Sotomayor, Ginsburg and Kagan: 1/3 of the Highest Court

Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan

  
This picture just make my heart sing. I can't wait until the day where the United States Supreme Court actually has a majority of women on it!

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.

Scalia Claims Sex and Sexual Orientation Bias Not Banned By Constitution

Adm Golub / The Chronicle

Antonin Scalia, the 74-year-old Associate Justice of the Supreme Court gave a speech at University of California Hastings on the 24th anniversary of his unanimous approval by the United States Senate on Friday.
Scalia, the notoriously homophobic head of the conservative wing of the Court told the audience that he is convinced that the United States Constitution's 14th Amendment's declaration of "equal protection of the laws" does not apply to women or gays and lesbians.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

[...]

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The court has not applied the same exacting standard to discrimination based on sexual orientation, an issue it could reach in several cases now in lower courts, including the dispute over California's ban on same-sex marriage.

But when the justices overturned laws against gay sex in 2003 as a violation of personal autonomy and due process, Scalia dissented vehemently. He compared the anti-sodomy laws to statutes against incest and bestiality and said many Americans view bans on homosexual conduct as protections for themselves and their families against "a lifestyle that they believe to be immoral and destructive."

It's interesting that Scalia will say in public that "gender bias 'shouldn't exist'" but he is on record in a published opinion of the Court declaring the homosexual "lifestyle" to be "immoral and destructive."

Perhaps he should recuse himself from future cases involving sex discrimination or sexual orientation discrimination before the Court?

Connecting Federal Rulings on Prop 8 and SB 1070

My friend Sandip Roy has a great piece up on Salon magazine connecting the two recent federal rulings on Arizona's SB 1070 and California's Proposition 8. Called "Proposition 8 and S.B. 1070: Sisters under the skin?", Sandip writes from the perspective of a queer immigrant to point out that the two apparently disparate rulings validated two parts of his identity but stemmed from the same law: the 14th amendment to the U.S. constitution.

On July 28 Susan Bolton issued an injunction that defanged the anti-immigrant S.B. 1070 in Arizona. On Aug. 4, Vaughn Walker found California’s Proposition 8 that outlawed same-sex marriage unconstitutional. For this they will both be tarred as “judicial activists.” Judge Bolton has received death threats. Judge Walker is being denounced.

I have no idea if the two judges know each other, but within one week, they had suddenly brought together two parts of who I am. As a gay immigrant, I am used to juggling identities, never sure which one is acceptable in which setting, which one I should check at the door.

[...]

The fight over Proposition 8 in California rested on the 14th Amendment of the U.S. constitution. What Judge Walker found was Proposition 8 violated the due process and equal protection clause of the 14th Amendment to the Constitution.

The fight over illegal immigration is about federal jurisdiction and states' rights but it also boils down to the 14th Amendment. That’s the grand prize, the Holy Grail that the Russell Pearces of Arizona are really aiming to overturn. Pearce wrote in an e-mail obtained by CBS 5 News: "I also intend to push for an Arizona bill that would refuse to accept or issue a birth certificate that recognizes citizenship to those born to illegal aliens, unless one parent is a citizen."

[...]

Yes, both victories are just rest stops in much bigger fights. Both fights are probably headed for an uncertain future in the U.S. Supreme Court. But until today I didn’t realize that in some ways it’s the same fight. Supervisor David Campos told the cheering crowd that this was about "justice for all" -- not just "gays and lesbians, but immigrants and minorities and transgender."

That can sound like San Francisco big umbrella talk. But these cases touch each other in ways I didn’t realize. My numerologist friend said, "Of course they do, the digits in 1070 add up to, you guessed it, 8."

[...]

If the twin judgments show anything it's this. Though the crowd that celebrated Bolton’s decision in Phoenix might look different from the crowd celebrating Walker’s ruling, these are sisters under the skin. As [Equal Justice Society's Eva] Paterson reminded the crowd, "It’s the same law that gave equality and protection to immigrants in Arizona."

A great example of intersectional analysis at work..

Kagan Confirmed To SCOTUS; It's Now 1/3 Female

By a vote of 63 to 37, the United States Senate confirmed President Barack Obama's second Supreme Court nominee, Elena Kagan, 50, to the country's highest court. That body will have three women serving simultaneously, the most ever when Kagan joins Ruth Bader Ginsburg, 77, and Sonia Sotomayor, 56, as the 112th Justice of the United States Supreme Court.

Celebrity Friday (Extra): Pamela Karlan

MadProfessah and Law Professah Pam Karlan

Today after the excellent panel at Netroots Nation 2010 in Las Vegas entitled "Liberal Perspectives on the Kagan Supreme Court Nomination" which featured Dahlia Lithwick, Nan Aron, Keith Kamisugi, Joan McCarter and Pamela Karlan. MadProfessah took a picture with one of my idols, Stanford Law Professor (and former Dean) Pamela Karlan, who has been on progressives' wet dream short list for the United States Supreme Court.

Karlan explicitly mentioned the Goodwin Liu nomination to the 9th Circuit Court of Appeals (which we have been following here at this blog), and said that progressives should pay careful attention as to whether the UC Berkeley Law Professor gets approved by the Senate. Republican Minority Leader Mitch McConnell has said that he is putting a hold on all appellate-level federal judicial nominees before the mid-term election, so things do not look good. To support the nomination of a principled progressive to the 9th circuit, click here and here.

Take a look at the picture. Notice anything? Yes, we co-ordinated our colors. It's not pink, it's fuchsia! I think she wears the pearls better than I do, yes?

SCOTUS Rules Against Christian Legal Society

In the second most important case of the 2009-2010 Supreme Court term for LGBT people (last Thursday's Doe v. Reed 8-1 ruling that ballot proposition signers have no implicit right to anonymity was probably the most important) the court has ruled 5-4 in favor of the University of California Hastings Law School and against the Christian Legal Society to preserve the principle that a public university's discrimination policy that includes sexual orientation, gender identity and religion can compel any student group that wants official recognition and funding to abide by that nondiscrimination policy.

The Chronicle of Higher Education wrote:

The Supreme Court's decision, by Justice Ruth Bader Ginsburg, found that the law school's policy was "a reasonable, viewpoint-neutral condition on access" that did not raise First Amendment issues in the way the Christian Legal Society argued.

The opinion explicitly rejects the argument of the Christian Legal Society that a public university has no business limiting its ability to be recognized and to apply its own rules to membership. "CLS’s analytical error lies in focusing on the benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all, has two sides," the decision says. "Hastings, caught in the crossfire between a group’s desire to exclude and students’ demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no groupto discriminate in membership."

A dissent, by Justice Samuel Alito, blasted the decision, saying that it set principle of "no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning."

Many public colleges and universities have anti-bias policies similar to those of Hastings, so a ruling for the Christian Legal Society would have forced changes at many institutions. The issue has been particularly intense at public law schools (where the Christian Legal Society has sought recognition) and at undergraduate institutions with Greek systems (when Christian fraternities have sought recognition). Some public colleges and universities – faced with legal threats by supporters of the Christian Legal Society – have changed their policies to exempt religious groups, and those institutions could conceivably now reconsider.

This case has been closely watched by law professor friends of mine like Nan Hunter of Georgetown Law School and Art Leonard of New York Law School.

Human Rights Campaign issued a statement:

“Today, the Court upheld an important principle for all Americans, that government should not be forced to subsidize discrimination,” said HRC President Joe Solmonese. “UC Hastings and schools like it all over the country have worked hard to create welcoming spaces for all students, including those who are lesbian, gay, bisexual and transgender. Today’s decision bolsters those efforts, while recognizing that Christian Legal Society, and groups like it, are free exclude whomever they want – without the financial support of their fellow students or taxpayers.”

Amazingly, Justice Ginsburg, who wrote the majority opinion (joined by Stevens, Kennedy, Sotomayor and Breyer), read parts of her opinion before the Court aloud, the day after her husband of 56 years(!) died. Thank you Justice Ginsburg for your service to our country. May you enjoy serving on a supreme court (for at least one year) that is one-third female!

UPDATED 06/28/2010 11:38AM PDT

MadProfessah friend and openly gay USC Law Professor David Cruz weighs in with his thoughts on CLS v. Martinez, and Lambda Legal releases a statement:

"We're extremely pleased the Court has found that discrimination is discrimination, however you try to package it," said Jon Davidson, Legal Director of Lambda Legal. "CLS was attempting to draw a distinction between status and conduct. But when an organization has a membership requirement that one must believe conduct central to one's identity is immoral, that's the same thing as excluding people for who they are. It's wrong of CLS to expect students to fund a group that wouldn't have them as a member. The Court wisely rejected CLS's attempt to obtain what the Court recognized as 'preferential, not equal treatment' under the school's rules applicable to all other recognized clubs." Registration as a student organization at Hastings gives groups the right to use Hastings' name and logo, access to a university email address, limited use of facilities, and modest university funds for travel and other expenses. CLS sued in U.S. District Court in San Francisco, arguing that, by not allowing it to become a supported student group, Hastings had violated CLS's rights of free speech, association and religious freedom under the U.S. Constitution. The group maintained it did not bar membership to gays, but rather to those who engaged in homosexual conduct. The District Court rejected these claims and found in Hastings' favor, as did the U.S. 9th Circuit Court of Appeals last year.

The Task Force's Rea Carey said:

“The Supreme Court ruled correctly in rejecting the challenge from the Christian Legal Society, which sought school funding and recognition despite being in clear violation of the college’s nondiscrimination policy. The court rightly found that the First Amendment rights of association, free speech and free exercise were not violated by Hastings’ decision. It simply said the college did not have to fund a group that violated the school policy requiring all recognized student groups to be open to every student. Schools all across the country are working to create welcoming environments for all students. This ruling supports that important effort. No school group or organization should be given public money to discriminate against other students.”

SCOTUS Rules 8-1 To Support R-71 Names Disclosure

The Supreme Court has ruled 8-1 in the case of Doe v. Reed that heterosexual supremacist petition signers in Washington who placed Referendum 71 (which would have repealed a comprehensive domestic partnership statute) on the ballot have no implicit First Amendment expectation of privacy, affirming last year's excellent 9th Circuit appellate decision.

Washington Families Standing Together, the organization that managed the campaign to defend the domestic partnership law by approving Referendum 71 issued a statement:

The Court has made clear today that public disclosure requirements are an important means of making sure measures are not put on the ballot by fraudulent means or mistake.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures. Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot. In light of the foregoing, we reject plaintiffs’ argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.”

This 8- 1 ruling by the highest court in the land is a significant defeat for those who have sought to enshrine discrimination into law at the ballot box. Nowhere is the integrity and transparency of elections more important than where the ballot box is being used in an attempt to take away fundamental rights. Nowhere is it more important for the public to know that attempts to affect the lives of their fellow citizens by promoting ballot measures are free from fraud and error. Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans. Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.

This is the third loss for these groups in our state over the past year as they tried to repeal legislation ensuring that all families are treated equally under Washington State law. First the State PDC said no when these same groups tried to hide their donors. Then voters approved Referendum 71, retaining the law, by more than 53%. Now the U.S. Supreme Court has ruled against the proponents’ attempt to undermine disclosure laws.

With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure, as Justice Stevens said in his concurring opinion,

“Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.”

The Supreme Court has in the past allowed narrow exemptions to public disclosure where there’s a clear minority party that has suffered both official and societal retaliation by the majority and where there is strong evidence that such disclosure presents a serious threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.

In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”

WAFST applauds today’s decision and thanks all those who filed briefs and supported our collective efforts as we fought over the last year to protect the rights of all Washingtonians.

Congratulations to Washington State, this is a big loss for the heterosexual supremacist haters like National Organization for Marriage.

Celebrity Friday: Elana Kagan

Elena Kagan, President Obama's nominee to the United States Supreme Court to replace retiring John Paul Stevens is my choice for today's Celebrity Friday.

Kagan is a 50-year-old, never-married New Yorker who attended Princeton University, Harvard Law School and clerked for Justice Thurgood Marshall. She was the first female Dean of Harvard Law School from 2003-2009 and became the first female Solicitor General of the United States last year.

Obama Nominates Elena Kagan To SCOTUS

Kagan is only 50-years-old and would become the 4th woman ever on the nation's highest court, with 3 serving simultaneously for the first time.

I think she's a lesbian, and so do other people. Whether this will prevent her from being on the Court is anyone's guess. Regardless of whether she is a lesbian or not, having another single woman (Sonia Sotomayor was briefly married and now is a permanent divorcee) on the nation's highest court will do wonders for gender equity in this country.

SCOTUS Hears Doe v. Reed Argument Today

Today is the final oral argument of the 2009-10 Supreme Court term, and the last one of John Paul Stevens long career. The case in question is Doe v. Reed, which involves whether petition signers of Washington state's Referendum 71 can have their identities shielded, in violation of that state's robust open records law. Referendum 71 asked voters whether they approved of Washington state's comprehensive domestic partnership law, commonly known as the "everything but marriage" law.

SCOTUSblog covers the issues in today's oral arguments:

The Court, perhaps, has tipped its hand in the case, not only by its order in October, temporarily protecting the Washington signers’ privacy, but also by its 5-4 ruling in January in the Proposition 8 TV trial coverage ruling. But both of those actions tend largely to exhibit sympathy for the argument that opponents of gay marriage do face threats and other forms of harassment or outright violence. That sentiment, perhaps, cannot be translated directly into a conclusion that signing a petition is a form of protected political speech.

The Court has never before analyzed, as it must in this case, just exactly what occurs – in a constitutional sense – when a citizen writes a signature, and enters personal information, on a political petition. The Referendum 71 case presents that issue very directly, with the signers making a vigorous argument that it is a purely expressive form of political speech, while those favoring public disclosure of petitions make an equally vigorous argument that the role of citizen as legislative sponsor is no different from that of an elected lawmaker. To side with the former and against the latter, the Court would have to make a sizeable constitutional leap from past rulings on electoral anonymity. Perhaps some of the Justices voted to grant review of the case precisely anticipating that they might well do just that. The briefing, though, has sharpened the issue, far more than did the content submitted to the Court prior to the October order and that presented before review was granted.

For a Court that has recently shown, especially in the Citizens United v. Federal Election Commission decision in January, that it reads the First Amendment expansively in the context of election campaigns, there may be little hesitancy now in deciding the Referendum 71 case by lengthening that trend, to elevate the constitutional significance of signing a political petition. Much may be revealed on this score at oral argument.

Whether the Court will see this case as a test of the Constitution’s role in mediating the heavy political controversy, being waged across the country, over gay rights, is unclear at this point. That controversy, to be sure, has a bearing on the intimidation issue that is so central to the Referendum 71 signers’ case.

However, just as central to the other side’s argument is a plea for open government, coupled with a plea for state control of their own initiative and referendum processes. Choosing between those two conflicting approaches to the case may be difficult, indeed.

More than 24 states allow citizen-initiated ballot measures, so a ruling in Doe v. Reed could have a wide impact, especially in California where another Proposition 8-like battle over marriage equality will happen in the future, probably sooner rather than later.

UPDATE: 04/28/2010 11:51AM PDT
It should be noted that LGBT groups have filed a very strong amicus brief in support of the respondents (Washington Secretary of State Sam Reed) and today issued a press release where they basically mock the arguments of the homophobes who want the right to legislate their position from the ballot box while wearing a shroud of First Amendment non-disclosure.

From the release:

Some of the instances of supposed "intimidation" cited by opponents and noted in the amicus brief include:

- A country club member in California, a supporter of Proposition 8, noted that "the openly gay members of the country club have changed their attitudes toward me. They used to greet me warmly; now, they give me looks of disdain and do not greet me as I pass."

- A person with a yard sign supporting Proposition 8 was disturbed on Halloween that some people "pointed and whispered to one another in disapproval" during trick-or-treating.

- A woman was upset that her brother, who is gay, would no longer speak to her after she told him she might vote for Proposition 8.

As the amicus brief says, these complaints "are not only trivial, they reflect a fundamental refusal to accept the legitimacy of speech that disagrees with the complainants' viewpoints, deeming it 'hateful' or 'harassing' simply because they do not like hearing it."

"There's nothing to see here, folks," said Jon Davidson, Legal Director of Lambda Legal. "There's no comparison between a few scattered instances of whispers and disapproving glares and the very real discrimination, harassment and even violence LGBT people experience every day all over the country. After all, more hate crimes are reported against gay people than any other group per capita in the United States."

"The Petitioners are attempting to create a through-the-looking-glass world in which the aggressors are the victims and the victims the aggressors," said Gary Buseck, Legal Director of GLAD.

"This is an outrageous attempt by anti-gay groups to use false claims of persecution to undermine laws that protect the integrity of the democratic process," said Shannon Price Minter, NCLR Legal Director.

We'll see what the Supremes say about that. As always, they have the last word.

Obama's List For SCOTUS Has 10 Names On It

The New York Times reports that although the top 3 favorites have not changed (Solicitor General Elena Kagan, 5th Circuit Court of Appeals Judge Diane Wood and D.C. Circuit Court of Appeals Judge Merrick Garland) President Obama is interviewing up to 10 candidates for the upcoming vacancy on the Supreme Court due to Justice John Paul Stevens already-announced retirement.

The other seven on the (not-so short) list are:

Sidney R. Thomas, 9th Circuit Court of Appeals

Ann Claire Williams, 7th Circuit Court of Appeals

Gov. Jennifer M. Granholm of Michigan;

former Chief Justice Leah Ward Sears of the Georgia Supreme Court;

Martha Minow, dean of Harvard Law School;

Justice Carlos R. Moreno of the California Supreme Court;

Homeland Security Secretary Janet Napolitano.

I'm curious as to why liberal judicial rock stars Pamela Karlan and Kathleen Sullivan are not being publicly considered. Could it be because they are openly lesbian? It is heartening to see that Justice Carlos Moreno is still under consideration, however.

Justice Stevens, 89, Announces Summer Retirement

John Paul Stevens, was appointed to the court
in 1975 by President Ford

Ending speculation, Justice John Paul Stevens, the oldest and longest serving member of the nation's highest court announced that he will retire at the end of this year's term in June, giving President Barack Obama a second opportunity in as many years to name a new member of the Supreme Court.

For the second summer in a row, Washington will face the "drama" of a Supreme Court nomination fight. Last year, Obama chose Sonia Sotomayor to replace retiring David Souter. At 55, Sotomayor became the third woman and first Hispanic justice to serve on the Court when she was approved by a United States Senate vote of 68-31 on August 6, 2009.

The short list to replace Stevens looks like:

Merrick B. Garland

57 years old

Judge, United States Court of Appeals for the District of Columbia Circuit

Harvard College, 1974; Harvard Law School, 1977

A former federal prosecutor now on the United States Court of Appeals for the District of Columbia Circuit, Judge Garland is well regarded by Democrats and influential Republican senators like Orrin G. Hatch of Utah.

Diane P. Wood

59 years old

Judge, United States Court of Appeals for the Seventh Circuit in Chicago

University of Texas at Austin, 1971; University of Texas Law School, 1975

Judge Wood opposed some abortion restrictions and is respected for standing firm against strong, conservative judges on the United States Court of Appeals for the Seventh Circuit. She and President Obama were colleagues at the University of Chicago.

Elena Kagan

49 years old

Solicitor general

Princeton, 1981; Oxford, 1983; Harvard Law School, 1986

With no judicial record, Ms. Kagan is less known. As dean at Harvard Law School, she hired conservative professors to expand academic diversity and has supported assertions of executive power.

Jennifer M. Granholm

51 years old

Governor of Michigan

University of California, Berkeley, 1984; Harvard Law School, 1987

Ms. Granholm is nearing the end of her second term as the first female governor of Michigan. As governor, she has generally opposed legislation to restrict abortion and twice vetoed bans on partial-birth abortion. She was born in Canada and became a United States citizen at age 18.

Janet Napolitano

52 years old

Secretary of Homeland Security

Santa Clara University, 1979; University of Virginia School of Law, 1983

A former Democratic governor in Republican-dominated Arizona, Ms. Napolitano takes pride in defying easy labels and is as strongly supportive of abortion rights as she is of the death penalty. Her prospects might be hurt by criticism that she portrayed a thwarted Christmas bombing of a Detroit-bound airline as a test that the air safety system passed.

I have my money on Elena Kagan, who would also be the first openly gay member of the Court. Other lesbians under possible consideration are Kathleen Sullivan, 54, former Dean of Stanford Law School and Pamela Karlan, 50, another Stanford Law Professor.

SCOTUS Refuses To Prevent DC Marriages

ScotusBlog is reporting that the Chief Justice of the United States Supreme Court John Roberts has just denied the heterosexual supremacists' last ditch efforts to prevent Washington' D.C.'s marriage equality law from going into effect tomorrow.

Couples can begin applying for marriage licenses on Wednesday March 3rd and then wait 3 business days before getting married. The first same-sex legal marriages couples in the District of Columbia are expected to happen on Tuesday March 9th.

Obama Nominates API LGBT Ally For 9th Circuit

Goodwin Liu

This should be the biggest judicial confirmation battle this year (barring any Supreme Court retirements, which are likely). President Barack Obama has nominated UC Berkeley Law School Professor Goodwin Liu for a vacancy on the 9th Circuit Court of Appeals.

Liu has impeccable intellectual and legal credentials. From the official White House announcement:

Goodwin Hon Liu is an Associate Dean and Professor of Law at the University of California, Berkeley School of Law. An acclaimed scholar, teacher, and lawyer, with experience in both the private and public sectors, Liu is a nationally-recognized expert on constitutional law and education law and policy. In 2009, he received Berkeley's most prestigious teaching award.

Prior to joining the Berkeley faculty in 2003, Liu was an associate at O'Melveny & Myers in Washington, D.C. He clerked for Justice Ruth Bader Ginsburg in the October 2000 Term, and for Judge David S. Tatel on the Court of Appeals for the D.C. Circuit from 1998-1999. Between his clerkships, Liu served as a Special Assistant to the Deputy Secretary at the U.S. Department of Education. He has also worked for the Corporation for National Service, where he helped launch the AmeriCorps program.

Liu was born in Augusta, Georgia, to parents who emigrated from Taiwan, and he grew up in Sacramento where he attended public schools. Liu earned a B.S. from Stanford University in 1991, an M.A from Oxford in 2002 (where he studied as a Rhodes Scholar), and a J.D. from Yale Law School in 1998.

The Los Angeles Times notes that if Liu is confirmed, he will be the only Asian American serving on an appellate court in the country.

MadProfessah is familiar with Godwin Liu because we both appeared at a Joint California Assembly-Senate Judiciary Committee Hearing in 2008 testifying that he thought Proposition 8 was unconstitutional and has written published editorials to that effect also.

Goodwin Liu is also known for testifying against Samuel Alito's nomination to the Supreme Court and will be an excellent progressive judge and Asian American LGBT ally on the 9th Circuit!

SCOTUS Oral Argument in Doe v. Reed: April 28

The Supreme Court has set the oral argument date of April 28th in the closely watched case of Doe v. Reed, which is the case in which proponents of the anti-gay ballot measure Referendum 71 (which, if rejected by voters would have prevented Washington's comprehensive domestic partnership statute from going into effect) won an emergency injunction from the US Supreme Court prior to the November 2009 election barring the release of the information of those who had signed to get the question on the ballot. Referendum 71 was approved so that the anti-gay side lost their bid to use the ballot box to write their homophobic views into state law, but the question of whether Washington State's public disclosure law trumps the right of heterosexual supremacists who sign petitions to eliminate the rights of others is still a matter of judicial dispute.

Specifically, the questions to be considered on April 28th will be:

1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.

2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.

I believe that both the answers to these questions could be Yes (though, actually there are two questions in Question #2, the second of which is moot at this point) and Petitioners should lose their case. Respondent (the State of Washington being represented by Secretary of State Sam Reed) should rely heavily on the excellent 9th Circuit Court appellate opinion in this case.

Even conservative UCLA law professor Eugene Volokh believes that "you don't have a constitutional right to essentially engage in a legally significant action anonymously" and election law expert Rick Hasen is similarly dubious about petitioner's chances of prevailing. This is on appeal from the 9tyh Circuit, the Circuit the conservative majority loves to slap down.

Also, even though the issues are different from the Proposition 8 injunction case, it is clear which side if the "pro-gay" side (Respondent) and which is the "anti-gay" side (Petitioner) so it should be very interesting to see the final ruling in this case by the end of June.

David Savage Thinks SCOTUS Will Uphold Prop 8

Today's Los Angeles Times contains analysis of the Supreme Court's intervention in the federal Proposition 8 trial which concludes that things do not look good for advocates of marriage equality at the nation's highest court. David Savage is the Los Angeles Times Supreme Court reporter and his piece today has these important paragraphs:

Legal experts on the left and right gleaned three insights from the high court intervention:

First, the justices are following this case closely. They typically rule on appeals after cases are decided. It is rare for them to intervene in a pending trial.

Second, the court's conservatives do not trust Walker to set fair rules for proceedings. Their opinion described how he had given shifting explanations of his plans. This suggests Walker's ruling on Proposition 8 may be viewed with some skepticism.

And third, the majority has a distinct sympathy for the foes of same-sex marriage. The justices cited a series of newspaper stories reporting on the threats and harassment faced by those who have publicly opposed gay unions.

"The ideological split was stunning," said Erwin Chemerinsky, a liberal law professor and dean of the UC Irvine Law School. "It made me think of Bush vs. Gore" -- when, after the 2000 presidential election, the Supreme Court issued a 5-4 emergency order to halt the recount of Florida's paper ballots and three days later ended the recount.

Last week's intervention in the San Francisco case "suggests the majority has a very strong sympathy for Prop. 8's supporters," USC law professor David Cruz added.

M. Edward Whelan, a conservative former clerk to Justice Antonin Scalia, called the high court decision "a stinging rebuke" of Walker that "strongly signals that at least five justices have serious questions about his impartiality and judgment in this matter."

Chemerinsky, Cruz and Whelan all cautioned against predicting the outcome in the high court, but said the justices' ruling was an early sign that the advocates of a constitutional right to same-sex marriage may face an uphill fight.

I think there's almost no chance of the Supreme Court upholding a ruling from the 9th Circuit which goes as far as California's 2008 landmark gay marriage decision In Re Marriage Cases but I do think it is possible there could be 5 votes on the court to rule that it violates the federal constitution when a minority is granted rights through a judicial proceeding and then the majority electorate votes to take those rights away. That should be a legal principle that Justice Anthony Kennedy should be able to agree with, even if it would only apply to striking down Proposition 8 and legalizing marriage in California, and not the 45 states where it is currently not legal already.

SCOTUS To Hear WA's Referendum 71 Case Doe v Reed

The United States Supreme Court granted certiorari in the now high-profile case of Doe v. Reed on Friday, just like I had hoped for in late October.

This was the second time this week the nation's highest court has intervened in the controversy over whether heterosexual supremacists will be able to shield themselves from public oversight while advocating for public policy changes which would harm the LGBT community. The first action was in their ruling upholding a stay preventing the broadcast of the Perry v. Schwarzenegger federal trial.

The second action is summarized by the Washington Post:

The court agreed to decide whether it was unconstitutional for the state of Washington to make public the names of 138,500 voters who signed a petition for a referendum on whether to overturn a state "everything-but-marriage" law. The statute expanded rights for those who entered into domestic partnerships, both homosexual and heterosexual.

The group that championed the referendum said rival organizations planned to make the petitioners' names available on the Internet and subject them to "threats, harassment and reprisals." Those groups denied such intentions, and the state said its public-records law required disclosure of the names as part of the transparency that comes with democratic participation.

Protect Marriage Washington was successful in getting the issue to referendum last fall, but not at the ballot box. Washington voters endorsed the law by a margin of 53 percent to 47 percent.

But the petition-signers' names have not been disclosed. The Supreme Court blocked the release in October while considering whether the case presented a significant question about political speech. The U.S. Court of Appeals for the 9th Circuit said Washington's public-records law did not violate constitutional protections.

It should be interesting to see if the Supreme Court will really decide to strike down Washington State's public disclosure law because of an alleged right of people to participate in enacting (and abolishing) laws through the electoral process anonymously.
This claim makes a mockery of the notion that democracy occurs in an open exchange of ideas and I hope the Supreme Court realizes that and rules for the defendant-appellants, the State of Washington, and upholds the 9th Circuit Court of Appeals.

(It should be noted tat the Supreme Court under Chief Justices Roberts and Rehnquist has taken great delight in overturning the 9th Circuit on multiple occasions.)

UPDATED 11:59 01/17/2010:

The specific questions the Supreme Court has asked both sides to consider are:

1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.

2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.

I would say the answer to both questions is "Yes." Let's hope the SCOTUS agrees.

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?

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.