Amendment To Ban Marriage, Civil Unions and DPs In Iowa Introduced

Despite recent poll results showing only one-third of voters nationally support no legal recognition for same-sex couples, Republicans in Iowa have introduced a measure which would not only overturn marriage equality in that state (which has been in effect since April 2009) but also prevent any state legal recognition of same-sex couples whatsoever.

One Iowa is the group defending equal marriage rights for all Iowans. They distributed a press release:

DES MOINES – An amendment that seeks to exclude gay couples from marriage was introduced in the Iowa Statehouse today. The bill (House Joint Resolution 6) seeks to amend the Iowa Constitution to exclude gay and lesbian couples from the freedom to marry. If passed through the legislature in two consecutive General Assemblies, the issue could be on the ballot as soon as 2013.

“Amending the Iowa Constitution to exclude gay couples will harm thousands of Iowa families,” said One Iowa Executive Director Carolyn Jenison. “Marriage says ‘we’re a family’ like nothing else and is an important way we care for those we love. Writing discrimination into the Constitution will only divide us at a time when we need to work together to tackle common concerns. Iowans expect their elected officials to focus on issues that matter to everyone, like creating jobs, providing educational opportunities, and improving healthcare. Going backward on equal rights sends the wrong message.”

HJR6 goes beyond marriage, and would ban civil unions, domestic partnerships, and any other legal recognition of same-sex couples.

“This bill intends to forever strip basic protections from loving and committed gay couples,” Jenison said. “It goes against Iowa’s cherished tradition of protecting equal rights for all. Now is the time for Iowans to come together and send a clear message to their legislators that discrimination has no place in Iowa’s Constitution. Our legislators should continue to uphold Iowa’s long-held value of equal rights for all.”

One Iowa is the state’s largest lesbian, gay, bisexual, transgender (LGBT) advocacy organization, committed to full equality for LGBT individuals, including the freedom to marry.

# # #

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.

DADT Update: Federal Judge Refuses To Lift Stay

Via Joe.My.God comes the above excerpt from U.S. District Court Judge Virgina Phillips ruling today in Log Cabin Republicans v. United States that she is refusing to issue an emergency stay of the injunction preventing the United States from enforcing its "Don't Ask, Don't Tell" policy she issued last week, on Tuesday October 12th.

The Department of Justice has appealed her ruling, and is expected to appeal her injunction, to the 9th U.S. Circuit Court of Appeals. I support the appeal of the ruling, but not of the injunction. A single federal judge should not be making public policy for the entire federal government. I suspect the government will lose on appeal as well. I would NOT support an appeal to the United States Supreme Court at that time.

Meanwhile, since DADT is no longer in effect right now and the Pentagon has told recruiters they can accept  LGBT recruits, Dan Choi has apparently successfully reenlisted in the military, this time the Marines.

10 States File Joint Brief Supporting Prop 8 Proponents

10 states have filed amicus briefs with the 9th U.S. Circuit Court of Appeals on the behalf of the heterosexual supremacists who are defending Proposition 8 on appeal from the August 4th striking the gay marriage ban as unconstitutional. The ten states who signed the brief are: Wyoming, Alabama, Florida, Idaho, Indiana, Louisiana, Michigan, South Carolina, Utah and Virginia.

Additionally, many other heterosexual supremacists groups such as PFOX and the Ethics and Public Policy Center have also filed briefs supporting Proposition 8 and "protecting traditional marriage."

For more info see the Courage Campaign's Prop8TrialTracker.com

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?

Dude, There's Already A Mosque Near Ground Zero

Umm, Republican idiots? There's been a mosque "in the shadow" of Ground Zero before the Twin Towers were built in 1972! Masjid Manhattan was built in 1970.

Jed from Daily Kos asks two questions:

So here's the question for anti-mosquers:

1. If the currently existing mosque is too close to Ground Zero, by what method should the congregants be removed? Arrest? Angry mob? Or maybe the building should be crushed to rubble by a wrecking ball? What would make you feel good?

2. If it's not too close, where is the line of demarcation? How wide should the mosque exclusion zone be? 3 blocks? 2.2 blocks? 3.8 blocks? And on what basis is that line of demarcation drawn?

I guess I have one last question for them: how many of you anti-mosque yokels even knew there already was a mosque in the same general area?

Or if you want to see it on Google maps (A=Cordoba House, B=Masjid Manhattan) :

What part of "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" do you not understand? Clearly, people have the right to put a place of worship (which is only one part of what the proposed Cordoba Center is going to be) without government interference.

So, for the people who say "Well, of course they CAN but they SHOULDN'T" I respond who the **** are you to tell someone what they should or should not do?

WATCH: Obama Supports The "Ground Zero Mosque"

I agree with him. Even if 68% of Americans oppose it. Constitutional rights (freedom of religion) is not subject to popular whim.

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.

DOMA Section 3 Struck Down By Federal Judge

GLAD is tweeting it has won its case in Gill v. Office of Personnel Management:

http://twitter.com/GLADLaw/status/18060773570

Great news! U.S. District Court held that #DOMA "violates ... equal
protection principles." Decision will be posted shortly. Please
retweet!

More later....

SASOD Files Lawsuit Against Guyana Cross-Dressing Law

Official flag of Guyana

Guyana's Society Against Sexual Orientation Discrimination (SASOD) has filed a lawsuit challenging the constitutionality of that country's archaic law against "cross-dressing."

In a series of crackdowns last year between February 6 and 7, the Guyana police arrested a number of male-to-female transgender persons (MtF Trans) and charged them for ‘cross-dressing’ under the archaic Colonial section 153(1)(xlvii) statute. Unrepresented and completely unaware of their rights, the defendants were detained in police custody over the week-end and then hustled through the legal system. When they appeared before Chief Magistrate Melissa Robertson on February 9, 2009, they were further ridiculed and told that they are men not women, before being fined by the learned Chief Magistrate. Seon Clarke, also known as Falatama, one of the persons arrested, said: “It was one of the most humiliating experiences of my life. I felt like I was less than human.” The motion also pleads that the Chief Magistrate was improperly influenced by irrelevant considerations, discriminated against the MtF Trans on the basis of religion, and violated a fundamental norm of Guyana as a secular state. Vigorous and wide-ranging calls within and out of Guyana for the repeal of these discriminatory laws which facilitate such injustices have been ignored by the government.

Since then, SASOD has forged partnerships with human rights interests in the local and regional arenas who have been working collectively and consistently on a voluntary basis over the past year to assist this marginalized group to obtain access to justice for the atrocities endured at the instance of the law enforcement authorities. The 2009 ‘cross-dressing’ crackdowns and prosecutions provided clear illustrations of how discriminatory laws are facilitating grave human rights’ abuses, in spite of the existence of an entrenched regime of human rights protection in the Guyana constitution. Leading the research initiatives to support strategic-impact, human-rights litigation in the region, Tracy Robinson of the University of the West Indies Rights Advocacy Project (U-RAP) based at the Cave Hill campus’ law faculty in Barbados described the arrests and prosecutions as “an unfortunate embodiment of the patriarchal use of coercive state power for no clear or rational purpose,” highlighting the need for law reform to ensure social justice and gender equity in Guyana and across the region.

SASOD has mobilized support from local and regional human rights attorneys to provide representation in what amounts to a ground-breaking constitutional case. According to Dr. Arif Bulkan, also of U-RAP and one of Guyanese attorneys involved in the litigation, “unless the wide-ranging constitutional reforms conducted in 2001 and 2003 are to be dismissed as pure window-dressing, then the emphasis placed on non-discrimination during that process should guide the High Court to interpret the expanded equality rights generously in order to protect one of our society’s most marginalised groups.”

Veronica Cenac, a St. Lucian attorney who serves as the human rights focal point on the Caribbean Vulnerable Communities Coalition board of governors, lauded SASOD for spearheading the case. “For way too long, we have allowed abuses against the most affected populations to go unchallenged,” she said, quoting the closing words of the UN Secretary-General’s message: “Lack of social justice anywhere is an affront to us all.”

At last year's Global Arc of Justice conference at UCLA Law School I met some Caribbean LGBT activists and heard first-hand from them about some of the indignities suffered by members of the LGBT community living in the British Caribbean countries (like Barbados, Grenada, Trinidad, Jamaica, Guyana etc) as well as their plans for redress.

I am glad to see the resistance to institutionalized homophobia in these jurisdictions is starting to reach a heightened level of activity (and even mainstream press coverage!) I will endeavor to keep track of the progress of this lawsuit and other efforts to combat homophobia and transphobia in the Caribbean.

Openly Gay Man Nominated For Federal Judgeship

United States Senator of New York Chuck Schumer (D-NY) is making news today with the announcement that he is recommending the first openly gay man for a federal judgeship: Daniel Alter.

From the press release from the Senator's office:

Today, U.S. Senator Charles E. Schumer announced that he is recommending Daniel Alter to President Obama to serve as a judge in the Southern District federal court. Mr. Alter is a history-making pick, as he is the first openly gay male nominated for the federal court in American history. Schumer laid out several reasons Alter would make an excellent fit for the job. Schumer said that Alter’s stellar legal background, close ties to New York, even-handedness, temperament and demonstrated leadership skills would make him an excellent choice for the Southern District Court. Schumer also said that he is highly capable and very qualified for the position.

“Daniel Alter couldn’t be a more perfect choice. He is a brilliant attorney who possesses the knowledge, balanced views and temperament required of a federal judge,” Schumer said. “His outstanding leadership skills, his commitment to justice, and his extensive experience make him an exceptional choice for a position on the federal bench. I’m proud to nominate Daniel Alter. Period. But I am equally proud to nominate him because he is a history-maker who will be the first openly gay male judge in American history.”

Alter is a graduate of Columbia College and Yale Law School. As a young lawyer, Mr. Alter clerked for the Hon. John M. Walker and the Hon. Guido Calabresi, who both served on the United States Court of Appeals for the Second Circuit.

The sexual orientation of federal judges has been in the news recently with the San Francisco Chronicle reporting over the weekend that U.S. District Court judge Vaughn Walker, who just happens to be conducting the most important gay rights case (on the federal constitutionality of California's Proposition 8) of the decade (century?) is openly gay.

There are currently 875 federal judges under Article III of the United States Constitution and exactly two are known to be openly gay or lesbian: Vaughn Walker and Deborah Batts (who is also Black).

Human Rights Campaign Joe Solmonese released a statement:

“Daniel Alter is eminently qualified for a position on the federal bench. America is taking a step forward towards equality by evaluating an individual based on his accomplishments and without regard to his sexual orientation. We commend Senator Schumer for his historic recommendation, and look forward to the President’s nomination.”

Federal judgeships are lifetime appointments and have been a flashpoint with Republicans in the past. It should be interesting to see how long it takes the Alter nomination to get through the Senate, and how long it takes the Obama administration to formally initiate the process.

I'm also curious if this will encourage any other federal judges to come out. After all, 2 out of 875 federal judges being gay or lesbian is a statistically unlikely number.

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.

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.

VIDEO: Mormon Leader Comparing Their Homophobia To Racial Oppression

Here's the video of Mormon Elder Oaks saying his crazy mess comparing protests of church efforts on passing Prop 8 to racism against African-Americans in the 1960s.

US Supreme Court 2009-10 Term Begins Today

The official new term of the United States Supreme Court begins today, with a new member of the Court, Associate Justice Sonia Sotomayor. NPR's Nina Totenberg has a rundown on what to expect.

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?

Field Poll Shows CA Movement on Marriage Since 1977

Last Wednesday while MadProfessah was on vacation in Costa Rica, the Field Poll released new data (pdf) which showed that support for marriage equality in California has reached 49% (while opposition is now at 44%) with a margin of error of +/- 1.1 percentage points.

The report explains what has caused the change in support for same-sex marriage in California from 1977 to present: Democrats!

Among the most significant changes in voter attitudes over the past thirty years has been an increasing level of support for allowing same-sex couples to marry. In 1977 voters opposed allowing same-sex marriage by a two to one margin (62% to 31%). When The Field Poll asked the same question this year opinions are far different, with 49% of registered voters supportive and 44% opposed.

Californians’ greater acceptance of allowing same-sex marriage has come entirely from the changing views of registered Democrats and non-partisans rather than Republicans. Democratic voter views have shifted from greater than two-to-one opposition in 1977 to greater than two-to-one support this year. Similarly, where non-partisans opposed allowing same-sex couples to marry three decades ago by a five-to-three margin, now they support it five to three.

Republicans, on the other hand, have not changed their views on this issue, and if anything, are now more opposed than they were thirty years ago. A nearly three to one majority of Republicans (68% to 23%) currently opposes allowing same-sex marriage in California. This is slightly greater than their 65% to 30% opposition found in a 1977 Field Poll.

The specific question asked (in 1977 and in 2009) was: "Do you approve or disapprove of California allowing homosexuals to marry members of their own sex and have regular marriage laws apply to them?" It should also be noted that the actual polling was conducted February 20th to March 1st, many months before the California Supreme Court upheld Proposition 8 on Decision Day (Tuesday May 26).

David Boies WSJ Op-Ed On Prop 8 Lawsuit

David Boies, of the infamous Olson-Boies federal lawsuit against Proposition 8, has published a powerful op-ed in the Wall Street Journal today called "Gay Marriage and the Constitution" arguing for full constitutional equality based on sexual orientation.

Here's an excerpt:

The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion. It is difficult to the point of impossibility to envision two love-struck heterosexuals contemplating marriage to decide against it because gays and lesbians also have the right to marry; it is equally hard to envision a couple whose marriage is troubled basing the decision of whether to divorce on whether their gay neighbors are married or living in a domestic partnership. And even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love.

Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation. Even if there was, the attempt would be constitutionally defective. But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters. It is also a condition that, like race, has historically been subject to abusive and often violent discrimination. It is precisely where a minority's basic human rights are abridged that our Constitution's promise of due process and equal protection is most vital.

Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states -- including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont -- have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.

It's really quite good. Go read the whole thing!