|California Attorney General Kamala Harris changed the game in the battle against Prop 8, calling on the Ninth Circuit Court of Appeals to lift the stay on same sex marriages in California.
The twists and turns of the challenge to Prop 8 have slithered back in our direction this week, thanks to two developments.
First, the California Supreme Court has officially declined to expedite its consideration of the side issue that will stall the Prop 8 litigation for up to nine months. Without going into the painful subject of legal standing for the Prop 8 proponents, this seeming disappointment is actually good news.
Last week, our lawyers from the team of Olson and Boies asked the U.S. Court of Appeals for the Ninth Circuit to release its hold on Judge Vaughn Walkerâ€™s August orders, and allow same-sex couples in California to resume marrying at once. You remember that Judge Walker ruled in our favor last summer and struck Prop 8 effective immediately. The U. S. Court of Appeals stayed that decision pending a speedy appeal. But considering the time-consuming deliberations on standing, our side now argues that the stay should be lifted now. The lethargy of the California court thus works to our advantage.
And here comes the second piece of good news. Last year, the state of California argued in favor of a stay, pointing out that allowing couples to marry might cause problems for them, and the state, should Prop 8 ultimately survive appellate review.
This week, by contrast, California Attorney General Kamala Harris filed a brief in favor of lifting the stay, putting the not insignificant weight of the Golden State behind our pleading.
â€śFor 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples,â€ť wrote Harris. â€śEach 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.â€ť
Put all of this in the context of the legal requirements for granting a stay in the first place, which were barely met six months ago. Aside from an analysis of the harm conveyed to both sides by suspending a court ruling, the reviewing judges must also determine that the losing side in the lower court is likely to win on appeal. That last conclusion was never obvious. But now it seems patently incredible.
How can Prop 8 proponents be considered likely to win on appeal, when their standing is up in the air, and when the U.S. Justice Department has just joined the growing chorus of the legal defenders of gay rights? Again, the Justice Department has no direct bearing on the Prop 8 case. But the Obama administrationâ€™s statement last week does contribute to an evaluation of whether or not the Prop 8 side is likely to win on appeal.
Add all of this up: the lackadaisical California Supreme Court, taking a summer vacation (deliberately?) and adding months to the resolution of the appeal; the State of California reversing position and urging the Ninth Circuit to lift its stay of Judge Walkerâ€™s ruling; and finally, the increasingly remote likelihood of a Prop 8 victory. The calculation puts us in position for a Ninth Circuit victory on this key issue in the near future.
So, what happens if the Ninth Circuit drops the stay and allows marriages to resume in California this spring or summer? Well, here we go to the Supreme Court, where itâ€™s really tough to speculate. If they decline review or actively agree with the Ninth Circuit, wagging tongues would see the move as a signal that the Court is ready to side with gay couples down the road. But if they put the stay back in place, the tea leaves would be harder to read. Would that suggest that the Court favors Prop 8? Or would it only reflect a desire to buy time for the status quo?
The bottom line is that the Prop 8 case is making waves again, and indeed Prop 8 could give us our first High Court mini-ruling on marriage, assuming the Ninth Circuit drops the stay. If they donâ€™t, the Prop 8 case will wander in the wilderness for the foreseeable future.
Look For Court Ruling Soon In Golinski Case
Thereâ€™s another development from last weekâ€™s legal bombshell. Last Wednesday, Jeffrey White, the federal judge now considering spousal benefits for attorney Karen Golinski in California, asked the Justice Department to explain whether or not they still want to fight Golinski in court.
Golinski actually works for the Ninth Circuit, so discussing her case gets complicated. But here goes:
Golinski got married during Californiaâ€™s window of opportunity in 2008, and subsequently asked her bosses for spousal benefits. Ninth Circuit Chief Judge Alex Kozinski, acting in his capacity as an administrator (perhaps!), ruled that the Ninth Circuitâ€™s employment nondiscrimination policies mandated spousal benefits. Kozinski then ordered the Office of Personnel Management to pay for Karenâ€™s wifeâ€™s insurance and whatever else comes in the package.
The Obama administration refused, citing the Defense of Marriage Act, and also claiming that they donâ€™t have to take orders from Judge Kozinski when heâ€™s acting in an administrative role. Lambda Legal and Golinski took the defiant feds to court, asking a federal judge for a writ of mandamus (which forces compliance with other court decisions).
Got all that?
In theory, since Obama has tossed his defense of DOMA under the bus, it follows that he should drop his objections and tell the personnel office to start covering Karenâ€™s wife, right?
Wrong. The Justice Department told Judge White that their position in the case has nothing to do with DOMA and everything to do with whether or not Judge Kozinski was acting as a judge or an administrator. If he wasnâ€™t acting as a judge, a writ of mandamus doesnâ€™t apply, since you canâ€™t compel obedience to a court order without a court order in the first place.
Further, Obama argues, the executive branch is not bound by Judge Kozinskiâ€™s decisions in this context and can apply DOMA to their heartâ€™s content.
After all, the Obama administration only pledged to stop defending DOMA in court. They did not pledge to stop enforcing the law. Indeed, they made a point of reaffirming their commitment to enforcing DOMA until it is repealed or struck.
Why all this detail on the Golinski case? Because the case was argued several months ago and a decision is due at any moment. Under the circumstances, Judge Whiteâ€™s decision is bound to be bungled by many reporters and pundits with a fragile grasp on any kind of complexity.
Letâ€™s say that Judge White agrees that Judge Kozinski was acting as a boss, and that the separation of powers prevents him from dictating employment terms to the Executive Branch. Thatâ€™s a technical ruling, not a commentary on marriage or the Defense of Marriage Act. Nor should an Obama â€śvictoryâ€ť at the expense of a married lesbian undercut the administrationâ€™s courageous new legal stance. Arguably, Obamaâ€™s decision to stop defending DOMA in court is made stronger by his pledge to keep upholding the law.
Of course we all hope Judge White rules for Golinski. Weâ€™re just saying that a different outcome would not necessarily be an antigay decision. Look for it soon.
Alito Continues Wacky Streak
Hereâ€™s some High Court news that normally would have been a lead story were it not for our thrilling marriage developments. This morning, the Supreme Court ruled that the Phelps gang could not be sued for intentional infliction of emotional distress by the father of a dead soldier who suffered through horrible picket signs at his sonâ€™s funeral.
You know the story. Phelps and company enjoy making headlines at high profile funerals with signs reading â€śThank God for dead soldiersâ€ť and â€śGod Hates Fagsâ€ť and so forth. As long as they stay within police limits and are making a political comment (offensive or not), said eight of the nine justices, their speech is protected under the First Amendment and they canâ€™t be sued in civil court.
Bay Times legal experts are pleased that the Court came together to uphold First Amendment rights, even for Phelps. However, hereâ€™s the interesting thing about this opinion:
Itâ€™s now official. Justice Alito is a nutcase.
Alito was supposed to be a respected, albeit conservative, legal mind. I, for one, expected him to be a less ideological version of Scalia. I did not expect him to be crazy.
Our first clue was his dissent in the case pitting the Christian Legal Society against the Hastings School of Law. Alito blithely ignored the question before the Court, which was reviewing the Law Schoolâ€™s policy that limited formal recognition to clubs that recognized â€śall comersâ€ť in their membership, something the Christian group did not. Instead, he rambled at length about viewpoint discrimination. He bizarrely implied that Hastingsâ€™ policy opens the door for students to join clubs for the purpose of sabotage. He called the 5-4 majority ruling a â€śserious setback for freedom of expression in this country,â€ť even though the Christian club was merely losing out on bulletin board privileges and a few hundred bucks a year. The list goes on, but since he was joined by the other conservatives on the Court, his weird opinion could not be called a rogue.
On the same day, however, he dissented alone in the case for public disclosure of antigay petition signers in Washington, implying that the gay community posed such a serious threat to their political opponents that petition signers needed anonymity for their own physical safety. Say what?
And today, alone again in an 8-1 decision, he came out forcefully for the notion that Westboroâ€™s picketing was an outrageous and offensive act that deserves to be penalized in a civil claims court. In doing so, he seems to ignore the fact that the First Amendment transcends content in almost all cases.
He ignores the fact that the protesters were 1,000 feet away from the funeral goers, who could only see the tips of their signs, and he is oblivious to the mayhem that could result if individuals could file civil suits against any protestor that causes them emotional harm.
Can you imagine the lawsuits against gay rights activists, filed by in civil court by â€śemotionally damagedâ€ť conservatives? Really, the First Amendment is not to be trifled with, and Alitoâ€™s lone dissent, along with his other off base writings, betray a worrisome lack of constitutional grounding.
Crab State Confusion
Over in Maryland, the marriage bill has passed the state senate, but ran into a delay Tuesday at the House Judiciary Committee. Two lawmakers were absent, and one of them, a key supporter, was reconsidering her vote. Happily, senator Tiffany Alston came out in favor of marriage equality on Wednesday morning so the measure should clear the panel when it resumes deliberating.
The House of Delegates was thought to be the more liberal of the two chambers, but activists now worry that marriage equality will barely squeak by, and could even be killed. A floor vote was scheduled for Friday, but after the committee delay we might have to wait on that.
Whereâ€™s the Beef?
And finally, hereâ€™s the big story running under the radar of all the others.
No one really cares about Obamaâ€™s shift on gay rights, save the fringe evangelicals who devote their political lives to our gay activities. Thereâ€™s been no general outcry. No mainstream condemnation of same-sex couples. Thereâ€™s been some academic discussion of when the federal government is required to defend Congressional acts in court. And happily for us, we have a dozen or so examples of the Justice Department declining to support a challenged law in the record books.
Itâ€™s not the Justice Departmentâ€™s usual posture, but it happens. (Much as gay activists have been pointing out for the last two years.)
We still donâ€™t know how Congress, presumably the House, will react to the DOMA lawsuits that Obama has abandoned. Iâ€™m sure that someone will step up to the plate to defend the law, although to continue the analogy, it looks like Robb Nen is on the mound. Remember him?
But hereâ€™s a good story to end this weekâ€™s column. Rumor has it that Obamaâ€™s final decision to cease defending the Defense of Marriage Act was inspired by Edith Windsor, an 80-something New York widow who is the plaintiff in one of the recently filed DOMA challenges.
Windsor and her partner, Thea Spyer, were married in Toronto when they were in their late seventies. Together for 42 years, Spyer died in 2009, leaving everything to Windsor.
Windsor was then zapped with a $363,053 estate tax bill for inheriting her own property, a bill that would amount to zero for a heterosexual married couple. And this is the situation that Congress will now have to support, and this is the woman that Congress will now have to attack, if they want to defend the Defense of Marriage Act.
Good luck with that.