Statement from NCLR Executive Director Kate Kendell on Today’s Ninth Circuit Ruling in Prop 8 Case

August 16, 2010

(San Francisco, CA, August 16, 2010) — Today, the Ninth Circuit Court of Appeals granted the Proposition 8 proponents’ motion to stay U.S. District Court Judge Vaughn Walker’s decision, which means that same-sex couples in California will not be able to marry while the case is on appeal. However, the Ninth Circuit put the appeal on a fast track and specifically directed that the Prop 8 proponents to address “why the appeal should not be dismissed for lack of Article III standing” in their opening brief.

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Statement from NCLR Executive Director Kate Kendell

 “Every additional day that couples must wait to marry again in California is painful, but despite the terrible disappointment for the many couples whose right to marry has been delayed yet again, today’s ruling includes another significant victory for our side. The court did the right thing by putting the case on a fast track and specifically ordering that Prop 8 proponents show why they have a legal right to appeal. This ruling brings us one step closer to ending the nightmare of Prop 8, and restoring full equality for all Californians.”


Ted and David’s Most Excellent Adventure

August 16, 2010

In the weeks leading up to the Proposition 8 trial, much was made in the media, blogs, and everyday conversations about the unlikely duo leading the legal challenge against the shameful California ballot measure that stripped marriage from same-sex couples.

The two, Ted Olson and David Boies, are an unlikely pairing on many levels. They are political adversaries, and famously opposed each other in Bush v. Gore. They are each high-powered and highly paid inside-the-beltway lawyers. Ted is a long-time darling of the conservative movement, a former U.S. Solicitor General and a founder of the Federalist Society. David is a Democratic Party insider and an advisor to a number of key Democratic leaders. And, finally, both are straight, and had no apparent prior interest or experience in lesbian, gay, bisexual, and transgender issues.

When the lawsuit was filed, the first question to each of them was, “Why?” Their eloquent statements in support of full equality for same-sex couples quickly convinced even the most dubious that their commitment was sincere. Their stunning trial presentation and utter evisceration of the arguments and witnesses of those supporting Prop 8 paved the way for the recent ruling by Judge Vaughn Walker, which methodically dismantled every tired and baseless trope ever trotted out for why same-sex couples alone should be excluded from the right to marry. The trial was a masterwork, the ruling a tour de force. As a result, the LGBT civil rights movement has jumped into hyper-drive.

This is a moment that happens in almost every major social justice movement. The community most affected, along with its closest allies, toils for years to secure key wins—measured in terms of formal equality, changing attitudes, and cultural shifts. In the past five decades the modern LGBT civil rights movement has made breathtaking advances in both law and popular culture. We have made these gains because we fought for them, and we have been joined by key allies: family members, neighbors, religious leaders, politicians, Hollywood, and business types.

All together, we have come very far. But every movement also needs a game changer – the key figure, or figures, who come, seemingly from nowhere, and step up to make our fight their fight. When that moment happens, it is something to behold. In the wake of the Prop 8 ruling, we heard the familiar hysterics from the same over-the-top folks who always show up to foam about the end of civilization. But for the first time in the wake of a major legal victory for LGBT rights, we are neither hearing nor seeing any of that from those in real political leadership positions, who have mainstream credibility. In fact, it seems eerily quiet—the noises we have heard from those quarters in the past are now muted and few. So it may be that Ted and David not only led the legal team that took down Prop 8, but may, just by being who they are, have muzzled some of the most powerful voices against us.

It remains to be seen how long this apparent detente will last. But for the moment, it seems cooler heads are prevailing. And just this week CNN released poll results showing, for the first time ever, majority support for the right of same-sex couples to marry. So maybe, just maybe, some of those who have been so quick to vilify us are being forced to think twice, simply because a man they respect, a colleague they admire, a long-time friend they look to for advice, has said, “That’s enough.” We aren’t the first and won’t be the last civil rights movement to benefit enormously from the involvement of unlikely allies, but as we savor the victory of truth over lies and reason over caricature, it is very nice to have Ted and David by our side.


Effort to Block Gay Marriage in Maryland Blocked

February 3, 2010

from the Baltimore Sun

Maryland lawmakers just rejected an effort to prohibit the state from recognizing same-sex marriages lawfully performed elsewhere.

Del. Emmett C. Burns, a Baltimore County Democrat and minister, had proposed that the state, which does not allow same-sex unions, pass a law explicitly declaring that such marriages are illegal, even when performed in another state.

read more


NCLR Urges President Obama to Stop Defending DOMA

January 29, 2010

Today, the Department of Justice once again filed a brief defending the so called “Defense of Marriage Act” (DOMA) in Gill v. Office of Personnel Development, a federal lawsuit challenging Section 3 of DOMA, which excludes same-sex couples from all federal benefits and protections given to heterosexual married couples.

A statement from Kate Kendell, Executive Director of the National Center for Lesbian Rights:

“Once again, President Obama and the Department of Justice missed an opportunity to acknowledge that discrimination against lesbian, gay, bisexual, and transgender people is wrong. The Justice Department is defending a statute motivated by animus, and continues to advance what we believe are insupportable arguments in defense of DOMA. Never before has the federal government refused to provide benefits to legally married couples, and there is no reason for doing so now. DOMA hurts families and serves no legitimate purpose. It is unconscionable that this Administration continues to defend this blatantly discriminatory law.”


Mexico City Mayor Vows to Defend Gay Marriage Law

January 29, 2010

from the Associated Press

Mexico City’s mayor says he will defend the capital’s gay-marriage law and insists the ordinance will take effect in March despite an appeal by federal prosecutors.

Mayor Marcelo Ebrard says the federal appeal on constitutional grounds is wrong. He says nothing in Mexico’s constitution prohibits same-sex marriage or adoption by gay couples.

read more


Live Chat: Prop 8 Trial Recap and Discussion with NCLR

January 28, 2010
Join NCLR Legal Director Shannon Minter and Senior Staff Attorney Chris Stoll for a recap and analysis of the Prop 8 trial. Join the live chat today at Pam’s House Blend at 5 p.m. Pacific/8 p.m. Shannon and Chris have been in the courthouse everyday, live tweeting, and providing daily summaries and legal analysis of the proceedings.
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Day 12

NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 12

January 27, 2010

cross-posted from Pam’s House Blend

Today was the final day of testimony in Perry v. Schwarzenegger. Like every day before it, today was remarkable.

The majority of the day was spent on finishing up the cross-examination of David Blankenhorn, an expert witness for the defendants. As he did yesterday, renowned attorney David Boies absolutely nailed the examination. Blankenhorn did nothing to help himself, fighting Boies’s yes-or-no questions at every turn even when Boies was simply laying a basic foundation with uncontroversial points. Blankenhorn’s defensive behavior verged on the histrionic, contrasting sharply with Boies’s calm, matter-of-fact approach. At one point, Judge Walker stepped in and instructed Blankenhorn to keep in mind that a fact-finder, meaning a judge or jury, can consider a witness’s demeanor when deciding how credible that witness is and how seriously to take his or her testimony. Although Judge Walker delivered it with great diplomacy and tact, this was a fairly sharp rebuke.

On cross, Boies established a couple of key points that gravely undermined Blankenhorn’s authority as an expert on marriage. First, Boies elicited testimony that Blankenhorn had not read many leading scholarly articles addressing the question of how society would be affected by allowing same-sex couples to marry. For example, of the dozens of articles cited in policy statements supporting marriage equality for same-sex couples by leading professional organizations, Blankenhorn admitted that he had read scarcely more than a handful.  In contrast, all of the plaintiffs’ expert witnesses were demonstrably well-versed in the entire range of scholarly literature on the topics about which they testified.

Second, Boies elicited extensive testimony from Blankenhorn acknowledging that permitting same-sex couples to marry would “almost certainly” benefit those couples and their children.  Blankenhorn also testified that  the most important dimensions of marriage (as defined by Blankenhorn in one of his publications) are the same for same-sex and opposite-sex couples.  In short, by the end of Blankenhorn’s cross, his own testimony had provided multiple powerful reasons to permit same-sex couples to marry, and his opposition to marriage equality seemed virtually inexplicable.

It has been an amazing two and a half weeks.  This trial has been a truly historic moment for our community.  It is the first time a federal court has heard, first hand, from real live witnesses, about the harm that the denial of marriage equality causes lesbians, gay men and their families every day.  It’s also the first time a federal court has heard the arguments in favor of marriage equality presented live in court by an array of internationally renowned scholars who are truly experts in their respective fields.

What stands out the most after having seen all the witnesses on both sides is how overwhelmingly one-sided the evidence in this case turned out to be.  The plaintiffs, represented by some  of the most skilled attorneys in the country, laid out a well-crafted, meticulous case, backed by the testimony of half a dozen of the most respected historians, psychologists, economists, and political scientists who study marriage, sexual orientation, and child development.  Using the Prop 8 proponents’ own outrageous and inflammatory words, ads, and emails, the plaintiffs powerfully demonstrated that Prop 8 was a direct product of hostility, fear-mongering, and demonization of lesbians and gay men.  And through the deeply moving testimony of the plaintiffs and other members of our community, they proved beyond question that denying same-sex couples the right to marry causes great harm to LGBT people and their children.

Stacked up against this mountain of facts, scholarship, and science, the Prop 8 proponents – though represented by fine attorneys – were not able to come forward with a case of their own.  Before trial, they dropped nearly every witness they had planned to present and relied entirely on two poorly qualified, ill-prepared expert witnesses, neither of whom was able to establish that banning same-sex couples from getting married has any rational or legitimate purpose relating to procreation, child rearing, tradition, or any of the other justifications that have been offered in the past in support of anti-gay discrimination.  In fact, nearly all of the defendants’ experts agreed with the plaintiffs that marriage equality would benefit same-sex couples and their families in many real, tangible ways.

It should not have come as a surprise that the defense’s case turned out to be so weak.  As our executive director Kate Kendell is fond of saying, the arguments against marriage equality have always been “all hat and no cattle.”  This trial showed more powerfully than ever that there truly is no substance to the arguments of those who would deny equality to our families.  It has been extremely gratifying to see those arguments aired out in public, before a smart, independent-minded judge, in a way that’s never been done before.  It is a shame that the public was unable to see the trial in video, but the transcripts, available at http://www.equalrightsfoundation.org/our-work/hearing-transcripts/, are fascinating reading for anyone interested in learning more about this important chapter in our civil rights struggle.

Judge Walker will now take some time to review all the evidence that has been presented.  The lawyers for both sides will return to court in a few weeks (on a date still to be determined) to present their closing arguments


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