CA Now Has Two Black LGBT State Supreme Court Justices!

Martin Jenkins

Kelli Evans

LGBT History was made this week with the retention election of California State Supreme Court justice Martin Jenkins on November 8 and the approval of Kelli Evans to join the state's highest court by the Committee on Judicial Appointments on November 10. Jenkins, 69, was nominated to the California Supreme Court in October 2020 by Governor Gavin Newsom. Evans, 54, was nominated to the court by Newson in August 2022. The California State Supreme Court now has seven members and is amazingly diverse:

• Carol Corrigan, 74, white female
• Kelli Evans, 54, African-American lesbian woman
• Joshua Groban, 49, white mam
• Patricia Guerrero, 50 Latina/Hispanic woman
• Martin Jenkins, 69, African-American gay man
• Leondra Kruger, 46, African-American woman
• Goodwin Liu, 52, Chinese-American man

The court is majority women, majority people of color (one-third Black) and two-sevenths LGBT!

Guerrero is the brand-new Chief Justice of the State of California. Guerrero, Jenkins, Groban and Liu were all successfully retained in the November 8 election.

MadProfessah Voting Guide: November 2022

 

Here are MadProfessah's positions on how I  have voted in the November 8 2022 California General Elections. This post will contain  endorsements information from other organizations like the Los Angeles Times,  California Democratic Party, East Area Progressive Democrats and the Los Angeles County Democratic Party. 

The 2022 General Election Ballot is quite long. Here are my endorsements (how I have voted) along with information about how others are encouraging you to vote. This link will take you to a printable two page version of this voting guide. Names with an asterisk * are openly LGBTQ+ candidates.

The information here is accurate to the best of my knowledge. YMMV.

LAist also has a very helpful voterguide here: https://laist.com/news/politics/voter-game-plan.

CITYWIDE RACES (Los Angeles)

COUNTYWIDE RACES (Los Angeles)

COUNTY JUDGES (Superior Court)

STATEWIDE RACES 
STATEWIDE JUDGES 

08/08/19: Married 11 Years Today!

Although we have been boyfriends since 1991 and living together since 1994, domestic partners since 1999, and civilly united (in Vermont) since 2000, we were only married in California on August 8, 2008 (Roger Federer's 27th birthday!) before Proposition 8 passed and after the California Supreme Court legalized marriage equality in the Golden State with the In Re Marriage Cases decision and upheld my marriage (and 18,000 others!) in Strauss v. Horton.

The above pictures were taken on our latest vacation in Valencia, Spain in July 2019.

Happy anniversary, hubby!

CELEBRITY FRIDAY: Meet 38-Year-Old Leondra Kruger, CA Supreme Court Nominee

Leondra Kruger, 38, is Governor Jerry Brown's nominee for the current vacancy on the California Supreme Court.

The Los Angeles Times reported on the appointment:

Kruger, who is African American, joined the Office of Solicitor General under President George W. Bush and argued 12 cases before the U.S. Supreme Court. She left the solicitor general's office last year and became deputy assistant attorney general at the U.S. Department of Justice, Office of Legal Counsel. 

"Watching her at the U.S. Supreme Court was like watching a master who had done it hundreds of times," said Katyal, a law professor at Georgetown University. "It was breathtaking." 

Kruger was Brown's third appointment in recent years to the seven-member court. His other appointees are Goodwin Liu, a former UC Berkeley law professor, and Mariano-Florentino Cuellar, a Stanford law professor. She will be the court's third Democratic appointee. 

"With Brown's last two appointments and now with Leondra coming on the court, the California Supreme Court is looking like perhaps the most high-powered state supreme court in the country," Katyal said.

Kruger has the impressive credentials of someone whose judicial career may be beginning, not ending with a state Supreme Court appointment:

Kruger served as a law clerk to former U.S. Supreme Court Justice John Paul Stevens from 2003 to 2004 and to Judge David S. Tatel on the U.S. Court of Appeals for the District of Columbia Circuit from 2002 to 2003. She also taught at the University of Chicago for a year. 

She received her undergraduate degree from Harvard and her law degree from Yale University, where she was editor in chief of the Yale Law Journal.

Hopefully Kruger's appointment will be confirmed quickly. If so, she will become the second African American female to serve on the California Supreme Court. The first, Janice Rogers Brown, was named to the D.C. Court of Appeals by President George W. Bush and still serves there now. Leondra Kruger is today's Celebrity Friday because hopefully her name is one that will be heard again in a national context soon!

California Supreme Court Denies Attempt To Revive Prop. 8

As expected, the California Supreme Court has denied requests from heterosexual supremacists to revive Proposition 8 and halt civil marriages by same-sex couples in the Golden state. In a terse order issued on Wednesday afternoon, the Court ended any last remaining legal challenge to marriage equality in California.

The Los Angeles Times explains why marriage equality is here to stay in California:

A federal judge in San Francisco declared Proposition 8 unconstitutional in 2010, and state officials refused to appeal. ProtectMarriage did appeal, but the U.S. Supreme Court ruled in June that initiative sponsors have no right to defend their measures in federal court. The decision left in place the ruling by retired Chief U.S. District Judge Vaughn R. Walker.

In its challenge before the state’s highest court,  ProtectMarriage argued that a single judge lacked the authority to overturn a state constitutional amendment.  The group also contended that Walker’s injunction applied to two counties at most and that state officials had overstepped their authority by ordering county clerks throughout California to issue same-sex marriage licenses.

State officials countered that the challenge was a veiled attempt to persuade a state court to interfere with a federal judge’s order in violation of the U.S. Constitution.

Same-sex couples began marrying in California in late June after a federal appeals court lifted a hold on Walker’s injunction. ProtectMarriage went back to the U.S. Supreme Court the following day, arguing the appeals court acted prematurely because the high court’s decision was not even final. The Supreme Court refused to intervene.

Then the group went to the state Supreme Court, asking the justices to halt the marriages immediately while considering the legal arguments. The seven-member court unanimously rejected the request for a “stay” or hold.

California Attorney General Kamala Harris issued a statement reacting to the news of Proposition 8's demise:

“Once again, equality and freedom triumph in California. The California Supreme Court has denied the Proposition 8 proponents’ latest attempt to deny same-sex couples their constitutional right to marry. I applaud the Court’s decision and my office will continue to defend the civil rights of all Californians.”

Hat/tip to Chris Geidner of BuzzFeed.

San Diego County Clerk Files Suit To Revive Prop 8

The heterosexual supremacists are taking the return of marriage equality to California pretty badly. The Proponents of Proposition 8 have been rebuffed by the U.S. Supreme Court and the California Supreme Court so far.

Now it is a county clerk from San Diego County named Ernest Dronenburg (the level of government which actually is responsible for the issuance of marriage licenses in California) filing a petition before the California Supreme Court asking the Court to issue an immediate stay to prevent him (and all county clerks) from continuing to issue marriage licenses to same-sex couples.

As I said before, there is some truth to what the heterosexual supremacists say about the state of marriage equality in California right now. The text of Proposition 8 is still contained in the California Constitution. But it is also true that two couples filed a federal lawsuit and won an injunction against the enforcement of Proposition 8 in Alameda and Los Angeles Counties by the Attorney General and the Governor. This federal injunction is now in force.

Attorney General Kamala Harris (love her!) issued a statement in response to the San Diego County Clerk's lawsuit:

"The filing offers no new arguments that could deny same-sex couples their constitutionally protected civil rights. The federal injunction is still in effect, and it requires all 58 counties to perform same-sex marriages. No exceptions."

At some point the California Supreme Court is going to have to make a definitive decision on the merits on what legal effect Proposition 8 has now that the U.S. Supreme Court ruled that no one who supports Proposition8 has standing to appeal its loss in federal court, or the people of California need to vote to remove the discriminatory language from the sate's founding document in an election. There happens to be two statewide general election next year, in June 2014 and November 2014. I say, go for it!

Hat/tip to Joe.My.God

Cal. Sup. Ct. Denies Order To Revive Prop 8, But...

Whoa, nelly! On Monday, the California Supreme Court denied another desperate attempt by the heterosexual supremacists at ProtectMarriage.com (a.k.a. the proponents of Proposition 8 who lost at the United States Supreme Court three weeks ago) to stop county clerks from issuing marriage licenses to same-sex couples. That was expected.

However, what was somewhat unexpected was that the state Supreme Court also agreed to hear the merits of the case Hollingsworth v. O'Connell filed by marriage equality opponents last Friday that Proposition 8 is still the law of the land for the 56 counties in California that they claim were not covered by Judge Vaughn Walker's injunction against it.

They are expediting their consideration of the case with opposing briefs (from the good guys, California Attorney General Kamala Harris and Governor Jerry Brown) due on Monday July 22 and then reply briefs from the homophobes on Thursday August 1.

SCOTUSblog summarizes the state of play:

Some uncertainty hangs over gay and lesbian marriage rights in the nation’s largest state nearly three weeks after the U.S. Supreme Court had appeared to clear the way for those couples to wed, with its decision in Hollingsworth v. Perry.  A series of legal maneuvers by the “Proposition 8″ supporters has put the issue back before the state’s highest court, which has given signs that it intends to act speedily.

At this point, the seven-judge tribunal that sits in San Francisco has sharply conflicting arguments before it: a claim by state officials that marriage equality is now fully established throughout California’s fifty-eight counties and that the state court will only get into conflict with the federal courts and put county clerks at legal risk if it acts now to stop such marriages, and a rival claim by “Proposition 8″ backers that the right to marry is in effect in, at most, two counties, and that the state court has the authority and a legal duty to order the continued enforcement of that ban in the other fifty-six counties.

There is also a direct conflict over what the two sides say the state court should do at this point: state officials have said it should refuse to get involved at all, and should deny immediately all of the claims of the ban’s supporters, while the “Proposition 8″ legal team has said that the court should act now to put everything on hold until it can rule finally on the legal status of the ban under California law.

State officials are relying on their interpretation of a ruling in August 2010 by a federal district judge in San Francisco, striking down “Proposition 8″ under the federal Constitution.  There is nothing left that the California Supreme Court can do, they assert.  The ballot measure’s defenders are relying on a provision in the state constitution that says that state officials must continue to enforce state law until a definitive court ruling invalidates it.  That, they said, has not yet been done completely under the terms of the state constitution.

So, basically the CASC denied the emergency motion but is still considering the separate question of whether (or which counties) Proposition 8 is in effect.

Stay tuned!

#FAIL: CA Heterosexual Supremacists Claim Prop 8 Is Not Dead

Wow! How invested in your own bizarro view of the world warped by rampant homophobia that you refuse to acknowledge reality? I guess the heterosexual supremacists over at ProtectMarriage.com are going to let us know. Two weeks ago their last-ditch attempt to (again) stop same-sex couples from getting married in California was summarily aborted by the United States Supreme Court, so they have decided to return to the California Supreme Court, a place they have won twice before, to try to claim that Proposition 8 is not dead.

They have filed a claim called Hollingsworth v. O'Connell before the California Supreme Court making the (frankly ludicrous) argument that the federal injunction currently in effect against Proposition 8 only applies to the two counties in which the original plaintiffs who filed the lawsuit are from, namely Los Angeles County and San Francisco.

Moments ago, we filed a new petition in the California Supreme Court against all of California’s 58 county clerks, and state officials, seeking to restore the enforcement of Proposition 8, the state’s constitutional amendment limiting marriage to a man and a woman.  The undeniable fact is, the man-woman definition of marriage, as passed by a majority the voters, is still a valid part of our state constitution. 

Yet county clerks statewide are lawlessly defying that law by issuing gender-neutral marriage licenses. We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process. 

The action we filed today contends that at least 56 of the 58 county clerks must continue to follow Proposition 8 because they were not parties to the recent federal lawsuit against Prop 8, and that the state’s governor and attorney general have no legal authority to order local county clerks to disregard the state constitution.

Amusingly, AFER, the organization behind the Proposition 8 federal lawsuit, has not even bothered to dignify ProtectMarriage.com's claim with a response.

San Francisco City Attorney Dennis Herrera was not so kind, and gently explained the basics of the law and reality to the fuzzy thinking homophobes:

This motion is a desperate obstruction tactic used in the vain hope of pursuing an unconstitutional agenda. The opponents of the freedom to marry have chosen to ignore the Supremacy Clause of the Constitution, a U.S. Supreme Court ruling, and the well-settled California marriage case of Lockyer v. San Francisco, which they themselves celebrated at the time. Their motion has essentially no chance to succeed. The most basic concepts of American law tell us that a state court cannot and will not overrule the federal judiciary. The citizens of California are left wondering when these people will realize that, having lost the moral struggle years and years ago, they have now lost the legal struggle as well. Marriage equality is now the law in the State of California, and will remain so from this point onward. Together we will soon see the day when it is the law all across America.

I've emphasized the key sentence in the middle of the quote. The homophobes won before the California Supreme Court in 2009 in Strauss v. Horton when the state's highest court ruled that Proposition 8 did not violate the state constitution. But in Perry v. Brown, the homophobes lost in federal court and the United States Supreme Court ruled in Hollingsworth v. Perry that they have no right to appeal that ruling. Ergo, Proposition 8 is dead.

Actually, what is even more ironic is that the case of Lockyer v. San Francisco which the homophobes won is now coming back to bite them on the butt. Then the state Supreme Court ruled that state officials and not local county officials have the sole right to determine who can or can not get married in response to Mayor Gavin Newsom's wilful defiance of state law way back in 2004. This resulted in the annulment of thousands of same-sex couples' marriages who had been married at the time between February 12 and March 11 in San Francisco. But that same principle is now what prevents ProtectMarriage.com from claiming that 56 of 58 counties can enforce Proposition 8 while 2 of them do not. (Actually the make the even more nonsensical argument that all 58 counties have to enforce Proposition 8 because it is still present in the California Constitution, but I digress.) The responsible state officials Attorney General Kamala Harris and  Governor Jerry Brown have recognized that a federal court is stopping them from enforcing Proposition 8 and thus same-sex couples can get married.

That being said, to end the debate completely again, the Legislature should pass a state constitutional amendment removing Proposition 8 from the state Constitution and re-affirming marriage equality so that the people can have their voice heard again on this question in November 2014.

Hat/tip to Joe.My.God

AD-51: CA Justice Moreno Endorses Luis Lopez

Carlos Moreno is a celebrated hero of LGBT people in California for his votes on the California Supreme Court in two very important marriage equality-related cases In re Marriage Cases (2008) and Strauss v. Horton (2009). Moreno announced his retirement from the Court in January 2011.

Justice Moreno also announced this week that he is endorsing the bid of my friend Luis Lopez to represent the 51st Assembly District. Moreno, Lopez (and yours truly) all live in this assembly district in Northeastern Los Angeles.

“Our state is at a turning point,” says former state supreme court justice (retired) Carlos R. Moreno, “whether we will be true to the vision of one society with a shared responsibility to advance the common good, or whether we fracture, accept inequality, and fail the biggest challenge of our time.”

“Luis Lopez is a leader from our community who has repeatedly stepped forward to confront this challenge in our community and our state. He is equal to the responsibility and the opportunity of serving us in the 51st District, now when we are poised to improve healthcare and fix our budget so that courts, schools, clinics, and campuses might fully function once more. I am proud to endorse Luis Lopez to be my Assemblymember and an effective leader for all Californians.”

Justice Moreno was replaced by fellow LGBT ally and UC Berkeley law professor Goodwin Liu on the California Supreme Court.

Cal Sup Ct Rules 7-0 Initiative Proponents Have Standing

The long-awaited decision by the California Supreme Court on the question of whether initiative proponents have the right to defend their measures in court when elected officials like the Governor and Attorney General refuse to defend them was released today.

The Court ruled unanimously that initiative proponents do have standing under state law to defend their ballot initiatives.

As usual, Chris Geidner of Metro Weekly has the best analysis:

The California Supreme Court, in an opinion written by Chief Justice Tani Cantil-Sakauye, was very clear about its answer: 

[W]e respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so. 

The decision came about resulting from a request by the Ninth Circuit in the ongoing challenge to Proposition 8 brought by the American Foundation for Equal Rights. The case, in which the trial court judge struck down Proposition 8 as unconstitutional in August 2010, is on appeal before the Ninth Circuit. The Ninth Circuit appeals court sought to have the California Supreme Court assist it with the case by answering these questions about state law through the process of asking a certified question. The California Supreme Court accepted the invitation to answer the certified question and heard oral arguments on the question on Sept. 6.

As the California Supreme Court found the proponents to have a "particularized interest" and "the authority to assert the State's interest," the Ninth Circuit now is likely to find that the proponents do have standing under federal law to bring the appeal -- although the court need not do so. At that point, the appeal of the Perry trial court decision -- the "merits" decision from the trial court that Proposition 8 is unconstitutional -- could go forward.

It's unfortunate that the Court opened up the can of worms to allow all initiative proponents to defend their statutes under state law. Considering how many ballot measures we have in California, this is an incredibly important decision.

That being said, it is very exciting that now we basically must get a ruling from the 9th U.S. Circuit Court of Appeals in the Perry v. Brown case which will give us a federal appellate court level ruling on the question of marriage equality.

WATCH: Prop 8 Oral Arguments in CA Sup Ct

There is also excellent analysis of yesterday's California Supreme Court oral arguments (featuring newly minted Justice Goodwin Liu) available at TowleRoad.

Goodwin Liu Likely To Join CA Sup Ct For Perry

2008's Proposition 8 is in court twice in the next two weeks. Last Monday, oral arguments were heard about whether the extant video tapes of testimony in the Perry v. Schwarzenegger case should be released to the public. The judge, federal district court judge James Ware announced afterwards that he would not "delay very long" in issuing a ruling. Which the heterosexual supremacists will almost certainly appeal anyway.

Next Tuesday, September 6 oral arguments will be held before the California Supreme Court in a very important case which will determine who exactly has "judicial standing" under California law to defend a voter-approved initiative (like Proposition 8) when the executive branch officers (Governor and Attorney General) have declined to do so.

Happily, Governor Brown recently nominated marriage-equality supporting University of California, Berkeley law professor Goodwin Liu to the California Supreme Court. It looks very likely that Professor Liu will join the court before Tuesday and participate in the oral arguments in the Perry v Brown case. There is no Republican neanderthal filibuster to prevent Liu from joining this court, unlike his unsuccessful path to the Ninth U.S. Circuit Court of Appeals. Instead he just needs to get the approval of the 3-member Commission on Judicial Appointments, and then he will be up for election for a 12-year term at the next statewide general election.

Cal Sup Ct Prop 8 Arguments To Be Televised Live

Last week I told you that the California Supreme Court had set oral arguments in "the Prop 8 case" (Perry v. Brown) for September 6, 2011 at 10am. This week comes news that those oral arguments will be televised live!

Online newspaper SF Appeal has the deets:

In January, a panel of the appeals court said that federal law, as defined in a 1997 Supreme Court decision, doesn't seem to allow sponsors to defend an initiative when state officials refuse to do so.

But the appeals panel said there might be a right under state law, and asked the California Supreme Court to step in and decide that issue.

The seven-member state high court will hear one hour of arguments in its State Building courtroom on Sept. 6 and then will have 90 days to issue a written ruling.

Court spokeswoman Lynn Holton said that because of public interest in the case, the court has approved a live statewide television broadcast of the arguments on the California Channel, a public affairs network.

If the state court eventually rules that the sponsors have standing, or the right to appeal, the case will then go back to the 9th Circuit for review of Walker's decision, a process that might take several more months.

But the federal appeals court said earlier this year that if the sponsors lack legal standing, the federal court would be required to dismiss the appeal.

Hat/tip to Wonder Man

CA Sup Ct Sets Prop 8 Case Oral Arguments Date: 9/6/2011

Good news! The California Supreme Court has finally set a date of September 6 at 10:00am for the oral arguments in the Perry v. Brown lawsuit (informally known as "The Proposition 8 case") in which the question at hand is a very limited one. Namely,

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Although the question is limited, the stakes are not. If the state Supreme Court rules, most likely within 90 days of oral arguments, that the heterosexual supremacists who drafted and promulgated Proposition 8 now have no legal standing to defend its constitutionality, it is very likely a 3-judge panel of the 9th U.S. Circuit Court of Appeals will follow that decision and rule that the Proposition 8 proponents have no standing to defend the measure in federal court, either.

In that case, the lower court's decision would go into effect and federal Judge Vaughn Walker's brilliant ruling determining that Proposition 8 violates the United States Constitution would go into effect. Of course the bad guys would probably appeal to the Suprem Court but since the case would only be about California (and California law) it is unlikely that SCOTUS would take the case. There is a possibility that SCOTUS would take the appeal to try to clarify once and for all whether proponents of state ballot measures who are not named plaintiffs in lawsuits have a right to continue appeals when the named plaintiffs fail to appeal but there's already a decision called Arizona for Official English vs Arizona in which SCOTUS basically says you need a particularized interest under state law in order to pursue a federal appeal. And it is precisely that question of whether a particularized interest exists under California law that the California Supreme Court will decided, by the end of 2011.

Another wrinkle is that the 7-member Supreme Court has recently lost its most pro-gay member, Carlos Moreno, and Governor Brown only announced his replacement, Goodwin Liu, who is probably as similarly pro-equality as Moreno, this week. If Liu is not on the court by September 6th, the court will probably name a state appellate judge to hear oral arguments and participate in the decision.

Hang on to your hats, folks, it's gonna be a bumpy ride!

Brown Nominates Goodwin Liu To CA Sup Ct!

Charles Dharapak / AP Photo

Goodwin Liu, 40, was rejected by a Republican United States Senate filibuster for a coveted position on the 9th U.S. Circuit Court of Appeals but has received a pretty nice consolation prize: a nomination by Governor Jerry Brown to the California State Supreme Court (from which he could still be nominated to the U.S. Supreme Court before he's 50).

The Los Angeles Times reports:

Liu, a graduate of Yale Law School, is the son of Taiwanese immigrants. He was born in Georgia, grew up in Sacramento and has a history of public service.

“I’m deeply honored by Gov. Brown’s nomination and look forward to the opportunity to serve the people of California on our state’s highest court,” Liu said in a statement.

Before joining the Berkeley Law faculty in 2003, Liu was an appellate litigator at O'Melveny & Myers in Washington. He clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit. He also served as special assistant to the deputy secretary of the U.S. Department of Education and as senior program officer for higher education at the Corporation for National Service (AmeriCorps).

Brown has forwarded Liu’s name to the State Bar’s Commission of Judicial Nominees Evaluation. The appointment will not become final until the Commission on Judicial Appointments -- consisting of state Supreme Court Chief Justice Tani Cantil-Sakauye, Atty. Gen. Kamala Harris and Justice Joan Dempsey Klein, senior presiding justice of the state Court of Appeal -- confirms the nomination.

Liu will replace Associate Justice Carlos Moreno, who retired from the court earlier this year.

Justice Moreno was a very strong advocate for the LGBT community, voting with 4-3 majority to end marriage discrimination in California's landmark In Re Marriage cases in 2008 and was the lone dissenter in 2009's California Supreme Court decision which upheld Proposition 8 as not violating the California constitution.

Goodwin Liu has previously expressed his belief that Proposition 8 is unconstitutional so it will be interesting to see if he can get confirmed in time to participate in the case now before the case as to whether the heterosexual supremacist supporters of Proposition 8 have legal standing to defend it in court when the elected representatives of the people of California have decided not to defend a voter-approved ballot measure.

Another interesting feature that Liu, if confirmed will produce a court with an Asian American majority and no Black or Latino members, in a state which has Latino plurality in the population. Things that make you go Hmmmmmm! That being said, Liu is a great choice, since he can't get through the Senate to a federal judgeship while Republicans have more than 40 votes and no compunctions about filibustering extremely qualified judges purely based on ideology, a state supreme court seat is fantastic.

Analyzing Poll Data On Interracial Marriage Equality

In 1948, the California Supreme Court ruled in Perez v Sharp that the state's prohibition on interracial marriages was invalid. That was the first state Supreme Court decision to strike down an anti-miscegenation statute. 10 years later a national poll of Americans by Gallup in September 1958 showed that 94% of respondents disapproved of "marriages between blacks and whites." The United States Supreme Court did not invalidate all remaining laws banning interracial marriage (which were still on the books in 16 states) until 1967, and a year later a mere 20 percent of respondents approved of interracial marriages (73 percent disapproved) in a June 1968 Gallup poll. It was not until the mid-1990s that a majority of poll respondents said that they approved of interracial marriage equality.

In 2004, the Massachusetts Supreme Court decision Goodridge v. Department of Public Health went into effect, legalizing marriages between same-sex couples on May 17. At the time 42% of Americans approved of marriage equality, with 55 percent disapproving of civil marriages between same-sex couples. As I noted yesterday, it is only in 2011 that Gallup has shown majority support for marriage equality nationwide, even though there are only 5 states and the District of Columbia where the practice is legal.

Hat/tip to Zack Ford.

9th U.S. Circuit Refuses To Lift Stay On Prop 8

The 9th U.S. Circuit Court of Appeals issued a ruling today refusing to lift Judge Vaughn Walker's stay on the enforcement of Proposition 8 while the ruling is appealed. Currently the California Supreme Court is considering a question of whether official proponents of a ballot measure can defend an initiative in court when the state's official representatives refuse to do so.

Here's the official text of the order from the 3-judge panel of the 9th U.S. Circuit Court of Appeals:

Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time.

The ruling means that Proposition 8 will remain in effect until after the California Supreme Court rules later in 2011 on the standing question and the 9th Circuit panel issues a ruling either accepting the standing determination from the California Supreme Court (which it does NOT have to do, since there are very different standards for standing under federal and state law) and issues its own ruling on the constitutionality of Proposition 8.

L.A. TIMES Op Ed: "Same-sex weddings, now"

Today's Los Angeles Times runs an editorial in favor of ending the stay on Judge Vaughn Walker's ruling declaring Proposition 8 unconstitutional and calls for same-sex marriages to resume immediately while the legal wrangling at the 9th U.S. Circuit Court of Appeals and California Supreme Court get settled.

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system.

The state Supreme Court was asked by the U.S. 9th Circuit Court of Appeals to rule on whether supporters of Proposition 8 have the right — known as "standing" — to continue with their case. It indicated that it would hear arguments late this year, with a ruling likely to follow a few months later. Meanwhile, a stay pending the outcome of the appeal has kept gay weddings from going forward. Now, however, the lawyers challenging Proposition 8 have asked the 9th Circuit to lift the stay and allow the weddings to take place. We agree that it should.

Every day that the case drags on, gay and lesbian couples who would like to marry are being deprived of their civil rights. That's not our wording; the federal trial judge decided that issue, at least for now. The denial of constitutional rights, even temporarily, is a deplorable situation that must meet high legal standards to be allowed to continue. In our view, those conditions have not been met.

First, a stay should be issued only if there is a strong likelihood that the appealing party — in this case, the supporters of Proposition 8 — will prevail in court. Yet there are serious questions about whether they even have the standing to appeal, so the outcome is very uncertain. There are other factors the courts take into account when deciding whether to keep a stay in place. Those filing the appeal must show that they would be irreparably harmed if the stay were lifted; the courts also take into account where the public interest lies. During the trial, the supporters of Proposition 8 were unable to identify any harm that would befall them if same-sex weddings took place.

Certainly it would be messy if California were to resume performing wedding ceremonies for gay and lesbian couples, only to have to stop again when another ruling comes down. But there may be no other option. Right now, same-sex couples are being deprived of their constitutional right to marry, and every indication is that unless the stay is lifted, they'll have to keep waiting for more than a year. That is real harm, and there is no valid reason to allow it to continue.

I think it is unlikely that the Courts will agree to lift the stay, but I do agree that the harm to same-sex couples who would like to get married in California should not be discounted, especially  when it is looking increasingly likely that Proposition 8 will not survive judicial scrutiny.

BREAKING: CA Sup Ct Agrees To Decide Standing Question

The California Supreme Court unanimously agreed to decide whether Proposition 8 proponents have standing to defend the anti-gay marriage initiative in the federal lawsuit of Perry v. Schwarzenegger which is currently pending before the 9th U.S. Circuit Court of Appeals.

Specifically, the Court will decide the question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

If the State Supreme Court rules they DO NOT have standing, the 9th Circuit panel may dismiss the lawsuit immediately as moot, which would lead to marriage equality being legal in California again. If the State Supreme Court rules that they DO have standing (a more likely result) then the 9th Circuit will have to decide the case, which they could do on the merits of the claim that Proposition 8 violates a federal constitutional right to marry. That decision could be appealed to the US Supreme Court and would have national implications.

According to Chris Geidner, the State High Court issued a relatively brisk briefing schedule:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011.  The answer brief on the merits is to be served and filed on or before Monday, April 4.  A reply brief may be served and filed on or before Monday, April 18.

Oral arguments are scheduled for "as early as September 2011" and this is significant because the Court must issue a written ruling within 90 days of an oral argument or else it does not get paid, which would probably mean the 9th Circuit would be getting Perry v. Schwarzenegger back in early 2012. So, basically a year has been added to the time in which marriage equality could be decided by a court ruling in California.

CA Sup Ct Expected To Decide Prop 8 Question Today

On February 3rd I blogged that the Chief Justice of California had given hints that a ruling from the California Supreme Court was imminent on whether it would rule on the question of whether Proposition 8 proponents have standing under California law to defend their initiative before the 9th U.S. Circuit Court of Appeals.

Well, today comes word that the much awaited decision should be announced as early as today:

The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8’s sponsors have legal authority to defend the ballot measure.

Depending on the court’s ruling, the 9th Circuit could either dismiss the Proposition 8 appeal on procedural grounds -- limiting the case’s effect to California -- or rule on federal constitutional questions that would affect same-sex marriage throughout the country.

A federal judge in San Francisco struck down Proposition 8 in August, ruling after a 12-day trial that the 2008 ballot measure violated equal protection guarantees under the U.S. Constitution. Experts testified during the trial that one’s sexual orientation was largely fixed and that matrimony benefits the families of gays and lesbians.

California state officials refused to appeal the ruling. Now the 9th Circuit must determine whether Proposition 8’s sponsors, ProtectMarriage.com, have legal standing to challenge the trial court's decision.

Hat/tip to Karen Ocamb's LGBTPOV.