Protests erupted in California - and across the country - following the passage of Proposition 8 in California, now being challenged in federal court by two of the nation's most prominent lawyers, Ted Olson and David Boies.
U.S. District Judge Vaughn Walker set a rather quick trial date of January 2010 in the Perry v. Schwarzenegger lawsuit challenging the constitutional validity of Proposition 8 and has denied the request of several LGBT community groups in California — represented by the ACLU, Lambda Legal and NCLR — to intervene in the case. The similar request of the Campaign for California Families, which had supported Proposition 8, to intervene also was denied.
Judge Walker did, however, grant the request of the City of San Francisco to intervene. According to Lambda Legal’s Jason Howe, the judge “said they showed a government interest that wasn’t represented by any of the current parties.”
Additionally, the American Foundation for Equal Rights, a new organization created for this lawsuit, has announced that Judge Walker has set the trial in the case for January 11, 2010. That represents a very quick trial, in terms of federal court timelines, and will keep the parties very busy over the coming months.
Chad Griffin, the board president of AFER, said in a news release, “Proposition 8 compels our government to treat people differently under the law simply because of who they are. That injustice cannot be corrected fast enough.”
[For great coverage at the hearing -- and pictures -- check out this follow-up guest post from Michael Petrelis.]
What the intervention rulings mean is that Ted Olson and David Boies, along with San Francisco City Attorney Dennis Herrera, will be the lawyers now controlling this challenge to Proposition 8, considered by many to be the most broad, grand-scale attack on marriage discrimination of all those brought in recent years. It is not yet clear how Vaughn ruled in terms of whether both plaintiff groups — the AFER plaintiffs and the City Intervenor-Plaintiff — will be responsible for all decisions or whether Walker named one lead plaintiff in the case.
Of the city’s intervention, Herrera said in a news release, “In terms of our unique public sector perspective and the evidence we’ve already developed, we think the City is an extremely well-prepared co-plaintiff in the kind of trial Judge Walker envisions.”
The ramifications of an appellate or Supreme Court ruling would have impact far outside California’s borders, with a success for the plaintiffs calling into question other state amendments banning lesbian and gay couples from marrying, as well as the federal Defense of Marriage Act.
The LGBT legal organizations, who expressed “disappointment” and called the decision “troubling,” now will be limited to filing amicus briefs, memoranda submitted to the court representing the views of non-parties who have an interest in the outcome of the case. At the trial court level, they will not have the ability to participate in depositions or request discovery. On appeal, they will have the option of requesting time at the oral argument, though, at this point, it is unclear how willing the plaintiffs will be to consent to any potential argument-sharing arrangement. In short, this has moved the LGBT legal organizations to the periphery of a very prominent and potentially landmark case.
[Thanks to Pam Spaulding, @marcambinder, @waymonhudson, the folks at TAPPED and Joe.My.God for the links. The LGBT legal organizations' news release can be found below the jump.]
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The release from the LGBT legal organizations:
LGBT Community Groups Disappointed By Court’s Denial To Join Federal Prop 8 Case
SAN FRANCISCO — Today Judge Vaughn R. Walker of the U.S. District Court in San Francisco denied the request of Our Family Coalition; Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays (PFLAG) to join Perry v. Schwarzenegger, a federal lawsuit challenging California’s Proposition 8.
A statement by Lambda Legal, the ACLU and the National Center for Lesbian Rights:
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.
More to come . . .
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Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Denying these groups is the best thing that could have happened today.
Do we REALLY need Shannon Minter f’ing it up again? Did you SEE him argue the case before the CA Supreme Court? It was a JOKE. Choosing to try and get Prop 8 overturned on a technicality rather than arguing the merits of the case was a moment I will never forget as a Gay American. It was as if Shannon Minter doesn’t REALLY believe the Constitution and its protections applies to him.
I, for one, feel that the judge made the absolutely correct decision in not allowing these people to muddy this case. And more and more these days I am beginning to question whether or not these groups are more interested in lining their pockets with our hard earned $$$ than they are about fighting for our equality.
Bill: keep up. The “merits of the case,” as you call them, were argued on March 4, 2008, when the California Supreme Court heard oral arguments in In re: Marriage Cases. Those arguments led to legalizing same-sex marriage in California which led to the passage of Prop 8. If Shannon Minter had gone in and made the exact same arguments to challenge Prop 8, the justices would have tossed him out of court. Attacking the legality of Prop 8 was the only way to go. If you don’t get that, you should brush up on the law.
I also find it strange how so many are ready to turn their backs on the organizations that won marriage in Massachusetts, Connecticut, Iowa and – yes – California PLUS won Romer, Lawrence and practically every other major gay rights victory we’ve had in favor of two hired gun johnny-come-latelies with no track record – one of whom helped install George W. Bush. And your suggestion that these lawyers – who turn down much higher salaries at corporate firms to dedicate their lives to winning equality – are just in it for the money is “vile, contemptible nonsense.”
I hope – for all our sakes – that Olson/Boies prevail. But that just got a hell of a lot harder today.
No, Bill, you are missing the entire point of the California Supreme Court case if you actually question whether Shannon Minter “doesn’t REALLY believe the Constitution and its protections applies to him.” It was legal strategy, based on current realities, something that makes many trained in the law question Olson’s current move.
Everyone across the country was basing challenges on state constitutions until GLAD’s narrow Gill challenge in Massachusetts. Do you think the fact that the earlier Massachusetts marriage case only cited the Massachusetts Constitution means that Hillary Goodridge doesn’t believe the Constitution and its protections apply to her? No, it was a smart strategy that led to her winning the right to marriage equality for her and others in same-sex relationships in Massachusetts.
And, when you want to talk about “lining their pockets,” ask AFER how much they’re paying in legal fees and then ask the folks at the LGBT organizations how much they make.
What Olson and Boies are doing might turn out to be a great thing for equality, or it might turn into a mess that we need to deal with for years, if not decades. We don’t yet know. But, regardless, the attack on the lawyers who have been battling for LGBT equality in the trenches for years — if not, again, decades — is extremely unjustified and unnecessary.
Bill,
Yes, I watched Shannon Minter argue before the CA Supreme Court. Mr. Minter did a wonderful job, as did Terry Stewart. I’m less pleased with the performance of the State Attorney General’s team.
We’re all extremely disappointed that the court upheld Prop 8, but keep in mind that the court’s decision was made primarily on the basis of the written, nor oral, arguments. It was likely decided before Shannon Minter ever walked into the room.
We’re not going to make any progress as long as we’re fixated on the blame game. Perry v. Schwarzenegger is moving ahead. I hope the SF attorney general, Dennis Herrera is up to the task. It’s a long shot.
Geez. It almost looks like this case will be heard before the GLAD Gill case challenging DOMA, which seems to have been filed eons ago. That one seems to be taking the long winding road.
Congrats to Judge Walker for recognizing Gay Inc as the obstructionist organizations that they are.
This is exactly why I’m sick of these astroturf, corporate-controlled, Democratic-Party front lgbt groups: “LGBT Community Groups Disappointed By Court’s Denial To Join Federal Prop 8 Case”. If you were really “community groups”, we would have equal rights already. But none of these groups are real fighting organizations. They are interested in fighting only so far as they do NOT threaten their revenue streams. This means they will push only until the Democrats tell them to back off. HRC’s throwing the transgender community under the train in the last ENDA round is a perfect example. Let HRC, NCLR, and all these other “professional” activist organizations who make careers out of fundraising and apologizing for bigots like Obama and Clinton die off so that we can rebuild this movement as a fighting, grassroots, inclusive, and confident movement that will actually win something after 40 years.
January, 2010, that is quick. Thanks for the update Chris. Dugg!
Boy, I couldn’t agree more with the above comments about the “professional gay organizations.” They’re into paying themselves high salaries, doing fundraising, and getting themselves invited to the White House. It won’t be a loss if they’re not here for the trial.
I’m completely on the other side of the fence here. I’m really worried about the case losing the voices of NCLR, Lambda and the ACLU. But here we go – I hope this doesn’t result in losing more rights and/or blocking LGBT rights advancement while garnering more press and notoriety for Olsen and Boies.
ACLU, Lamda, NCLR and others can still file amicus briefs or request to make oral arguments. Hopefully they will have something relevant to say
Why would the LGBT orgs have anything relevant to say? Better to just leave it to the straight people to battle it out.
Our Family Coalition supports and advocates for LGBTQ-headed families in the Bay Area. We offer support groups for Transgender parents, single parents, Parents who have adopted and more, parenting workshops, and community building events. We empower parents to be leaders in our community by supporting their efforts to start parent-led groups, giving them tools to advocate for their children in schools, and in their communities. We also do our best to advocate for the rights of our diverse families.
We are sad about today’s decision, and we remain determined to continue fighting for full equality.
With a small staff, we are able to do amazing work. Check out all that we do on our website.
Does anyone know if the hearings were public, or if the court has a website with a video of the hearings? I’d love to be able to see the hearings.
[...] This post was Twitted by gaysfsingles [...]
Sorry… forgot to say great post – can’t wait to read your next one!
I’d love to see some analysis of what happens if we win this in the US District Court. I fear: long before the case reaches the Supremes, two-thirds of the House and Senate will approve an anti-same-sex-marriage constitutional amendment that will race through the state legislatures to approval. Do we have the votes to stop that?
Excuse me, but ‘what planet are you from?’ Seriously, such a suggestion is about as paranoid and unrealistic as some of the town hall protestors. There would probably be as many votes for a Constitutional Amendment permitting ssm as there would be one forbidding it. You’d need 26 Democratic Senators to support this — and that is assuming that the Republicans voted in unison on this one, and I can think of half a dozen that might oppose such an Amendment on the merits, and a couple of others who would argue against ‘tampering with the consitution.’ There is no movement against ssm, most of the states who passed Constitutional Amendments forbidding it, and forbidding benefits to ‘civil unions’ are beginning to walk back on them.
The strongest negative position — if it is that — that any Democratic Senator espouses (afaik, I haven’t checked Burris, Landrieu, Nelson or Lincoln) is that it should be ‘left to the states to decide.’ And most of the Northeast Democrats are following the lead of Schumer and Gillibrand — and remember that Scghumer is head of the DSCC — and actually supporting ssm.
I’ll ignore your opening witticism in the interest of intelligent conversation.
I think the entire political landscape will be shaken if the District Court decides the 14th amendment protects the right of every American to marry the partner of his/her choice.
But granting your vote count for the sake of argument…
Follow on with your analysis. What do the Republicans do next? They propose a constitutional amendment to institute the status quo ante (ante the District Court decision): each state decides for itself. It’s an straightforward attempt to prevent the courts from deciding the issue. How do you think the vote on that will go, since that is in essence, as you say, the position of the Northeast Democrats?
If the status quo is embedded in the Constitution, then we lose the option of someday seeing a wiser Supreme Court do the right thing.
What happens if someone tries to add section 3 of DOMA to this constitutional amendment? Times have changed but DOMA passed the Senate by a vote of 85-14.
Can the amendment with DOMA language be modified to include an exception for states that have same-sex marriage (a Coakley clause)? What does that vote look like?
None of this is good for us.
AGAIN, you need 2/3 of both the house and senate to even get the ball rolling. House is a no-go; I don’t think they’d even muster half the votes for an amendment. The Senate could get most republicans, but that would be nowhere near a 2/3 majority.
If you didn’t notice, my opening ‘witticism’ was a quote from Barney Frank aimed at a LaRouchian, and was a deliberate comment about the equal irrationality of your position. Let me give you some history. In 1996 — four years after Buchanan’s “Culture War” speech and at a time when the religious right was — briefly — riding high — it looked likely that Hawaii would legalize same-sex marriage, possibly right before the general election.
At this time, no one knew how ssm would work, or what effects it would have, and the Republicans could play on the fears of the ignorant to pretend that the “Full Faith and Credence” provision could be used to force all states to recognize ssms. (They knew better, but when has that stopped the modern Republican Party from playing on fears?)
So Newt’s Gang introduced a Constitutional Amendment on ssm. Even then, no one thought such an Amwendment would pass either House, nor was it intended to Like various “Human Life” and “Parental Rights” Amendments that are still being introduced, it was a way of ’sending a message’ to Christianists that “We Republkicans are fighting for you, but it’s just those godless Democrats fighting us that keep us from giving you what we want.”
It was also designed to ‘trap’ Democrats into offending either religious or gay supporters.
[And, because I'm having that troubke with the comment box I've mentioned in the past, I'll start a new comment to continue the story.]
At this point, Bill Clinton — was Dick Morris still advising him? — came up with a way of short-circuiting the Gingrich ploy. He (perhaps unwisely, but given the timing, perhaps necessarily) introduced DOMA, a statutory provision that could, relatively easily — compared to an Amendment — be repealed once the hysteria lessened, but which would still give Democrats a chance to avoid the attacks of homophobes. It passed, but remember it was brought up six weeks before the General Election — and while Clinton was sure of reelection, the Republicans had already gained control of the House and no one knew if they would be making any more gains. (Clinton was not known for having — or using — coattails.) Voting for DOMA was simply a way of deflecting a vote on the Amendment — which is why so many liberal Senators (Wellstone, Leahy, Levin, Bradley, Biden) voted for something they hardly agreed with.
Remember this was before Lawrence, before ELLEN (or the earlier introduction of a lesbian semi-regular on MAD ABOUT YOU), before the discovery that so many of the Homophobic Congressmen and Preachers were, themselves, closet cases, and when people were panicing. Even then, no one believes the Amendment would have passed, just that defeating it would have been ‘embarrassing’ to Democrats.
But now we’ve had experience with same-sex marriage. Democrats have — theoretically — 60 votes, not 46 in the Senate, and Republicans no longer have 236 votes in the House. The Christianist tumor is, while still causing pain, no longer threating vital organs and is in at least temporary remission on the National stage. The position of Northeast Democrats is no longer ‘leave it to the states’ but full support of ssm — at least by Shumer and Gillibrand.
To give you an elementary civics lesson: an Amendment could be introduced, but it would be assigned to the Judiciary Committee — headed in the House by John Conyers — and then to the Constitution sub-committe — headed by Jerry Nadler, and including Tammy Baldwin, Bill Dellahunt, Mel Watt, Sheila Jackson-Lee and Conyers. In the Senate it would go to Patrick Leahy’s Judiciary Committee — Leahy comes from a state which has permitted SSM by legislative vote — and then to Russ Feingold’s Constitution sub-committee — which includes Durbin, Whitehouse, Kaufman, and Feinstein.
There it would meet the fate of the other hundred Constitutional Amendments that are introduced every year. It would simply be ignored. (The only circumstances in which that subcomittee would even hold hearings on the Amendment would be to discredit it publicly.)
And, btw, if the amendment were as you wrote it — leaving it to the states — it would be very similar to the second part of the 21st Amendment. Which repealed prohibition, nationally, but ‘left it to the states’ knowing that most staes would come around at once, and the others would suffer the consequences of not allowing legal alcohol consumption and eventually come around.
No, there is no danger of such an Amendment even being brought to a vote. But, as I keep insisting, there is a serious danger of a Supreme Court decision declaring that ‘marriage is only between a man and a woman’ and invalidating all state SSM laws.
I think it is good that Prop 8 is challenged in federal court. It sets a terrible and dangerous precedent not only for gay marriage but for all fundamental constitutional rights. California Sup Ct Justice Moreno in his dissenting opinion was correct that fundamental constitutional rights cannot be subject to a simple majority vote.
History will prove the great and honorable Justice Moreno correct and the road to justice may be long but justice will prevail.
Do we know whether Judge Walker will issue a memorandum opinion on his summary judgment decision? Tried to look at the docket but the Northern District’s CM/ECF is really slow today.