These Three Men Will Decide Fate Of Proposition 8

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.

Prop 8 Federal Appeal Will Be Televised On Dec. 6!

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.

Federal Prop 8 Decision TOMORROW!

The American Foundation for Equal Rights has announced that the decision in the federal challenge to California's Proposition 8, Perry v. Schwarzenegger will be released tomorrow, Wednesday August 4th (Barack Obama's 49th birthday!)

Federal district court judge Vaughn Walker is widely expected to strike down Proposition 8, but his reasoning and the extent of his ruling should be very interesting. Ted Olson and David Boies were the attorneys for the plaintiffs.

UPDATE TUESDAY 08/03/2010 6:41PM

The decision will be released electronically on the federal court's website between 1pm and 3pm on Wednesday August 4th.

Prop 8 Supporters Ask Federal Judge To End 18,000 Marriages

Wow. The uber heterosexual supremacist Charles Cooper, the attorney for the defendants in the federal Proposition 8 trial Perry v. Schwarzenegger, has taken one more egregious shot at LGBT people: he asked the federal judge to not only uphold the state constitutional ban on marriage equality but apply it retroactively to strip state recognition of the estimate 18,000 same-sex couples who got married between June 15, 2008 and November 5, 2008.

The San Francisco Chronicle reports:

As the trial over California's prohibition on same-sex marriage enters its final stage today, the ban's sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8.

Such an order would honor "the expressed will of the people," backers of the November 2008 ballot measure said Tuesday in their final written filing before Chief U.S. District Judge Vaughn Walker.

Andrew Pugno, an attorney for Prop. 8's backers, said in an interview that the sponsors aren't asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.

So, they are basically asking the courts to divorce me and my husband in the eyes of the state of California. That's pretty deep.

You can follow coverage of the final day of this historic trial at multiple locations:

FireDogLake

Pam's House Blend

The Advocate

Olson-Boies Response To Prop 8 Judge Questions

Tomorrow the federal judge in the Proposition 8 case Perry v. Schwarzenegger will hear closing arguments. Last week he issued questions to both sides of the case. The American Foundation for Equal Rights has posted the answers provided by the good guys, Ted Olson and David Boies, who are fighting to have Proposition 8 declared unconstitutional.

Here are the plaintiff responses in SCRIBD. The defendants of Prop 8 have also responded:

Plaintiffs Responses to Prop 8 Judge's Questions

Text of Ted Olson Opening Statement in Prop 8 Trial

Here is the full text of the opening statement Ted Olson made before Judge Vaughn Walker arguing that Proposition 8 is unconstitutional. Read it, and weep, Maggie Gallagher!

OPENING STATEMENT
(as prepared)

This case is about marriage and equality. Plaintiffs are being denied
both the right to marry, and the right to equality under the law.

The Supreme Court of the United States has repeatedly described the
right to marriage as “one of the vital personal rights essential to
the orderly pursuit of happiness by free men;” a “basic civil right;”
a component of the constitutional rights to liberty, privacy,
association, and intimate choice; an expression of emotional support
and public commitment; the exercise of spiritual unity; and a
fulfillment of one’s self.

In short, in the words of the highest court in the land, marriage is
“the most important relation in life,” and “of fundamental importance
for all individuals.”

As the witnesses in this case will elaborate, marriage is central to
life in America. It promotes mental, physical and emotional health
and the economic strength and stability of those who enter into a
marital union. It is the building block of family, neighborhood and
community. The California Supreme Court has declared that the right
to marry is of “central importance to an individual’s opportunity to
live a happy, meaningful, and satisfying life as a full member of
society.”

Proposition 8 ended the dream of marriage, the most important relation
in life, for the plaintiffs and hundreds of thousands of Californians.

______________________________

_____

In May of 2008, the California Supreme Court concluded that under this
State’s Constitution, the right to marry a person of one’s choice
extended to all individuals, regardless of sexual orientation, and was
available equally to same-sex and opposite-sex couples.

In November of 2008, the voters of California responded to that
decision with Proposition 8, amending the State’s Constitution and, on
the basis of sexual orientation and sex, slammed the door to marriage
to gay and lesbian citizens.

The plaintiffs are two loving couples, American citizens, entitled to
equality and due process under our Constitution. They are in deeply
committed, intimate, and longstanding relationships. They want to
marry the person they love; to enter into that “most important
relation in life”; to share their dreams with their partners; and to
confer the many benefits of marriage on their families.

But Proposition 8 singled out gay men and lesbians as a class, swept
away their right to marry, pronounced them unequal, and declared their
relationships inferior and less-deserving of respect and dignity.

In the words of the California Supreme Court, eliminating the right of
individuals to marry a same-sex partner relegated those individuals to
“second class” citizenship, and told them, their families and their
neighbors that their love and desire for a sanctioned marital
partnership was not worthy of recognition.

During this trial, Plaintiffs and leading experts in the fields of
history, psychology, economics and political science will prove three
fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry,
Proposition 8 works a grievous harm on the plaintiffs and other gay
men and lesbians throughout California, and adds yet another chapter
to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable,
discriminatory harm for no good reason.

I

MARRIAGE IS THE MOST IMPORTANT RELATION IN LIFE

Plaintiffs will present evidence from leading experts, representing
some of the finest academic institutions in this country and the
world, who will reinforce what the highest courts of California and
the United States have already repeatedly said about the importance of
marriage in society and the significant benefits that marriage confers
on couples, their families, and the community. Proponents cannot
dispute these basic facts.

While marriage has been a revered and important institution throughout
the history of this country and this State, it has also evolved to
shed irrational, unwarranted, and discriminatory restrictions and
limitations that reflected the biases, prejudices or stereotypes of
the past. Marriage laws that disadvantaged women or people of
disfavored race or ethnicity have been eliminated. These changes have
come from legislatures and the courts. Far from harming the
institution of marriage, the elimination of discriminatory
restrictions on marriage has strengthened the institution, its
vitality, and its importance in American society today.

II

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS, THEIR CHILDREN AND
THEIR COMMUNITIES

Proposition 8 had a simple, straightforward, and devastating purpose:
to withdraw from gay and lesbian people like the Plaintiffs their
previously recognized constitutional right to marry. The official
title of the ballot measure said it all: “Eliminates Right of Same-Sex
Couples to Marry.”

Proponents of Proposition 8 have insisted that the persons they would
foreclose from the institution of marriage have suffered no harm
because they have been given the opportunity to form something called
a “domestic partnership.” That is a cruel fiction.

Plaintiffs will describe the harm that they suffer every day because
they are prevented from marrying. And they will describe how
demeaning and insulting it can be to be told that they remain free to
marry—as long, that is, that they marry someone of the opposite sex
instead of the person they love, the companion of their choice.

And the evidence will demonstrate that relegating gay men and lesbians
to “domestic partnerships” is to inflict upon them badges of
inferiority that forever stigmatize their loving relationships as
different, separate, unequal, and less worthy—something akin to a
commercial venture, not a loving union. Indeed, the proponents of
Proposition 8 acknowledge that domestic partnerships are not the same
as traditional marriage. Proponents proudly proclaim that, under
Proposition 8, the “unique and highly favorable imprimatur” of
marriage is reserved to “opposite-sex unions.”

This government-sponsored societal stigmatization causes grave
psychological and physical harms to gay men and lesbians and their
families. It increases the likelihood that they will experience
discrimination and harassment; it causes immeasurable harm.

Sadly, Proposition 8 is only the most recent chapter in our nation’s
long and painful history of discrimination and prejudice against gay
and lesbian individuals. They have been classified as degenerates,
targeted by police, harassed in the workplace, censored, demonized,
fired from government jobs, excluded from our armed forces, arrested
for their private sexual conduct, and repeatedly stripped of their
fundamental rights by popular vote. Although progress has occurred,
the roots of discrimination run deep and its impacts spread wide.

III

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS FOR NO GOOD REASON

Proposition 8 singles out gay and lesbian individuals alone for
exclusion from the institution of marriage. In California, even
convicted murderers and child abusers enjoy the freedom to marry. As
the evidence clearly establishes, this discrimination has been placed
in California’s Constitution even though its victims are, and always
have been, fully contributing members of our society. And it
excludes gay men and lesbians from the institution of marriage even
though the characteristic for which they are targeted—their sexual
orientation—like race, sex, and ethnicity, is a fundamental aspect of
their identity that they did not choose for themselves and, as the
California Supreme Court has found, is highly resistant to change.

The State of California has offered no justification for its decision
to eliminate the fundamental right to marry for a segment of its
citizens. And its chief legal officer, the Attorney General, admits
that none exists. And the evidence will show that each of the
rationalizations for Proposition 8 invented by its Proponents is
wholly without merit.

“Procreation” cannot be a justification inasmuch as Proposition 8
permits marriage by persons who are unable or have no intention of
producing children. Indeed, the institution of civil marriage in
this country has never been tied to the procreative capacity of those
seeking to marry.

Proposition 8 has no rational relation to the parenting of children
because same-sex couples and opposite sex couples are equally
permitted to have and raise children in California. The evidence in
this case will demonstrate that gay and lesbian individuals are every
bit as capable of being loving, caring and effective parents as
heterosexuals. The quality of a parent is not measured by gender but
the content of the heart.

And, as for protecting “traditional marriage,” our opponents “don’t
know” how permitting gay and lesbian couples to marry would harm the
marriages of opposite-sex couples. Needless to say, guesswork and
speculation is not an adequate justification for discrimination. In
fact, the evidence will demonstrate affirmatively that permitting
loving, deeply committed, couples like the plaintiffs to marry has no
impact whatsoever upon the marital relationships of others.

When voters in California were urged to enact Proposition 8, they were
encouraged to believe that unless Proposition 8 were enacted, anti-gay
religious institutions would be closed, gay activists would overwhelm
the will of the heterosexual majority, and that children would be
taught that it was “acceptable” for gay men and lesbians to marry.
Parents were urged to “protect our children” from that presumably
pernicious viewpoint.

At the end of the day, whatever the motives of its Proponents,
Proposition 8 enacted an utterly irrational regime to govern
entitlement to the fundamental right to marry, consisting now of at
least four separate and distinct classes of citizens: (1)
heterosexuals, including convicted criminals, substance abusers and
sex offenders, who are permitted to marry; (2) 18,000 same-sex couples
married between June and November of 2008, who are allowed to remain
married but may not remarry if they divorce or are widowed; (3)
thousands of same-sex couples who were married in certain other states
prior to November of 2008, whose marriages are now valid and
recognized in California; and, finally (4) all other same-sex couples
in California who, like the Plaintiffs, are prohibited from marrying
by Proposition 8.

There is no rational justification for this unique pattern of
discrimination. Proposition 8, and the irrational pattern of
California’s regulation of marriage which it promulgates, advances no
legitimate state interest. All it does is label gay and lesbian
persons as different, inferior, unequal, and disfavored. And it
brands their relationships as not the same, and less-approved than
those enjoyed by opposite sex couples. It stigmatizes gays and
lesbians, classifies them as outcasts, and causes needless pain,
isolation and humiliation.

It is unconstitutional.

The text was provided by the American Foundation for Equal Rights.

Follow The Federal Prop 8 Trial Online Now!

The federal Proposition 8 trial began at 9:30am in San Francisco. District Court Judge Vaughn Walker is presiding over the case, which is called Perry v. Schwarzenegger with Bush v. Gore opponents Ted Olson and David Boies joining forces to claim that California's ban on gay marriage passed by voters in November 2008 violates the federal constitution guarantees of Equal Protection and Due Process. Proposition 8 is being defended by heterosexual supremacist attorney Charles Cooper, because the state of California, in the form of Governor Arnold Schwarzenegger and Attorney General Jerry Brown have declined to defend it in court, because they agree that the measure is unconstitutional.

The United States Supreme Court issued an emergency stay this morning which said:

ORDER IN PENDING CASE
09A648 HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
Upon consideration of the application for stay presented to
Justice Kennedy and by him referred to the Court, it is ordered
that the order of the United States District Court for the
Northern District of California, case No. 3:09-cv-02292,
permitting real-time streaming is stayed except as it permits
streaming to other rooms within the confines of the courthouse in
which the trial is to be held. Any additional order permitting
broadcast of the proceedings is also stayed pending further order
of this Court. To permit further consideration in this Court,
this order will remain in effect until Wednesday, January 13,
2010, at 4 p.m. eastern time.

Justice Breyer, dissenting.
I agree with the Court that further consideration is
warranted, and I am pleased that the stay is time limited.
However, I would undertake that consideration without a temporary
stay in place. This stay prohibits the transmission of
proceedings to other federal courthouses. In my view, the
Court’s standard for granting a stay is not met. See Conkright
v. Frommert, 556 U. S. ___, ___ (2009) (slip op., at 1–2)
(Ginsburg, J., in chambers). In particular, the papers filed, in
my view, do not show a likelihood of “irreparable harm.”

With respect, I dissent.

What this means is that the proceedings (which I believe are still being videotaped) will not be streamed to any other courthouse except the one in San Francisco, and the video will not be uploaded to YouTube.com.

However, if you want to follow the trial there are numerous different ways:

Rick Jacobs of Courage Campaign is liveblogging from the courtroom at http://prop8trialtracker.com/

Dan Levine is tweeting the trial at http://twitter.com/FedcourtJunkie

Bilerico has a web page showing all the relevant tweets on the issue

Firedoglake has numerous live bloggers at http://firedoglake.com/prop8trial/

Follow the twitter hashtags #prop8 and #prop8trial

I really don't understand how the heterosexual supremacists who are so scared that Proposition 8 supporters will be intimidated if videotape is uploaded to YouTube think that the identities of every single person who testifies in the trial will not be broadcast all over the blogosphere ad twitterverse. This is 2010, it is absolutely impossible to keep the information private, especially when you are talking about a trial which is determining the constitutionality of the most hitly contested ballot measure on a social issue in U.S. history!

Heterosexual Supremacists Run to SCOTUS To Prevent Cameras

The plot keeps on thickening in Perry v. Schwarzenegger, the federal constitutional challenge to Proposition 8. The heterosexual supremacists who are promoting the ban on marriage equality added to California's constitution in 2008 have filed an emergency appeal to Associate Justice Anthony Kennedy for a stay on the 9th Circuit Court of Appeals ruling that the trial (which is set to start on January 11th) can be videotaped and uploaded to YouTube daily as well as simulcast to federal courtrooms in Pasadena, Portland, Seattle and Brooklyn (which of these 4 is not like the others!)

Karen Ocamb of LGBT POV has the latest details.

Chad Griffin of the American Foundation for Equal Rights issued a statement on the move by the "Defendant-Intervenors" in the Proposition 8 case asking the highest court in the land to postpone the trial in order to settle the question of whether it can be "broadcast" in any form:

"Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved. Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide."

Makes you go, hmmm, right?

ACTION: Do You Want To See The Prop 8 Trial?

There's a debate going on whether the federal trial on the constitutionality of Proposition 8, which starts on Monday January 11th in San Francisco will be televised or not.

You can have your say by going to http://www.couragecampaign.org/page/s/TeleviseTheTrial and signing up online to have aletter delivered by The Courage Campaign, or you can contact the judge directly, at:

www.cand.uscourts.gov, click "Notice Concerning Revision of Civil
Local Rule 77-3").

The comment period on the amendment to the rules
ends FRIDAY JANUARY 8, and if too few comments in favor of the rule
are received, there's a real chance it will be rescinded. People who
are interested in seeing the trial televised need to comment in favor
of the rule change, and anyone can do it (there's no need to be a
lawyer to send a comment). Comments can be mailed using the document
on the Northern District's webpage above, or can be e-mailed to the
Clerk of Court, Rich Wieking, at rich_wieking@cand.uscourts.gov.

So, far, Judge Walker has ruled that each day's proceedings will be taped and then uploaded to YouTube at the end of the day but reporters are calling for one live camera that can be used for pool reports.

There are over 81,000 people who have signed the petition to televise the trial at Courage Campaign's site in the last 24 hours, and there's nearly 40 more hours until the Friday 9am deadline. You shoudl join them, NOW!

Top 10 Most Significant LGBT Events of the Decade

Following up on my recent post detailing the most significant LGBT-related events of 2009, I have decided to try and compile a list for the entire decade of the "aughts," from January 1, 2000 to December 31, 2009.

By most significant, I mean the events that either had the most impact on the lives of the most number of LGBT people or that are likely to be remembered as the most significant by historians in the future.

Here we go:

10. The Vermont legislature enacts nation's first civil unions law, signed by Governor Howard Dean, in response to the Vermont Supreme Court's Baker v. Vermont ruling, 2000.

In late December 1999 the Vermont Supreme Court issued its unanimous ruling in Baker v. Vermont, deciding that there was discrimination in the differing ways that the state's laws treated same-sex couples relative to opposite-sex couples, and although it also ruled that under Vermont law the legislature had intended to have marriage be a union between a man and a woman only (and could legally do so), the Court compelled the State to come up with a statutory remedy to address the disparate treatment of same-sex and opposite-sex couples. The Vermont Civil Unions bill, modeled after European civil partnership legislation, attempted to provide "civilly united" same-sex couples all the rights and responsibilities that married couples had under Vermont law. It was signed by Governor Howard Dean on April 26, 2000 and went into effect on July 1, 2000. (Me and my other half got a civil union on August 8, 2000 in Burlington, VT.) Thus Vermont became the first state to attempt to end state-sanction discrimination in relationship recognition in the United States, leading to full marriage equality on September 1, 2009.

9. California legislature passes Assemblymember Jackie Goldberg's AB 205, the first comprehensive domestic partner statute granting almost all the rights and responsibilities of marriage in state law (signed by Governor Gray Davis, went into effect January 1, 2005), 2003.

In summer of 2003, California became the second state (after Vermont) to enact legislation that tried to provide same-sex couples with as much of the rights and responsibilities of marriage while still reserving the word marriage to the exclusive domain of heterosexuals. In April 2000, California voters had passed Proposition 22 by 61%-39% which re-affirmed that state law banned recognition of same-sex marriages. Unlike in Vermont, the California legislature was not reacting in response to a state Supreme Court ruling. Instead, the state legislature was specifically expanding a bundle of rights to an existing statutory entity, the registered domestic partnership, instead of creating something new from whole cloth, like the Vermont civil union. California's comprehensive domestic partnership law would become the model that other (mostly Western) states would follow later in the decade: Oregon, Washington and Nevada. At the time there was much heated debate in the LGBT community about "settling" for domestic partnership in the midst of a pitched battle for equal marriage rights that would be repeated time and again with echoes present even today. Domestic partnerships and civil unions (commonly lumped together as "everything but the word marriage" laws) became overwhelmingly popular with the general public so that even during the backlash against marriage in the middle of the decade voters repeatedly defended such measures in elections (Arizona, 2006 and Washington, 2009).

8. Democrats retake congressional majorities in both the U.S. House of Representatives and U.S. Senate, 2006.

After losing control of both Houses of Congress in 1994, fueled by the energy and organizational skills of the progressive blogosphere and under the leadership of Democratic Congressional Campaign Committee Rahm Emmanuel and Democratic Senatorial Campaign Committee head Charles Shumer the Democrats were able to shock political observers by wresting back control of the entire legislative branch of the federal government in 2006 despite losing two consecutive national Presidential elections. The return of the Democrats to the helm of the federal legislature meant that draconian measures like the Federal Marriage Amendment that would have banned legalization of marriages for same-sex couples in all the 50 states would now be unable to advance. However, with Republicans in control of the executive and judicial branches of government, there was very little positive change the Democrats would be able to enact until a change was made in the occupancy of the White House. The 2006 election were an augur of progressive change to come in the country.

7. Voters pass ballot measures amending 11 state constitutions to ban recognition and validation of same sex marriages while re-electing President Bush, 2004.

In 2004, George W. Bush chief political strategist Karl Rove together with the (closeted) head of the Republican National Committee Ken Mehlman instigated the most coordinated attack on the LGBT community in history in an attempt to boost conservative evangelical turnout for Republican candidates (especially the top of the ticket) nationwide. Their evil strategy worked, although if a mere 60,000 voters in Ohio had voted for Senator John Kerry instead of the incumbent, there would have been another historical discrepancy between the winner of the presidential popular vote and the electoral college vote. The eleven states that voted to amend their state constitution to ban marriage for same-sex couples were: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah. In all the states but Oregon the measures were supported by more than 60% of voters and resulted in harsh anti-gay language being constantly repeated during state and local electoral campaigns. 2004 was the political nadir for progressive election results in the decade, with LGBT issues caught in the downturn.

6. U.S. House of Representatives passes Employment Non-Discrimination Act prohibiting discrimination in employment based on sexual orientation nationwide after gender identity protections are dropped, 2007.

Federal gay civil rights legislation was introduced for the first time in May 1974 by New York City-based U.S. Representatives Bella Abzug and Ed Koch as a bill that would add "sexual orientation" to the 1964 Civil Rights Act. However, it was not until November 7, 2007 (a full generation later) that a version of a federal gay civil rights bill passed a single chamber of Congress. Unfortunately, the version passed in the U.S. House by a vote of 235-184 was not only watered-down to an extent that it only covered discrimination in employment (and not public accommodations and housing like the corresponding landmark civil rights legislation of the 1960s) but it also was stripped of the gender identity protections. The passage of the trans-exclusive version of ENDA in the U.S. House of Representatives was significant for the historical precedent it set as well as the internal community it sparked over transgender issues in the LGBT civil rights movement. Even among openly gay Congressmembers Tammy Baldwin and Barney Frank there was disagreement about whether it was better to pass ENDA with sexual orientation and gender identity protections or not. Frank was in favor, Baldwin opposed. For practical purposes, the issue of which measure should be law became moot because the measure died in the United States Senate after President Bush issued a veto threat. However, the passage of ENDA by the House augured well for the passage of other LGBT civil rights legislation in the future.

5. Massachusetts Supreme Judicial Court rules marriage for same-sex couples is a fundamental right that can not be constitutionally denied, 2003.

In November 2003, the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health became the first high court in the United States to rule that opposite-sex only marriage laws were unconstitutional and that the remedy required was to allow same-sex couples full marriage equality. The Court deemed that the state did not even have a rational basis for denying such an important fundamental right to a class of its citizens on both equal protection and due process grounds. On May 17, 2004, the 50th anniversary of the United States Supreme Court decision in Brown v. Board of Education, the Goodridge decision went into effect and the first legal marriages between same-sex couples occurred on U.S. soil. Although the marriage of the lead plaintiffs Julie and Hilary Goodridge did not survive the decade, Massachusetts marriage equality did, and the 4-3 Goodridge decision was the harbinger of positive marriage equality decisions in California (In Re Marriage Cases, 2008; 4-3) Connecticut (Kerrigan v. Department of Public Health, 2008; 4-3) and Iowa (Varnum v. Brien, 2009; 7-0). Through intensive political organizing, the LGBT community and its allies were able to prevent the state legislature from allowing a constitutional amendment from going to the voters and by the end of the decade Massachusetts marriages were considered safe and the state was suing the federal government for discriminating against its legally married same-sex couples in the disbursal of federal recognition and benefits.

4. United States Supreme Court overturns the homophobic Bowers v. Hardwick (1986) precedent, ruling that sodomy laws are unconstitutional, in Lawrence v. Texas, strengthening privacy rights for all Americans, 2003.

For nearly two decades the Bowers v. Hardwick ruling of the United State Supreme Court was used as a legal club to eliminate any claims for civil rights for gay men and lesbians in a number of different contexts. In a 5-4 majority opinion written by Justice Byron White, the court contemptuously dismissed the notion of "a fundamental right to homosexual sodomy" and affirmed the state of Georgia's law criminalizing oral or anal sex between consenting adults--even in the privacy of their own house. The indisputable fact that the highest court in the country had decided that the act which defines homosexuals makes them criminals was used over and over again to refute the concept of equal rights for gay men and lesbians. This all changed on June 26, 2003 when Justice Anthony Kennedy read part of the majority decision in Lawrence v. Texas before assembled court reporters and teary-eyed LGBT legal advocates which declared that the Court's previous sodomy decision in 1986 "was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." The Court's action struck down sodomy laws in 13 states including four states (Texas, Oklahoma, Kansas and Missouri) that had restricted their laws to homosexuals only. The court ruled that the sodomy laws violated due process and equal protection laws. By decriminalizing homosexuality nationwide, the decision in Lawrence dramatically reduced stigma against gay men and lesbians and was a significant legal and cultural advance in the movement for full LGBT equality.

3. Proposition 8 is passed by California voters, stripping the recently-granted right to marry after an $83 million electoral campaign filled with lies and deception, 2008.

In May 15, 2008 the California Supreme Court issued its landmark ruling In Re Marriage Cases which not only ruled that California's marriage laws discriminated against same-sex couples but also declared that sexual orientation was a suspect classification deserving of strict judicial scrutiny on par with race and sex and ordering civil marriage licenses to be issued to gay and lesbian couples in 30 days, on June 15th. 173 days after that, on November 5, 2008, California voters passed a ballot measure 52.3% to 47.7% to amend their constitution to strip away the recently granted right and banned gay marriage. The electoral battle to pass Proposition 8 became the most expensive ballot measure over a social issue in the nation's history with an estimated $83 million ($40 million by Yes on 8, $43 million by No on 8). Many LGBT activists felt that the No on 8 campaign squandered what public polls said were double-digit leads through an overly safe television campaign which did not feature images of gay or lesbian people. However, internal polls never showed the campaign ahead and no public poll ever showed majority support for the concept of marriage equality in the state. The battle over Proposition 8 was a political coming of age for an entire generation of LGBT activists. After Proposition 8 passed an incredible outpouring of rage and disappointment resulted in demonstrations (primarily organized online) in dozens of cities around the country which were estimated to have been attended by over 1 million people. In California, several brand-new grassroots organizations were formed and statewide gatherings of LGBT activists were held in Los Angeles, Fresno and San Bernardino to organize, inform and strengthen the community activists who attended. The lessons of Proposition 8's passage (that majorities would vote to strip away the right to marry from their fellow citizens even in a presumably progressive state like California) were repeated in 2009 when Question 1 in Maine was passed by an even larger margin. Currently Proposition 8's constitutionality is being challenged under Federal law by the legal dream team of super-litigators David Boies and Ted Olson after the California Supreme Court refused to strike down the measure under the state constitution with a full trial on the merits set for the beginning of the next decade, on January 11, 2010.

2. President Barack Obama signs the federal hate crimes bill, the Matthew Shepard and James Byrd, Jr Hate Crimes Prevention Act, into law, 2009.

Despite the carping from some corners that the legislation only gives rights to LGBT people only after they are victimized or dead, the historic echoes of the President's signature on H.R. 1913 should not be under-estimated. The federal hate crimes bill became the first piece of federally enacted legislation to ever include the words "gender identity" and only the second to expand rights based on sexual orientation. Yes, the measure was attached to a "must-pass" piece of legislation, the Defense Reauthorization Act of 2009, instead of a stand-alone bill. But this did not make Republican opposition any less fierce or morally questionable. After the federal hate-crimes act was enacted it could never be said again that there were no protections in federal law for the LGBT community. The binding precedent of the legislative action meant that it would not be unthinkable to pass other LGBT civil rights laws in the future.

1. George W. Bush is (s)elected president after U.S. Supreme Court intervention in Florida recount results in defeat of Vice-President Al Gore, 2000.

The presidential election of 2000 was the most pivotal political moment of the decade as a 2-term Democratic president was going to be replaced by either his Vice President who would maintain and mainly continue Bill Clinton's relatively pro-gay policies or by Texas Governor George W. Bush, the "compassionate conservative" attempting to restore the Bush family name to the highest echelons of power in the country. That Al Gore would get more than half a million more votes than George W. Bush but the presidency of the United States would come down to a few hundred votes in Florida (a state where the candidate's brother was the Governor) was something a Hollywood screenwriter would have been discouraged from including in a political thriller as too far-fetched and simply unbelievable. But, thanks to intervention from the United States Supreme Court in the case of Bush v. Gore where David Boies and Ted Olson were on opposite sides, Bush was declared the winner. Instead of governing like he had just won the closest presidential election in U.S. history, Bush proceeded to dismantle as much of the Clinton legacy as he could as rapidly as possible. Thanks to Bush's election (and re-election) we now have two relatively young arch-conservative jurists on the United States Supreme Court (Chief Justice John Roberts, 54 and Samuel Alito, Jr., 59) along with hundreds of other conservative federal judges in lifetime appointments on District and Appellate Courts throughout the country. Additionally, Bush being president for most of the decade meant that federal progress on enacting LGBT civil rights was stymied at every level, with attention moving to state-based legislative, judicial and administrative action. The low point came in 2004 when President Bush endorsed the Federal Marriage Amendment, which would have explicitly stripped the fundamental right to marry from same-sex couples, an unprecedented and maximalist attack on a particular minority group that would have incorporated discrimination in to the founding document of the country which has been only amended 27 times in 222 years. The main impact of having a Republican in the White House was the aid and comfort the Bush Administration gave to virulent homophobes and the political cover it provided for other Republican politicians to express and implement counterfactual and prejudiced views and policies towards LGBT citizens.

Why Prop 8 Is Unconstitutional: Read The Olson-Boies Brief

Intrepid lesbian reporter (and now blogger) Karen Ocamb has made available the first plaintiff's brief in the Olson-Boies federal lawsuit challenging Proposition 8, formally known as Perry v. Schwarzenegger at her website.

I have used Scribd to make it available below:
Olson Boies Brief

Kare has all sorts of interesting analysis at her website, and the list of expert witnesses being called by both sides. Check it out now.

NYT on Timing Of Olson-Boies Prop 8 Federal Case

Monday's New York Times has an article on the much-debated "Olson-Boies lawsuit," formally known as Perry v. Schwarzenegger. Adam Liptak's piece begins with "In Battle Over Gay Marriage, Timing May Be Key":

In a San Francisco courtroom two weeks ago, a prominent lawyer opposed to same-sex marriage made a concession that could mark a turning point in the legal wars over the purpose and meaning of marriage.

The lawyer, Charles J. Cooper, has studied the matter deeply, and his erudite briefs are steeped in history. He cannot have been blindsided by the question Judge Vaughn R. Walker asked him: What would be the harm of permitting gay men and lesbians to marry?

“Your honor, my answer is: I don’t know,” Mr. Cooper said. “I don’t know.”

Unsurprisingly, the federal judge, Vaughn Walker denied Mr. Cooper's motion to dismiss the Olson-Boies lawsuit.

However, Liptak goes on to discuss the intra-community debate about whether the lawsuit will be "good for the gays" and generally seems to favor the argument that it is probably premature.

Mr. Olson’s problem, then, is that he may reach the Supreme Court too soon. Public support for same-sex marriage is gaining ground, particularly among younger people. But a majority of Americans remains opposed to the practice.

At the argument, Judge Walker seemed to share this concern. “Aren’t you just getting ahead of yourself by asserting this claim under the federal constitutional provisions?” the judge asked.

Mr. Olson responded by comparing his case to Loving v. Virginia, the 1967 Supreme Court decision that held bans on interracial marriage to be unconstitutional. But 34 states permitted interracial marriage when Loving was decided. Only six states permit same-sex marriages.

The Loving decision, moreover, came almost two decades after the California Supreme Court struck down a state law banning interracial marriage in 1948 in Perez v. Sharp. The California Supreme Court’s same-sex marriage decision is a little more than a year old, and it has been repudiated by the state’s voters.

[...]

“We should buckle our seatbelts,” [openly gay New York University Law] Professor [Kenji] Yoshino said. “A comprehensive vetting of the empirical issues by a judicial tribunal is welcome and long overdue. Walker’s trial bids fair to be a trial in an almost scientific sense of the word.”

There were 19 years between the first state Supreme Court (California) striking down its interracial marriage ban and the United States Supreme Court following suit nationally. The first state High Court to strike down a marriage law was Massachusetts in 2003 (although 10 years before in May 1993 the Hawaii Supreme Court had ruled that it was likely to find that state's marriage statute unconstitutional but the voters amended their state constitution in 1998 before a final ruling could be made).

So, if one measures from Hawaii's Baehr v. Lewin case, a ruling from the United States Supreme Court in 2012 would also be 19 years between first State Supreme court action to federal imprimatur, but the more apposite case is Massachusetts' Goodridge v. Dept. of Public Health which went into effect in May 2004. Following the Loving v. Virginia mathematics would mean the U.S. Supreme Court wouldn't legalize same-sex marriage nationally until 2023. Extending the analogy to the historical moment when interracial marriage was legalized nationally by then a majority of states would allow same-sex marriage, an unlikely prospect due to the 30 states where voters have amended their state constitutions to prevent their Courts and legislatures from expanding the definition of marriage to include same-sex couples.

Soon we will find out when (and whether) states will start repealing these anti-gay marriage constitutional amendments. More likely than not, California will be in the vanguard in that battle, too.

Prop 8 Federal Case Heading To January 2009 Trial

Wednesday was a big day in the Olson-Boies federal lawsuit better known as Perry v. Schwarzenegger: U.S. District Court Judge Vaughn Walker denied motions to dismiss the lawsuit which means that there will most likely be a federal trial in January 2009 on whether Proposition 8 violates the United States Constitution.

From Law Dork:

Judge Walker ruled that a trial, or at least more evidence, is necessary before he can make a determination about what standard of review to apply when judging whether Proposition 8 violates the U.S. Constitution’s guarantees of due process or equal protection based on either sex or sexual orientation claims.

Importantly, Judge Walker struck a blow today to proponents’ claimed state interest of protecting “traditional” marriage, finding that “tradition alone is not enough.” He likewise dismissed proponents’ claim concern about California becoming a “marriage mill” if same-sex marriages were allowed in the state. Finally, Walked found that furthering male-female procreative protections was “suitable for a fuller development at trial.” The Proposition 8 proponents had asked the judge to rule that the Plaintiffs had failed to show that Proposition 8 is unrelated to a legitimate state interest, which he refused to do.

Walker stated that neither Romer v. Evans nor Lawrence v. Texas foreclosed what level of scrutiny to apply in this case as to the claimed sexual orientation discrimination, but found instead that the determination requires a full factual record. He noted that the Proposition 8 proponents’ failure to address the first two Carolene Products factors – immutability of the characteristic and political powerlessness of the affected group – impairs their argument against strict scrutiny. These factors, Walker stated, are thus “prime issues for trial.”

Interestingly, Judge Walker also left open the door to a sex-based discrimination claim of Plaintiffs, stating that it was not possible to make a determination on this question as a matter of law and that a further factual record was necessary.

It should be fascinating to see how this lawsuit develops.

Judge Rules Yes On 8 Must Reveal Internal Docs

An interesting development in the Olson-Boies federal lawsuit over Proposition 8.

Denying a request to shield the information, U.S. District Chief Judge Vaughn Walker said the Protect Marriage campaign had failed to show that providing private e-mails, memos and reports would inhibit the political activities of gay marriage opponents or subject them to unbridled harassment.

"The First Amendment qualified privilege proponents seek to invoke, unlike the attorney-client privilege, for example, is not an absolute bar against disclosure," Walker wrote in an 18-page order. "Rather, the First Amendment qualified privilege requires a balancing of the plaintiffs' need for the information sought against proponents' constitutional interests in claiming the privilege."

The judge agreed with lawyers for two unmarried same-sex couples who have sued to strike down the ban, known as Proposition 8, that confidential communications between the campaign's leaders and professional consultants could reveal a rationale for denying gays the right to wed that is relevant to the case.

The lawsuit argues that the measure was motivated by hostility toward gays and as such must be struck down as inconsistent with the U.S. Constitution's guarantee of equality.

Interesting....

LA TIMES Op-Ed On Olson-Boies Prop 8 Lawsuit

The Sunday Los Angeles Times published an op-ed titled "Gay Pride and Prejudice" about the Olson-Boies federal lawsuit Perry vs Schwarzenegger challenging the constitutionality of Proposition 8, the initiative constitutional amendment which banned future marriages for same-sex couples when passed by voters in November 2008.

TheTimes is worried that the legal skirmish may get ugly:

In legal filings this month, attorneys seeking to overturn Proposition 8 indicated that they would bring in expert witnesses to testify that sexual orientation is inborn and immutable, that homosexuality is not considered a disorder by the psychological or medical establishments (the American Psychiatric Assn. took it off the diagnostic list 36 years ago) and so forth. The testimony is intended to show that homosexuality deserves the same high-level constitutional protections as, for example, race.

That's understandable, given that members of a racial group are the most familiar example of a "discrete and insular" minority deserving of judicial protection. But homosexuality need not be innate or unchangeable for gays and lesbians to deserve equal treatment under the Constitution. Religious minorities, for instance, enjoy full constitutional protections,even though they are free to convert to other faiths. Indeed, a famous footnote in a 1938 Supreme Court case specifically recognized that laws intended to discriminate based on national origin or religious faith might offend the Constitution just as those that target groups by race. It is no less offensive morally or legally to discriminate against Catholics, who choose their faith, than it is to discriminate against blacks, who are born to their race.

Because of that, gays and lesbians need not prove that their sexual orientation is a matter of genetics in order for the Constitution to protect their equality. Nor is that the stronger tactic; both sides can bring forth expert witnesses to press their claims in this area. Yet, as absurd as it is to argue that sexual orientation is a matter of simple choice, lawyers defending the proposition have made clear that they intend to offer precisely that argument. In so doing, they threaten to trivialize discrimination against homosexuals by implying that gays and lesbians could end it merely by changing their sexual orientation.

It's could get ugly, but then that's to be expected. As Californians well remember, the political and legal debates over gay marriage already have exposed raw emotions and featured willful, hateful distortions. During last year's campaign, there were assertions that only married heterosexual couples could raise truly well-adjusted children -- a claim that ignored nontraditional families, including same-sex parents and single parents, who were successfully raising fine offspring. Commercials for Proposition 8 wrongly implied that same-sex marriage would somehow harm traditional marriages; that religious groups would be forced to conduct same-sex wedding ceremonies; that schools would have to teach a pro-homosexual curriculum in elementary grades; and that faith-based adoption agencies would go out of business. The campaign against the initiative never responded effectively to these deceptive claims; the trial, it appears, might offer a supervised forum for knocking them down.

Hmmm, I'm willing to take that risk. I believe that the facts and science support the position that homosexuality is just as natural as heterosexuality.

Hearing in Olson-Boies Prop 8 Federal Lawsuit Today

In Wednesday's hearing in Perry vs Schwarzenegger, the federal lawsuit initiated by superlawyers David Boies and Ted Olson challenging the constitutionality of Proposition 8 a number of important decisions were made by Judge Vaughn Walker.

1. There will be a trial on the merits of the case starting January 11, 2010
2. The City of San Francisco has been granted intervenor status on the side of the plaintiffs.
3. The LGBT organizations were denied intervenor status on the side of the plaintiffs.
4. The heterosexual supremacist organization Campaign for California Families was denied intervenor status on the side of the defendants.

Michael Petrelis has a quirky (but informative) guest post at LawDork giving his impressions inside the courtroom.

The LGBT orgs were disappointed at Judge Walker's decision.

On behalf of our clients, we are disappointed that the court did not permit organizations that represent California’s diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling.

Our commitment to restoring marriage for all Californians is unwavering, and we will continue to do everything within our power to secure full equality and justice for LGBT people.

Interestingly, the ruling happened on the very same day Ted Olson was profiled in the New York Times and four legal experts were asked about the merits of the Olson-Boies federal lawsuit. Openly gay Yale Law Professor Kenji Yoshino was cautious.

In the wake of Brown v. Board of Education in 1954, the court was confronted with Naim v. Naim, which concerned a challenge to the Virginia ban on interracial marriage, which was later struck down in Loving. The court was in the midst of issuing a burst of opinions extending racial integration from public education to other state-run institutions like public parks and transportation. Nonetheless, in 1956, the court avoided a decision in Naim, deeming the issue of marriage too socially contentious.

The 2003 Supreme Court case of Lawrence v. Texas, which decriminalized sodomy in this country, is often described as the Brown of the gay-rights movement. If we carry the analogy, the Olson/Boies suit looks more like Naim than Loving. In 1956, slightly more than half the states banned interracial marriage, a political landscape closer to the one we have regarding same-sex marriage today.

The analogy is important because many gay-rights organizations have criticized Mr. Olson and Mr. Boies, who are not gay-rights litigators, as rogue lawyers who brought the case too soon. Yet as Naim shows, lawyers are not the only ones who control the timing of cases in the Supreme Court. Unlike the lower federal courts, the Supreme Court has discretionary review, which it grants in less than 5 percent of cases.

To be sure, if some attorney had not brought the case, the court would not have been permitted to consider it. But in this litigious age, it was only a matter of time before someone made a federal case out of same-sex marriage. And if I were to choose two private lawyers to go “rogue,” I would pick these two.

If this case is decided on the merits, I hope the court will follow Loving. But the court cannot be insensible to the widely expressed sentiment that the timing here may not be right. If the court believes that a broader social consensus needs to develop, it should remember how it bought time with Naim.

Which do you think Perry will be more like? Naim or Loving?