Prop 8 Trial Tracker

Golden Oldie: Prop 8 trial: Live-blogging the 9th Circuit hearings on releasing the tapes and motion to dismiss

One of the most popular Golden Oldies requested was the recent live-blogging coverage of the 9th Circuit hearing on whether to release the tapes and overturn Judge Walker’s decision that Prop 8 was unconstitutional because of his sexual orientation. The live-blogging can be found below. You can click to read the rest below the fold. Comment thread can be found here.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd -Adam

Updates will scroll from the top

By Adam Bink, Jacob Combs, Arisha Hatch and Rick Jacobs

5:05 (Jacob): And, with Charles Cooper’s histrionic closing, court is adjourned. All arguments in the Perry case have now been made. Next comes the ruling! Thanks again to Rick Jacobs and Arisha Hatch for updating us throughout the hearings from the courtroom, and to KQED for providing the live stream of the event. This thread will no longer update. Be sure to check back here at Prop8TrialTracker.com throughout the evening and tomorrow for reactions to today’s hearings. As always, if you see something of interest, send it our way!

5:00 (Rick): Cooper: Want more than two more minutes. Judge Reinhardt, you accurately did characterize our argument. In filing after filing, …repeats stuff about committed relationships. Makes common sense point that a person in an enduring, committed relationship has, do you have an interest in getting married. It was plaintiffs who said 64% of committed gay relationships want to marry. That was their evidence. I’m glad counsel raised Alabama case.

No evidence that Judge Clemmons’ children wanted his children to go to these instiutions in the area. Is it the plaintiffs’ position that he could have said that my kids want to go to one of those institutions in Montgomery that that would not matter? That would be appalling. There would be no problem for Judge Wlaker to sit on DADT even though he’s gay and minority. (COoper is really steamed!!!)

If Walker is ruling that he has constitutional right to marry, if this court says that’s just fine, this will be a signal and dark day in American jurisprudence.

R: Let’s hope however it comes out, it won’t be a dark day.

(Laughter)

4:55 (Rick): TS: Ware said every person has same interest in constitutional rights. Not just minorities. Frankly I think this advocacy of this motion sets a double standard. Shows one thing: all cases with black women rejected idea that that made them impartial. Proponents can’t get it through their heads that gay people are not inferior. Cases are do not apply.

S: Even if he held that upholding Prop. 8 meant he could never marry?

TS: Yes. No indication he was unfair. This court has to presume that.

R: Nothing to do with stereotypes. Presumption is that gays like heteros wants to get married.

TS: Every person may want to get married.

R: This is not argument that all gays are recused because they are gay. (We love Terry!!)

TS: Awfully close. Gay people all want to see a law like Prop. 8 overturned. No evidence here of immediate interest by Walker.

4:53 (Jacob): Cooper is back up for two minutes.

4:50 (Rick): B: Even if court rejects everything I say as matter of law. It is still case that Ware looked at it all and determined no reasonable case for suspecting Walker’s impartiality.

T Stewart: If proponents’ views were correct about disclosure, a woman judge of child bearing age re: abortion would have to disclaim use of abortion.

R: Mr. Cooper is trying to make an argument, not sure how successfully, that a woman on brink of abortion is in different circumstance than general.

TS: Let me step back. This argument hearkens back to conduct to of gay people.

H: I don’t hear him say that.

R: You are making an argument that Cooper is trying to disavow. This does not apply to every gay person. It’s when you apply to a particularlized person who wants to get married the next day is different.

TS: Yes, but does not work. Heteros meet and get married in months or wait years.

R: True. He would be saying that every heterosexual is saying one day he might want to get married. This is different because Walker might want to get married next day.

TS: Yes, but turns presumption on head that judges are presumed not to be impartial unless proven otherwise.

R: Now we get to real argument. Burden is on judge to disclose.

TS: Yes, but in case judge did not have to disclaim that his kids never wanted to go to university (in case). Courts do not impose this on judges to disclose possible interest. Reference to Catholic judge who speaks out against abortion. Noonan said could not put that sort of qualification on judge.

4:42 (Jacob): “Well Mr. Cooper is trying to make an argument, and I don’t know how successfully…” Ouch. Therese Stewart is back up.

4:41 (Rick): B: I see no authority that someone has obligation to say they have obligation to exercise right in question.

R: Is it relevant to right of public to know?

B: No. Let’s assume there is an obligation to disclose an intent to get married. Judge Walker is not in any way required to disclose a non-intent to get married. Creates pernicious effect that would create intolerable double standard for minority judges. A heterosexual (majority) judge does not have obligation to come forward to tell about views? If not, what you are doing by rule Mr. Cooper advocates creating a double standard. Goes right in face of cases that show that minority judges are presumed impartial.

4:39 (Rick): B: Demographics of exhibits they put in show that Walker not more likely to get married than any other gay person wants to marry. They are factually wrong even if they are right about law, which they are not.

R: Mr. Cooper said that we don’t take position that just because judge is gay or may want to get married, we have to look at length of relationship as indicator to marry. Eight years may make you less likely to want to marry (Laughter).

He says if you are together with someone for a long time, takes you out of the general class of people who want to marry. Cooper says does not matter that he’s gay. He says 8 years is a plus, some would not. You are saying no matter what would not require recusal. Is there anything to Mr. Cooper’s argument that there is a specific relationship judge should have told us about?

B: Just conjecture and speculation. Simply no evidence that because of that relationship, he’d want to get married more than another gay person.

4:36 (Jacob): Reinhardt jokes that being in an 8-year relationship might make someone less likely to be interested in marriage, prompting laughter in the courtroom.

4:34 (Rick): B: The majority typically defends exclusion because it is based on tradition, religion. All used to exclude African Americans. Used to exclude gays from institution of marriage. Defendants argue that since many members of the minority want access to marriage, must disqualify unless they have no interest in marriage. Consider how disruptive and corrosive if every majority judge were required to disclose any interest and then meant that judge might not be able to rule impartially. Consider how impossible it is to have majority judge who does not want to change status quo does not have to recuse, but minority who does want to change status quo. The law is that judges don’t have to do that. But even if it’s not the law, the facts of this case, Ware examined legal principles, law and concluded that no basis to question impartiality of Walker.

And what do we have from defendants? They say he’s in committed relationship. He cites that 64% of gay coulpes want to marry. Says nothing about length of relationship being indicator of desire for marriage. Says nothing about whether they want to marry. They conclude that even though many gay people want to get married he would not have to disclose that he’s gay even though many gay people want to marry.

4:30 (Arisha): The judges are sitting stone-faced, not interrupting Boies. This is the longest an attorney has been allowed to speak without being interrupted today.

4:28 (Rick): Boies: In all cases cited by either party for conflict/recusal when Judge says things about case outside of court, judge had fiduciary conflict. Judge’s clerks involved. None of these is present here. The other side comes up with a new idea that because a minority might be impacted, the judge is in conflict. The law is the opposite. In class action, even when judge or family part of class, not sufficient to recue.

R: Your position is that if Walker had disclosed that he wanted to get married after trial, he would not have to recuse.

Boies: That is the law, Your Honors. (Cites law.) There is no authority that judge had to disclose something not a basis for recusal. If he had no interest in getting married, he did not have to say that. We believe the law is that even if he did want to marry, did not have to disclose.

Smith: My reading of law is that judge reviewing case has to look at law.

B: Yes, your honor. That’s why courts defer to district court. Defendant claims that this is not targeted at minorities. CC said that even judge who supports institution of marriage, not just his marriage, need not disclosed. 5^th Circuit says that for every claim is counterclaim. The defendants argue that gay marriage so threatens the institution of marriage that they must be denied access to the institution. By the defendants’ logic, any straight judge with such a view would have to recuse. Only people who can judge here according to them is gay or straight judge who does not have an interest in marriage.

4:26 (Jacob): As many in the Twitterverse are commenting on, does Cooper’s argument that a straight judge has no concrete interest in a gay marriage case shoot his previous arguments on the merits in the foot?

4:21 (Rick): H: Did Ware make factual finding about whether he had to disclose?

CC: Finding of law.

Smith: That’s your position, but he did make a finding. What about a heterosexual judge who said that he found that he wanted to maintain definition of marriage. Would he have to dislclose that?

CC: We have always maintained that outcome on any one marriage not affected.

Smith: What about a single heterosexual man?

CC: Not a big enough interest.

R: If I said to you after today that marriage is worthless and is now looked at negatively rather than positively that won’t have impact on those of us who are

married?

CC: That would be the outcome of Walker’s ruling, but disavow that it would negatively affect marriage. Have not even said Walker’s ruling would immediately effect marriage. Would get there eventually. A gay judge who wants to marry is affected.

R: We’ll give two minutes for rebuttal.

4:20 (Jacob): David Boies is up for our side now.

4:18 (Arisha): Reinhardt: If he had said that he did not have an interest in marriage, then he must remove himself anyway?

Cooper: He could’ve said I’m in this 10 year same-sex relationship, but I have no interest in marriage. This case wouldn’t be here if that happened.

Smith: Would that be a reasonable basis for disqualification?

Cooper: That is not our argument – if he disavowed an interest in marriage – then we would not have tried to disqualify him. [commentary: Does anybody else find this difficult to believe?]

Smith: What if a married heterosexual judge desires to maintain the definition of marriage as between a man and woman, would he be required to disclose that?

Cooper: We have disclaimed since the beginning that individual marriages will not be harmed by same-sex marriage. [WHAT?]

4:15 (Arisha): Judge Reinhardt: “it’s a perfectly normal thing to want to get married.”

4:15 (Jacob): KQED’s livestream is up and running again.

4:13 (Adam): A good point by Judge Hawkins, who points out that Walker did not marry during the window in 2008 when he could have.

4:09 (Rick): R: What would reasonable person look at? All facts other than the one not known which is whether he wanted to get married?

CC: Requires that the judge disclose all relevant facts.

H: Rule says all facts have to be disclosed. Rule also says that someone not knowing if judge was impartial must determine whether appropriate disclosure made. Ware made it. Said he disclosed.

CC: All facts known privately to judge must be disclosed.

H: Who determines that? Not appellate court. It’s not here on appeal.

CC: Indisputable that he must disclose if he wanted to marry his partner.

R: Why does he have to disclose if he did not have interest?

CC: All other facts strongly suggest to a reasonable person in possession of all facts that had a reaonslabe interest in marrying partner. Had he disclosed facts at time of retirement.

R: You would have examined him on that question?

CC: Yes.

R: In what proceeding what he have been asked that question?

CC: All facts must be disclosed. If he had disclosed his ten year relationship, putting him very nearly in shoes of plaintiffs, he had to disclose.

S: What do we make of fact that he did not get married in interregnum period when he could have gotten married?

CC: No more do we make of the fact that he did not than the fact that plaintiffs did not. Certainly not inconsistent as it is not inconsistent with plaintiffs.

S: Had he gotten married, woud he have have been required to disclose? Looking for yes or no.

CC: Yes.

4:07 (Jacob): KQED tweets live connection is back up but “iffy.” I can’t access it yet.

4:05 (Rick): CC: Consistent with 455 whether or not reasonable conclusion that judge’s impartiality might be questioned.

H: You cite Bybee case which never was tried. Cases say abuse of discretion. What is it that could have been abused? It isn’t a de novo review of lack of facts. Not de novo to apply law.

CC: Holland case good to apply.

H: We don’t have Holland in front of us. Only thing that happened in Holland was that appellants had to make argument to circuit themselves.

(Cooper is really looking bad. Bad. He does this over and over. He just keeps repeating himself).

H: Ware reviewed and said he did not think Walker should have recused self.

4:03 (Arisha): Smith: Judge Ware doesn’t know whether the Judge is actually impartial and he decides, as a matter of fact, that there are no reasons to question the impartiality on the basis of the circumstances I have before me. What case do you have that says that the application of the law to the facts is de novo review? It’s a question of fact.

Cooper: We submit to you that Judge Ware abused his discretion.

Smith: So what he (Ware) did was illogical, implausible and had no support in the record? […] It isn’t an abuse to apply law to facts? It isn’t a de novo review to determine what the facts are. And Ware applied the law you offered. Where is the abuse?

4:00 (Rick): CC: Well, he could have been in this position of the plaintiffs.

H: I’ve read your briefs. What standard of review would I use for Judge Ware’s ruling?

CC: Law.

H: They’d have to be illogical, implausible or without support.

CC: Yes (sheepishly).

H: Had this case come directly to us, we’d have had plain error review, but we did not do that. We sent it back to the good judge. What is the correct legal rule that Judge Ware did not apply?

CC: He did not apply correctly the test under 455?

H: That does not mean anything to me. What law did he not apply correctly?

CC: He did not apply the objective test?

H: What did have to do to apply the objective test?

CC: Has to apply facts that were known and key facts not known as not disclosed by Walker.

H: “Not knowing whether or not a judge is impartial might want to see if he’s impartial.” Ware then says I cannot reasonably see that there is any lack or partiality. Why should I apply this? (Judge is pissed.)

3:58 (Arisha): S: Do we have anything in this record, any evidence that Walker desired to marry? You all talk about if he desired, but I saw nothing that said he desired.

Cooper: We don’t have any direct evidence.

Smith seems frustrated with Cooper.

3:55 (Rick): Oh, good. Mr. Cooper.

CC: In filing after filing, plaintiffs have said that they are in long-term serious relationships. In May of 2009, when Judge Walker read allegations of complaint, he knew something the litigants did not know. He knew that he too was a gay resident of California in a serious relationship. It was 8 years, same as Zarillo and Katami. Walker made clear decision not to disclose. In interviews, when asked about orientation and how it might affect, he declined to comment. He kept quiet for two years of case and then after retiring from bench, he disclosed to a group of reporters that he was in a committed relationship for at that time 10 years.

H: So a married judge could not hear a divorce?

CC: (Stumbles…)

H: Would he have to disclose that he was married for 28 years and had some difficulties? (Laughter) That’s what you are arguing here.

3:49 (Jacob): Court is back in session. Now onto the motion to vacate Judge Walker’s ruling. Charles Cooper is arguing for the proponents.

3:46 (Jacob): We’re in a 10 minute recess right now. KQED’s Scott Shafer tweets that Judge Ware (whose decisions are under review) and his clerks are in the courtroom watching. Apparently, KQED lost their internet in the courthouse, hence the loss of the livestream. They’re working to get it back.

3:42 (Rick): So this does not look good. These tapes look like they are staying under seal. But I’m guessing they are not vacating the judgment because Judge Walker is gay. Also, next time, I’m eating before the trial!

3:41 (Adam): There will be a ten-minute recess, after which time we expect to hear arguments on whether to overturn Judge Ware’s ruling denying the motion that Judge Walker’s ruling should be dismissed because he’s gay. What did you think of the arguments for each side?

3:40 (Rick): DT: Just because something in the record, as was President Clinton’s testimony in McDougal, still remained under seal.

3:39 (Jacob): KQED tweets they’re working to fix livestream problems.

3:38 (Rick): R: What does the word “eliminated” mean?

TS: Not word eliminated, but broadcast that matters.

Smith: Not broadcast, but public broadcast.

TS: Rule does not apply here.

R: Usually I agree with Judge K, but we have all disagreed at various times. Your time is up.

Rebuttal:

David Thompson: We did not object because no reason.

R: What is effect of not objecting?

DT: We don’t think any talismanic or other significance to putting in record.

3:37 (Jacob): What this seems to boil down to for the judges is a question of whether or not releasing the tapes at this point would constitute a broadcast, which Walker specifically said would not occur.

3:35 (Rick): Therese Stewart: Ware looked at record on this case. Did Walker make a commitment that these digital rcordings would never see light of day. Ware made clear that he made copiesavailable to parties.

R: That was for same purpose. To arrive at a decision. Nothing secret in them.

TS: Yes, that’s right. Ware decided long after trial that there was no such commitment to keep it from public. Seal orders do not prevent parties form revisiting. Not reasonable to assume that because court placed under seal, can never revisit. Public interest is reason. Not reasonable form of reliance to keep under seal. He made a determination of reason he wanted to use it and put it in record.

R: Maybe you did not hear what Judge Smith said, which is that Walker said potential broadcast eliminated.

TS: Rule against broadcast talks about media coverage. Judge Kazinsky does not preclude use.

Smith: Does Judge K’s letter established precedence?

TS: Not precedence, but carries weight as policy.

Smith: He’d be happy to hear that if he were here.

R: Did Supreme Court overrule that letter?

TS: There was dissent…

R: It was a good dissent. I agree with it on merits and argument, but we have to go with majority.

(more…)

136322 Commentshttp%3A%2F%2Fwww.prop8trialtracker.com%2F2011%2F12%2F27%2Fgolden-oldie-prop-8-trial-live-blogging-the-9th-circuit-hearings-on-releasing-the-tapes-and-motion-to-dismiss%2FGolden+Oldie%3A+Prop+8+trial%3A+Live-blogging+the+9th+Circuit+hearings+on+releasing+the+tapes+and+motion+to+dismiss2011-12-28+00%3A00%3A43Adam+Binkhttp%3A%2F%2Fwww.prop8trialtracker.com%2F%3Fp%3D13632 December 27, 2011

A Prop 13 lawsuit, borne out of the Prop 8 case

By Adam Bink

Those of you from or in California are likely to be familiar with it, but Prop 13 was a ballot initiative passed by the voters in 1978 severely limiting the collection of property taxes as well as state government’s ability to raise revenue through tax increases. You can read long essays about the result, but the bottom line is that it has hamstrung all kinds of public services, especially schools, and led to all kinds of “fees” to avoid tax increases because of the political difficulty in moving them through.

What’s interesting is that yesterday, a lawsuit was filed challenging Prop 13 on the grounds that it was improperly enacted… and its backers say their inspiration came from the Prop 8 case (though one of its backers appears to oppose Judge Walker’s decision). LA Times:

What if the most basic facts of California politics and government were suddenly upended? How different would the political life of this state be if the constitutional requirement that tax increases can only be approved by a two-thirds “supermajority” of the Legislature went away, and instead a simple majority could do the job?

That provocative possibility has seemed beyond imagination ever since 1978, when Californians approved Proposition 13, the landmark initiative whose chief aim was to lower and control property taxes but that also imposed the two-thirds requirement, making it much more difficult for the government to raise all taxes. Now, after three decades of accepting the conventional wisdom that Proposition 13 changed life forever, a potentially blockbuster lawsuit challenges that assumption: The suit argues that the measure was improperly approved and should be stricken from the books.

The case is no gimmick. It’s brought by Charles Young, the longtime and highly regarded former chancellor of UCLA, and the lawyers are led by William A. Norris, a retired U.S. 9th Circuit Court of Appeals judge and a leader of Los Angeles’ civic and legal community. Norris came up with the idea, which struck him after reading the California Supreme Court’s ruling that upheld Proposition 8, the voter-approved ban on same-sex marriage.

The issue in that case was whether the proposition was an “amendment” or a “revision” to the California Constitution. The former only requires a majority vote of the people, while the latter needs a supermajority vote of both houses of the Legislature as well as a majority of the public. That’s because amendments are defined as “an addition or change within the lines of the original instruments,” but revisions go further. A revision is considered a “change in the basic plan of California government,” which alters the power of any branch or the relationship between them.

In analyzing Proposition 8, the state Supreme Court, led by Chief Justice Ronald George, laid out those definitions and concluded that the measure was properly thought of as an amendment, for though it did great and noxious damage to the rights of gay Californians, it did not reach the structure of government itself. Reading the court’s opinion in that case, Norris said he had two reactions.

“I thought the outcome was correct … even though I didn’t like the outcome,” he said in an interview last week. “And I was intrigued by Ron George’s review of the various California Supreme Court cases over the decades on the distinction between an amendment and a revision.”

That started Norris thinking: Was Proposition 13, which was passed as an amendment, really a revision? He acknowledges that his colleagues at the law firm Akin Gump, where he now practices, were skeptical at first, but they set to work researching the question.

Passed at a time when property taxes were sharply on the rise and California was running a surplus, Proposition 13 limited property taxes to 1% of a property’s value and restricted the annual increases on assessed values. Those provisions seem like a traditional amendment — they change or add specific rules within a larger constitutional set of provisions. But Proposition 13 also required that “any change in state statute which results in a taxpayer paying a higher tax” must be approved by two-thirds of both houses of the Legislature.

That language has had a profound impact on the power of the executive and the Legislature. The power that it constrains — the authority to raise public funds — is among the most fundamental of government. And the requirement gives more weight to some legislators — and, by extension, their constituents. As the lawsuit notes, “legislators opposing a tax increase are given the functional equivalent of more votes than those legislators who favor such proposals.”

The result is that Proposition 13 has altered power in the Capitol and appreciably weakened the ability of the Legislature to pass new taxes, which sounds an awful lot like a “change in the basic plan” of state government. It also has had important political consequences. Because Republicans hold just over one-third of the seats of both houses, they have enough votes to block any tax increase if they band together; those willing to break ranks on tax increases have leverage to get their legislation or projects approved. If the necessary margin were changed to a simple majority, Republican power would evaporate overnight.

Given the sweep of its implications, the lawsuit filed by Norris and his associates would impose a stern burden on the Supreme Court if it finds the logic compelling. Not only would the court be faced with invalidating an enormously popular blockade against tax increases, but also with wiping out a system that has governed California for more than 30 years.

1364411 Commentshttp%3A%2F%2Fwww.prop8trialtracker.com%2F2011%2F12%2F27%2Fa-prop-13-lawsuit-borne-out-of-the-prop-8-case%2FA+Prop+13+lawsuit%2C+borne+out+of+the+Prop+8+case2011-12-27+19%3A00%3A16Adam+Binkhttp%3A%2F%2Fwww.prop8trialtracker.com%2F%3Fp%3D13644 December 27, 2011

Golden Oldie: New Hampshire Public Hearing Day Thread

This Golden Oldie recalls the remarkable day in February when marriage equality supporters vastly outnumbered opponents in New Hampshire on their hearing day, helping spur the decision to shelve the bill. Many supporters were Courage members and/or P8TT readers, all wearing red.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd -Adam

By Adam Bink

Update: Here’s a summary by an Associated Press writer.

Update: Zandra Rice-Hawkins, ED of Granite State Progress, kindly just sent the following over e-mail to me in response to a “what happens next” inquiry. I thought it would be informative for us all.

Adam,

The committee is very likely to vote today or next week to retain the bills. There is a small chance that some action could still be taken, but the last day to act on the bills would be mid-March and the full House has to complete all actions by Thursday, March 31st. That day is known as Crossover in New Hampshire and is when all bills must cross over to the Senate and visa versa. By general rule of thumb, retained bills will then lay in committee until next January.

It is not a guarantee that there will be another public hearing next year, so today’s turnout was critically important.

Update:With a tip of the hat to Ronnie in the comments, this ad is running in today’s Manchester Union Leader, from a conservative Marine.

Update: A sea of red marriage supporters:

seaofrednh

Update: Back. The official pro-con count on the committee sign-in sheet is 540 in favor of equality, 40 opposed. Remarkable. For all those who joined in our Courage action to ask supporters to attend- or attended yourself- pat yourselves on the back!

Update: I have to get on a plane for the next two hours or so, but you can follow @NHFreedom2Marry, which is tweeting a good amount from the hearing, on Twitter.

Update: According to every person on the ground sending back updates from GSP, NHFTM, HRC and friends, anti-equality folks, aside from Maggie, simply didn’t turn out. Plus, hundreds of pro-equality folks went. The room is a sea of red. Contrast in organizing and perhaps more.

Update: I’m working off my PDA while in transit, and told the video may not start playing yet, but live video stream is set up to be here.

Update: Interestingly, at the open of the hearing, Rep Bates, the lead sponsor of one anti-marriage measure, calls for retention, or putting on hold, of the bill until next year (h/t NHFTM).

Update: This could go for some time. The chairman warns that he will hold the committee in session until “the wee hours” if necessary.

Update: Maggie:

Update- My friend Kevin Miniter, who is up in NH with Fred Karger’s campaign, reports at least 400 there- overwhelmingly equality advocates.

Update- Maggie is also there.

Photos coming in:

Updates will scroll from the top

By Adam Bink

This morning, starting between 10 and 10:30 AM EST, will be the big Public Hearing in New Hampshire to consider three different pieces of legislation to repeal the freedom to marry for same-sex couples in the state. For more background, I wrote a post on Tuesday outlining what was under consideration.

For those who have never seen what an event of this kind looks like, and its importance, watch this:

That was Mr. Philip Spooner testifying at the public hearing in Maine. Over 4,000 people showed up- so many that the legislature had to move the hearing to a larger auditorium. It was a watershed moment on the bill’s path to passage. We must make today’s event a watershed moment in defense of equality.

Several of our colleagues at Granite State Progress and HRC will be sending back dispatches throughout the day, which I’ll be sorting through and posting here (NOM bus tour style!). We’ll also likely have a live streaming link. I will be traveling through most of the morning, but updates will come throughout the afternoon. Please help out your fellow P8TTers by updating what you see in the comments for those unable to watch or listen live.

For your reading interest before the hearing starts, Courage Campaign, in partnership with Granite State Progress, has collected over 50 written testimonies over the past two days to be submitted for the record at today’s hearing. I’ve pasted many of them below with names redacted, but with location left in. I was struck by the volume of heartfelt testimonies submitted for the public record by straight allies. Thank you, my friends. It is heartening to have such kind people at our movement’s back.

If you’re a New Hampshirite and haven’t yet submitted a written testimony, you can do so here. Some testimonies are below.

136291 Commenthttp%3A%2F%2Fwww.prop8trialtracker.com%2F2011%2F12%2F27%2Fgolden-oldie-new-hampshire-public-hearing-day-thread%2FGolden+Oldie%3A+New+Hampshire+Public+Hearing+Day+Thread2011-12-27+15%3A00%3A52Adam+Binkhttp%3A%2F%2Fwww.prop8trialtracker.com%2F%3Fp%3D13629 December 27, 2011

Golden Oldie: Sturm und drang, or not

Following up on today’s earlier Golden Oldie on the Administration’s decision to not defend DOMA in court, here’s the flip side: the reaction from right-wingers. From February 25th, 2011.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd –Adam

By Adam Bink

The predictions from anti-equality leaders in response to the Obama administration’s move on DOMA are pouring in:

NEW YORK — Angered conservatives are vowing to make same-sex marriage a front-burner election issue, nationally and in the states, following the Obama administration’s announcement that it will no longer defend the federal law denying recognition to gay married couples.

“The ripple effect nationwide will be to galvanize supporters of marriage,” said staff counsel Jim Campbell of Alliance Defense Fund, a conservative legal group.

[...]

“The president has thrown down the gauntlet, challenging Congress,” said Tony Perkins of the Family Research Council. “It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president’s neglect of duty.”

[...]

In Rhode Island, the Roman Catholic bishop of Providence, Thomas Tobin, said Thursday that his diocese would “redouble its efforts’ to defeat a pending same-sex marriage bill in response to the announcement. In Iowa, conservative activist Bob Vander Plaats said the DOMA decision would invigorate a campaign to repeal the state’s court-ordered same-sex marriage law.

“This gives us more credibility than ever with this issue,” said Vander Plaats, who wants to topple the Democratic leadership in the state Senate that is blocking efforts to put a same-sex marriage repeal proposal on the ballot.

[...]

Perkins, the Family Research Council leader, suggested that House Republicans would risk alienating their conservative base if they did not tackle the marriage issue head-on.

“The president was kind of tossing this cultural grenade into the Republican camp,” he said.

“If they ignore this, it becomes an issue that will lead to some very troubling outcomes for Republicans.”

[...]

Brian Brown, president of the conservative National Organization for Marriage, predicted that Obama’s decision not to defend the federal DOMA would spur efforts in some of the remaining states to join the ranks of those with constitutional bans.

Indiana lawmakers took a step in that direction last week, and Brown said it was possible that amendments could gain traction in Wyoming, Minnesota, North Carolina and even New Hampshire, if GOP lawmakers succeed in repealing the state’s same-sex marriage law.

“This raises the stakes and makes clear the executive branch is not willing to carry out its responsibility,” Brown said. “I don’t think by any stretch of the imagination the tables have turned on this issue. People in this country know what marriage is.”

Thing is, as I look at the numbers and get a sense of people’s priorities when I travel the country, it’s harder and harder to find people who (a) are even clear on what DOMA is (b) prioritize it above whether their trash gets picked up twice or three times per week, or whether they have a job. I’m serious. I’m not saying there aren’t hard-right activists and politicians out there and we shouldn’t expect DOMA-style legislation in the states to fight, but for goodness’ sake, look at CPAC. For years it was the bedrock of everything anti-LGBT, anti-choice, school prayer, you name it. But younger conservative activists are coming into the party who are with us on some of the LGBT issues and, even if they aren’t, don’t give a flip. Not only that, but I took a class on European politics in college, and I always remember a fascinating paper demonstrating that legislation and regulation on non-economic “soft” issues- LGBT rights, drug policy, the environment, etc.- always advanced in strong economic times and never in poor economic times. Now, there are obviously exceptions to that- look at repeal of “Don’t Ask, Don’t Tell”- but my point is people have a few dozen bigger priorities in this economic climate, and with threats of climate change and other issues looming, when evaluating, say, their Presidential candidates, than DOMA, if they even understand what it is.

I think Perkins and the rest are expecting a very different party rise up than what they will see.

136273 Commentshttp%3A%2F%2Fwww.prop8trialtracker.com%2F2011%2F12%2F26%2Fgolden-oldie-sturm-und-drang-or-not%2FGolden+Oldie%3A+Sturm+und+drang%2C+or+not2011-12-27+01%3A00%3A55Adam+Binkhttp%3A%2F%2Fwww.prop8trialtracker.com%2F%3Fp%3D13627 December 26, 2011

Golden Oldie: BREAKING: DOJ announces they’ll no longer defend DOMA in court

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. Today’s is to recall the big news back on February 23rd, when the Obama administration announced they’d no longer defend DOMA in court. Their full memo is below. It spurred an incredibly vibrant comment thread with 293 comments on the decision, which you can find here.

Regularly scheduled programming will resume on January 2nd–Adam Bink

By Adam Bink

Update: This is amazing news. We at Courage put together an open letter to thank the President for taking this action, and to ask him to speak out for the freedom to marry.

It’s time, Mr. President.

Please sign here.

And share here on Facebook, and here on Twitter.

Big news that just landed in my inbox (bolding mine)

STATEMENT OF THE ATTORNEY GENERAL ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Big news and good on the Administration.

Consequently, Attorney General Holder sent the following letter to Speaker Boehner:

LETTER FROM THE ATTORNEY GENERAL TO CONGRESS ON LITIGATION INVOLVING THE DEFENSE OF MARRIAGE ACT

Re: Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003). Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer. But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.

Application to Section 3 of DOMA

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).

Application to Second Circuit Cases

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.

Attorney General

______________________________________

ⁱ DOMA Section 3 states: “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

ⁱⁱ See, e.g., Dragovich v. U.S. Department of the Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011); Gill v. Office of Personnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).

ⁱⁱⁱ While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (classifications based on race “must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States,” and “[t]his strong policy renders racial classifications ‘constitutionally suspect.’”); United States v. Virginia, 518 U.S. 515, 531 (1996) (observing that “‘our Nation has had a long and unfortunate history of sex discrimination’” and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics “beyond the individual’s control” and that “very likely reflect outmoded notions of the relative capabilities of” the group at issue); Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) (“Unfavorable opinions about homosexuals ‘have ancient roots.’” (quoting Bowers, 478 U.S. at 192)).

^iv See Equality Foundation v. City of Cincinnati, 54 F.3d 261, 266–67 & n. 2. (6th Cir. 1995); Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).

^v See, e.g., Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in “responsible procreation and child-rearing.” H.R. Rep. No. 104-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

^vi See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-94 (6th Cir. 1997).

136251 Commenthttp%3A%2F%2Fwww.prop8trialtracker.com%2F2011%2F12%2F26%2Fgolden-oldie-breaking-doj-announces-theyll-no-longer-defend-doma-in-court%2FGolden+Oldie%3A+BREAKING%3A+DOJ+announces+they%27ll+no+longer+defend+DOMA+in+court2011-12-26+19%3A15%3A13Adam+Binkhttp%3A%2F%2Fwww.prop8trialtracker.com%2F%3Fp%3D13625 December 26, 2011