WASHINGTON – The Supreme Court is taking a potentially historic look at same-sex marriage by agreeing to hear two cases that challenge governments’ different treatment of gay Americans.
The focus in one case is California’s constitutional amendment that forbids same-sex marriage. The other case deals with a federal law that denies to those who can marry legally the right to obtain federal benefits that are available to heterosexual married couples.
Supreme Court cases often take twists and turns that limit the scope of the eventual decision. But the justices’ action on Friday gives them the chance to say whether gay Americans have the same constitutional right to marry as heterosexuals.
The court is embarked on what could be its most significant term involving civil rights in decades. In the area of racial discrimination, the justices already have agreed to decide cases on affirmative action in admission to college and a key part of the Voting Rights Act. The gay marriage cases probably will be argued in March and decisions in all the court’s cases are likely by the end of June.
The order from the court extends a dizzying pace of change regarding gay marriage that includes rapid shifts in public opinion, President Barack Obama’s endorsement in May and votes in Maine, Maryland and Washington in November to allow gay couples to marry. Same-sex couples in Washington began picking up marriage licenses on Thursday.
Yet even as gay marriage is legal, or soon will be, in nine states – Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont are the others – and the District of Columbia, it is banned by the state constitutions of 30 others. In Hawaii, a constitutional amendment gives the legislature the power to define marriage as between a man and a woman, and it has done so. Federal courts in California have struck down the state’s constitutional ban on same-sex marriage, but that ruling and thus gay unions remain on hold while the issue is being appealed.
The high court’s decision to hear the federal benefit question, presented as a constitutional challenge to a provision of the Defense of Marriage Act, was a virtual certainty because several lower courts struck down the provision of the 1996 law and the justices almost always step in when lower courts invalidate a federal law.
There is nothing that compelled a similar response from the court in the case over California’s Proposition 8, the state constitutional ban on gay marriage that voters adopted in 2008 after the state Supreme Court ruled that gay Californians could marry. Indeed, the gay marriage supporters who prevailed in the lower courts urged the Supreme Court to stay out of the case and allow same-sex unions to resume in the nation’s largest state.
Even some gay rights activists worried that it was too soon in the evolution of views toward same-sex marriage to ask the justices to intervene and declare that same-sex couples have the same right to marry as heterosexuals. But Theodore Olson, the Washington lawyer who represents Californians who sued over Proposition 8, said he will argue that there is a “fundamental constitutional right to marry for all citizens.”
Opponents of gay marriage said Friday they are heartened by the Supreme Court’s action.
“We believe that it is significant that the Supreme Court has taken the Prop 8 case. We believe it is a strong signal that the court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect,” said John Eastman, chairman of the National Organization for Marriage and a law professor at Chapman University in Orange, Calif.
On the other side of the issue, advocates for same-sex unions said the court could easily decide in favor of gay marriage in California without issuing a sweeping national ruling to overturn every state prohibition on marriage.
In striking down Proposition 8, the 9th U.S. Circuit Court of Appeals crafted a narrow ruling that said because gay Californians already had been given the right to marry, the state could not later take it away. The ruling studiously avoided overarching pronouncements.
“I think the court can easily affirm the 9th Circuit’s decision and leave for a later day whether broader bans on marriage are unconstitutional as well,” said James Esseks of the American Civil Liberties Union.
The other issue the high court will take on involves a provision of the Defense of Marriage Act, known by its acronym DOMA, which defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits.
Four federal district courts and two appeals courts struck down the provision. Last year, the Obama administration abandoned its defense of the law, but continues to enforce it. House Republicans are now defending DOMA in the courts.
The justices chose for their review the case of 83-year-old Edith Windsor, who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009.
Windsor, who goes by Edie, married Thea Spyer in 2007 after doctors told them that Spyer would not live much longer. She suffered from multiple sclerosis for many years. Spyer left everything she had to Windsor.
There is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero.
The U.S. 2nd Circuit Court of Appeals in New York agreed with a district judge that the provision of DOMA deprived Windsor of the constitutional guarantee of equal protection of the law.
In both cases, the justices have given themselves a technical way out, involving the legal issue of whether the parties have the required legal standing to bring their challenges, which would allow them to duck all the significant issues raised by opponents and supporters of gay marriage.
The cases are Hollingsworth v. Perry, 12-144, and U.S. v. Windsor, 12-307.
from The Associated Press
Posts Tagged ‘prop. 8’
WASHINGTON – The Supreme Court is taking a potentially historic look at same-sex marriage by agreeing to hear two cases that challenge governments’ different treatment of gay Americans.
SAN FRANCISCO – San Francisco’s new Roman Catholic archbishop made self-deprecating jokes about his recent drunken-driving arrest during his formal installation ceremony, which came just days after he pleaded guilty to a lesser charge of reckless driving.
But Archbishop Salvatore Joseph Cordileone, a strong supporter of California’s ban on same-sex marriage, did not refer to the distress his appointment has aroused in this gay-friendly city and mentioned marriage only obliquely Thursday.
Amid heavy security and the splendor of his faith’s most sacred rites, Cordileone told an audience of more than 2,000 invited guests at St. Mary’s Cathedral he was grateful for the support he had received from people of different religious and political viewpoints following the Aug. 25 arrest in his home town of San Diego.
“I know in my life God has always had a way of putting me in my place. I would say, though, that in the latest episode of my life God has outdone himself,” Cordileone said with a chuckle as he delivered his first homily as archbishop.
The 56-year-old priest, the second-youngest U.S. archbishop, went on to say he did not know “if it’s theologically correct to say God has a way of making himself known in this way,” and asked for the indulgence of other high-ranking church leaders in the audience.
Cordileone had been scheduled to appear in court on a misdemeanor charge of driving under the influence next Tuesday. Court records show he pleaded guilty on Monday to a reduced charge of reckless driving, an option frequently given to first-time DUI offenders, said Gina Coburn, a spokeswoman for the San Diego City Attorney.
The standard sentence for reckless driving is three years’ probation and a $1,120 fine, Coburn said.
Cordileone’s arrest came after he was stopped at a police checkpoint near San Diego State University. His mother and a visiting priest from Germany were with him in the car he was driving. He said at the time that he had consumed some alcohol while having dinner with friends then decided to drive his mother home.
As Cordileone spoke during Thursday’s mass, about three dozen gay rights advocates gathered outside the cathedral to protest his induction opposite a much larger group singing hymns of welcome for the new archbishop.
Cordileone was one of the early engineers of California’s voter-approved ban on same-sex marriage in 2008, and since 2011 has chaired the U.S. Conference of Catholic Bishops’ subcommittee charged with opposing efforts to legalize gay unions.
Several members of the Sisters of Perpetual Indulgence, a performing arts troupe of men dressed in nuns’ habits, showed up to highlight Cordileone’s connection to the “dogma of bullying” they said the same-sex marriage ban represents.
Meanwhile, interfaith tensions over the marriage issue that threatened to mar Cordileone’s day still were running high on Friday.
The Rev. Marc Andrus, the Episcopal bishop for the Bay Area and a strong same-sex marriage supporter, said he was snubbed when he showed up for the cathedral service, three days after Andrus wrote an open letter offering a spiritual home to any Catholics who felt disowned by the archbishop’s views.
Andrus said he was taken to a basement room with other invited guests, then left waiting as ushers showed everyone but him to their seats in the sanctuary, Joseph Mathews, an Episcopal spokesman said. He was still waiting when the Mass had started, so he left, Mathews said.
San Francisco Archdiocese spokesman George Wesolek chalked it up to a misunderstanding. Andrus had arrived late and missed the procession of interfaith clergy who were to be seated up front. Church staff were looking for an opportunity to bring the bishop in without disrupting the service, according to Wesolek. When they went to retrieve him, he had already left.
“We had no intention of excluding him at all,” Wesolek said. “If he felt like because of the wait that was insulting to him, we certainly will apologize.”
Andrus responded in a blog post early Friday that he was not late and that an aide to the archbishop stopped a church employee who tried to escort him into the sanctuary along with his Greek Orthodox counterpart and several priests.
“At this point, no other guests remained in the downstairs area,” he said. “At 2 p.m., when the service was to begin, I said to the employee, `I think I understand, and feel I should leave.’ Her response was, `Thank you for being understanding.’ I quietly walked out the door. No one attempted to stop me.”
Pope Benedict XVI selected Cordileone on July 27 to replace retiring Archbishop George Niederauer. Opposition to same sex marriage has emerged as a principal theme of Benedict’s papacy. In March, he urged visiting U.S .bishops to beef up their teaching about the evils of premarital sex and cohabitation, and denounced what he called the “powerful” gay marriage lobby in America.
Thursday was the feast day of San Francisco’s patron saint, St. Francis of Assisi, and the archbishop said that St. Francis, too, lived during a time of spiritual unrest, “even to the point of denigrating marriage on the basis that it was purely a material reality.”
from The Associated Press
Prop 8 Archbishop Arrested For DUI
Gay Marriage Ban Supporter Named San Francisco Archbishop
SAN DIEGO, CALIFORNIA — The archbishop-elect of San Francisco for the Roman Catholic Church was arrested and jailed Saturday in San Diego on suspicion of drunken driving, police said Monday.
Bishop Salvatore J. Cordileone, 56, who was appointed archbishop in July, was taken into custody at 12:26 a.m. after being stopped at a DUI checkpoint near San Diego State University, police said.
Cordileone was booked into county jail on a misdemeanor charge of driving under the influence and later posted bail. Ten others also were arrested at the checkpoint, police said.
A San Diego native, Cordileone has been serving as Oakland’s bishop and is set to be installed as San Francisco’s archbishop in October. Pope Benedict XVI appointed him to the post.
Cordileone issued a statement Monday saying he was driving his mother home after having had dinner at some friends’ house when police stopped him. He said he was found to be over the 0.08 percent legal blood-alcohol level.
“I apologize for my error in judgment and feel shame for the disgrace I have brought upon the Church and myself,” he said. “I will repay my debt to society and I ask forgiveness from my family and my friends and co-workers at the Diocese of Oakland and the Archdiocese of San Francisco. I pray that God, in His inscrutable wisdom, will bring some good out of this.”
Cordileone gained attention when he worked to qualify Proposition 8 for the ballot. Voters in 2008 approved the measure, which banned same-sex marriage in California, and Cordileone worked for its passage.
He was ordained as a bishop in August 2002, after the late Pope John Paul II appointed him the auxiliary bishop of San Diego.
A priest for 30 years, Cordileone formerly served as associate pastor of St. Martin of Tours Parish in La Mesa and as pastor of Our Lady of Guadalupe Parish in Calexico.
He served in Rome for seven years as an assistant at the Supreme Tribunal of the Apostolic Signatura, the highest judicial body in the Vatican.
from The San Diego Union-Tribune
Gay Marriage Ban Supporter Named San Francisco Archbishop
California’s legal battle over same-sex nuptials is now headed to the U.S. Supreme Court, the final chapter in four years of litigation over the constitutionality of Proposition 8′s ban on gay marriage.
In a brief order Tuesday, the U.S. 9th Circuit Court of Appeals said a majority of the court’s active judges voted against reconsidering a three-judge panel’s decision to overturn the voter-approved 2008 state constitutional amendment. Three dissenting 9th Circuit judges who favored review called the panel’s ruling a “gross misapplication” of the law that “roundly trumped California’s democratic process.” The two judges who voted to overturn the ban last February reiterated Tuesday that their decision was limited to the situation in California.
Lawyers in the case expect the U.S. Supreme Court to review Proposition 8 this fall and decide its constitutionality next June. Until the Supreme Court acts, the 9th Circuit’s order will be on hold and Proposition 8 will remain in effect.
“The end is now in sight,” said Chad Griffin, who started an organization that is financing the legal battle against Proposition 8.
“We are not at the end of the line yet, but we are vastly closer,” said Theodore B. Olson, one of the lawyers for two same-sex couples who challenged Proposition 8 in federal court
The case is heading to the high court at the same time as another landmark gay-rights ruling. The 1st Circuit Court of Appeals last week overturned the 1996 Defense of Marriage Act, ruling that the federal ban on recognizing same-sex marriages violated the U.S. Constitution.
The dissents in Tuesday’s 9th Circuit decision showed that courts remain divided on the issue. Judge Diarmuid O’Scannlain, joined by two other jurists, wrote that even President Obama favored letting states decide “in a respectful way” whether to permit gays to marry.
“Today our court has silenced any such respectful conversation,” wrote O’Scannlain, who was appointed by President Reagan. O’Scannlain complained that the 9th Circuit’s refusal to review the case endorsed a view that “animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”
“Even worse,” O’Scannlain continued, “we have overruled the will of 7 million California Proposition 8 voters.” He was joined by Judges Jay S. Bybee and Carlos T. Bea, both appointees of President George W. Bush.
Judges Stephen Reinhardt and Michael Daly Hawkins, who voted in February to overturn Proposition 8, responded in a concurring opinion that their ruling applied the law to the facts in California, where voters reinstated a marriage ban six months after the California Supreme Court gave gays the right to wed. The panel’s decision was based on a 1996 Supreme Court precedent that said a majority may not take away a minority’s rights without legitimate reasons.
“We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid,” wrote Reinhardt, who was appointed by President Carter, and Hawkins, a Clinton appointee. “We did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage.”
Whether the case will remain so narrow depends on the U.S. Supreme Court. Lawyers fighting Proposition 8 will oppose high court review, lest they lose even their narrow victory. They nevertheless expect the court to take the case and plan to argue that all marriage bans violate the constitutional rights to fairness under the law and freedom from discrimination.
The Supreme Court has a conservative majority, but Justice Anthony Kennedy occasionally departs from it and joins the more liberal justices. Kennedy has written key gay rights rulings and may be the deciding vote in the marriage debate.
The question of same-sex marriage is reaching the high court at a time when public support appears to be rising.
In the three years since the federal suit was filed, a law that banned openly gay men and lesbians from serving in the military has been repealed, more states have permitted same-sex marriage and Obama announced that he believes gays should be entitled to wed. Polls have shown growing support for marriage rights, though some surveys still show a plurality of respondents opposing gay marriage.
The Supreme Court has been reluctant to get ahead of public opinion, and more than half the states now bar gay marriage. But when the high court struck down a ban on interracial marriage in 1967, polls showed a majority of Americans still opposed mixed-race matrimony.
from The Los Angeles Times
The star-studded West Coast performance of the gay marriage play “8″ led by George Clooney and Brad Pitt will be heard again this month — on radio and online.
A recording by L.A. Theatre Works of the March 3 performance in Los Angeles will be broadcast in the coming days on 90.7 KPFK in Southern California, 89.7 WGBH in Boston, 91.5 WBEZ in Chicago, 94.9 KUOW in Seattle, 91.1 KRCB in San Francisco, 89.3 WPFW in Washington, D.C.; and over 100 other markets nationwide. June is Gay Pride Month.
The play is about the 2010 federal court fight against Proposition 8, the gay-marriage ban that California voters approved in 2008. The play by Oscar winner Dustin Lance Black made its Broadway debut last year in similar starry fashion.
Relying largely on transcripts from court proceedings, “8″ introduces viewers to the couples who challenged the California initiative, the attorneys who argued their case and witness who spoke out against them. The legal fight over Prop. 8 is ongoing.
The play made its world premiere on Broadway last year starring Morgan Freeman, Anthony Edwards, John Lithgow and Cheyenne Jackson.
The trial is important to gay activists because former U.S. Solicitor General Theodore Olson and attorney David Boies — who represented opposing sides in the disputed 2000 presidential election — put on a powerfully clear argument in favor of same-sex marriage. It was recorded but Prop. 8 backers have so far succeeded in getting the U.S. Supreme Court to bar broadcast of the landmark case.
In addition to Clooney and Pitt, the Los Angeles edition also featured Kevin Bacon, Jamie Lee Curtis, Christine Lahti, Jane Lynch, Martin Sheen and John C. Reilly. It was directed by Rob Reiner.
from The Associated Press
It was good casting that killed Prop. 8. Having the right people organize fund-raising, hiring the perfect lawyers and picking the ideal plaintiffs all contributed to the Ninth Circuit Court of Appeals’ landmark Feb. 7 decision that Proposition 8 is unconstitutional. The 2008 California constitutional amendment took away the marriage rights of same-sex couples after they were granted by the state Supreme Court. The new ruling is the biggest step the federal judiciary has taken to affirm the right of gays and lesbians to marry. It goes into effect Feb. 28 unless a stay is granted; Prop. 8 proponents have vowed to take it to the Supreme Court.
The key players on the anti-Prop. 8 side were political consultant Chad Griffin, Rob and Michele Reiner, Oscar-winning producer Bruce Cohen and Milk writer Dustin Lance Black, who together formed the American Foundation for Equal Rights in 2009. AFER turned to David Geffen and Steve Bing for early funding and assembled the anti-Prop. 8 legal team of conservative attorney Theodore Olson and David Boies, a Democrat, who faced off against each other in 2000′s Bush v. Gore case.
“It was a political home run,” says Rob Reiner, who credits cause-marketing expert Kate Moulene of Capian Enterprises with telling him during a chance meeting at the Polo Lounge that Olson, her former brother-in-law, was more progressive on the gay marriage issue than he’d expect. “You’ve got one of the most conservative lawyers in the country, and he’s on our side.”(Says Moulene, “Michele and Rob thought I was certifiably crazy when I suggested this.”)
“It really was the eureka moment,” says Cohen. “Like something out of a good screenplay.” Griffin, who had worked with the Reiners on many other political initiatives, says the other key element was the plaintiffs. “When [lesbian couple] Kris Perry and Sandy Stier were testifying, their four boys were in court with tears streaming down their faces when their moms were speaking,” says Griffin. He, Olson, the Reiners, Black and the plaintiffs were at the downtown L.A. offices of their lawyers, Gibson Dunn, when they got the news. There were hugs and high-fives all around.
For AFER, the court victory was a twofer — there was the decision, plus the opportunity to bring the issue of gay marriage even more into the public eye. “The gay civil-rights movement has only found success when we’ve succeeded in telling our stories and showing who gay and lesbian people truly are,” says Black, who wrote 8, a play that dramatizes the legal battle over Prop. 8 and makes its L.A. debut at the Wilshire Ebell Theatre at an AFER fund-raiser March 3. Reiner is directing, with George Clooney playing Boies and Martin Sheen as Olson.
Cohen says the court ruling was especially significant for him. It came just days after he and his husband, Gabriel Catone, who had been married before Prop. 8 was passed, had finalized the adoption of their baby girl. Says Cohen, “We’re a family in the eyes of the law.”
Galvanized by the battle to overturn Prop. 8, Hollywood’s gay-equality activists have emerged as one of the industry’s most effective fund-raising communities. On Feb. 12, HBO programming chief Michael Lombardo and architect Sonny Ward hosted a fund-raiser at their home for former Democratic congressman and combat veteran Patrick Murphy, who is running for Pennsylvania attorney general and has pledged to fight for marriage equality if elected. On a single evening in November, the 2014 re-election campaign of New York Gov. Andrew Cuomo — who led the fight to allow same-sex marriage in that state — raised a half-million dollars at the Bel-Air home of interior designer Michael Smith and HBO vp James Costos. Guests included Chelsea Handler and J.J. Abrams. And, according to campaign filings, Democratic New York City Council Speaker Christine Quinn already has received support from Disney’s Rich Ross, Current TV’s Brian Graden and media mogul Terry Semel in her bid to become the first openly gay mayor of the most populous U.S. city.
from The Hollywood Reporter
The cast of Dustin Lance Black’s play 8 is officially complete with the addition of three more stars: Kevin Bacon, Chris Colfer and John C. Reilly, organizers announced Wednesday.
our editor recommends
Tears and Hugs as Dustin Lance Black Learns of Prop. 8 Court Decision
George Clooney to Star in Dustin Lance Black’s Proposition 8 Play
Dustin Lance Black Debuts Prop. 8 Play in New York
Star-Studded Cast Debuts Dustin Lance Black’s Prop. 8 Play
The actors will join George Clooney, Jamie Lee Curtis, Jane Lynch, Martin Sheen and some of Hollywood’s hottest young actors for a one-night-only showing in Los Angeles of the play that chronicles the historic court challenge to California’s Proposition 8.
The play, directed by Rob Reiner, will debut at the Wilshire Ebell Theatre on Saturday, March 3, for an exclusive fundraiser to support marriage equality efforts across the country.
Other cast members include Matt Bomer, Campbell Brown, Jesse Tyler Ferguson, Cleve Jones, Christine Lahti, Matthew Morrison, Rory O’Malley, Yeardley Smith and George Takei.
The story for 8 is based on the trial’s closing arguments in June 2010. Some of the scenes also include flashbacks to other trial testimony, including a statement by the Prop. 8 supporters’ star witness, David Blankenhorn, who told the court “we would be more American on the day we permitted same-sex marriage than we were on the day before.”
Clooney and Sheen will play plaintiffs’ lead co-counsel David Boies and Theodore B. Olson. Lahti and Curtis will play plaintiffs Kris Perry and Sandy Stier, a lesbian couple together for 11 years. Morrison and Bomer will play plaintiffs Paul Katami and Jeff Zarrillo, a gay couple together for more than a decade.
Lynch will play prominent opponent of marriage equality Maggie Gallagher, co-founder and former chairman of the National Organization for Marriage. Reiner will play Blankenhorn, founder and president of the Institute for American Values.
Reilly will play United States District Chief Judge Vaughn R. Walker, who found Proposition 8 unconstitutional after presiding over the historic twelve-day public trial. Bacon will play Charles J. Cooper, the lead attorney for the anti-marriage proponents of Proposition 8. And Colfer will play Ryan Kendall, who testified about his experience being sent by his parents to so-called “reparative therapy” as a teenager.
from The Hollywood Reporter
Tears And Hugs As Dustin Lance Black Learns Of Prop. 8 Court Decision
Gay Marriage Play ’8′ Goes National During 2012
George Clooney To Star In Dustin Lance Black’s Proposition 8 Play
Play About Prop 8 Hits Broadway
For Oscar-winning screenwriter Dustin Lance Black, it was a landmark Tuesday morning filled with tears, hugs and gratitude.
Alongside allies like filmmaker Rob Reiner and the plaintiffs in the Perry v. Schwarzenegger lawsuit that sought to overturn the Proposition 8 gay marriage ban, Black learned of the 9th Circuit Court of Appeals’ ruling that the state ballot measure passed by voters in 2008 violated the U.S. Constitution.
Black, a board member of American Foundation for Equal Rights (AFER), the group created to support the four plaintiffs in the case, learned of the 2-1 decision at around 10 a.m. Tuesday while surrounded by about a dozen people in the downtown Los Angeles law offices of Gibson Dunn & Crutcher, which represents AFER.
“It is not cheers and high fives — it is hugs and a far too long delayed sense of respect. So there are tears,” Black, an outspoken opponent of the ballot measure, told The Hollywood Reporter. “It was an overwhelming sense of gratitude and almost reverence for what it means to be an American in this country and to finally be told that you are equally respected and you will be equally protected in this country.”
The federal appeals court’s decision to overturn California’s ban on gay marriage sets up a likely showdown at the U.S. Supreme Court over the issue of whether marriage is defined as between a man and a woman. Proponents of Proposition 8 have vowed to appeal, and the case could reach the high court as early as next year.
“Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court ruled. (Read the 9th Circuit Court of Appeals decision here.)
The celebrating group also included Gibson Dunn star attorneys Ted Olson (who led the legal team along with David Boies) and Ted Boutrous, and plaintiffs Kristin Perry, Sandra Steir, Paul Katami and Jeffrey Zarrillo. Black said that the AFER attorneys were emailed the decision and immediately set to work parsing the 39-page document. He said “a chorus of people” quickly pronounced victory. “It only took a couple of minutes before it was clear we had won.”
Black said that while he would celebrate the victory, there is more work to be done. The court left in place a stay, which means that gay marriages may not resume in California.
“We do have to wait and see what our opponents’ next move is,” said Black, who won the 2009 Oscar for best original screnplay for Milk, which chronicled the life of slain gay rights activist Harvey Milk. “We also have to see what the U.S. Supreme Court decides to do. At this point we are celebrating a victory. Tomorrow we will get back to the hard work to make sure that marriage applies to every citizen in this country.”
The ruling upheld a decision by retired Chief U.S. District Judge Vaughn R. Walker, who struck down the ballot measure in 2010 after holding an unprecedented trial on the nature of sexual orientation and the history of marriage.
“This means so much to us in California and so much to those across the country who want to be married and feel that is in their future,” said Black, whose credits also include J. Edgar and several episodes of HBO’s Big Love. “Tonight and tomorrow morning young people across the country — young LGBT kids — are going to hear that the government respects them and values them and will protect them. That is a life saving message.”
On March 3, George Clooney will star as Boies opposite Martin Sheen, who will play Olson, in a one-night benefit staging of 8, a play Black has written based on the trial transcripts. Reiner is directing the production, which will take place at the Wilshire Ebell Theatre in Los Angeles.
In November, Reiner, who is also an AFER board member, told THR that he also is developing a film based on the legal challenge to Proposition 8.
from The Hollywood Reporter
SAN FRANCISCO, CALIFORNIA – Conservative critics like to point out that the federal appeals court that just declared California’s same-sex marriage ban to be unconstitutional has its decisions overturned by the U.S. Supreme Court more often than other judicial circuits, a record that could prove predictive if the high court agrees to review the gay marriage case on appeal.
Yet legal experts seemed to think the panel of the San Francisco-based 9th U.S. Circuit of Appeals struck down the voter-approved ban on Tuesday purposefully served up its 2-1 opinion in a narrow way and seasoned it with established holdings so the Supreme Court would be less tempted to bite.
The appeals court not only limited the scope of its decision to California, even though the 9th Circuit also has jurisdiction in eight other western states, but relied on the Supreme Court’s own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people to argue that the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians.
That approach makes it much less likely the high court would find it necessary to step in, as it might have if the 9th Circuit panel had concluded that any state laws or amendments limiting marriage to a man and a woman run afoul of the U.S. Constitution’s promise of equal treatment, several analysts said.
“There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on,” University of Michigan law school professor Steve Sanders said. “The liberals on the court are going to recognize this was a sensible, sound decision that doesn’t get ahead of the national debate … and I don’t think the decision would be so objectionable to the court’s conservatives that they would see a reason to reach out and smack the 9th Circuit.”
Lawyers for the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot and campaigned for its passage said they have not decided whether to ask a bigger 9th Circuit to rehear the case or to take an appeal directly to the Supreme Court. However, they said they were optimistic that if the high court accepts an appeal, Tuesday’s ruling would be reversed.
“The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned,” Andy Pugno, the coalition’s general counsel, said in a fundraising letter to Proposition 8′s supporters. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.”
Regardless of their next steps, gay and lesbian couples were unlikely to be able to get married in California anytime soon. The 9th Circuit panel’s ruling will not take effect until after the deadline passes in two weeks for Proposition 8′s backers to appeal to a larger panel, and the earliest the Supreme Court could consider whether to take the case would be in the fall.
Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court’s liberal lion, wrote Tuesday’s 80-page majority ruling with concurrence from Judge Michael Daly Hawkins, an early appointee of President Bill Clinton. Judge Randy Smith, who was the last 9th Circuit judge nominated by President George W. Bush, dissented.
In tailoring the decision to apply only to California, Reinhardt cited two factors that distinguish Proposition 8 from the one-man, one-woman marriage laws and constitutional amendments in the other 9th Circuit states and that he said demonstrate that it “serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians.”
The first is that California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners. The second is that five months before Proposition 8 was enacted as a state constitutional amendment, the California Supreme Court’s Court had legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman. California is the only state, therefore, where gays have won the right to marry and had it stripped away.
The amendment’s “singular” work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8′s deprive same-sex relationships of society’s dignity and respect, Reinhardt wrote.
“A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of `registered domestic partnership’ does not,” he said. “We are excited to see someone ask, `Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly, it would not have the same effect to see, `Will you enter into a registered domestic partnership with me?’”
The opinion goes on to draw parallels between California’s same-sex marriage ban and the Colorado opinion the Supreme Court struck down on a 6-3 vote after concluding that it was based on moral disapproval of gays. Justice Anthony Kennedy wrote the majority opinion in that case, known as Romer v. Evans, and if the court agrees to take up Proposition 8, the similarities could hit the “sweet spot” that might persuade him to side with four other justices in upholding the 9th Circuit, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles.
“Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don’t know if he is ready to go so far as to say nationwide same-sex couples can get married,” NeJaime said. “I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same sex couples.”
Smith, the lone dissenting judge, disagreed that Proposition 8 necessarily served no purpose other than to treat gays and lesbians as second-class citizens. He pointed out that its backers claimed it could serve to promote responsible child-rearing among opposite-sex couples, and said courts were obligated to uphold laws in the face of civil rights challenges unless they were “clearly wrong, a display of arbitrary power (or) not an exercise of judgment.”
“There is good reason for this restraint,” Smith said.
from The Associated Press
SAN FRANCISCO – A federal appeals court has declared California’s 2008 voter-approved ban on same-sex marriage unconstitutional, concluding that the prohibition served no purpose other than to “lessen the status and human dignity of gays and lesbians.”
The 2-1 ruling by the U.S. 9th Circuit Court of Appeals was narrowly written to limit its scope to California’s borders and possibly even avoid review by the U.S. Supreme Court, legal experts said. Nonetheless, gay-rights advocates hailed Tuesday’s decision as historic, while supporters of Proposition 8 immediately vowed to appeal.
Instead of expanding the constitutional rights of gays and lesbians, the court based its decision on a 1996 U.S. Supreme Court precedent that said a majority may not take away a minority’s rights without legitimate reasons.
“Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships,” Judge Stephen Reinhardt wrote for the court.
The ruling won’t take effect immediately; supporters of Proposition 8 have two weeks to appeal to the circuit court and 90 days to file a petition for Supreme Court review.
Though divided on the constitutional question, the three-judge panel unanimously agreed that ProtectMarriage, the backers of Proposition 8, had the right or legal “standing” to appeal Chief U.S. District Judge Vaughn R. Walker’s 2010 ruling against the ballot measure.
The panel also unanimously rejected a challenge by ProtectMarriage that Walker’s ruling should be set aside because he failed to disclose that he was in a long term same-sex relationship. Walker, who has since retired, ruled after an unprecedented, two-week trial that examined the meaning of sexual orientation and the history of marriage and gay rights.
“It’s no surprise that the 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage,” said Andy Pugno, a lawyer for ProtectMarriage. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.”
But other lawyers and legal scholars said the 9th Circuit might have the final word on Proposition 8 because the ruling was so pointedly limited to California, a state where voters stripped a minority of a right that already existed and where the usual justifications for a same-sex marriage ban, responsible parenting and procreation, are undercut by domestic partner laws.
Proposition 8 passed as a constitutional amendment six months after the California Supreme Court struck down a state law that limited marriage to a man and a woman, and an estimated 18,000 same-sex couples married during that time. The initiative also did not affect parenting rights of gays and lesbians, which are protected under other state laws.
“That legal background does not exist in most states,” said University of Minnesota Law School professor Dale Carpenter, who has followed the case.
Loyola law professor Douglas NeJaime agreed, noting that Tuesday’s decision allows the U.S. Supreme Court to postpone a pronouncement on same-sex marriage until a more sweeping case comes along.
“The 9th Circuit decided the case in a way that would allow the Supreme Court to affirm without having to significantly expand on its existing jurisprudence and without having to rule on marriage for same-sex couples on a national scale,” NeJaime said.
ProtectMarriage could ask a larger panel of the 9th Circuit to review Tuesday’s ruling, which could keep the case in the circuit for another year. If the group went directly to the Supreme Court and won review, the high court could rule on the case next year.
ProtectMarriage has long said it wanted the high court to get the case as soon as possible, but its representative said Tuesday that the organization has yet to decide its next step.
In the opinion, Reinhardt drew close parallels between Proposition 8 and a 1992 Colorado initiative that barred the government from passing laws to protect the civil rights of gays and lesbians. The U.S. Supreme Court, in a decision written by Justice Anthony M. Kennedy, struck down Colorado’s law in 1996.
Calling Proposition 8 “remarkably similar” to the Colorado initiative, the 9th Circuit said both measures singled out one class of people and removed an existing right without serving any reasonable purpose.
“It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman,” the court said.
David Boies, one of the lawyers for two same-sex couples who sued to overturn Proposition 8, said the ruling presented “the most difficult set of facts” possible for ProtectMarriage because the decision “so squarely fits” the high court’s precedent in Evans vs. Romer, the case that struck down the Colorado measure.
from The Los Angeles Times
George Clooney has signed to star in the West Coast premiere of 8, a stage play chronicling the historic federal court trial overturning Proposition 8, the ballot measure that denied gay and lesbian Californians the right to marry.
The production — directed by Rob Reiner and written by Dustin Lance Black — will run one night only at Los Angeles’ Wilshire Ebell Theatre on March 3. Proceeds will benefit the American Foundation for Equal Rights in its national fight for marriage equality.
“It is astonishing that gay and lesbian Americans are still treated as second-class citizens,” Clooney said. “I am confident that, very soon, the laws of this nation will reflect the basic truth that gay and lesbian people — like all human beings — are born equal in dignity and rights.”
Opponents of Proposition 8 have called on the court to unseal the video of the federal trial for the public to see. A ruling is expected soon. In the meantime, the limited showing of 8 will have to suffice.
“People need to witness what happened in the Proposition 8 trial,” says Black, the Oscar-winning writer of the Harvey Milk biopic Milk as well as this year’s J. Edgar, “if for no other reason than to see inequality and discrimination unequivocally rejected in a court of law where truth and facts matter.”
The move west follows a successful performance of the play in New York in September featuring a cast including Morgan Freeman, Ellen Barkin, John Lithgow and Bradley Whitford. In the L.A. version, Clooney will be joined by another all-star cast who will play the roles of the legal teams, plaintiffs and witnesses for both sides of the case, which is now on appeal. Additional cast members will be announced soon.
“This play will continue to show Americans — one by one — that prejudice and fear cannot stand up to truth and justice,” said AFER Board president Chad Griffin. “Our Constitution neither knows nor tolerates the treatment of gays and lesbians as second-class citizens.”
from The Hollywood Reporter
SAN FRANCISCO, CALIFORNIA – The sponsors of California’s gay marriage ban renewed their effort Thursday to disqualify a federal judge because of his same-sex relationship, but they met a skeptical audience in an appeals court panel.
It’s the first time an American jurist’s sexual orientation has been cited as grounds for overturning a court decision.
Lawyers for a coalition of religious conservative groups told a three-judge panel of the 9th U.S. Circuit Court of Appeals that Chief U.S. District Judge Vaughn Walker should have revealed he had a long-term male partner before he presided over a trial on the measure’s constitutionality. He also should have stated whether he had any interest in getting married, the lawyers said.
Because he did not, Walker’s impartiality stands in doubt and the decision he ultimately made to strike down Proposition 8 as a violation of Californians’ civil rights must be reversed, said Charles Cooper, an attorney for the ban’s backers.
“In May 2009, when Judge Walker read the allegations of the complaint, he knew something the litigants and the public did not know: He knew that he, too, like the plaintiffs, was a gay resident of California who was involved in a long-term, serious relationship with an individual of the same sex,” Cooper said. “The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts.”
Judge R. Randy Smith, who represents Idaho on the 9th Circuit, interrupted to forcefully ask why a gay judge would be any more obligated to divulge his relationship status and views on matrimony than would a married straight judge who opposes same-sex marriage.
“So a married judge could never hear a divorce?” Smith asked.
“Your honor, I don’t see the difficulty with a married judge hearing a divorce action,” Cooper answered.
Smith replied: “Would he have to disclose, `Oh, I’ve been married, and we’ve been married for 24 years and we have a relationship that’s kind of difficult’? That’s what you are arguing here?”
Cooper said the hypothetical situation Smith described was different because if Walker, who is now retired, had “desired to marry his partner, he would have stood in exactly the same shoes as the plaintiffs in this case.”
David Boies, a lawyer representing the two same-sex couples who successfully sued to strike down Proposition 8 in Walker’s court, attacked Cooper’s reasoning, arguing that judicial ethics rules never have required judges to bow out of civil rights cases because they are members of the minority group whose constitutional rights are at issue.
Cooper’s “perverse logic is that only judges, gay or straight, who have no interest in marrying and the institution of marriage would be the only ones who could hear this case,” Boies said.
Judge Stephen Reinhardt, of California, asked if the presumption that Walker could be unbiased in a same-sex marriage case would be valid even if the judge had disclosed at the start of the trial that he planned to get married once the case were over and he legally could.
“Mr. Cooper’s point is the absence of that information raises an obligation on the part of the judge to disclose whether he wants to get married or not,” Reinhardt said. “He says it’s relevant because it allows the public to determine whether there is a reason for recusal, and that applies not only to `Yes, I do intend to get married,’ but, `No, I do not intend to get married.”
Boies answered that Walker had no obligation to reveal his personal thoughts on marriage either way, but that expecting him to have spoken up to disavow any interest in marrying his partner was “an intolerable double standard” for gay and lesbian judges.
“A heterosexual judge may feel passionately about preserving the institution of marriage. Does that judge have an obligation to volunteer, to come forward, to tell the parties what his views of marriage are and his views of the institution of marriage?” Boies asked.
The appeals court did not immediately rule on the matter.
In June, Walker’s successor, Chief Judge James Ware, rejected the same arguments from the ban’s backers that Walker’s ruling should be overturned because he might personally benefit from declaring Proposition 8 unconstitutional. The hearing Thursday was over an appeal of Ware’s decision.
The 9th Circuit panel also heard arguments on whether it should unseal video recordings Walker made of the January 2010 trial.
After the U.S. Supreme Court barred the trial’s video broadcast beyond Walker’s courtroom, the judge had his staff record the proceedings but said they would only be viewed by him in his chambers to refresh his memory while he was preparing his opinion.
Lawyers for the two couples and a coalition of media organizations that includes The Associated Press are asking the appeals court to make the recordings public.
The 9th Circuit has said it needed to hear arguments on both the significance of Walker’s relationship and the public release of the trial videos before it can address the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds.
The appeals court panel heard arguments about that in January but does not face a deadline for making a decision.
from The Associated Press
Derence Kernek and Ed Watson became prominent faces in the California gay community’s campaign for the right to marry when they urged a federal appeals court earlier this year to halt the enforcement of Proposition 8 so they could wed before Watson succumbed to advancing illness.
On the eve of a Thursday hearing on challenges to a 2010 ruling that the voter initiative banning same-sex marriage is unconstitutional, Watson died at age 78 of complications from Alzheimer’s disease, diabetes and hypertension.
Gay rights activists lamented Watson’s death as a reminder of the harm inflicted on same-sex couples throughout the state because they are denied the right to marry.
“It’s ironic that he died on the eve of appeals about peripheral issues around a case that should have been settled more than a year ago,” said Richard Jacobs, chairman and founder of the gay rights advocacy group Courage Campaign, as he was en route to San Francisco for a hearing before the 9th U.S. Circuit Court of Appeals. “None of this will matter to Ed or Derence.”
U.S. District Judge Vaughn R. Walker ruled on Aug. 4, 2010, that Proposition 8 violated the constitutional rights of gays and lesbians to due process and equal protection under the law. Sponsors of the initiative passed by 52% of Californians who voted in November 2008 have appealed Walker’s ruling and won a suspension of it pending the 9th Circuit’s ruling.
Proposition 8 supporters also filed suit claiming that Walker, who was in a same-sex relationship when he presided over the January 2010 trial, was biased on the matter and unable to conduct a fair trial. That argument failed before another federal judge, and it was the gay marriage opponents’ appeal of that ruling that was before the 9th Circuit on Thursday.
Kernek and Watson videotaped a plea to the 9th Circuit in March, asking that the court allow Walker’s ruling to take effect so they could marry while Watson could still remember their 40-year relationship.
“Just wanted to let you know that Ed passed at 22:15 this evening,” Kernek, 80, said in an email to friends and supporters from the couple’s home in Palm Springs.
The couple’s inability to marry deprived Watson of coverage under Kernek’s out-of-state retirement plan, imposing financial hardships.
Kernek could not be reached for comment because, according to Courage Campaign organizer Anthony Ash, their telephone was recently disconnected.
from The Los Angeles Times
SAN FRANCISCO, CALIFORNIA – The California Supreme Court ruled that the sponsors of Proposition 8 have the right to defend the measure, clearing the way for federal courts to decide the constitutionality of same-sex marriage bans.
Thursday’s unanimous decision, written by Chief Justice Tani Cantil-Sakauye, strongly affirmed that ballot sponsors may represent California in defending initiatives when elected officials fail to do so. Gov. Jerry Brown and Atty. Gen. Kamala D. Harris have refused to challenge last year’s federal ruling against Proposition 8.
“Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters,” Cantil-Sakauye wrote for the court.
Legal scholars said the state high court’s decision was so adamant that the U.S. Supreme Court, which could decide marriage rights as early as 2013, was unlikely to limit its ruling to the narrow and technical issue of “standing,” a legal term for the right to go to court.
“It’s a gangbusters opinion,” said Santa Clara University law professor Gerald Uelmen, an expert on the state high court.
“This makes such a strong case that the sponsors represent the state and can represent the state’s interests that it pretty much seals the deal,” he said.
Advocates for two same-sex couples who challenged Proposition 8 in federal court said Thursday that they expected the U.S. 9th Circuit Court of Appeals to rule no later than February on the constitutionality of the 2008 ballot measure, which banned same-sex marriage.
The 9th Circuit indicated last December that it was leaning toward finding Proposition 8 unconstitutional if the standing issue was resolved. But such a decision would probably be appealed to the U.S. Supreme Court.
The 9th Circuit’s ruling will affect all Western states within its jurisdiction. If the U.S. Supreme Court upholds marriage rights, its decision would benefit gays even in states like New York where same-sex marriage is already legal, activists said.
In asking the California Supreme Court to clarify the right of sponsors to defend Proposition 8, a three-judge panel of the 9th Circuit said it would abide by the state court’s decision.
Thursday’s ruling was a defeat for gay rights groups, which argued that ProtectMarriage had no standing to appeal U.S. District Judge Vaughn R. Walker’s ruling last year that found the state’s same-sex marriage ban unconstitutional. The groups contended that only elected state officials could appeal.
But Jennifer Cunningham, a New York coordinator of several gay rights groups, said the California Supreme Court decision would accelerate federal review of marriage rights, and “a rising tide lifts all boats.”
The California court’s decision was also a setback for state officials, who had insisted that they had the exclusive right to defend ballot measures in court.
In a terse statement, the attorney general noted that the court had disagreed with her but expressed certainty that “justice will prevail” in the federal courts. Seven national polls during the last year have reported majority support for same-sex marriage.
ProtectMarriage celebrated the ruling, contending that it signaled the demise of the Proposition 8 lawsuit.
“This ruling is a huge disaster for the homosexual marriage extremists,” said Andy Pugno, an attorney for ProtectMarriage.
“The court totally rejected their demands that their lawsuit to invalidate Proposition 8 should win by default with no defense,” he said.
“Their entire strategy relied on finding a biased judge and keeping the voters completely unrepresented. Today that all crumbled before their eyes.”
Several gay rights groups expressed disappointment.
If the state court had found that ProtectMarriage lacked standing, Judge Walker’s ruling would have remained on the books and ProtectMarriage’s appeal would have been dismissed.
But Walker’s ruling would have been limited to California.
“This ruling means that it may be years before loving gay and lesbian couples will again be able to marry in California,” said Tom Watson, chairman of the board of the gay rights group Love Honor Cherish.
Chad Griffin, who heads a group that launched the federal Proposition 8 challenge, said he was relieved the case would return to federal court. Griffin said he still expects to prevail on constitutional questions.
“I have always said that either way the California Supreme Court rules, we will ultimately achieve our goal, and that is Proposition 8 being erased from the books,” Griffin said.
The court’s 61-page ruling upheld the rights of all initiative sponsors, not just ProtectMarriage. Legal analysts described it as well-crafted and broad.
The chief justice stressed that the decision was not about gay rights but about the initiative process.
“The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself,” Cantil-Sakauye wrote.
Justice Joyce L Kennard, writing separately, said the “integrity and effectiveness of the judicial process require that a competent and spirited defense be presented” when an initiative is challenged.
Otherwise, Kennard wrote, the state’s executive branch could “effectively annul voter-approved initiatives simply by declining to defend them.”
UC Irvine Law School Dean Erwin Chemerinsky said the ultimate victor in Thursday’s decision would not be known until the U.S. Supreme Court ruled.
“If the Supreme Court uses this as the vehicle for holding there is a right to marriage equality for gays and lesbians, then what the California Supreme Court did today will turn out to be a huge victory for gays and lesbians,” said Chemerinsky, who contends that Proposition 8 is unconstitutional.
The 9th Circuit is considering other pending disputes over Proposition 8 beside its constitutionality.
ProtectMarriage wants the appeals court to overturn Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship.
Walker, a Republican appointee with libertarian views, did not publicly disclose his sexual orientation until after his ruling, nor did he attempt to hide it. The silver-haired, now-retired jurist often took his partner to bar events in San Francisco.
The 9th Circuit has also scheduled a hearing for early next month on whether to make public the videotape and recordings of the Proposition 8 trial. ProtectMarriage has argued that they should remain sealed. Gay rights groups want them released.
Gay couples challenged Proposition 8 in federal court just days before the California Supreme Court held that it was a valid state constitutional amendment. The state high court had ruled 4 to 3 in May 2008 that the state’s marriage ban was unconstitutional, but Proposition 8 reinstated the ban the following November.
from The Los Angeles Times
SAN FRANCISCO – The sponsors of California’s same-sex marriage ban said Monday that the recent disclosure by the federal judge who struck down Proposition 8 that he is in a long-term relationship with another man has given them new grounds to have his historic ruling overturned.
Lawyers for the ban’s backers filed a motion in San Francisco’s U.S. District Court, arguing that Chief U.S. District Judge Vaughn Walker should have removed himself from the case or at least disclosed his relationship status because his “impartiality might reasonably be questioned.”
“Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot wrote.
They are now asking the judge who inherited the case when Walker retired at the end of February to vacate Walker’s August 2010 decision. The 9th U.S. Circuit Court of Appeals already is reviewing the legal merits of Walker’s ruling at the request of Proposition 8′s proponents.
Lawyers for the two same-sex couples who successfully sued for the right to marry in Walker’s court were reviewing the motion and did not have immediate comment.
Walker, a 67-year-old Republican appointee, declared Proposition 8 to be an unconstitutional violation of gay Californian’s civil rights last summer. He retired from the bench at the end of February.
Rumors that the judge was gay circulated during the 13-day trial that preceded his decision and after he handed down his ruling.
Lawyers for Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, however, have not previously raised his sexual orientation as a legal issue.
Protect Marriage general counsel Andy Pugno said that changed when the judge this month told a group of courthouse reporters about his 10-year relationship. The issue is not that Walker is gay, but that his relationship status made him too similar to the same-sex couples who sued for the right to marry, Pugno said.
“We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.
Walker said at the time that he did not consider his sexual orientation to be any more a reason for recusal than another judge’s race or gender normally would be.
from The Associated Press