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Official Prop 8 Trial Tracker preview of the 9th Circuit hearing tomorrow
By Adam Bink
Tomorrow is the 9th Circuit hearing of the appeal on Perry v. Schwarzenegger. As usual, it’ll be trial central here at P8TT. Here’s a run-down for all your 9th Circuit hearing needs:
- What coverage you’ll find here at P8TT. The hearing starts at 10 AM PST tomorrow. As in Judge Walker’s courtroom, Courage Campaign’s Rick Jacobs and Arisha Michelle Hatch will be in the courtroom, sending back dispatches as they become available. I will be watching the proceedings and live-blogging, format similar to the Don’t Ask, Don’t Tell hearings on Thursday and Friday. I will also be live-tweeting occasionally, and my handle is @adamjbink. Brian Leubitz, publisher of the Calitics blog and occasional legal contributor to P8TT, will be joining us tomorrow to post his occasional thoughts in the trial thread, and answer legal questions/comments from you in the comments. He’ll also have an analysis piece later tomorrow.
- How the hearing will be divided. Oral arguments will be divided into two hour-long sessions with a brief recess in between. The issue of standing will be addressed in the first hour, and the constitutionality of Prop 8 in the second. David Boies will be arguing the standing issue, and Ted Olson, along with Therese Stewart from the City/County of San Francisco, will be arguing the constitutionality for our side. Charles Cooper will be addressing the constitutionality for the Pro-Prop 8 side, and it’s as-yet undetermined who will argue standing for their side, although Lisa Keen reports Imperial County will be represented by an attorney from Advocates for Faith and Freedom.
- Possible rulings. Brian and the rest of the legal team will have more on this in the week ahead, but brief, potential rulings include upholding Judge Walker’s ruling denying standing to the defender/intervenors, not to mention the issue of constitutionality itself. And naturally, that could go the other way. The case may be appealed to the Supreme Court, but if the court does not take the case and the ruling goes our way, Prop 8 will be overturned. P8TT friend Karen Ocamb reports that if the Supremes do not take the case, AFER announced it will then file a new lawsuit to try and achieve marriage equality at the federal level. The losing party could also appeal for a ruling by the full 9th Circuit, which can decide to hear or not to hear such an appeal. And last, if proponents of Imperial County lose on standing, there may not be a ruling on the merits (constitutionality) at all. But then, the Supremes could rule that defendant/intervenors do have standing and send the case back to the 9th Circuit for a ruling on merits. We’ll have more legal scenarios and analysis tomorrow and later this week at P8TT, as well.
- Where to watch. You can watch in-person, on C-SPAN, at a local law school near you, at a local courthouse near you, at the LA Gay and Lesbian Center (doors open at 9:30), and other places. Karen has the skinny on some other viewing possibilities. But of course, the best place to follow along, comment and read your fellow community members’ analysis, especially if you’re busy for the two hours, will be P8TT!
- Where to go to be with supporters. If you’re in the area, tomorrow from 7:30-9:30 AM, various LGBT community leaders and allies will be holding a community rally before the hearing starts. The location is the courthouse at 7th and Mission Streets in San Francisco. In attendance will be NCLR’s Kate Kendall, Rev. Jesse Jackson, Chief Deputy City Attorney Therese Stewart, Lambda Legal’s Jenny Pizer, and other community leaders. You can also stick around to watch the hearing in overflow courtrooms, or head out to follow along here. A Facebook invite is here.
If you have any other tidbits to add, or questions/comments/expectations, please leave them in the comments.
Big day tomorrow. See you all then!
64 Comments December 5, 2010
DEVELOPING: Schwarzenegger and Brown file papers with California Supreme Court responding to PJI’s appeal
(Cross-posted at LGBTPOV)
By Karen Ocamb
Jerry Brown
“Late yesterday the California Supreme Court responded to a request by the Pacific Justice Institute to compel the Attorney General and the Governor to file the appeal in the federal challenge to Proposition 8.
In August, a federal court in San Francisco overturned the voter approved measure that stated that marriage is between one man and one woman. While the Ninth Circuit Court of Appeals has agreed to hear the appeal of the lower court’s decision, they have made clear that there is a question whether the parties before them have standing to pursue the appeal. The Attorney General as well as the Governor have failed to file the appeal in this matter based on their personal opposition to Proposition 8. The proponents of the ballot measure took on the State’s job of defending the measure in court.
The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.
“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute. “Millions of Californians voted for Proposition 8. The issue should be heard all the way up to the US Supreme Court. No elected official ought to be able to substitute his judgment for the decision of our courts.”
Several sources are checking this out and I will update this as the information comes in. Theoretically, the California Supreme Court can order Attorney General Jerry Brown and Gov. Arnold Schwarzenegger to appeal Judge Walker’s ruling.
UPDATE from AP’s Lisa Leff:
The letters Schwarzenegger and Brown filed this morning are brief and reiterate their positions that they have discretion to choose which rulings to appeal. They also say that PJI miscalculated the deadline for filing an appeal with 9th Circuit–that it was Sept. 13, not Sept. 11.
UPDATE (2:20 Pacific) In AP’s report, Leff wrote:
“Proposition 8’s sponsors have appealed. But doubts have been raised about whether its members have the authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.”
UPDATE (12:45 Pacific):
Chris Geidner at MetroWeekly writes that Deputy Attorney General Tamar Pachter, responding for AG Brown, said in her letter that the Pacific Justice Institute’s effort on behalf of Pastor Joshua Beckley “is too little, too late.”
Pachter concluded:
It is within the Attorney General’s discretion to determine that it is or that it is not appropriate to pursue an appeal. In Perry, given the Attorney General’s position at trial, there are no grounds for an appeal, and the filing of an appeal under such circumstance would be frivolous. The petitioner’s contention to the contrary is manifestly without merit.”
Geidner also notes that Wednesday’s filing was already set by a court order detailing a briefing schedule of the expedited appeal. He says the Capitol Resources Institute’s email is “misleading.”
Brown’s response can be found here: Letter Brief.pdf
Veteran LGBT journalist Lisa Keen posts at her Keen News Service that Schwarzenegger won’t appeal either. Keen notes:
“The definitive statement means the ability of Proposition 8 proponents to appeal will depend entirely on the legal standing of the Yes on 8 coalition……In a five-page letter September 8, Counsel for the Governor Andrew Stroud told the court, “Although Beckley may disagree with the Governor’s decision not to file a notice of appeal [in the Proposition 8 case in federal court], it was the Governor’s decision to make.”
UPDATE BY EDEN: Jeff in the comments just posted Gov. Schwarzenegger’s response from Metro Weekly:
http://metroweekly.com/poliglot/2010/09/08/Gov%20Letter%20Brief.pdf
107 Comments September 8, 2010
Prop 8 trial update with questions about Imperial County
(Cross-posted at LGBTPOV)
By Karen Ocamb
Judge Vaughn Walker
Prop8TrialTracker posted video of three of the “best” moments from Prop 8 shouter Lou Engle’s TheCall Sacramento rally over Labor Day weekend, which David Link reported on earlier for LGBT POV.
Last Thursday, the 3rd District Court of Appeal rejected that lawsuit filed by the Pacific Justice Institute trying to force the state to defend Prop 8 on appeal. PJI are the folks who said “failure to pass Prop 8 in California would be akin to failing to stop Hitler.”
Meanwhile, Imperial County is using the pro bono service of the conservative religious firm Advocates for Faith and Freedom, according to the San Diego Union Tribune, instead of their own county counsel to try to intervene. This is curious.
District Court Judge Walker already ruled that counties cannot act independently of the state, which, through governmental defendants Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, has the responsibility to defend Prop 8 – which they’ve refused to do.
Imperial County passed Prop 8 by 20,217 votes or 70 percent, according to the Union Tribune. Last December the Board of Supervisors voted 3-2 to hire the outside firm, arguing that they had a governmental interest because their county clerks had to issue marriage licenses.
The county board appealed Walker’s ruling denying their petition to intervene. So when the 9th U.S. Circuit Court of Appeals convenes the week of Dec. 6 to considering the issue of whether Protect Marriage has legal “standing” as a civilian group to appeal Walker’s ruling on Prop 8, they will also decide if Imperial County has legal “standing” to serve as government-defenders in the case.
In addition to Walker’s reasons why Imperial County should be disqualified, it will be interesting to see if the 9th Circuit considers that the intervention plea is not being brought by the county’s own counsel, that it was authorized by a split political body, and that some of the 70 percent of Prop 8 voters may have since changed their minds and not want their local government advocating for Prop 8 in their name.
86 Comments September 7, 2010
Ken Mehlman comes out as gay, will appear at AFER fundraiser; Former Bush campaign manager and GOP Chair takes heat for past actions
Shortly after this news broke yesterday, Karen Ocamb posted this piece on LGBTPOV. We’re cross-posting it on the Prop 8 Trial Tracker, as Mehlman will be raising money — reportedly $750,000 according to the Advocate — to support the American Foundation for Equal Rights and their case against Prop 8, as Karen explores in-depth below.
The discussion about Mehlman coming out of the closet is heating up across the media and the blogosphere, given his role in masterminding George W. Bush’s 2004 re-election as well as his tenure as Chair of the Republican Party. Both ABC News and the Advocate posted follow-up interviews with Mehlman last night in which he responded to questions about his past role in undermining marriage equality. For NOM watchers, Brian Brown makes an appearance in Kerry Eleveld’s Advocate piece, attempting to spin away the fact that his anti-equality agenda is becoming increasingly marginalized, as more and more conservatives come out in favor of the freedom to marry. — Eden
By Karen Ocamb
ELECTIONS RNC MEHLMAN
Ken who, you might ask if you’re new to LGBT politics? Well, as Ambinder explains, “Mehlman is the most powerful Republican in history to identify as gay.” He was head of the Republican National Committee in 2007 and George W. Bush’s campaign manager in 2004. He is considered incredibly smart on messaging and has a donor and politico address book that is the envy of political consultants everywhere. He was also intensely despised as a closeted gay man who was using those brains on behalf of antigay politicians.
Ambinder says:
“Mehlman arrived at this conclusion about his identity fairly recently, he said in an interview. He agreed to answer a reporter’s questions, he said, because, now in private life, he wants to become an advocate for gay marriage and anticipated that questions would arise about his participation in a late-September fundraiser for the American Foundation for Equal Rights (AFER), the group that supported the legal challenge to California’s ballot initiative against gay marriage, Proposition 8.
“It’s taken me 43 years to get comfortable with this part of my life,” Mehlman said. “Everybody has their own path to travel, their own journey, and for me, over the past few months, I’ve told my family, friends, former colleagues, and current colleagues, and they’ve been wonderful and supportive. The process has been something that’s made me a happier and better person. It’s something I wish I had done years ago.”
This is a big deal – as is, by the way, the fact that the AFER fundraiser Ambinder mentions is happening at the New York home of a huge Republican contributor Paul Singer, who is chair of the board of Chairman of the Board of Trustees for the Manhattan Institute for Policy Research.
Mehlman was at the center of the antigay political scene when Bush’s political director Karl Rove used antigay marriage initiatives as a way to get out the religious and conservative vote – winning in 11 states. Rove used the same tactic in 2006. Mehlman told Ambinder that he tried to “beat back efforts to attack same-sex marriage” and insisted that Bush “was no homophobe.” Ambinder writes:
Bush Melhman
“Mehlman acknowledges that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda.
“It’s a legitimate question and one I understand,” Mehlman said. “I can’t change the fact that I wasn’t in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally.” He asks of those who doubt his sincerity: “If they can’t offer support, at least offer understanding.”
“What I do regret, and think a lot about, is that one of the things I talked a lot about in politics was how I tried to expand the party into neighborhoods where the message wasn’t always heard. I didn’t do this in the gay community at all.”
He said that he “really wished” he had come to terms with his sexual orientation earlier, “so I could have worked against [the Federal Marriage Amendment]” and “reached out to the gay community in the way I reached out to African Americans.”
Mehlman was for years a target of outing by DC-based gay activist and blogACTIVE blogger Mike Rogers – who talks about his efforts to get media attention on RawStory. Rogers figures prominently in the Kirby Dick -directed 2009 documentary “Outrage,” which had a theatrical run before airing on HBO. The documentary is up for an Emmy award this Sunday.
In his interview with Ambinder, Mehlman
“admits to having mislead several people who asked him [about his sexuality] directly. He said that he plans to be an advocate for gay rights within the GOP, that he remains proud to be a Republican, and that his political identity is not defined by any one issue.
“What I will try to do is to persuade people, when I have conversations with them, that it is consistent with our party’s philosophy, whether it’s the principle of individual freedom, or limited government, or encouraging adults who love each other and who want to make a lifelong committment to each other to get married.”
“I hope that we, as a party, would welcome gay and lesbian supporters. I also think there needs to be, in the gay community, robust and bipartisan support [for] marriage rights.”
Clarke Cooper hs
Log Cabin Republicans Executive Director R Clarke Cooper
R. Clarke Cooper, the new executive director of the national Log Cabin Republicans, told me he welcomes the news.
“Log Cabin Republicans is very supportive and appreciative of Ken’s coming out. Being gay and being conservative are not mutually exclusive. As a fellow Bush alumnus, I also look forward to Ken helping me and our colleagues build a stronger more inclusive Republican Party.”
AFER board president Chad Griffin – who was an executive producer on “Outrage” – is thrilled that Mehlman came out and told me that the GOP political strategist has been quietly helping AFER with their federal Prop 8 challenge for months.
“Ken over past several months has been a key strategic advisor to our team,” Griffin told me, regularly conferencing “non-stop for two months” with Griffin and Lance Black and others on communications and messaging from the moment the decision came down blocking cameras from the Prop 8 trial.
Griffin said Mehlman reached out first to AFER lawyer Ted Olson, who put
chad griffin and ted olson
AFER's Chad Griffin and Ted Olson
Mehlman in touch with Griffin via email. “I wouldn’t do this unless I felt very strongly that he would fight on our behalf. He didn’t just call up and say ‘I would like to lend my name.’ He reached out to Ted Olson many months ago.” And Mehlman is responsible for bringing Paul Singer on board to co-host the fundraiser at his house. Griffin said:
“Our job is to bring together and work together with people who don’t currently support our work. What we should do is welcome him with open arms and hope that many others follow him. And we shouldn’t underestimate that the youngest person in history to chair a major political party, a former senior Bush White House aide – that that person is openly gay and lending strategic advice and guidance and well as opening up his tremendous network of contacts – which is unparallel. We are very good at talking to ourselves. But it’s important that we take a step back and realize how significant this is to have someone advising us who knows how to win voters in the center and right.”
Griffin is very well aware of the consternation Mehlman’s coming out may cause among some LGBT activists over the 2004-2006 hey-day of antigay GOP activism. But he is philosophical and optimistic.
“That was then, this is now. There’s a long list of people who were against marriage equality – Democrats and Republicans. We are in a new age. I don’t care where people were in the past. If we are going to win equality, we have to welcome every single person to our side. That was a different time and place and today is today – we have to look forward. Ken is a tremendous asset to our efforts.”
224 Comments August 26, 2010
Parsing NOM’s polling chatter
Cross-posted at my home blog, OpenLeft.com
by Adam Bink
NOM is all a-Twitter (pun intended) about two polls (here and here) that they say shows nowhere near a majority of Americans support the freedom to marry. They point to one poll from FOX News showing 37% of Americans support the freedom to marry, and another from the Chicago Tribune of Chicago-area residents showing 42% support the freedom to marry.
A coupla things:
1. It’s FOX News. I wouldn’t even trust FOX to truthfully tell me if it was raining outside or not. Contrast this with the recent poll from CNN/Opinion Research recently showing a majority of Americans believe gays and lesbians should have the constitutional right to marry, or the respected Field Poll showing last month that a majority of Californians supports allowing same-sex couples to marry.
2. The broader point is the wording of the question. Notice that FOX’s question is not “do you support gay marriage or not”, or anything like it. It’s:
Do you believe gays and lesbians should be: SCALE: 1. Allowed to get legally married, 2. Allowed a legal partnership similar to but not called marriage, or 3. Should there be no legal recognition given to gay and lesbian relationships? 4. (Don’t know)
I’m no polling expert, but that is a much different question in terms of giving many people the way out they are looking for to demonstrate that they support equality, but “just don’t call it marriage”. You’ve probably encountered many of those people who, if pushed, support full marriage equality, but if given a way to show they support rights and all of that, just under a different name, they’ll do so. In fact, the Field Poll, in the same survey with the result of a majority of Californians supporting same-sex marriage, words the question a similar way and gets similar results:
In a statewide survey completed earlier this month, The Field Poll updated its trend measurements of how California viewed the issue of same-sex marriage. The results show that by a 51% to 42% margin, the overall California electorate supports allowing same-sex couples to marry and having regular marriage laws apply to them.
However, when voters are offered three alternatives – allowing same-sex couples to marry, allowing civil unions but not same-sex marriage or granting no legal recognition to same-sex relationships – slightly less than half of voters (44%) favor the marriage alternative. In this setting, a significant portion (34%) of California voters opt for allowing civil unions but not marriage for same-sex couples. Just 19% believe that there should be no legal recognition of gay couples.
And that’s also why I question the Tribune poll, which asks individuals if they support civil unions- if that question is asked first in the polling, that may skew the results of how many support full marriage equality- particularly given the latest buzz and how civil unions have, for some people, become forgotten. So it’s not surprising to me that FOX gets this result. I’m not saying FOX is necessarily doing this, but it’s a clever (and probably common) tactic in polling to word questions and responses to avoid certain aggregate responses you may not want. Polling that has the more simple up-or-down question has demonstrated that majorities of people both in California and in the country as a whole support the freedom to marry, and when NOM finds unbiased polling surveys with identical wording without questions on lesser forms of equality that show different results, then we’ll have something to talk about.
161 Comments August 18, 2010
