's election. 56 percent of Virginia voters say they oppose the state's same-sex marriage ban while 36 percent say they favor it.

Although voters will not be able to vote to impact marriage equality any time soon, there are two pending marriage lawsuits in federal court in Virginia, one that includes the participation of the very high profile duo of Ted Olson and David Boies who successfully sued to have  California's voter-approved same-sex marriage ban invalidated in federal court.

AFER, the American Foundation for Equal Rights, is the organization behind the ultimately successful federal lawsuit against Proposition 8 in California in May 2009 which led to the Supreme Court's landmark decision in Hollingsworth v Perry on June 26, 2013. It should be noted that at the time AFER filed its federal lawsuit against Proposition 8, the traditional LGBT legal organizations issued a joint statement declaring the action to be "wrong."

AFER is announcing today that it is joining another federal lawsuit to win marriage equality, and they are doing it in the Commonwealth of Virginia. There's a current lawsuit already filed in Virginia to win marriage equality there called Bostic v. Rainey and the superlawyer team of David Boies and Ted Olson.

From the press release:

Washington, DC – The American Foundation for Equal Rights (AFER), the sole sponsor of the landmark federal constitutional challenge that eliminated California’s Proposition 8 and restored marriage equality in the nation's most populous state, will announce that it has joined the federal legal challenge to Virginia’s ban on marriage for gay and lesbian couples, Bostic v. Rainey.  The case, filed in U.S. District Court for Virginia's Eastern District on behalf of two couples, calls the Virginia Marriage Amendment, which prohibits gay and lesbian couples from marrying, unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, violates Due Process and singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”

The Bostic case once again joins the bipartisan legal team of Theodore B. Olson and David Boies, who successfully defeated California’s Proposition 8 in Federal Court, to continue the fight for marriage equality.

Virginia has an interesting resonance on the issue of marriage equality because it is the location of the landmark lawsuit Loving v Virginia which the Supreme Court used to strike down all state laws banning interracial marriage and re-affirmed the principle that the right to marry is a fundamental right under the U.S. Constitution.

Virginia is a purple state (Republican controlled on the state level, but has voted twice for Barack Obama for President) and has no statewide protections for LGBT individuals at the state level. If a federal lawsuit against a state marriage amendment can succeed in Virginia then the thirty-five other states which have amendments and bans against same-sex marriage are likely susceptible to lawsuits.

Chris Geidner notes that the Virginia marriage amendment was passed in November 2006 by voters 57 percent to 43 percent and gives the text:

“That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

Note that this measure not only bans same-sex marriage but it also bans recognition of domestic partnerships as well. Most of the state bans on marriage (20) include similar language.

Today is Day 1 of Gaytterdämmerung, when the United States Supreme Court will hear oral arguments in Hollingsworth v. Perry, the California Proposition 8 case. This is the case where the Justices could decide whether there exists a fundamental right to marry that also applies to non-heterosexual people, or simply decide that a state can not take away such a right once it has been granted, or decide that a state can not offer all the legal rights and responsibilities but deny the term marriage due to the fear of associating same-sex couples with the word. The 9th U.S. Circuit Court of Appeals and the District Court have both ruled that Proposition 8 violates the United States Constitution. Bush Administration Solicitor-General Ted Olson and Obama Administration Solicitor-General Donald J. Verrilli will be arguing in favor of that proposition, while they will be opposed by Charles J. Cooper, who has basically argued every important anti-gay marriage case for the last twenty years (and won very many of them).

There are 9 members of the US Supreme Court (Pop Quiz: How many Can You Name?) but really the two that everyone will have their eyes (and ears) on are Anthony Kennedy and John Roberts. Kennedy has written the two most pro-gay decisions in the court's history (1996's Romer v. Evans striking down Colorado's Amendment 2 and 2003's Lawrence v. Texas striking down the country's remaining sodomy laws) so he is expected to play a major role in determining how the court will rule in Hollingsworth. Roberts is the Chief Justice, and as he showed with last year's surprising decision to uphold the Affordable Care Act (i.e. Obamacare) he is a consummate politician who is always trying to maintain the legitimacy of the judicial branch in our system of government. Roberts has also caused headlines because his openly lesbian cousin will be attending the oral arguments in person as a result of action by the Justice. He is the head of the conservative wing of the Court, but is thought to be pragmatic enough to not want the two biggest gay rights cases of his generation to be 5-4 decisions.

We'll know in June 2013!

The United State Supreme Court will hear oral arguments in the Proposition 8 case (i.e. Hollingsworth v. Perry) in exactly 7 days, March 25th. That is the 10th anniversary of oral arguments in another famous case, Lawrence v Texas, which resulted in the nation's remaining sodomy laws being ruled unconstitutional. The United States Solicitor General has been granted leave to participate in the oral arguments, even though the U.S. is not a party to the lawsuit.

The next day the court will hear oral arguments in United States v. Windsor, which will decide the constitutionality of the so-called Defense of Marriage Act (DOMA).

I've been calling these two days gay götterdämmerung or Gaytterdämmerung. 7 more days, people!

The "good guys" from the American Foundation for Equal Rights have now filed their appellants-defendant brief in Hollingsworth v Perry (a.k.a. The Proposition 8 case). It is extremely powerful: well-written, cogently argued and filled with strategically chosen citations.

One key point that David Boies and Ted Olson make is that it is the proponents of Proposition 8 who are devaluing and underestimating marriage. For example, not once in the heterosexual supremacist brief filed by Charles Cooper does it mention the word "love." And they are also called out for the fact that their argument now (that Proposition 8 is about channeling "responsible procreation" by heterosexuals) was completely different from what they said during the actual campaign over Proposition 8 way back in the Fall of 2008.

Scottie over at Equality on Trial has more commentary:

They resurrect the claim that Prop 8 violates the Due Process Clause of the 14th Amendment. This is the “fundamental right” argument that was advanced in Judge Walker’s opinion but discarded by the Ninth Circuit:

Because Proposition 8 prevents gay men and lesbians from expressing this most basic aspect of their autonomy and personhood, and is not “narrowly drawn” to further a “compelling state interest[ ],” Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977), it violates due process. Proponents nonetheless claim that marriage—and thus the fundamental right to marry—excludes same-sex couples as a definitional matter. They contend that “marriage” categorically excludes same-sex couples because society’s alleged interest in “responsible procreation and childrearing” is the defining purpose of marriage. Prop. Br. 34. Proponents’ newly constructed understanding of the contours, implications, and meaning of marriage conflicts with longstanding controlling precedent from this Court and the overwhelming record evidence in this case.

And they take on the “procreation” argument:

This Court has never conditioned the right to marry on the ability to procreate. Rather, the Court has expressly recognized that the right to marry extends to individuals not in a position to procreate with their spouse, see Turner, 482 U.S. at 95, and that married couples have a fundamental right not toprocreate. See Griswold, 381 U.S. at 485-86.

They address equal protection:

Proposition 8 also violates equal protection, as it is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” Plyler v. Doe, 457 U.S. 202, 219 (1982). It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians, id., who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, religiously unacceptable, or simply not “okay.” With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry. Your loving relationship is not equal to or respected enough to qualify to be called a marriage.

And one of my favorite parts is the strong conclusion:

Because of their sexual orientation—a character-istic with which they were born and which they can-not change—Plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s mostprecious relationships. They may not marry the per-son they love, the person with whom they wish topartner in building a family and with whom they wish to share their future and their most intimateand private dreams. Although opening to them participation in the unique and immensely valuable in-stitution of marriage will not diminish the value or status of marriage for heterosexuals, withholding itcauses infinite and permanent stigma, pain, and isolation. It denies gay men and lesbians their identityand their dignity; it labels their families as second-rate. That outcome cannot be squared with the prin-ciple of equality and the unalienable right to libertyand the pursuit of happiness that is the bedrockpromise of America from the Declaration of Inde-pendence to the Fourteenth Amendment, and thedream of all Americans. This badge of inferiority, separateness, and inequality must be extinguished.When it is, America will be closer to fulfilling the as-pirations of all its citizens. 

The judgment of the court of appeals should be affirmed.

Oral arguments before the United States Supreme Court are in almost exactly 4 weeks, on Tuesday March 26.

The New York Times published an editorial on Sunday titled "Beyond Selma-to-Stonewall" which strongly urges the Obama administration to intervene in the Proposition 8 case Hollingsworth v. Perry:

The outcome of the Proposition 8 case is likely to affect the lives of gay, lesbian and bisexual Americans for years to come, even if the final disposition is not sweeping enough to wipe out all state laws currently banning same-sex marriage. A strong filing by the Justice Department, forthrightly declaring that denying the freedom to marry violates the Constitution, would put the full weight of the federal government on the side of justice and could influence the shape of the ruling.

For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.

Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.

The question of whether the federal government (as represented by the Department of Justice headed by Attorney-General Eric Holder) should take a position in the Perry case even though it is only about a particular state's marriage laws has been a slow boiling controversy in LGBT legal circles.

However, now it is clear that the heterosexual supremacist forces represented by Charles Cooper are explicitly hoping that the Obama administration does not intervene in the case while the pro-marriage equality forces represented by Ted Olson and David Boies are explicitly asking for the support of the Department of Justice on behalf of the appellee-defendants:

Olson and Boies, former opponents from the landmark Supreme Court case that decided the 2000 presidential election for George W. Bush, urged the government to enter the case and assert that gay and lesbian couples have the same right to marry as a man and a woman. According to lawyers in the room, Olson stressed that the administration's voice should be heard at this historic moment. Olson, who as solicitor general under Bush from 2001-04 once ran such meetings, was especially fervent. He compared the contention that states need more time to resolve the gay-marriage dilemma to arguments half a century ago that states needed more time before blacks and whites could share the same public accommodations such as drinking fountains. 

A former Reagan administration lawyer, Cooper argued in his session that marriage is the business of the states, so no federal constitutional interest can be asserted. Cooper referred to Obama's own comments suggesting that states should decide the matter and echoed much of what he had written in his recently submitted brief to the Supreme Court. In that, Cooper included Obama's remarks from a May 2012 interview with ABC News referring to the "healthy process and ... healthy debate" occurring in the states.

The text is referring to arguments made by the pro-LGBT and anti-LGBT sides to Solicitor General Donald Verrilli (who actually represents the interests of the United States before the United States Supreme Court) at meetings that occurred on January 18th. The Obama administration and other parties considered "friends of the court" have until close of business on Tuesday to file their amicus curiae briefs.

On November 20th, the 9 Justices of the United States Supreme Court will meet in their chambers  to decide the fate of Proposition 8, the November 2008 ballot measure which attempted to amend the California constitution to remove the previously granted right to marry to same-sex couples. The technical term is whether they will grant certioari to the heterosexual supremacists who have appealed their repeated losses in federal courts to the highest court in the land. If there are not four Justices who want to hear the case, then the lower ruling will stand and soon afterwards marriage equality will be restored to the state of California. If there are at least four Justices who want to hear the case, then certioari will be granted and eventually a briefing schedule will be determined and oral arguments will occur. Then a final decision on the constitutionality of Proposition 8 will be issued by June 2013.

The Justice's certioari decision in the case, now called Hollingsworth v. Perry, is not expected to be announced until Monday November 26th. Many observers think there is a reasonable chance that the Court will decide not to hear the case, since the lower court ruling in the 9th Circuit is relatively narrow, and there are several other LGBT-related cases pending before the Court as will this term.

In addition to a certioari decision on Proposition 8, the Justices will also decide on which of the many DOMA-related cases it will hear. The Justices are widely expected to grant at least one of these appeals, especially since the Justice Department is also asking them to. We'll know the answer on November 26!

The heterosexual supremacists who promoted and convinced voters to pass California's Proposition 8 by employing a campaign of deceitful lies in order to amend California's state constitution to prohibit other marriages than those between a man and a woman fro being valid or recognized in the state, have appealed their federal court losses at the district and appellate levels to the final court in the land, the United States Supreme Court. This was the next move after the 9th U.S. Circuit Court of Appeals denied their request for an en banc hearing on June 5, 2012.

The case is now called Perry v. Brown. ProtectMarriage.com (formerly known as Yes on 8) filed a brief on Tuesday which declares that the question they want the Supreme Court to consider in their appeal is:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Of course this framing of the question is the most advantageous to the appellant-defendants, because if California can NOT do so, then the logic of a Supreme Court ruling doing so could be used to strike down similar bans on same-sex marriages in a majority of the states, which is a sweeping judicial action unlikely to be embraced by a majority of Justices on the highest court.

Of course it was not the state of California which attempted to define marriage as between a man and a woman, it was a group of self-appointed heterosexual supremacists who put a ballot measure before the voters of California in response to a then-pending lawsuit which ended up legalizing same-sex marriage in the state by a 4-3 California Supreme Court decision. Marriage was legal for 173 days until Proposition 8 was approved by the voters, nullifying the effect of that decision, in re Marriage Cases, from allowing same-sex couples to continue to marry in the state. Charles Cooper, the lawyer for Protect Marriage who has spent decades of his career opposing equal marriage rights in court, would like you (and the Court) to believe that the timing of Proposition 8 is irrelevant, and the fact that same-sex couples had a right to marry which was taken away by the action of voters is not the issue at hand, while advocates of LGBT equality would argue that is precisely the question the Supreme Court needs to answer.

The American Foundation for Equal Rights will have 30 days to submit their reply brief. AFER has said that they oppose the High Court taking up this appeal, but are prepared to argue their case. It will be interesting to see how AFER's super lawyers David Boies and Ted Olson will frame the question at issue in the appeal.

We will not know until late September or early October what the Court's response to the appeal will be. If it takes the case, there will be multiple cases involving marriage equality before the court this term, with the others involving the fate of the so-called Defense of Marriage Act (DOMA).

Hat/tip to Chris Geidner

Chad Griffin, 38, is board president and founder of the American Foundation  for Equal Rights, the group that organized the Proposition 8 federal lawsuit

The Advocate is reporting that 38-year-old political consultant Chad Griffin, the force behind the Los Angeles-based group which is shepherding the original Perry v Schwarzenegger federal legal challenge to Proposition 8 (American Foundation for Equal Rights or AFER) has been named the new head of the Human Rights Campaign, the most prominent LGBT advocacy position in the United States:

A major fundraiser for the Obama campaign who began his career in the early days of the Clinton White House, Griffin will replace current president Joe Solmonese at the helm of the $40 million organization on June 11, HRC announced Friday following a board of directors vote. Solmonese, who joined HRC as president in 2005 and said in August that he would leave after his contract expires at the end of this month, will continue in his role until June. Solmonese was named a national co-chair for the Obama campaign last month. 

In its pick of Griffin as president, HRC has chosen someone who was shaped from an early age by Washington political culture yet who is not defined by it, having spent the vast majority of his career outside the Beltway. Griffin, 38, is a fervent supporter of President Obama with personal ties to White House officials, but has pushed the bipartisan case for marriage equality, notably hiring former George W. Bush solicitor general Theodore Olson to co-lead the Prop. 8 suit and aligning with conservatives including gay former Republican National Committee chair Ken Mehlman, who has raised money for the legal effort. Griffin has been openly critical of the president’s evolving position on marriage equality, calling Obama’s indicated support for states' rights on deciding who can marry “a step backwards.” And, central to the job, Griffin has a proven ability to be a formidable fundraiser.

“While there’s no doubt that we’ve made tremendous progress on the road to equality, we must not forget that millions of LGBT Americans still lack basic legal protections and suffer the consequences of discrimination every day,” Griffin said in a statement. “Today's generation of young people, and each generation hereafter, must grow up with the full and equal protection of our laws, and finally be free to participate in the American dream. As HRC president, I’ll approach our work with a great sense of urgency because there are real life consequences to inaction.”

This is very big news and should raise the profile of marriage equality even higher in the nexus of LGBT issues that enter into the mainstream political consciousness of the 2012 political campaigns.

It will be interesting to see what impact Griffin's selection will have on the other issues which America's largest LGBT advocacy organization is also responsible for advancing, such as trans-inclusive national employment non-discrimination legislation, repealing the Defense of Marriage Act, passing the Uniting All Families Act, and the multiple statewide pro-gay and anti-gay ballot measures around the country (just to name a few).

In larger terms, the question of how the movement for LGBT equality will interface with other progressive movements like comprehensive immigration reform, the pro-choice movement, the labor movement and people of color civil rights organizations when the players involved are becoming more bipartisan in nature will be important to watch. Griffin is known for defying "Gay, Inc." orthodoxy in the past and is clearly comfortable working across party lines, having personally recruited David Boies and Ted Olson to be the superlawyers leading the Perry lawsuit to strike down California's same-sex marriage ban.

June 12 is the 44th anniversary of the unanimous Loving v. Virginia United States Supreme Court case which overturned all state-enacted bans on interracial marriages. David Boies and Ted Olson are the lead attorneys in the federal lawsuit against Proposition 8, a 2008 California ballot measure which bans same-sex marriage. They have recorded a special video tribute acknowledging the significance of the Loving decision, and its potential impacyt on the Perry v. Brown case.

Hat/tip to TowleRoad.

Paul Clement was U.S. Solicitor General from 2004-2008

U.S. House Speaker John Boehner has decided on former Bush Administration Solicitor General Paul Clement to represent the Congress' interest in defending the so-called Defense of Marriage Act (DOMA) in federal court. Clement is a well-known Supreme Court advocate (he succeeded Perry v. Brown Republican superlawyer Ted Olson in the Solicitor General position) and is rumored to make over 5 million dollars a year at  the law firm of King & Spalding and charge as much as $1,000 per hour. Clement has reportedly argued more than 50 cases before the United States Supreme Court.

Clement's defense will not be cheap, as DOMA has been declared unconstitutional in two cases before the 1st U.S. Circuit Court of Appeals, the Department of Justice has decided that the statute is unconstitutional and there are around 12 jurisdictions in which DOMA is being challenged in court.

Former House Speaker Nancy Pelosi  sent a letter to Boehner in response to the current Speaker's actions, reproduced below:

April 18, 2011

The Honorable John A. Boehner
Speaker of the House 
H-232, The Capitol
Washington, D.C. 20515 

Dear Mr. Speaker:

Thank you for your response earlier today to my letter of March 11, 2011 concerning litigation relating to the Defense of Marriage Act (DOMA).  My letter had requested that you provide me with the cost to the House and to taxpayers resulting from the decision of the Republican members of the Bipartisan Legal Advisory Group (BLAG) to hire outside counsel to represent the House in support of the DOMA.  You note that President Obama and Attorney General Holder have determined that DOMA is unconstitutional, a conclusion I share, and have declined to engage in further judicial proceedings in defense of the law.  As you may know, presidents have acted similarly in the past on at least 50 instances since 1979.  

Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel.  Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.  

Press reports indicate that the House, at your direction, will intervene today in the Windsor case, which is in a federal court in New York.  Ms. Edie Windsor spent more than 40 years with her partner, Ms. Thea Spyer, and they were married in 2007.  When Ms. Spyer passed away Ms. Windsor was unable to claim the federal estate marital tax benefit because of DOMA and the federal government imposed estate taxes of more than $360,000 on the money left to her.  This case is a prime example of the injustice perpetuated by DOMA on millions of American families.  

According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee.  Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King & Spalding where he is in charge of the national appellate practice.  I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.

The House of Representatives need not enter into this lengthy and costly litigation.  Contrary to the assertion in your letter, a BLAG determination against House involvement in the litigation – which was the position of Democratic Whip Hoyer and me – would not have allowed the constitutionality of the law to “have been determined by a unilateral action of the President.”  As you know, only the courts can determine the constitutionality of a statute passed by the Congress.  

Thank you again, and I look forward to working together with you on behalf of our country.

best regards,


NANCY PELOSI
Democratic Leader

Love her!

Hawkins	Smith	Reinhardt

The 3-member panel for the 9th Circuit Court of Appeals who will hear oral arguments on Monday December 6th in the federal Proposition 8 case, Perry v. Schwarzenegger, has been announced. It consists of the most liberal member of the gigantic 26-member 9th Circuit, Hon. Stephen Reinhardt (appointed by Carter in 1980), a moderate jurist named Hon. Michael Daly Hawkins (appointed by Clinton in 1994) and a right-wing ideologue, N. Randy Smith (appointed by George W. Bush in 2007).

Most commenters think that the make-up of the panel indicates a likely 2-1 decision in favor of the good guys (supporters of marriage equality), which will probably get appealed to an 11-member panel of the 9th Circuit called an en banc panel. From there, it's direct to the Supreme Court of the United States, the highest court in the land.

On Monday December 6th at 10am, A 3-judge panel of the 9th U.S. Circuit Court of Appeals will hear the case of Perry v. Schwarzenegger, also known as the federal Proposition 8 lawsuit. On August 4th, openly gay federal District Court judge Vaughn Walker ruled that Proposition 8 violated the United States Constitution.

These facts have been known for awhile. The new information is that apparently the oral arguments in the Perry appeal will now be televised by C-SPAN and local channel KGO. This is a big deal, because the lower court was intended to be broadcast as well but the heterosexual supremacists defending Proposition 8 objected and appealed all the way to the United States Supreme Court who overruled Judge Walker and banned the broadcasting of the oral arguments just days before the trial was scheduled to begin this past January.

Here are the details of the hearing on Monday, which will be in two 2-hour segments. The first session will be on whether the Proposition 8 propnents have "standing" to actually continue defending the statue, since the official parties to the lawsuit (the Governor and Attorney General) have refused to defend the voter-passed initiative in court. The second hour will be about the constitutionality of Proposition 8 itself.

Filed clerk order (Deputy Clerk:KKW): The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.

During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.

During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.

No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.. [7545517]

The names of the judges who will hear the appeal have not been released yet. Whoever loses at this level will appeal to the United States Supreme Court, who may or may not accept the case.