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.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 5

January 15, 2010

cross-posted from Pam’s House Blend

Today, in the final day of the first week of trial, we got to see more riveting, detailed testimony from the plaintiffs’ expert witnesses, who have truly proven to be “experts” in the fullest sense of the word. We also heard the moving personal story of a woman who has seen firsthand the incredible transformative power that the simple act of marrying can have.

A tremendous body of social science has been laid out in this trial so far, and it has shown the irrationality of discrimination against LGBT people and our families in a truly unprecedented way. This morning’s first witness was Dr. Michael Lamb of Cambridge University. He is an expert in child and developmental psychology and has authored or edited more than 40 books and 500 articles on the subject. Dr. Lamb testified that there is substantial evidence showing that the children of same-sex couples would be better adjusted if their parents could marry, because children in general do better when their parents have adequate social support.

Dr. Lamb also testified unequivocally, based on the vast body of social science research in the field, that children of LGBT parents are just as well off psychologically as other children. Dr. Lamb did testify that there is one difference between children of LGBT parents and other children – on average, they grow up with less sex-stereotyped attitudes.

Dr. Lamb strongly refuted the Prop 8 proponents’ claim that it is necessary for children to have a male biological parent and a female biological parent in the home, undercutting one of their primary arguments. He testified that there is an “overwhelming consensus” among developmental psychologists today that gender is irrelevant to parenting. Dr. Lamb confirmed that the most significant factors for children’s psychological well-being are the love and support they get from their parents, and the stability of their relationships with both parents. Those factors do not favor different-sex parents over same-sex parents – rather, they suggest the importance of providing all families with the social and legal support needed to ensure that they can provide a stable, loving environment for their children, such as through marriage.

During the aggressive and lengthy cross-examination by attorney David Thompson, which lasted well into the afternoon, Dr. Lamb held firmly to those conclusions. Thompson relied on offensive stereotypes about men, attempting to press Dr. Lamb into agreeing that gender does matter in parenting and that children of LGBT parents are at a disadvantage. But Dr. Lamb calmly, politely, and consistently testified that when it comes to the traits that a good parent needs, gender makes no difference. He refuted every one of the sources that Thompson cited purporting to show that children raised by same-sex parents have more difficulties. For instance, when Thompson mentioned studies allegedly showing that children who grow up without a father in the home have more difficulties, Dr. Lamb patiently explained that those studies actually demonstrate the detriment that the trauma of divorce or the loss of a parental figure have on children’s emotional well-being. It was clear by the end of Dr. Lamb’s testimony that there is simply no credible evidence to suggest that the gender or sexual orientation of a child’s parents makes a bit of difference to mental health outcomes.

Asian-American author and activist Helen Zia was the final witness of the week. Under direct examination by Danny Chou, deputy city attorney with the City and County of San Francisco, she testified about a number of encounters with hurtful homophobic prejudice that kept her closeted for years. Zia described some of the shocking abuse she experienced from strangers during the Prop 8 campaign, including being called a “f—ing dyke” and being told she would “rot in hell.”

Zia also shared the love story of her courtship and marriage with her wife, Lia. Zia described how they registered as domestic partners with the City of San Francisco years ago at a window in City Hall that “also gave out dog licenses.” When they registered as domestic partners with the state of California a few years later, she said, they didn’t even get to go to a “dog-license window” – they simply filled out a form and mailed it in. But it was when the couple finally legally married in 2004 – though that marriage was invalidated by the California Supreme Court five months later – that they finally experienced, for the first time, a taste of true equality. (Zia and her wife subsequently re-married in 2008, during the period before Prop 8 passed.)

Zia testified that once they married, both of their families finally recognized them as part of the family, rather than, for example, referring to Lia as “Helen’s friend.” She described the moving scene just a few months ago when the couple visited Lia’s father, who has since passed away, in hospice. The hospice staff asked, “Are these your daughters?” and he replied proudly, “No, this is my daughter, and this is my favorite daughter-in-law.”

Stories like Helen Zia’s make it impossible to ignore the pain that anti-LGBT bigotry, exacerbated by legal inequality, causes every member of our community. It’s difficult to listen to these stories and be reminded of the hurt and shame that we often try to suppress. But Zia’s story also carries in it the seeds of hope – the genuine joy that wells up when LGBT people experience true acceptance. Every person deserves that feeling of acceptance and support. That is what this case is fighting for.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 3

January 13, 2010

cross-posted from Pam’s House Blend

As other bloggers and news outlets have reported, the U.S. Supreme Court issued a final order today preventing the trial from being broadcast. The 5-4 opinion was unsigned, meaning that its authorship was not attributed to any one justice.  The court largely ducked the substantive issue of whether federal trials should be more accessible to a broader public, holding that the San Francisco district court judges had not followed the proper procedures when they amended the local court rules to allow the broadcast.  Justices Roberts, Scalia, Kennedy, Thomas, and Alito were in the majority.

In a dissenting opinion, joined by Justices Stevens, Ginsburg and Sotomayor, Justice Breyer challenged the majority’s interpretation of the rule-changing procedures and  strongly disputed that the broadcast would cause harm. Justice Breyer described the majority’s ruling as an “extraordinary intervention,””micromanaging” local court procedure, and stated that “the public interest weighs in favor of granting access to the courts.”

Although many had anticipated this outcome, it is deeply disappointing. As Geoff Kors of Equality California pointed out in his statement about the ruling, this trial presents an unprecedented opportunity to educate people across the country about our community and about why the Constitution requires that same-sex couples be given access to marriage. The public could only benefit from the opportunity to see firsthand that the arguments made by the proponents of Prop 8, both during the campaign and now in court, are so clearly false and demeaning. Those of us attending the trial will have to fill the gap by passing along as much of what we see and hear as we can. NCLR will continue to tweet live from the court – follow @NCLRights for frequent updates on testimony.

Trial resumed this morning with David Thompson’s cross-examination of Professor George Chauncey.  Thompson asked primarily about the progress LGBT people have made, politically and in popular culture, in the last 20 years.

In his cross, Thompson highlighted employment nondiscrimination bills, the increasing numbers of gay and lesbian elected officials, and the very recent increase in support for domestic partnerships and civil unions among national Democratic leaders.  He also focused on the increasing depiction of gay men and lesbians in popular culture, such as the TV series “Will and Grace” and films such as Brokeback Mountain and Philadelphia.

Prof. Chauncey acknowledged that LGBT people have made progress. But he also stressed the limited nature of that progress and the persistence of severe discrimination and hostility toward gay people.  Even today, he noted, there are remarkably few films that include openly LGBT characters and a continued paucity of scholarship exploring the history and contemporary reality of LGBT lives (to mention just two examples).

Thompson’s questions were directed to an important legal issue in this case -whether systemic bias against lesbians and gay men prevents them from being treated by others as equal citizens in the political process.  In prior cases, federal courts have sometimes considered that issue in deciding whether to apply heightened scrutiny to laws that classify on the basis of a particular characteristic such as race, gender, religion, disability, age, and so forth.   If a court determines that widespread (and unjustified) bias prevents a group from being able to fully protect itself in the elected branches of government, it is more likely to find that the group should be afforded heightened constitutional protection under the federal equal protection clause.

On that score, it’s worth noting – and the Olson/Boies team will no doubt argue – that laws that discriminate on the basis of race are still subject to the strictest type of constitutional review, even though it’s been more than a half century since Brown v. Board of Education was decided and nearly half a century since the Civil Rights Act of 1964.  Likewise, laws that discriminate based on sex are still subject to a heightened level of scrutiny even though a majority of the voting public are women.  By contrast, for example, there is still no federal statute prohibiting private employers from discriminating based on sexual orientation, despite decades of effort to get those protections passed.  And the federal government itself still openly discriminates on the basis of sexual orientation in federal military, marriage, and immigration law-as do the laws of most states.  By any measure, anti-gay bias continues to permeate our laws and culture.

After the cross-exam, Therese Stewart, attorney for the City of San Francisco, asked Professor Chauncey to analyze some of the messages used in the Yes on 8 campaign.  Stewart focused on statements made by one of the official proponents of Prop 8, Dr. Hak-Shing William (“Bill”) Tam. Stewart played excerpts of Dr. Tam’s deposition, featuring some extraordinarily inflammatory messages in campaign documents authored by Tam.

One of Dr. Tam’s publications claimed that if Prop 8 did not pass, other states would “fall into Satan’s hands.” The document also claimed that “more children would become homosexuals,” and that the next item on the “gay agenda” would be to “legalize having sex with children.”  Prof. Chauncey connected these messages, delivered by one of Prop 8’s official sponsors, with the long history of fear-mongering and demonization of lesbians and gay men that he eloquently described yesterday.

In the afternoon, the court heard testimony from social psychologist Anne Peplau, one of the country’s leading academic experts on couples and relationships.  Kudos to Christopher Dusseault of Gibson Dunn for his skillful handling of the direct and redirect of Professor Peplau.  His performance was a model of precision and highly effective.

Prof. Peplau offered four expert opinions: (1) most individuals who marry gain physical, psychological, and social benefits from being married; (2) the quality and stability of same-sex relationships are similar to those of heterosexual relationships; (3) if permitted to marry, same-sex couples will derive the same benefits from marriage as heterosexual couples; and (4) permitting same-sex couples to marry will not harm the institution of marriage in any way. These opinions disprove the defense’s argument that allowing same-sex couples to marry would fundamentally change and undermine marriage, and support the plaintiffs’ claim that marriage is a basic civil right that same-sex couples need and are entitled to.

During her cross of Prof. Peplau, attorney Nicole Moss tried to elicit an admission from Prof. Peplau that same-sex couples differ from heterosexual couples in some relevant way.  Prof. Peplau reiterated that there are no relevant differences.  But at Moss’s insistence, she did confirm that a lesbian couple cannot “accidentally” procreate a child through spontaneous generation-one of the few moments today that elicited universal laughter.

Tomorrow we will hear from three experts discussing the impact of marriage discrimination on our community.  Again, follow @NCLRights for a blow-by-blow from the court.


Watch Kate Kendell’s Report from the Frontlines of the Prop 8 Trial

January 13, 2010

NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 2

January 12, 2010

cross-posted from Pam’s House Blend

The Perry plaintiffs had another great day in court. Professor Nancy Cott wrapped up her powerful testimony, which made three crucial points. First, Professor Cott provided a detailed historical account of how marriage restrictions based on race, ethnicity, and immigration status have been used “punitively” – to stigmatize and demean disfavored groups – in the same way that Prop 8 now stigmatizes same-sex couples. When these kinds of laws are enacted, she explained, many people believe they simply reflect “common sense” or God’s will. Only later is it fully apparent that they are in fact based on a failure to appreciate the full humanity of certain groups. The same is true of Prop 8.

Second, Professor Cott explained that in the past, marriage law imposed strict gender roles that sharply distinguished the legal rights and duties of wives and husbands. For example, at one time, married women were unable to sign legal documents or testify in court, because they were not considered to be individual citizens – once married, a woman had no legal identity apart from her husband. But today, the law recognizes that all adults should be given equal rights regardless of gender and should be able to choose for themselves how to allocate duties in a marriage. Because modern marriage law is gender-neutral in this way, permitting same-sex couples to marry doesn’t change the law’s basic structure.

Finally, Professor Cott showed that marriage has changed significantly over the years, and that most of those changes involve “shedding inequalities.” But the central function and purpose of marriage – to enable adults to create stable families that provide enormous benefits to the couple, to children, and to society – has endured. Professor Cott testified that based on the historical evidence, permitting same-sex couples would not undermine marriage, but instead would strengthen it. Both couples and the larger community would benefit.

The remainder of the morning was taken up by the cross-examination of Professor Cott by David Thompson, one of the lawyers defending Prop 8. Thompson’s approach was to take statements out of context from Professor Cott’s deposition testimony or from her publications, and to ask her if she agreed with them.

Even at then end of two grueling days of testimony, however, Professor Cott was a model of composure and sophistication. She was not rattled by Thompson’s aggressive questioning, and was particularly firm in stating her opinion that the fundamental purpose of marriage is to create stable families, not to require that all children be raised by both of their biological parents.

Overall, Thompson’s cross-examination strategy did not succeed in undermining Professor Cott’s testimony, and toward the end Judge Walker encouraged Thompson to speed it up. From a legal strategy perspective, it’s not clear why the defense chose to spend so much time asking Professor Cott about books and articles she had written, when all of those materials had already been put into evidence. While that approach might occasionally win some points in a jury trial, in this case the judge will decide the facts. In a nonjury case, it’s sufficient (and usually preferred) for the lawyers simply to read from articles and other documents that are in evidence in their closing arguments to the judge. Given that reality, the cross-examination of Prof. Cott seemed mostly to be a waste of time that did very little, if any, good for the defenders of Prop 8.

Last up today was expert witness Professor George Chauncey, a social historian from Yale University who specializes in lesbian and gay history. He is best known for his book Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (Basic, 1994), which won a number of scholarly awards. He is also the author of Why Marriage? The History Shaping Today’s Debate over Gay Equality.

Professor Chauncey testified about how government discrimination has created and perpetuated anti-gay stereotypes like those relied on by the Yes on 8 campaign. He described how criminal laws have been used to penalize same-sex intimacy and to stigmatize gay people as inherently criminal. Professor Chauncey also detailed the long history of discrimination against gay people in public accommodations – for example, for much of the twentieth century, bars were legally prohibited from serving gay patrons and often sported signs saying, for example, “gays go away” or “it is unlawful to serve homosexuals.”

Perhaps most chillingly, Professor Chauncey described deliberate government campaigns in the 1950s to demonize gay people as dangerous sexual deviants and child molesters. Those campaigns included an executive order by President Eisenhower directing the federal government to identify and fire all gay federal workers – and also requiring private businesses with government contracts to do the same. In the words of one federal publication from the 1950s, “one homosexual can ruin an entire government office.” State governments – including California — adopted similar campaigns, churning out official reports and “public education” materials labeling gay men as violent, psychopathic predators who posed a grave threat to children and families.

Toward the end of the afternoon, Professor Chauncey analyzed several videos and printed brochures used by the Yes on 8 campaign to show how they incorporated many of the same demonizing messages – particularly about the supposed need to “protect” children from gay people. For example, he explained that some of the Yes on 8 campaign messages were “a strong echo of the idea that simple exposure to gay people and gay relationships is somehow going to cause a whole generation to become gay.” Professor Chauncey’s testimony provided a powerful historical validation of yesterday’s testimony from Paul Katami and Jeff Zarrillo, both of whom described their personal experience of feeling vilified by the Yes on 8 campaign messages.

Judge Walker continues to keep this case moving, repeatedly urging counsel on both sides to “pick up the pace,” while making sure that all witnesses have ample opportunity to share their views. He deserves considerable credit for giving this enormously important and complex case the close attention and careful managing it deserves. Tomorrow, we will hear more from Professor Chauncey and additional witnesses for the plaintiffs’ side.