By Jacob Combs
Hi P8TTers–I hope your Thanksgivings were restful and filled with family. Earlier this week, there was an update in a lawsuit filed by the Servicemembers Legal Defense Network (SLDN) in October called McLaughlin v. Panetta, and I thought I’d write a little about the development and why it’s so important.
SLDN, you’ll remember, was one of the organizations that pushed hardest for repeal of Don’t Ask, Don’t Tell. Now that DADT is dead and gays and lesbians can serve openly in the U.S. Armed Forces, SLDN filed a follow-up lawsuit in a federal court in Boston on behalf of eight plaintiffs who are legally married, but prohibited by DOMA from obtaining many of the benefits that heterosexual military couples enjoy, including on-base housing, health care, survivor benefits, and burial rights at national cemeteries.
On Monday, SLDN filed a brief for summary judgment in the case, arguing that DOMA’s prohibition on spousal rights for same-sex military couples violates both the Due Process clause of the Fifth Amendment and the limitations of congressional authority laid out in the Tenth Amendment. In filing for summary judgment (which is when a court decides a case without hearing a full trial), SLDN argues that the U.S. government has made no objection to the facts laid out in the case, and thus it can be decided without further hearings. None of the government defendants–Attorney General Eric Holder, Defense Secretary Leon Panetta and Veterans Affairs Secretary Eric Shinseki–have filed any defense in the case. BLAG, the Bipartisan Legal Advisory Group (which voted on party lines to defend DOMA in court after the Obama Administration declared the law unconstitutional and declined to continue defending it in February), filed a brief earlier this November informing the court that it would seek to intervene in the case if the official defendants do not defend DOMA.
In a delicious turn of events, many of the arguments SLDN uses in its brief are borrowed in part from politicians who supported DADT and argued to continue the discriminatory policy when it was repealed late last year. As SLDN’s brief puts it:
Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion. While there was once a debate as to whether gay and lesbian service members should be allowed to serve openly in the armed forces — just as there were similar debates regarding integrating the military by race and then by gender — there never has been any debate as to whether similarly situated service members who do the same work deserve the same benefits.
Although it has taken us almost a year to get here, this lawsuit shows just how important repealing DADT was. In fact, many in our community (myself included) saw DADT repeal as the first domino to fall in achieving full federal equality. It is clearly unconstitutional and discriminatory for our nation’s military, an institution based on the values of fairness and equality, to treat lawfully married same-sex couples differently from their opposite-sex counterparts.
To put it simply, DOMA is hanging by a thread: it cannot and has not withstood constitutional scrutiny in a court of law. SLDN’s lawsuit may not be the one that ends up striking down DOMA for good–last year’s companion cases Gill v. OPM and Massachusetts v. HHS, in which Judge Joseph Tauro, a Nixon appointee, struck down the law as unconstitutional, are already in the U.S. Court of Appeals for the First Circuit, and will likely make it to the Supreme Court before SLDN’s suit. (Incidentally, the SLDN lawsuit was originally assigned to Judge Tauro, but later reassigned to a different judge.)
As I sat on the porch yesterday waiting while the turkey cooked and writing this post, I was struck by an opinion piece brought to us by Sagesse in Quick Hits. Written by Jim Toevs, the piece points out that the repeal of DADT is something for every member of the LGBT community to be thankful for this year. I couldn’t agree more. SLDN’s lawsuit shows just how important it is to strive for equality in all aspects–whether it be in terms of marriage, military service or even employment. Our victories are not isolated, but rather build upon each other, and each step we take moves us closer to a country where we can be thankful that we enjoy the rights all citizens deserve.
November 25, 2011
This post will serve as a permanent post on Prop8TrialTracker.com that will be continuously updated so new and returning visitors can have an easy-to-understand, one-stop-shopping guide to where things stand with the trial.
If you see something that’s missing or should be updated, e-mail prop8trial at couragecampaign dot org.
UPDATED as of December 23, 2011
By Jacob Combs
This fall’s California Supreme Court ruling puts Perry v. Brown (originally Perry v. Schwarzenegger) back on track at the 9th Circuit. If you’ve been following the case but are a bit confused about all the different dates that have been thrown around, don’t worry — the case is complicated, and there are essentially four different tracks making their way through the courts simultaneously. Here’s an overview of each of these related but unique aspects of the case, and when we can expect to see them back in court.
The case itself (regarding the constitutionality of Proposition 8 on the merits)
The skinny: In 2009, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California on behalf of two couples, Kristin Perry and Sandra Steir, of Alameda County, and Paul Katami and Jeffery Zarrillo, of Los Angeles. Both couples had been denied licenses by their respective county authorities on the basis of their sexual orientation, as Proposition 8, a constitutional amendment passed in 2008, had amended the California Constitution to recognize marriages only between a man and a woman. Representing the plaintiffs were Ted Olson and David Boies, two well-known attorneys who had been on opposite sides of the landmark Bush v. Gore case that decided the 2000 presidential election.
The non-jury trial took place in January, and included an unprecedented courtroom look into the history of marriage in the United States, the discrimination LGBT people have faced throughout history, and the economics involved in prohibiting or allowing marriage equality in California. On August 4, 2010, Judge Walker ruledin favor of the plaintiffs, striking down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact.
Almost immediately, the proponents of Prop 8 appealed Judge Walker’s decision to the 9th Circuit Court of Appeals. The 9th Circuit stayed the lower court’s injunction against Prop 8 pending appeal, and a 3-judge panel heard oral arguments in the appeal in December of 2010, in which both sides argued their case on the merits. One significant question that the panel asked regarded the standing, or authority, of the proponents of Prop 8 under federal law to appeal Judge Walker’s decision. (For more on the standing issue, see below.) Instead of issuing a ruling, in January the 9th Circuit panel referred (the official term is ‘certified‘) a question to the California Supreme Court as to the proponents’ standing under state law, and the appeal was placed on hold pending the state court’s answer. In March, the California Supreme Court agreed to hear the question sent over by the 9th Circuit, and a hearing date was eventually set for September 6. The plaintiffs requested a speedier timeline, but the California Supreme Court refused to expedite its proceedings on the issue of standing, and eventually the court made its decision, which it issued last Thursday (November 17).
Now that the California Supreme Court decision is in, the appeal at the 9th Circuit can start up again. On November 18, the appeals court notified both parties in the case that their briefs regarding the state court’s decision are due no later than Dec. 2, and explicitly stated that there would be no reply briefs and no consideration for extensions. Since the case’s merits have already been argued fully by both sides, the 9th Circuit does not need to hold another hearing, and could issue its decision on the standing and/or merits (whether Prop 8 is constitutional or not) of the case without having one. Once this occurs, the losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision of a panel of judges being reviewed by all the judges on the appeals court; in the 9th Circuit (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. Justice Kennedy is the point person for the 9th Circuit, and he could refer the matter to the entire court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If the 9th Circuit were to uphold the district court ruling but apply its reasoning narrowly to apply only to California, it is unlikely the Supreme Court would take up the appeal. If the 9th Circuit were to recognize a right to marriage equality in the U.S. Constitution for its entire jurisdiction, which includes almost all of the western United States, the Supreme Court would be more likely to accept an appeal of the decision.
Where things are at today:All oral arguments and briefs regarding the merits of the case have been submitted to the court. The panel’s decision could come any day.
Upcoming court date: None at this time
Standing (whether or not the supporters of Proposition 8 have the legal standing to appeal)
The skinny: The issue of standing in Perry is hands-down the most legally convoluted aspect of the case. The original lawsuit filed by AFER on behalf of the two couples named as its defendants then-California Governor Arnold Schwarzenegger and Attorney General Jerry Brown, along with several other state officials. (The case is now called Perry v. Brown because Gov. Brown succeeded Gov. Schwarzenegger.) Schwarzenegger and Brown declined to defend the lawsuit in court, so the proponents of Proposition 8 (ProtectMarriage.com) filed successfully to join the suit as what are called intervenors — people who are not official parties to the case but feel the outcome of the case would affect them.
During the course of the trial, Judge Vaughn Walker cast doubt on whether the proponents of Prop 8 had what is called ‘standing’ to appeal any decision he made in court. In federal courts, standing is determined according to the prescription laid out in Article III of the U.S. Constitution, and parties must be able to satisfy three requirements by showing 1) they will suffer particularized injury if the decision is not overturned, 2) there is a causal connection between this injury and the actions of the other side and 3) a court decision in their favor could redress the injury. The 3-judge panel of the 9th Circuit assigned to the Perry case also questioned the proponents’ standing, asking whether they could demonstrate how the striking down of Proposition 8 causes them immediate harm. (Essentially, it’s not enough to say striking down Prop 8 would harm marriages in general, because that doesn’t show particularized injury.) The panel decided in December 2010 to certify the question to the California Supreme Court, essentially asking them for an advisory opinion regarding the proponents’ standing under state law.
The CA Supreme Court accepted the 9th Circuit’s question in March 2011 and set a court date for six months later, refusing to expedite the proceedings at the request of the plaintiffs. On September 6, the case was argued before the California Supreme Court. On November 17, the court ruled that the proponents do have standing to appeal the decision under state law. The distinction between state and federal law is significant here. The CA Supreme Court’s decision is in no way binding on the 9th Circuit, which must still decide independently if the proponents have standing under federal law. Nonetheless, the state court decision is one the appellate panel could point to if it decided to grant standing to the proponents, and many observers believe the panel has indicated that it would essentially mirror the standing decision made by the CA Supreme Court.
If the 9th Circuit decides the proponents do not have standing and that decision is held up on appeal, the appeal of Judge Walker’s ruling striking down Prop 8 cannot go forward, Judge Walker’s ruling stands and Prop 8 can no longer be enforced. If the appeals court rules the proponents do have standing, it can go on to decide the case on the merits and either uphold or reverse the lower court’s ruling. Either way, if (or when) the losing side appeals the case to the U.S. Supreme Court, that court will very likely ask for more information from both sides regarding proponents’ standing to bring the case, since the Supreme Court will have to make its own standing decision separate from the 9th Circuit.
Where things are at today: The California Supreme Court has ruled proponents have standing under California law. All oral arguments and briefs regarding the merits of the case have been submitted to the court. The panel’s decision could come any day.
Upcoming court date: None at this time
The tapes (whether or not the video recordings of the Proposition 8 trial should be released)
The skinny: You may remember that almost two years ago (wow!), Judge Vaughn Walker, presiding over what was then called Perry v. Schwarzenegger in a district court, petitioned the 9th Circuit to include the Prop 8 trial in a pilot program the circuit was trying out in which cameras were allowed into the courtroom. The 9th Circuit said yes, but the proponents of Prop 8 went to the U.S. Supreme Court (a notoriously camera-phobic body). Over 140,000 people signed a Courage Campaign petition to the U.S. Supreme Court asking that the proceedings be televised. The U.S. Supreme Court ultimately stayed the broadcast of the proceedings in a 5-4 decision. Judge Walker withdrew Perry from the pilot program, and while the case was still filmed, the tapes (actually, digital recordings) were given to the litigants and placed into the court record under a seal.
After they appealed Judge Walker’s August 2010 decision to the 9th Circuit, Prop 8′s proponents filed a motion in district court to prevent Judge Walker from showing portions of the recordings, which he had done at a few speaking engagements. The plaintiffs, along with a coalition of media companies, filed their own motion to have the court unseal the recordings and make them public. At this point, Judge Walker had retired, and Judge James Ware, who replaced him, heard both sides’ arguments in district court.
In September 2011, Judge Ware ordered the tapes to be unsealed. Prop 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which wasgranted, and have appealed the decision.
Where things are at today: The 9th Circuit heard arguments regarding the appeal of Judge Ware’s decision on December 8. All oral arguments and briefs regarding the merits of the case have been submitted to the court. The panel’s decision could come any day.
Upcoming court date: None at this time
Vacating Judge Walker’s decision (whether or not Judge Walker’s decision should be vacated on account of his sexual orientation)
The skinny: After Judge Walker’s decision, Prop 8′s proponents also filed a motion in district court (with Judge Ware again presiding) to vacate Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released). In June, Judge Ware denied the proponents’ motion. (If you haven’t read his ruling regarding the motion, it’s worth taking the time to do so.)
Where things are at today: Prop 8′s proponents filed an appeal of Judge Ware’s decision with the 9th Circuit later that month. The proponents of Prop 8 requested that the court consolidate their appeal of the decision regarding the motion to vacate with the main appeal of the case on the merits. The plaintiffs’ attorneys responded favorably to the request and suggested Dec. 8 (the date of the hearing regarding the tapes) as a good choice for the consolidated appeal. On November 21, the 9th Circuit granted the request, consolidating the appeal of the motion to vacate with the appeal of the case on the merits. Later the same week, on November 25, the panel issued an order setting an hour of oral arguments for December 8. All oral arguments and briefs regarding the merits of the case have been submitted to the court. The panel’s decision could come any day.
Upcoming court date: None at this time
At this point, the 9th Circuit has heard arguments regarding all four tracks of the case. It seems likely the panel will issue one cumulative decision covering all of the appeals, or it could issue separate decisions on the tapes, the motion to vacate and the merits.
Of course, we’ll have those updates for you when they occur! This post will be a permanent one that will be updated to reflect the most recent developments in the appeal.
November 23, 2011
