NCLR Legal Analysis of the Ninth Circuit Prop 8 Ruling

January 4, 2011

By Shannon Minter, Esq.
National Center for Lesbian Rights Legal Director

Today brings a new development in Perry v. Schwarzenegger, the federal constitutional challenge to California’s Proposition 8, which amended the California Constitution to strip same-sex couples of the freedom to marry.  Perry is currently on appeal before the Ninth Circuit Court of Appeals, the federal appeals court that covers California. In a ruling issued this morning, the Ninth Circuit denied Imperial County’s attempt to intervene in the case. The Ninth Circuit also asked the California Supreme Court to clarify whether, under California law, the group that placed Prop 8 on the ballot has a legal right to appeal District Court Judge Vaughn Walker’s decision that Prop 8 is unconstitutional.

To understand what today’s ruling means, it is helpful to look back on the history of the Perry case. In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California. Judge Walker permitted Prop 8’s official supporters to intervene in the case as defendants, and also permitted the City and County of San Francisco to intervene as a plaintiff to represent its unique governmental interest in marriage equality. On the eve of trial, Imperial County also filed a motion asking to intervene in the case as a defendant.

After a three-week trial in January 2010, Judge Walker ruled in August 2010 that Prop 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. Judge Walker also ruled that Imperial County did not have the right to intervene as a defendant.

California’s Governor and Attorney General decided not to appeal that ruling because they agreed that Prop 8 was unconstitutional. The supporters of Prop 8 and Imperial County both filed appeals with the Ninth Circuit.

At oral argument on December 6, 2010, the Ninth Circuit panel asked all sides questions about whether the official supporters of Prop 8 have the legal right to appeal Judge Walker’s decision. The parties also addressed whether Imperial County should have been allowed to intervene in the case as a defendant.

Today, the Ninth Circuit panel upheld Judge Walker’s decision not to allow Imperial County or its Deputy Clerk to intervene in the case. In order to intervene, Imperial County would have needed to show that it had a significant interest at stake. The Ninth Circuit explained in today’s opinion that Imperial County did not have any interests that would be sufficiently affected by the outcome of this lawsuit.

In addition, the Ninth Circuit made clear in today’s ruling that if the supporters of Prop 8 do not have the legal right to appeal Judge Walker’s decision that Prop 8 is unconstitutional, the appeal is over. In order to answer that question, the Ninth Circuit has asked the California Supreme Court to clarify whether California law gives Prop 8’s supporters the right to pursue an appeal when the state’s official representatives, after carefully evaluating the interests of the entire state, have made a considered decision not to appeal.

Ultimately, the Ninth Circuit must decide whether the Prop 8 supporters have a right to appeal under federal law – that is, whether they have “standing” to appeal.  The California Supreme Court may hold that California law does not give initiative sponsors the right to override the litigation decisions of the state’s official representatives.  If so, then the Ninth Circuit likely will hold that the Prop 8 supporters do not have standing.  That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.  

Alternatively, if the California Supreme Court were to hold that California law gives initiative sponsors the extraordinary power to bring an appeal over the objections of the Attorney General and the Governor, the Ninth Circuit would still have to decide whether Prop 8’s supporters meet all of the other criteria to have standing under federal law.  If it ultimately holds that the Prop 8 supporters have standing, then the Ninth Circuit could reach the merits of Judge Walker’s ruling that Prop 8 is unconstitutional.      

The next step after today’s ruling is for the California Supreme Court to decide whether it will accept the Ninth Circuit’s request. If it does so, it will then get briefs from both sides, and might hear oral argument as well before ruling. There is no set timeline for the California Supreme Court to rule.  In previous cases, it has taken the California Supreme Court up to two years to answer a question sent to it by the Ninth Circuit. Given the importance of this case and the real harm that inequality causes to LGBT people every day, however, we are hopeful that the Court will act quickly to restore fairness and equality for same-sex couples in California.


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.”


What Today’s Ruling in the Ninth Circuit Means for Same-Sex Couples Who Want to Get Married

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. That means that the Court will consider whether the decision can be appealed at the same time that it is considering whether Judge Walker’s decision that Prop 8 violates the federal constitutional is legally correct.

All the briefing must be completed by November 1, 2010 and the oral argument will take place the week of December 6, 2010.

Proponents’ opening brief is due September 17. The plaintiffs’ opposing brief is due October 18. The proponents’ reply brief is due November 1.

The Ninth Circuit is not required to issue its decision within any particular time frame after oral argument; however, when an appeal is expedited, the Court tends to issue decisions more quickly. That said, it is still likely to take at least a few weeks or months after the oral argument in December for the Court to issue a decision.

Once the Ninth Circuit rules, the losing side can ask the United States Supreme Court to hear the case. The Supreme Court then has discretion to take the case or to let the Ninth Circuit’s decision stand.


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.


Federal Judge: Prop 8 Unconstitutional

August 4, 2010

A statement from NCLR Executive Director Kate Kendell

Today in Perry v. Schwarzenegger, a federal lawsuit challenging California’s Proposition 8, Judge Vaughn R. Walker of the U.S. District Court in San Francisco ruled that Proposition 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. In his ruling, Judge Walker states: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

On May 22, 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California, challenging California’s Proposition 8, which amended the California Constitution to prohibit marriage by same-sex couples. The National Center for Lesbian Rights (NCLR), the ACLU, and Lambda Legal filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 violates the federal Constitution.

A Statement from NCLR Executive Director Kate Kendell:

“Today’s decision affirms that the law cannot treat people differently based on their sexual orientation and that a majority cannot strip a minority group of its fundamental freedoms at the ballot box. Judge Walker ruled that there truly is no substance to the arguments of those who would deny equality to same-sex couples. This is another landmark victory for same-sex couples and their families who simply want the dignity and security of having the same freedom to marry as others, as well as for all Americans who believe in our nation’s bedrock principle of fairness. We are thrilled that the court has upheld the rights of liberty and equality enshrined in the U.S. Constitution.

The plaintiffs, represented by some of the most skilled attorneys in the country, laid out a well-crafted, meticulous case, backed by 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.

Since 1993, when the Hawaii Supreme Court ruled that Hawaii’s marriage ban violated the Hawaii Constitution, four state supreme courts have struck down laws barring same-sex couples from marrying, two state supreme courts have held that same-sex couples must be given all of the material rights and benefits of marriage, and more than a dozen state legislatures have enacted laws either permitting same-sex couples to marry or providing them with some or most of the benefits of marriage as a step toward marriage equality itself. Last month, a federal court in Massachusetts held that the federal Defense of Marriage Act, which discriminatorily denies legally married same-sex couples all federal protections and programs, has no rational basis. Today’s ruling by Judge Walker powerfully confirms this growing consensus that same-sex couples deserve basic fairness.”


A Landmark Victory for Justice and Our Families

August 4, 2010

Well, it’s official, Prop. 8 is history. Hopefully, for good. Today U.S. District Court Judge Vaughn R. Walker ruled that Proposition 8 is unconstitutional and violates the United States Constitution’s guarantees of due process and equal protection of the laws.

Given the roller coaster we have all been through with marriage in California and Prop 8, it is hard to put in words what this victory means. It is surely among the most personal and profound wins for our community. Judge Walker’s ruling eviscerates the baseless and empty arguments of our opponents. Walker found that there was simply no credible, rational, believable, or persuasive reason to take the right to marry away from same-sex couples. Our opponents had a team of very fine lawyers, and at the end of the trial, the evidence they presented in support of Prop 8 made abundantly clear that other than discomfort or hostility, there is no justifiable basis for excluding us from the same right to marry that’s enjoyed by every other couple in this country. This groundbreaking decision upholds the rights of liberty and equality that are enshrined in the U.S. Constitution, and affirms that the law cannot treat people differently based on who they love and that a majority cannot strip a minority group of its fundamental freedoms at the ballot box. But more than that, the ruling elevates the central reason same-sex couples wish to marry, because we are in love with a person special to us and with whom we want to share our lives, just like everyone else. So at its most basic, today’s victory is about humanity, dignity, and love. It is hard to accept that there is such fierce opposition to that.

But there clearly is, and while we should savor today’s victory, this is just another step in our journey to full justice and dignity for our lives and our choices—including the freedom to choose whether and whom to marry. We must continue to reach out and have conversations about our families and our lives with our friends, our loved ones, our allies. By sharing our stories, we win the hearts and minds of others who may not share our views, and create a world where all families are valued and respected as fully equal.

We need to show the federal courts that America is ready for LGBT people to marry. Everyone has a part to play in making that happen. Get involved in your own community. Engage your friends, co-workers, and family in conversations about what full equality means to you and your family. Contact your statewide LGBT groups to find out what you can do to advance marriage equality where you live. This is a victory we must preserve and keep. But you can wait until tomorrow to do that. For today, just be grateful, proud, and happy.

Sincerely,


NCLR and You: Want to Know How the Mormons Bought Prop 8?

July 1, 2010

This winter, I was lucky enough to be at the Sundance Film Festival for the premiere of 8: The Mormon Proposition, which explores the truth behind the involvement of the Mormon Church in California’s Prop 8 ballot initiative.

And now, I am thrilled that NCLR has partnered with our friends at Wolfe Video to offer a very special gift to everyone who makes a gift of $75 or more within the next 7 days—your own DVD copy of this eye-opening new documentary.

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Just watching the short 2-and-a-half minute trailer gives me chills. This documentary is an important record of our history. (And, okay I admit—yes, I am in it very briefly. It is a total honor.)

So this is it: for the next week only, all donors of $75 or more will receive 8: The Mormon Proposition as a token of our gratitude for your support. So be sure to make your gift now to get yours!

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It’s a great deal: you support NCLR’s work to change the law and lives of every LGBT person in this country, and we’ll give you the makings of a great movie night. Popcorn not included.

Happy watching,

About 8: The Mormon Proposition
Narrated by Academy Award winning MILK screenwriter Dustin Lance Black, 8: The Mormon Proposition explores the truth behind the involvement of the Mormon Church in the Proposition 8 campaign. The film includes in-depth investigation and a variety of fascinating interviews, including NCLR Executive Director Kate Kendell.

P.S. You can also purchase an additional copy of the DVD now from Wolfe for $19.95. Please be sure to click through on this special link and 50% of your purchase price will go to NCLR.

P.P.S. Check out my vlog from Sundance last February—I got to meet the extraordinary Dustin Lance Black as we were waiting for 8: The Mormon Proposition to screen!


Prop. 8 Judge Proposes Closing Argument Date

April 28, 2010

from The Advocate

A federal judge on Wednesday proposed a June date for closing arguments in the Prop. 8 lawsuit, three months after evidentiary testimony concluded in the trial.

read more


Opponents of Gay Marriage Ban Must Release Memos

March 23, 2010

by Lisa Leff | Associated Press

Civil rights groups that campaigned against California’s same-sex marriage ban must surrender some of their internal campaign memos and e-mails to lawyers for the other side, a federal judge ruled Monday.

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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