Prop 8 On Trial


Currently browsing the General category.



Perry v. Schwarzenegger becomes Perry v. Brown

The same Perry attorneys head back to court Tuesday, but their arguments will appear under a new docket name: Perry v. Brown.

In March, the federal courts updated the names of the Perry defendants to reflect California’s newly-elected political officials, who took office on January 3.  The docket now reflects that, since the Perry case began, Jerry Brown has replaced Arnold Schwarzenegger as California’s governor, and former San Francisco District Attorney Kamala Harris has replaced Brown as the state’s attorney general.

The docket change is an automatic substitution that occurs when a suit is pending against any public official “in his or her official capacity,”  meaning that the defendants are being sued as state figureheads and not as individuals with personal liability.  The case is now formally known as Kristin Perry, et al v. Edmund G. Brown, Jr., et al.  Its Ninth Circuit docket number remains 10-16751.

At the California Supreme Court on Tuesday, attorneys on both sides will argue about whether California law would allow the Proposition 8 defendants to appeal an unfavorable state court decision if the California governor and attorney general refused to do so.  Judges from the Ninth Circuit have asked the California Supreme Court to answer this question.  The federal judges may use California’s approach to guide their own decision about whether the Proposition 8 proponents have the “standing”  – or legal authority – to appeal the unfavorable decision they received last year in federal district court, where former Chief Judge Vaughn Walker ruled that Proposition 8 violated the U.S. Constitution.  For more on the issue, click here.

Share
AddThis Social Bookmark Button

Civil marriage and its history: Cott as the key to Prop 8?

Nancy CottFor more than twenty years, Harvard history professor Nancy Cott has studied family, gender, marriage, and citizenship. In 2000, she published Public Vows: A History of Marriage and the Nation, and in 2010, she took the stand in Perry v. Schwarzenegger to describe her conclusions.

At bottom, Cott testified that, when a couple exchanges marriage vows, the state takes a simultaneous vow to protect and support that union. “Marriage is both a public and private institution,” Cott said. Most people think principally about the private aspects of the union: Have they found a partner whom they love? Do they want to embark upon a lifelong intimate relationship with this person? However, marriage is also a public institution first authorized and then used by the state as a tool for achieving its own objectives, the most important of which is creating stable households that assist in caring for and governing the populace, Cott said.

Unfortunately, due to the volume of news on the first day of Perry testimony, Prop 8 on Trial was unable to cover Cott’s remarks in detail. However, we have chosen to revisit them now because we believe her perspective is crucial to understanding one of the principal inquiries before the Ninth Circuit: What is the history and importance of civil marriage in the United States? Indeed, the spirit of this question was raised by then-Chief Judge Vaughn Walker himself during the trial’s opening statements, when he provocatively asked, “If California were to get out of the marriage business – and simply classify everyone as registered domestic partners, wouldn’t that solve the problem?”  The “problem” to which Walker referred was the desire of gay and lesbian people to live in a state that allows them to marry another person of the same sex – and the conflicting desire of Proposition 8 supporters to exclude homosexual couples from civil marriage.

Read on to study Cott’s historical perspective on what civil marriage is, why the state remains committed it, and – first – why she thinks allowing same-sex couples to join this institution would comport with 150 years of evolution in marital law.

Read the rest of this entry »

Share
AddThis Social Bookmark Button

California Supreme Court to hear standing issue

The California Supreme Court announced Wednesday that it would re-enter the legal battle surrounding same-sex marriage and seek to hear further arguments by September.

Perry v. Schwarzenegger
, the federal lawsuit challenging California’s ban on same-sex marriage, stalled last month, when a three judge panel for the Ninth U.S. Circuit Court of Appeals ruled that it did not know whether it had jurisdiction to hear the case.  The panel said that it needed more information on California law.  Specifically, it needed to know whether the official proponents of a successful California ballot measure can defend that measure in court when the state’s normal law enforcement officers refuse to do so.

At the moment, California’s statutes and court decisions do not adequately address this question, so the federal court has requested additional guidance from the California Supreme Court.  On Wednesday, the California court unanimously announced its intent to  answer.  The court also said that it would expedite the matter and require submission of the parties’ first briefs in March.

Read the rest of this entry »

Share
AddThis Social Bookmark Button

View the Ninth Circuit arguments online

C-SPAN’s video archive still hosts a recording of the Perry v. Schwarzenegger arguments held at the Ninth Circuit U.S. Court of Appeals in December.  Click here to access the 2.5-hour session.

Share
AddThis Social Bookmark Button

Ninth Circuit to hear and broadcast appellate arguments today

Appellate arguments in Perry v. Schwarzenegger begin at 10am PST today.

The proceedings are expected to last for about two hours. During the first hour, lawyers will argue whether Proposition 8 supporters have standing to appeal U.S. District Judge Vaughn Walker’s August decision, which struck down California’s gay marriage ban.  During the second hour, attorneys will address whether the ban violates the U.S. Constitution.

Both sides expect to weather vigorous questioning from a three-judge panel featuring Ninth Circuit judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith.

The panel will sit in Courtroom One of the James R. Browning U.S. Courthouse in San Francisco.  Public seating will not be available there.  However, several media outlets, law schools, and courthouses are hosting live broadcasts of the proceedings.  Please click below for details on how to attend or tune in.

Read the rest of this entry »

Share
AddThis Social Bookmark Button

Appellate briefs and exhibits

In anticipation of today’s oral arguments in Perry v. Schwarzenegger, Prop 8 on Trial is posting copies of the parties’ appellate briefs. Attorneys filed these documents in September, October, and November of this year.  During arguments today, three Ninth Circuit judges will follow-up on questions either raised by or not addressed by these documents.

Please click below to access these multi-media elements.

Read the rest of this entry »

Share
AddThis Social Bookmark Button

The power of language and labels in Perry

Helen ZiaHusband. Wife. Marriage.

Much of Perry v. Schwarzenegger is about these words and who has the right to use them.  The parties agree that these are universal terms – understood in every language and culture, but they disagree about whether participants in a gay relationship should use the terms in describing each other.

Interestingly, these terms – husband, wife, marriage – were not the only important words in Perry, which often demonstrated the power of language itself.  Witnesses spoke of the insulting ambiguity in the word “partner.”  Their fear in hearing the word “abomination.”  The moment one of them decided to search his dictionary for the word “homosexual.”  Indeed, to a great extent, Perry is not just about men, women, and marriage but about the effects that all words have on the people who use and hear them.

Read the rest of this entry »

Share
AddThis Social Bookmark Button

Jerry Sanders: A glimpse of the gay marriage tipping point?

San Diego Mayor Jerry Sanders may have provided some of the most important testimony in Perry v.  Schwarzenegger – but not because he spoke to the suit’s legal issues.  Instead, Sanders embodies something more significant: The crest of public opinion that is rising to support marriage for same-sex couples.

In January, Sanders took the stand to confess his own anti-gay beliefs, to recount his change of heart, and to say why it is important for government to disown prejudice of all kinds.  He was a unique Perry witness for two reasons: First, he had the courage to admit his own prejudice.  Second, although he now supports gay marriage, Sanders represents a demographic that is not particularly likely to do so.

But while Sanders’ story was unique at trial, it is not unique in American society.  If we believe public opinion polls showing that gay marriage is moving toward moderate acceptance, then his story of conversion can be told by millions of Americans.  As such, it is emblematic of a great social change and deserving of special attention.

Read the rest of this entry »

Share
AddThis Social Bookmark Button

Ninth Circuit stays Prop 8 ruling

The Ninth Circuit has put on hold an August 4 federal court ruling that overturned California’s ban on same-sex marriages. Responding to a request by backers of Proposition 8, the motions panel of the appeals court said the prohibition on same-sex marriages would remain until a three-judge panel can begin wrestling with an appeal later this year. The court has fast-tracked the appeal, agreeing to take up the case the week of December 6.

Legal analysts have questioned whether backers of Proposition 8 have legal standing to appeal the Aug. 4 ruling because they are “intervenors,” not defendants, in the case (the state refused to defend Prop. 8). Judge Vaughn Walker said they do not have standing, in his view. The appeals court acknowledged that issue today, telling both sides to include in their opening briefs “a discussion of why this appeal should not be dismissed for lack of Article III standing.”

To get legal standing under Article III of the U.S. Constitution, Prop 8 backers would conceivably need to show that Judge Walker’s ruling allowing same-sex marriages directly harms them.  But Prop. 8 backers said in a recent court filing that California law “allows proponents to defend initiatives they have sponsored when government officials ‘might not do so with vigor’ in order ‘to guard the people’s right to exercise initiative power.’ ”

Read the rest of this entry »

Share
AddThis Social Bookmark Button

Berkeley Law expert on KPFA tomorrow

Berkeley Law Lecturer Joan Hollinger will be on KPFA 94.1 radio tomorrow morning to discuss Prop. 8, especially today’s lifting of a stay on same-sex marriages. The segment will run 7:10-7:30 a.m.

Share
AddThis Social Bookmark Button