QUEER QUOTE: Charles Cooper, Leading Anti-Gay Lawyer Has A Lesbian Daughter

Charles Cooper is one of the most famous and longest-serving opponents to same-sex marriage in the country. He is something like the "anti-Evan Wolfson." He represented Hawaii in the first major case where a state supreme court ruled that traditional marriage laws were discriminatory way back in 1993 and has been active in very many of the legal skirmishes around marriage equality ever since.

He is infamous for responding to U.S. District Judge Vaughn Walker's question of how exactly marriage is only for procreative purposes in the Proposition 8 trial in 2010 Cooper responded: "Your Honor, my answer is I don't know. I don't know." Cooper defended California's ban on same-sex marriage all the way to the United States Supreme Court, eventually losing in Hollingsworth v. Perry.

This week came word that even this venerable opponent of marriage equality is coming around to the side of equality and justice, atleast for members of his family. Apparently his daughter is a lesbian and she is going to be marrying her female partner soon and Cooper is delighted.

This rapprochement is today's Queer Quote:

“My daughter Ashley’s path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey’s family are looking forward to celebrating their marriage in just a few weeks."

And so it goes, my gentle readers, and so it goes.

Federal Judge Strikes Down Michigan Ban On Marriage Equality!

By now it has become routine, but today yet another federal judge, this time in Michigan, struck down a state constitutional ban on same-sex marriage, saying that it violates the United States Constitution. Victory in Michigan was especially sweet for LGBT advocates because the judge actually insisted that a trial of the facts occur, the first time this has happened since openly gay judge Vaughn Walker insisted on a trial of the facts in the 2009 federal lawsuit against California's Proposition 8.

Michigan's ban on gay marriage is unconstitutional, a federal judge said Friday as he struck down a law that was widely embraced by voters a decade ago — the latest in a recent series of decisions overturning similar laws across the country.

U.S. District Judge Bernard Friedman announced his ruling after a rare two-week trial that mostly focused on the impact of same-sex parenting on children.

There was no indication that the judge was suspending his decision. Attorney General Bill Schuette said he was immediately filing a request with a federal appeals court to suspend Friedman's decision and prevent same-sex couples from immediately marrying. The decision was released shortly after 5 p.m., when most county clerk offices in Michigan were closed. Clerks issue marriage licenses.

Seventeen states and the District of Columbia issue licenses for same-sex marriage. Since December, bans on gay marriage have been overturned in Texas, Utah, Oklahoma and Virginia, but appeals have put those cases on hold.

Two Detroit-area nurses, Jayne Rowse and April DeBoer, want to get married, but the original purpose of their 2012 lawsuit was to overturn Michigan's ban on joint adoptions by same-sex couples.

The case is DeBoer v. Snyder. Freedom To Marry released the following press statement:

“The discriminatory ban is untrue to Michigan’s – and America’s – values, and the judge was right to strike it down. It’s time that all committed couples in Michigan be treated with respect and dignity under the law, fully able to share in the freedom to marry and the responsibilities and protections marriage brings. Today’s win comes after a full trial -- complete with prosecutors and defendants, witness cross-examinations, and testimony from family experts on the well-being of children -- which showed that opponents have nothing more than the same bogus claims they have recycled for decades. They were simply unable to provide a single legitimate reason why committed same-sex couples should be excluded from marriage. Michigan, like all of America, is ready for the freedom to marry.” 

Michigan’s DeBoer v. Snyder is only the third full trial on the freedom to marry in history, following trials in Hawaii and California. Wolfson served as co-counsel in Hawaii’s Baehr v. Miike, the first-ever trial on the freedom to marry and the first case in the world to win a ruling in favor of the freedom to marry. 

54% of Michigan residents support the freedom to marry, according to a 2014 Michigan State University poll.

Wow!

Last-Ditch Motion To Stop CA Marriage Equality Denied By SCOTUS

A desperate (and frankly frivolous) motion to (again) stop same-sex couples from marrying in California and resuscitate Proposition 8 that was filed by the heterosexual supremacists at ProtectMarriage.com on Saturday was denied without comment by Justice Anthony Kennedy a little after noon on Sunday. Kennedy, who wrote the 5-4 majority in the pro-gay marriage decision striking down Section 3 of the Defense of Marriage Act United States v. Windsor was actually in the minority of Justices in the 5-4 Hollingsworth v. Perry  majority deciding the fate of Proposition 8. Perry effectively ended California's state constitutional same-sex marriage ban from 2008 by denying the Proposition 8 proponents legal standing to continue their appeal of Vaughn Walker's 2010 ruling declaring the measure violated  the federal constitution.

SCOTUS blog reports the delightful news of the final nail being hammered in Proposition 8's coffin:

Last Wednesday, the Supreme Court had ruled that the measure’s backers did not have a legal right to defend the measure in either the Supreme Court or, earlier, in the Ninth Circuit Court. While the Supreme Court considered that case, the 2010 decision by a federal judge in San Francisco striking down “Proposition 8″ had been on hold. It was that hold (or “stay”) that the three-judge Circuit Court panel lifted on Friday. Very soon after that, gay and lesbian couples started getting married in ceremonies across the state. Thousands of such couples have now obtained marriage licenses from officials in the state.

Since Justice Kennedy offered no explanation for denying an application claiming that the Ninth Circuit panel had no authority to lift its stay, there is no way to know what legal rationale he had used. It could have been that the sponsors of the measure lacked a legal right to pursue their challenge further, that even if they had such a right it was without legal merit, that the lower court did have the authority to decide for itself when to lift the stay, or perhaps that events had just moved too rapidly in the wake of the Supreme Court ruling that it would be inappropriate to try to roll them back.

Although attorneys for the ballot measure’s sponsors have been creative in finding new ways to try to press the challenge, the brief action by Kennedy on Sunday may have removed the final barrier to the full achievement of marriage rights for gays and lesbians in the nation’s most populous state. California is the thirteenth state where same-sex marriages can occur now, or soon, when new laws in a few of the states take effect this summer. The District of Columbia also allows such marriages.

The Hollingsworth v. Perry case (which began as Perry v. Schwarznegger)  is finally over. Proposition 8 is dead. The bittersweet feeling from election night on 2008 (Obama wins! Marriage Equality loses!) is now dissipated. The kultukampf is finished in California and the forces of "equal justice under law" have won this battle.

 But the culture war goes on in the country because there are 37 states which do not have marriage equality, and the vast majority of those states (exactly thirty, according to Wikipedia)  have explicit state constitutional bans on recognizing or enacting same-sex civil marriages. New Mexico and New Jersey are the only two states, I believe, that have neither laws or constitutional amendments banning same-sex marriages. I guess there must be five states which only have statutes banning same-sex marriages (according to Freedom to Marry, these five are Illlinois, Pennsylvania, Indiana, West Virginia and Wyoming).

In fact, New Jersey currently has a civil unions law, and Lambda Legal announced it is refiling a case there, opening up the famous Lewis v Harris New Jersey State Supreme course case which ruled that the legislature had to offer all the same rights and benefits to same-sex couples as it does to different-sex couples. With the addition of federal benefits to same-sex married couples, no state that purports to claim that a civil union meet the Lewis v. Harris (and 1999's Baker v. Vermont) standard has a legal leg to stand on.

In New Mexico, which also does not have any law banning same-sex marriages, the question of whether county clerks have the right to issue marriage licenses to same-sex couples is being asked directly of the state Supreme Court. The Court has not decided whether it will take the case, and the state Legislature has repeatedly refused to pass legislation enacting marriage equality of even domestic partnerships.

And of course, in 29 states you can be fired (without a state-based legal recourse) if your employer merely thinks that you might be gay, lesbian or bisexual. The Employment Non-Discrimination Act would make it illegal as a measure of federal law for that to be the case.

Gaytterdämmerung: DOMA, Prop 8 Both Struck Down 5-4

Today's DOMA ruling is a historic step forward for #MarriageEquality. #LoveIsLove
— Barack Obama (@BarackObama) June 26, 2013

Double Victory! The Supreme Court has struck down the Defense of Marriage Act in United States v. Windsor, a 5-4 ruling written by Justice Anthony Kennedy joined by the 4 liberal justices.

Additionally, the Supreme Court has decided in Hollingsworth v. Perry that because the proponents lack standing to appear in federal court, the 9th U.S. Circuit Court of Appeals was wrong to hear the appeal of Perry v. Schwarzenegger from Vaughn Walker's powerful district court ruling which found Proposition 8 unconstitutional on August 4, 2010. The effect is that marriages between same-sex couples will resume again in California once the stays on that decision is resolved by the federal courts. That should happen in a few days or weeks. The Perry decision was another 5-4 decision, written by Chief Justice John Roberts and joined by the  curious combination of Scalia, Kagan, Breyer and Ginsburg. Kennedy wrote the dissenting opinion, which was joined by Thomas, Alito and Sotomayor.

Happy Pride!

BREAKING: 9th Circuit Denies Prop 8 Rehearing!!

Breaking news! The 9th U.S. Circuit Court of Appeals has denied a motion to re-hear the 3-judge appellate court ruling in Perry v  Brown which decided Proposition 8 was unconstitutional on February 7, 2012. The heterosexual supremacists who proposed Proposition 8 now have 90 days to file a certiorari petition before the United States Supreme Court to keep the stay on federal judge Vaughn Walker's ruling keeping Proposition 8 in effect (and preventing same-sex couples from being married). If SCOTUS does grant cert than the stay will remain in effect until the nation's highest court issues a ruling in Summer 2013 on whether it is permissible for a state to amend its own constitution to take away the right to marry that had previously been granted by that state's highest court.

What happened here was that a majority of active judges on the very large 9th U.S. Circuit (25 judges) did not vote in favor of re-hearing the case. Thus the only way other judicial venue for Propsition 8 proponents to go (since the measure has now been found to be unconstitutional at two different levels of the federal judiciary) is to jump to the final court of review, the United States Supreme Court. If the Supreme Court denies their petition, Proposition 8 will disappear from the California Constitution. This decision will probably not happen before the first Monday in October.

The other complicating factor is that this means that in the 2012-13 term the Supreme Court will have two huge gay rights cases before it, Perry v Brown (Proposition 8) and Gill v OPM (DOMA Section 3). These cases are both about same-sex marriage, in two different contexts. The first is whether a state can deny a right which has been previously been given to a minority group. The second is about whether the federal legislature (i.e. Congress) can create a federal definition of marriage for the purpose of denying rights that accrue to married people that a state has decided they should be eligible for.

You can read the full ruling here.

There's also a very helpful diagram explaining the full path of the federal Proposition 8 case to all its possible resolutions.

Kenji Yoshino Predicts Fate of Prop. 8 at UCLA

Kenjo Yoshino, the openly gay Chief Justice Earl Warren Professor of Constitutional Law at the New York University School of Law, gave the Closing Keynote lecture at the Williams Institute's 11th Annual update at UCLA Law School. It was an astonishing speech and I feel incredibly lucky to have been in the audience to hear it. The official title was "Are Gay People Politically Powerless Today?" For just over 45 minutes Prof. Yoshino spoke without notes, giving a cogent response to the titular question in one of the most insightful, intellectually stimulating and well-organized oral presentations I have ever witnessed.

The talk was split into three sections, which Prof. Yoshino outlined at the beginning of his presentation. First, he explained why the answer to the question about whether gay people are politically powerless is still an important and salient one. He then presented one answer to the political powerlessness question from a sociological or political science perspective and then gave another (different) answer from a legal or doctrinal perspective.

During his riveting talk Prof. Yoshino repeatedly quoted verbatim from various sources, such as the United States Constitution, Supreme Court cases and famous law review articles. He started with a quick primer on constitutional equal protection jurisprudence (i.e. since 1977 there have been no new suspect classifications added to the list of the current five of race, sex, alienage, national origin and marital status of one's parents) which would provide the terrain for his intellectual sojourn. The central thesis of his talk (which he summarized at the end) was that LGBT people are both politically powerless and politically powerful to receive heightened constitutional protections. He made the counterintuitive point that a minority group actually needs to have a significant level of political power before the Supreme Court will recognize that the group is politically powerless enough to grant it judicial protections. He supported his mind-bendingly paradoxical claim with evidence from the history of how race and gender came to receive heightened judicial review.

I can't produce a complete summary of his talk which will do justice to his presentation (I did not take notes) and I do not have an eidetic memory as Prof. Yoshino appears to. To bolster support for the idea that he is not the only person who thinks that LGBT people are both politically powerless and politically powerful Prof. Yoshino made the point that opponents of LGBT equality also subscribe to this notion. They repeatedly say that LGBT people are politically powerful because they can get 48% of the population to vote in their favor in Proposition 8 while simultaneously crowing about how politically powerless LGBT people are because we have lost 31 statewide anti-equality ballot measures. He also noted that when measuring the political power of a minority group one should think about the political power of its opposition, i.e. think about the "net political power" versus the "gross political power" of the group. Looking at it that way, the LGBT community primarily has a religious-based opposition, in a very religious country. For example, Prof. Yoshino reminded us that in the now infamous CNN exit poll 84% of people who said they attended church services at least once a week votes YES on Proposition 8 (the anti-equality position) while 83% of the people who said that they attended church services infrequently voted NO on Proposition 8. Thus the correlation of religiosity with opposition to LGBT equality was dramatically demonstrated.

The key part of his talk came when Prof. Yoshino placed the discussion of the political powerlessness question in the context of the most important legal case facing the LGBT community today, i.e. the Perry v. Brown federal lawsuit challenging the constitutionality of California's 2008 same-sex marriage ban Proposition 8, which is expected to reach the United States Supreme Court in the next term. Prof. Yoshino said that he sees that there are at least 6 possible ways that the Supreme Court could rule on the Perry  case when it reaches the High Court: a zero-state solution, one-state solution, a one-plus state solution, a 7-state solution, a 50-state solution and a status quo solution.

Here is a summary of the six possibilities identified by Prof. Yoshino:

1. Zero State Solution. USSC rules that there is no fundamental right to marry, therefore producing no new states with marriage equality. 
2. One State solution (California only): USSC rules that proponents do not have standing to appeal and thus Judge Vaughn Walker's initial ruling (which invalidates Proposition 8) would reinstate marriage equality in California only.
3. More Than One State solution (California plus possibly Maine, Washington and Maryland): USSC affirms Judge Stephen Reinhardt's decision which ruled Proposition 8 invalid because a state can not provide a benefit (marriage equality) and then rescind that benefit using a process animated by animus. Thus California which had marriage equality for 173 days in 2008 and then had the right to marry for same-sex couples stripped from the state constitution would have that right restored. Prof. Yoshino specifically mentioned Maine as a state which might have a colorable claim to have marriage equality restored since in 2009 a marriage law was repealed by a "people's veto" referendum. I'm not sure I agree with Prof. Yoshino here because Maine's marriage law (like Washington's and Maryland's if heterosexual supremacists gather enough signatures this summer) never went into effect, due to that state's referendum process, and thus I doubt that it really fits into Reinhardt's rationale for his ruling in Perry.
4. Seven State Solution (States which have "everything but marriage laws": California, Washington, Oregon, Hawaii, Illinois, Nevada, and New Jersey). USSC rules on equal protection grounds that there states can not provide all the tangible and legal rights and responsibility of marriage and deny the word "marriage" thus converting all states with civil union/comprehensive domestic partnership laws into states with marriage equality laws. 
5. Fifty State Solution. USSC rules that the fundamental right to marry can not be abrogated due to the sexual orientation of the persons exercising that right. All state DOMAs and mini-DOMAs in 30-plus states are struck down and marriage is legalized in the 44 states which do not currently have marriage equality right now.
6. Status Quo Solution. USSC affirms whatever the en banc panel of the 9th U.S. Circuit Court of Appeals decides, maintaining the status quo provided by that still-to-occur ruling. 

Prof. Yoshino stated that he expected the USSC to most likely select between Options 2, 3, 4 and 5 and briefly discussed why. He basically explained that the High Court will need to decide if a ruling in Perry will be received by the country as a repeat of 1954's Brown v. Board of Education or 1973's Roe v. Wade. Generally both of these landmark decisions are considered by scholars as actions by the Court that were ahead of public opinion. However Brown is looked on as a successful use of judicial power while even Justice Ruth Bader Ginsburg has said that the Court moved too quickly in Roe, thus endangering the legitimacy and permanence of the announced right. A USSC decision which chooses Option 5 above could lead to an even stronger backlash, such as a federal marriage amendment to the United States Constitution that, if ratified, would ban marriage equality in all 50 states, which would mean that effectively the community would go from having marriage equality in 50 states to zero states: a catastrophic result.

The questions afterward (by such luminaries as UCLA Law Professor Devon Carbado, Georgetown University Law Professor Nan Hunter, and Rhodes Scholar and Yale Law School grad Craig Konnoth) focused on this question of whether Perry will be more like Brown or Roe or will the LGBT community have to wait until there is a fact pattern like Loving, where a mere 16 states banned interracial marriage so despite overwhelming public opinion against interracial marriage, the Court  still eliminated those laws. In the case of same-sex marriage, it is much more likely that public opinion will be overwhelmingly in favor of marriage equality while there is still a solid majority of states banning the practice. How will the court decide what to do in that case?

All in all, the talk was a very important and exciting event, organized by the always-impressive Williams Institute at UCLA Law School.

Openly Gay Federal Judge Confirmed By 91-6 Vote!

And now there are four openly gay or lesbian federal judges in the United States. Michael Fitzgerald was approved by a 91-6 vote of the United States Senate on Thursday to be a U.S. District Court Judge for the Central District of California. Fitzgerald was officially nominated by President Barack Obama in July 2011 and waited for 132 days before receiving a confirmation vote in the Senate.

Fitzgerald joins 3 other openly lesbian and gay judges, all who serve in New York: Deborah Batts, who has been on the bench since 1994(!) after being nominated by President Clinton and Ali Nathan and Paul Oetken who were both nominated by President Obama and approved by votes of the Senate in 2011 (48-44 for Nathan on October 13th and 80-13 for Oetken on July 19).

The six raving homophobes who voted against the Fitzgerald nomination were (all Republicans): David Vitter (R-LA), James Inhofe (R-OK), Mike Lee (R-UT), Rand Paul (R-KY), Roy Blunt (R-MO) and Jim DeMint (R-SC).

Congratulations to Michael Fitzgerald!

Hat//tip to PoliGlot.

ALERT: U.S. Appeals Court Prop 8 Decision TOMORROW!

At 10:00am PST, Tuesday February 7th, 2012 the 9th U.S. Circuit Court of Appeals will reveal their decision in Perry v. Brown, determining whether to uphold the U.S. district court decision striking down Proposition 8 as violating the United States Constitution by (now) openly gay federal judge Vaughn Walker.

Regardless of what happens tomorrow, the losing side will appeal to the United States Supreme Court, and it is also likely a stay will be issued so that even if Proposition 8 is ruled unconstitutional, marriages will not resume in California any time soon.

Hat/tip to PoliGlot

BREAKING: 9th Circuit Keeps Prop 8 Trial Tapes Sealed

Breaking News! The 9th U.S. Circuit Court of Appeals has reversed trial judge James Ware and issued a ruling which says that the videotapes of the Proposition 8 trial (a.k.a. Perry v. Schwarzenegger) should NOT be released.

A ruling on the merits of the appeal of the openly gay federal judge Vaughn Walker's ruling in the Perry v. Brown which struck down California's voter-passed ban on same-sex marriage can be released by the 9th Circuit at any time.

Heterosexual Supremacists Appeal Judge Ware Ruling

Good grief! The heterosexual supremacists who believe that they are "defending marriage" by supporting Proposition 8 in federal court have appealed Federal District Court Judge James Ware's decision denying their motion to vacate Judge Vaughn Walker's ruling which struck down the measure.

The San Francisco Examiner says:

Attorneys for Prop. 8 filed their appeal this afternoon before the 9th U.S. Circuit Court of Appeals, the same court that is hearing an appeal of Judge Vaughn Walker’s ruling last August that the law unconstitutionally violated the civil rights of gays and lesbians.

Earlier this year, Prop. 8 sponsors had asked Ware, Walker’s replacement as chief justice, to throw out Walker’s ruling because of an interview he did with reporters in April, after his retirement, during which he discussed his long-term relationship with a gay man. They argued that Walker should have disclosed the relationship and whether he intended to marry before last year’s trial.

Attorneys for the same-sex couples who sued over Prop. 8 argued at the time that the motion was “frivolous” and “offensive.”

Ware denied the motion, saying there was no federal precedent for disqualifying a judge solely because he shares a characteristic, such as sexual orientation, with a litigant.

It should be interesting to see which case they lose first, the Perry v Schwarzenegger lawsuit (the appeal of Judge Ware's ruling) or the Perry v Brown lawsuit (the appeal of Judge Walker's ruling). I expect they will lose them both.

Federal Judge Denies Motion To Vacate Prop 8 Ruling

In an unsurprising move, Federal Judge James Ware has summarily dismissed the motion to vacate last year's ruling striking down Proposition 8 filed by the heterosexual supremacist supporters of the 2008 ballot measure which ended marriage equality in California.

You can read the full text of the Motion to Vacate here.
Denial of Motion to Vacate 06-14-2011

Judge Ware To Rule On Prop 8 Motion To Vacate Tomorrow

Federal judge James Ware, chief judge of the U.S. District Court for the Northern District of California, says he will rule tomorrow on a desperate motion to vacate last year's decision in Perry v. Schwarznegger striking down Proposition 8 as unconstitutional because the federal judge who issued it, Vaughn Walker, is openly gay and should have disclosed that fact at the time. Walker was previously chief judge of the same district but retired at the end of February 2011.

The motion by the heterosexual supremacist proponents of Proposition 8 has been widely ridiculed by the vast majority of legal experts and on the editorial pages of major newspapers.

It should be a delightful to read Judge James Ware's decision tomorrow. In other news, the judge has also said that he will deny the motion of the proponents to attempt to collect all the videos of the trial's witnesses and order them destroyed. Our side is arguing that the testimony is  a public record (the transcripts are available from the court) and that the entire video record should be released. There is some important, powerful testimony from expert witnesses explaining the nature of marriage and demolishing the arguments of the heterosexual supremacists that they would dearly not like to get into public view. I dearly hope the videos of the Prop 8 trial "leak" at some point in the future.

LA TIMES Editorial Eviscerates ProtectMarriage Argument

Dismissing an argument that even heterosexual supremacists should have been ashamed to make in their increasingly desperate attempts to not lose the Perry vs. Brown lawsuit, today's Los Angeles Times op-ed titled "Prop. 8: Who's fit to judge?" eviscerated the motion to vacate filed by Protect Marriage attorney Charles Cooper on Monday:

Married judges rule on divorce cases all the time. So do single judges. And divorced ones. Their rulings aren't challenged on the grounds of their marital status; that would obviously be ridiculous.


Yet ProtectMarriage, the group that sponsored Proposition 8, is challenging last year's ruling by Chief U.S. District Judge Vaughn R. Walker that declared the same-sex marriage ban unconstitutional. The group's lawyers argue that because Walker has a longtime male partner, he was unfit to render a decision on Proposition 8. If one day he should want to marry, the argument goes, he might benefit from his own decision, assuming it survives the scrutiny of higher courts.


This claim is absurd on many levels, especially when you remember that ProtectMarriage's case against same-sex marriage is that it threatens the institution of heterosexual marriage. In fact, the group says, that damage gives it the legal status to challenge the initiative, because any married heterosexual is allegedly harmed by same-sex unions. But if that's the case, then by the group's own logic, married heterosexual judges would also be forced to recuse themselves; the integrity of their own marriages could be damaged by the matter before them.


According to this line of argument, former Chief Justice Ronald M. George, a married heterosexual, would not have been able to preside over the California Supreme Court case in which same-sex couples sued to overturn an earlier ban on same-sex marriage. George wrote the majority opinion setting out the reasons why the ban violated the state Constitution.


So then, perhaps, only an unmarried judge who has sworn never to wed could hear cases about same-sex marriage. Or any marriage at all. An African American judge could never hear a race-discrimination case. And no female judge could decide a lawsuit on gender discrimination. Or a male one either.


The guidelines for judicial recusal can be unclear at times, but generally the bar is a high one. The rules call for judges to disqualify themselves when their impartiality might reasonably be questioned, but they are not supposed to back away from cases because of who they are — their ethnicity, gender, marital status, affluence, political leanings or, yes, sexual orientation. It's another matter if they are directly and materially affected, or if they have previously displayed a deep-seated bias on the issue at hand. A judge who drives a gas guzzler can still hear a lawsuit against an oil company, but not if his or her spouse works for the oil company.


Had Walker been one of the activists fighting Proposition 8, or if he had repeatedly sought a marriage license and been rejected, ProtectMarriage would have valid claims of conflict of interest. The group's assertion that a gay judge in a relationship is less able than a heterosexual married judge to render a fair decision on a sexual-orientation case says more about the pervasiveness of discrimination against homosexuals than it does about Walker's fitness to hear the matter.

READ: Prop 8 Supporters' Motion To Vacate Due To Gay Judge

Prop 8 Supporters'' Motion to Vacate Judgment

Heterosexual Supremacists File Motion Over Prop 8 Judge's Sexuality

Charles Cooper, lead counsel for "Protect Marriage" (sic)
 in the Propositiopn 8 federal lawsuit 

Charles Cooper, the virulent heterosexual supremacist who has been arguing against marriage equality for nearly two decade, filed a motion late on Monday with the 9th U.S. Court of Appeals to vacate Judge Vaughn Walker's historic decision striking down Proposition 8 on federal constitutional grounds because Walker revealed recently that he has been in a same-sex relationship with a man for 10 years.

Of course, this is a ridiculously bigoted motion. The implication is that an open;y gay judge can not fairly judge a case involving gay rights, a Black or Latino jurist could not judge a civil rights case fairly and female judges could not make decisions about abortion rights!

Lambda Legal  released a press release in response:

"Proponents of Proposition 8 certainly are getting desperate."

(San Francisco, April 25, 2011) — In reaction to today's filing of a motion
to vacate last year's historic decision by U.S. District Court Judge Vaughn
Walker declaring California's Proposition 8 unconstitutional, Jon Davidson,
Legal Director for Lambda Legal, issued the following statement.

"Proponents of Proposition 8 certainly are getting desperate.  This reeks
of a hail-Mary attempt to assail Judge Walker's character because they are
unable to rebut the extremely well-reasoned ruling he issued last year.
It's becoming a sadly typical move of the right:  don't like the ruling;
attack the referee."

To say that Judge Walker's should have disclosed his ten-year relationship
with another man or that it made him unfit to rule on Proposition 8 is like
saying that a married heterosexual judge deciding an issue in a divorce
proceeding has to disclose if he or she is having marital problems and
might someday be affected by legal rulings in the case.  Or that any judge
who professes any religious faith is unable to rule on any question of
religious liberty or, at a minimum, must disclose what his faith teaches.
Much like a suggestion that a female judge could not preside over a case
involving sexual harassment or an African American judge could not preside
over a case involving race discrimination, Proposition 8's supporters
improperly are suggesting that a judge will rule in favor of any litigant
with whom he shares a personal characteristic.

Judges hold a special and respected place in our society. Every day, they
are called upon to administer justice – in routine contract or traffic
court disputes, gut-wrenching child custody decisions, complex criminal
proceedings, and, as in this case, disputes about the basic human rights
that our Constitution is designed to protect. There may be judges who
betray their responsibilities and act with bias, but such a grave
accusation must be supported by evidence. Simply disagreeing with a
decision is not evidence that it was the result of bias. And assuming that
being in a same-sex relationship renders some judges unable to interpret
the law and do the job they have sworn to do insults both judges and
America's system of justice."

American Foundation for Equal Rights, the organization promoting the lawsuit, also has a response to Cooper's ridiculous motion:

“This motion is yet another in a string of desperate and absurd motions by Prop 8 Proponents who refuse to accept the fact that the freedom to marry is a constitutional right.  They’re attempting to keep secret the video of the public trial and they’re attacking the judge because they disagree with his decision.  Clearly, the Proponents are grasping at straws because they have no legal case.”

National Center for Lesbian Rights attorney Shannon Minter also responded:

"This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits. This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds. This is part and parcel of the underhanded way the Prop 8 campaign itself was run-based on lies, insinuations, and unsupported innuendo."

The 9th Circuit announced there will be hearing in San Francisco on July 11 in San Francisco before District Court judge James Ware.

UPDATE 04/27/2011: The hearing on Cooper's motion has been expedited to June 13.

Hat./tip to LGBTPOV

9th U.S. Circuit Refuses To Lift Stay On Prop 8

The 9th U.S. Circuit Court of Appeals issued a ruling today refusing to lift Judge Vaughn Walker's stay on the enforcement of Proposition 8 while the ruling is appealed. Currently the California Supreme Court is considering a question of whether official proponents of a ballot measure can defend an initiative in court when the state's official representatives refuse to do so.

Here's the official text of the order from the 3-judge panel of the 9th U.S. Circuit Court of Appeals:

Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.

The ruling means that Proposition 8 will remain in effect until after the California Supreme Court rules later in 2011 on the standing question and the 9th Circuit panel issues a ruling either accepting the standing determination from the California Supreme Court (which it does NOT have to do, since there are very different standards for standing under federal and state law) and issues its own ruling on the constitutionality of Proposition 8.

CA-AG Harris Asks Court To Lift Prop 8 Ruling Stay

Attorney General Kamala D. Harris

Wow! Yesterday I blogged about a Los Angeles Times editorial ("Same-sex weddings, now") that called for the 9th Circuit to lift their stay of U.S. District Court Judge Vaughn Walker's August 4, 2010 ruling striking down Proposition 8 from going into effect, effectively legalizing same-sex marriage in California again. I opined that I thought it was unlikely the 9th Circuit would lift the stay, even though they have effectively delayed the case by as much as 11 months by asking the California Supreme Court whether they think that under California law the proponents of Proposition 8 have the right to defend a ballot measure when the elected representatives (Governor and Attorney General) the people have refuse to do so. (This is a bizarre delay because Proposition 8 is now in federal court, and there is also a question of standing under federal law, notwithstanding whether the Proposition 8 heterosexual supremacists have standing under state law.)

Today comes word that our current Attorney General (and the former Governor Arnold Schwarzenegger) Kamala Harris agrees with the position that same-sex marriages should be legal in California while the courts wrangle and have filed papers with the 9th Circuit Appellate Court asking them to lift the stay:

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Proposition 8 is unconstitutional. The appeal's likelihood of success has been substantially diminished, Attorney General Harris said, "both by the United States Attorney General's conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case."

In addition, Attorney General Harris said, "there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California." But as long as the stay on same-sex marriages remains in effect, Attorney General Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker's ruling legally inappropriate.

"The President and the United States Attorney General have determined that they will not continue to defend the Defense of Marriage Act (‘DOMA')," Harris said, "because it enforces a classification that fails to meet the heightened standard of scrutiny that should apply for equal protection analysis under the Fifth Amendment."

The California Attorney General's long-standing position, Harris told the Ninth Circuit, is that Proposition 8 "violates the equal protection clause of the Fourteenth Amendment of the United States Constitution."

"For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples," Attorney General Harris said. "Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied." 

Wow. I guess elections really do have consequences. I can not imagine Republican Steve Cooley issuing such a strong statement in favor of LGBT rights.

Even if the 9th Circuit Court of Appeals does lift the stay, opponents could appeal to the U.S. Supreme Court, which almost definitely would maintain the stay.

It will be curious to see what "harm" heterosexual supremacists will tell a court that they will undergo if Proposition 8 is allowed to be in limbo pending a future court decision.

Obama Nominates Openly Gay Man To Be Federal Judge

J. Paul Oetken, 44

As MadProfessah noted last year, President Barack Obama has nominated an openly gay man, J. Paul Oetken, to be a U.S. district court judge for the Southern District of New York, one of the most prestigious and well-known courts in the country, since it covers Manhattan. Interestingly, Oetken, if confirmed by the United States Senate would not only become the second openly LGBT judge in the country, he would become the second out LGBT judge in the Southern District of New York! Deborah Batts, a Black lesbian, has been serving there as a federal judge since nominated by President Bill Clinton in 1994.

Oetken's official biography, as distributed by the White House:

J. Paul Oetken: Nominee for the United States District Court for the Southern District of New York

J. Paul Oetken is Senior Vice President and Associate General Counsel of Cablevision Systems Corporation in Bethpage, New York, a position he has held since 2004.  Prior to joining Cablevision, Oetken worked at Debevoise & Plimpton, where he was counsel from 2003 to 2004 and an associate from 2001 to 2003.  Oetken joined the White House Counsel’s Office as Associate Counsel to the President in 1999 and worked there until 2001.  From 1997 to 1999, Oetken was an attorney-advisor with the U.S. Department of Justice in the Office of Legal Counsel.  Prior to that, he worked as an associate at Jenner & Block for approximately two years.  From 1993 to 1994, Oetken served as a law clerk for the Honorable Harry A. Blackmun of the U.S. Supreme Court; from 1992 to 1993, he served as a law clerk for the Honorable Louis F. Oberdorfer of the U.S. District Court for the District of Columbia; and from 1991 to 1992, he served as a law clerk for the Honorable Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit.  Oetken received his J.D. in 1991 from Yale Law School, and his B.A. with highest distinction in 1988 from the University of Iowa.

R. Vaughn Walker, the openly gay federal judge who struck down Proposition 8 as unconstituional, has retired as of December 31, 2010.

Hat/tip to Chris Geidner of Poliglot!

WATCH: The Prop 8 Oral Arguments Before 9th Circuit

Part 1:




Part 2:

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.