Washington State Supreme Court Abolishes Death Penalty!

There are now twenty states that do not have the death penalty! Last week, the Washington State Supreme Court declared that state's death penalty unconstitutional in State v. Gregory, saying:

The death penalty is invalid because it is imposed in an arbitrary and raciallybiased manner. While this particular case provides an opportunity to specificallyaddress racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.

The ruling is based entirely on the State constitution so it is not appealable to, or dependent on, the United States Supreme Court.

Hat/tip to ACLU

India High Court To Reconsider Controversial Sodomy Ruling

Good news! The High Court of India has announced that a 5-member panel will consider its problematic December 2013 ruling that upheld India's ban on sodomy, criminalizing the sexual behavior of literally more than a hundred million people in the world's most populous democracy. The original ruling included some shockingly homophobic language, and unfortunately the two judges that signed that decision will be participating in the re-hearing.

Buzzfeed reports:

This is LGBTI rights advocates last chance to toss out the decision, which was a harsh blow after a 12-year litigation process. In January, a two-judge panel (which included one of the judges who issued the original ruling) rejected their first attempt to have the case reconsidered, what is known as a review petition. The current motion, known as a curative petition, still faces long odds, because the five-judge panel that will consider it includes the two judges who rejected the review petition. The other judges on the panel will be the three most senior judges on the court.

But the lawyers in this case got a major boost last week when a different two-judge Supreme Court panel issued a sweeping verdict recognizing broad rights for transgender people. Though the judges in the transgender rights case were careful to explicitly say they were not offering an opinion on the 377 case, their ruling reads almost like a point-by-point rebuttal to the ruling.

Recently the India High Court declared that transgender identity is a protected category.

India High Court Recognizes Third Gender (Neither Male Nor Female)

Good news from India. A few months after the High Court upheld that country's archaic sodomy law, the court has now ruled that transgender citizens of India must be recognized as a separate third gender.

Reuters reports:

"Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue," the Supreme Court's two-judge bench said in its ruling. 

"Transgenders are also citizens of India. The spirit of the constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender."
A person who is transgender does not identify with the gender stated on their birth certificate. 

The court ruling - which came after hearing a petition filed by a group of transgenders demanding equal rights - recognized the community as a marginalized group and directed authorities to implement policies to improve their socio-economic status. 

The petitioners' lawyers said that this would mean that all identity documents, including a birth certificate, passport and driving license would recognize the third gender, along with male and female. 

The government will also have to allocate a certain percentage of public sector jobs, seats in schools and colleges to third gender applicants, said lawyer Sanjeev Bhatnagar. 

Due to their lack of access to jobs and education, many male-to-female transgenders - also known as "hijras" - are forced to work as sex workers or move around in organized groups begging or demanding money.

As Joe.My.God points out, India is the third country, after Nepal (2009) and Bangladesh (2013). Germany has become the first European country to recognize "undetermined" as the gender of new born children, but this policy is more about intersexuals than transgender individuals.

Excerpts From Shockingly Homophobic India Supreme Court Sodomy Ruling

The ruling yesterday (from a 2-judge panel) of the India Supreme Court that reinstated a criminal sodomy law in the 1.1 billion-person nation is reverberating around the world. Here are some excerpts from the wildly anachronistic decision that overruled a previous judgment striking down Section 377 of the Indian Penal Code:

• In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to  privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of  other jurisdictions.

• The High Court is not at all right in observing that Section 377 IPC obstructs personality development of  homosexuals or affects  their  self-esteem because that observation is solely based on the reports prepared by the academicians

• The impugned order (Delhi High Court order) does not discuss the  concept  of  "carnal

• intercourse against the order of nature" and does not adequately show how the section violates the right to privacy. 

• While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a  miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as  per  the  reported orders) for committing offence under Section 377  IPC. 

• Unless a clear  constitutional violation is proved, this Court is not  empowered  to  strike  down  a  law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.

• Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.

• This Court has merely pronounced on the correctness of  the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not  suffer  from  any  constitutional  infirmity.

• Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section  377  IPC from the statute book or amend the same as per  the suggestion made by the Attorney General.

"So-called rights"? This reads like outtakes from the much maligned 1986 decision of Bowers v Hardwick by the United States Supreme Court that upheld Georgia's criminal sodomy statute at the time and also mocked the idea of the basic dignity and constitutional protections of LGB persons.

A sad day for India and all those who believe in human rights around the world. What right does anyone have in criminalizing private, consensual sexual conduct between adults? How does their activity impact you?

Court Rules Religion Can't Justify Illegal Anti-Gay Behavior

The European Court of Human Rights (ECHR) issued some interesting rulings this week on the extent of religious freedom compared to discrimination based on sexual orientation. As LGBT Think Progress reports, the ECHR has ruled against two Christians from Britain who claimed that their religious belief trumped their nation's legal protections against LGBT-based discrimination.

In one case, Lilian Ladele was a city registrar who refused to officiate civil partnership ceremonies between same-sex couples as part of her duties. In another, Gary McFarlane was a counselor for a confidential sex therapy and relationship counseling organization who refused to provide support for same-sex couples. In both cases they were removed from their positions, so both brought complaints that their religious beliefs had been violated.

The ECHR ruled against the two claims, dismissing the argument which is often raised by domestic religious extremists and heterosexual supremacists that somehow religious freedom or belief allows anti-gay discrimination banned by law in some jurisdictions in the United States.

Celebrity Friday: Andrew McDonald, openly gay CT High Court justice

Connecticut Governor Dan Malloy has named his state's first openly gay State Supreme Court justice: Andrew J. McDonald. McDonald, 46,  currently serves as general counsel to the Office of the Governor and has been a longtime aide and confidant of Malloy.

The Darien Times reported:

“Having had the opportunity to work alongside Andrew McDonald in several capacities over the years, including both as a lawyer and as a public servant, I am convinced that he will be an excellent addition to our state’s highest court and will serve the people of Connecticut well when he is confirmed to the bench,” Governor Malloy said. “In each of the roles he has served, Andrew has proven to have an exceptional ability to understand, analyze, research and evaluate legal issues.  He has undertaken his legal work with a focus on giving back extensively to his community and a commitment to the equal rights of all residents.  He will be an exceptional justice on the Connecticut Supreme Court.”

“I’m immensely grateful to the governor for the honor he has shown me through this nomination,” McDonald said.  “Honoring the law and serving the people of this state have been the focus of my professional life, and I will be humbled by the opportunity to continue to do both on the Supreme Court if confirmed by the General Assembly.”

Malloy was elected to the Connecticut legislature as an openly gay candidate in 2002 and is a graduate of Cornell University and University of Connecticut Law School.

Malloy will join a small number of other openly LGBT state supreme court justices around the country. Hawaii (Sabrina McKenna), Colorado (Monica Marquez), Massachusetts (Barbara Lenk), and Oregon (Virgina Linder and Rives Kustler) are the states with open;y LGBT justices.

Godless Wednesday: Atheists Win Legal Fight Over Nativity Display

Atheists recently won a legal fight in Santa Monica, California about an attempt by Christians to force the display of religious symbols in a public space.

In a case that has drawn national attention, Judge Audrey B. Collins of U.S. District Court in Los Angeles denied a church coalition's request that the court require the city to allow Nativity scenes to be displayed in Palisades Park this year, as it has for nearly 60 years.

[...]

Atheist groups praised the judge's ruling as an example of the upholding of the separation of church and state.

"Religion is innately divisive and just doesn't belong in public parks," said Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, based in Madison, Wis. "There are tax-exempt churches on every other corner. Why isn't that good enough?"

Charles C. Haynes, senior scholar at the First Amendment Center and director of the Newseum's Religious Freedom Education Project in Washington, called Collins' decision "consistent with other rulings."

"It's all or nothing in these cases," he said. "If the government opens up and creates a limited forum, it can't practice viewpoint discrimination. But it can say, well, we're not going to have any.... There has to be a level playing field in the public sphere."

This almost certainly will not be the only case decided this year. It is very curious why religious people feel compelled to display symbols of their religion in public spaces but then get annoyed and dismayed when reminded that everyone has free speech rights, and if the government allows one religious display it has to allow equal access to all religions.

Spain's Top Court Upholds Marriage Equality Law

Good news! When the conservatives in the Popular Party (PP) won Spain's parliamentary elections last year they vowed to overturn the country's marriage equality law which has been in effect since 2005. They first did so by appointing conservative judges to Spain's high court which has been considering an appeal to the law's constitutionality that was filed shortly by the PP after the law went into effect more than 7 years ago.

Today comes word that by a vote of 8-3 the law was upheld by Spain's Constitutional Court in Madrid:

Spain’s Parliament passed the gay marriage law in 2005 when it was Socialist-controlled, with Popular Party deputies opposed. The Popular Party took power late last year after the Socialists were ousted over their handling of the economy. 

The gay marriage law angered the predominant Roman Catholic Church but opinion surveys showed most Spaniards backed it. Belgium and the Netherlands approved gay marriage laws before Spain. 

More than 22,000 gay marriages have taken place in Spain.

The PP could still try to pass a new law through Parliament repealing marriage equality in the country, but since then other countries in Europe have also ratified marriage equality, including neighboring Portugal in 2010, Sweden in 2009, Denmark in 2012 and Norway in 2008. In 2010 fellow Spanish-speaking country Argentina enacted marriage equality and France is poised to consider legislation to do so soon, although the political debate and religious opposition is growing more fractious as the possibility of marriage equality becomes more realistic in that country.

Regardless, today we can celebrate that Spain has marriage equality, which is one of the reasons why my husband and myself spent a week visiting the country (Barcelona and Madrid) earlier this year!

Appellate Court Voids Core of DOMA Unanimously!!

Excellent news out of Boston today! The 1st U.S. Circuit Court of Appeals has upheld the July 8, 2010 trial court decision in Gill v. Office of Personnel Management and Massachusetts v U.S. Department of Health and Human Services in unanimously ruling that the so-called "Defense of Marriage Act" violates the United States constitution. This is the first (but probably not the last!) appellate court to strike down Section 3 of DOMA, the part which purports to establish a federal definition of marriage for the purpose of disbursal of federal benefits, regardless of a state's definition of marriage.

Gay and Lesbian Advocates & Defenders (GLAD) who in 2003 had previously won the Goodridge case leading to marriage equality in the state of Massachusetts, sued the federal government, along with Massachusetts' Attorney General Martha Coakley that married U.S. citizens were  being denied federal benefits thanks to DOMA.

Here's a key excerpt from the decision:

We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA.  Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly
on point.  If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test. 

[..] 

The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton.  Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held. 

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute.  This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges
Learned Hand and Henry Friendly.  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern. 

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.  Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.

The ruling's effect was stayed until the United States Supreme Court could grant certiorari (take up the case). Only the U.S. Supreme Court can strike down a federal law and have it's impact apply to the entire nation, the 1st Circuit's ruling, if it is not appealed, would apply to Massachusetts, Rhode Island, New Hampshire, Maine and Puerto Rico (MA and NH already have marriage equality and ME is voting on the question late this year ).

Black Gay Nominee To NJ High Court Unlikely To Be Confirmed

New Jersey Star-Ledger

Rod 2.0 is reporting that Republican Governor Chris Christie's Republican, Black, gay nominee to the New Jersey Supreme Court Bruce Harris is unlikely to be confirmed by the Democratic Party-controlled State Legislature.

The New Jersey Star-Ledger reports:

A group of black state legislators announced its opposition to Gov. Chris Christie's choice of a gay, black Republican for the Supreme Court on Thursday, mounting evidence that Democrats were ready to reject the second of the governor's high court picks.

The New Jersey Legislative Black Caucus told The Associated Press that attorney Bruce Harris's legal qualifications fall short of the high standard required of the court's seven justices. No blacks currently sit on the court.

"The nomination of Mr. Harris sends the wrong message , that we can only achieve diversity on the Supreme Court through lowering the bar for qualifications," said Sen. Ron Rice, the caucus leader. "In a state with many distinguished African-American lawyers and judges, nothing could be further from the truth."

The Republican governor failed to reappoint the court's only black justice in 2010, touching off a firestorm among Democrats. Justice John Wallace had two years to go before reaching the mandatory retirement age of 70.

The governor nominated Harris, a 61-year-old Morris County mayor, and Phil Kwon, a 45-year-old with a top spot in the state attorney general's office, to fill two open court slots in January. Democrats rejected Kwon in March over ongoing concerns regarding cash deposits from a liquor store owned by his wife and mother. Kwon, who was born in South Korea and came to the United States when he was 6, would have been the first member of the court to be born outside the United States and its first Asian-American member.

Interestingly, the Star-Ledger editorialized Sunday in favor of the Harris nomination. Only time will tell if that will have any impact on the votes necessary to lead to confirmation of New Jersey's first openly gay State Supreme Court justice.

Openly Gay Black Man Named To NJ High Court

Bruce Harris, is believed to be the first openly gay, Black,
Republican  elected official in the country (Mayor of Chatham Borough, NJ)

Republican Governor Chris Christie is resolving a long-standing dispute over judicial nominations with the state Legislature by naming an openly gay, African-American male (and an Asian American male) to the State Supreme Court.

The nominees are 61-year-old Bruce Harris, the recently elected openly gay, Black, Republican mayor of Chatham Borough, NJ and 44-year-old Phil Kwon, a Korean-American assistant attorney general who worked with Christie when the Governor was a U.S. Attorney.

According to the New Jersey Star-Ledger:

"I am honored to nominate these two gentlemen," Christie said at a Statehouse news conference. "I trust the Senate will take into account their extraordinary backgrounds and experience and will give them swift hearings.”

The nominees would replace former Justice John Wallace Jr., whom Christie declined to reappoint in 2010, and Justice Virginia Long, who faces mandatory retirement on March 1.

[...]

In 2010, Christie touched off a firestorm when he declined to renominate Wallace. Senate Democrats, infuriated by the unprecedented move, refused to consider his replacement for the seat, Anne Patterson, for a year. Eventually, Patterson was sworn in to replace Justice Roberto Rivera-Soto, who declined to seek re-nomination, and Wallace’s seat has remained vacant.

After refusing in 2010 to reappointment Wallace — who had two years to go before reaching the mandatory retirement age of 70 — and Rivera-Soto retired, the criticism of Christie grew louder because he left the court with no minority members. The court is currently comprised of five women and two men, all of whom are white.

If Harris is confirmed, he would make history as the first openly gay member of New Jersey's highest court. Interestingly, after lagging for years, recently there have been several additions of openly LGBT members on state high courts.

Hawaii (Sabrina Shizue McKenna), Massachusetts (Barbara Lenk) and Colorado (Monica Marquez) have all added openly LGBT members in the last year or so.

Congratulations to Bruce Harris!

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

Celebrity Friday: Barbara Lenk, Openly Lesbian MA Sup Ct Justice

Barbara Lenk, 60, will become Massachusetts
 first openly lesbian Supreme Court Justice

Governor Deval Patrick has apparently decided to appoint the first openly gay member of the Massachusetts Supreme Judicial Court by naming Barbara Lenk, an Associate Justice of the Appeals Court.

“I am honored to nominate Justice Lenk to the supreme judical court,” said Patrick. “She is a brilliant and thoughtful jurist, with a deep sense of justice. Justice Lenk will continue to make extraordinary contributions to the commonwealth and our judical system as a member of the highest court.”

With this latest appointment, Gov. Patrick will have appointed  a majority of the justices of his state's highest court. Interestingly, the number of openly gay State Supreme Court justices has taken a dramatic increase lately, with courts in Colorado, Hawaii and now Massachusetts all getting openly lesbian appointees. California currently has an open position on its  highest court. There have been calls on Governor Brown to appoint an openly gay Justice.

Surely one of these openly gay state supreme court justices will be prime for a federal appellate position within the next 5-10 years?

Celebrity Friday: Sabrina McKenna, openly lesbian Hawaii Sup Ct nominee

Sabrina McKenna, 53, is the first openly gay person
nominated to the Hawaii Supreme Court

Great news out of Hawaii! Democratic Governor Neil Abercrombie has nominated Sabrina Shizue McKenna, an openly lesbian Sate Trial Court judge, to that state's 5-member highest court.

The Star Adviser reports:

In making his first judicial nomination, Gov. Neil Abercrombie called the appointment "the most important decision" in his career.

"This appointment sets the course for the state and its legal direction for the next several years," he said. "I'm completely confident that Judge McKenna's appointment will be something I'm proud of for the rest of my life."

[...]

McKenna would be the first openly gay member of the Hawaii Supreme Court.

McKenna's sexual orientation was not brought up during the ceremonies, but she said that all judges bring to the bench their own personal experiences.

"I would like to believe that because of my background and my life experiences, I bring sensitivity to those who may not have been born into a life of privilege, a sensitivity to those whose life circumstances make it difficult for them to conform with all of society's expectations," she said.

"I try to bring compassion to the court."

She later said she was not only referring to her sexual orientation, but her gender and her upbringing in Japan by her mother after her father died when she was 9.

McKenna said the significance of being the first openly gay member on the court would be that it could give "hope to people who feel that they cannot succeed" because of a variety of reasons, including being gay.

California currently has an imminent vacancy on its 7-member state Supreme Court. Colorado and Oregon are the only other states with openly gay Justices currently. Congratulations to Hawaii!

Hat/tip to Joe.My.God

Celebrity Friday: Roderick Ireland

MA Gov. Deval Patrick (left) with Chief Justice-designate Roderick L. Ireland

Massachusetts Governor Deval Patrick, the only Black governor in the country, has nominated Roderick Ireland to be the first Black Chief Justice of the Supreme Judicial Court of Massachusetts. Patrick was re-elected to a second final term as Governor on Tuesday November 3rd, and announced the nomination of Ireland to replace retiring Chief Justice Margaret Marshall. Marshall is well-known for writing the 4-3 majority opinion in Goodridge v. Department of Public Health which ended the state's prohibition on same-sex couples from marrying, the first state Supreme Court to do so in the United States in 2003.

Ireland voted with the majority and Patrick is also a strong supporter of marriage equality and LGBT rights. His teenaged daughter came out as a lesbian while he was governor and he marched with her in a gay rights parade.

White House Issues Statement on DADT Appeal

The White House has just issued a statement about the Department of Justice filing an appeal in federal court today in Log Cabin Republicans v. United States of America, the case in which a federal judge recently struck down the military's anti-gay "Don't Ask, Don't Tell" policy as unconstitutional.

THE WHITE HOUSE

Office of the Press Secretary

____________________________________________________________

FOR IMMEDIATE RELEASE

September 23, 2010

Statement by Press Secretary Robert Gibbs on Justice Department filing in Log Cabin Republicans v. United States of America

Today, the Department of Justice made a filing in a legal challenge to the Don’t Ask, Don’t tell (DADT) policy, as it traditionally does when acts of Congress are challenged.  This filing in no way diminishes the President’s firm commitment to achieve a legislative repeal of DADT – indeed, it clearly shows why Congress must act to end this misguided policy.   The President was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act, but political posturing created a 60 vote threshold.  The President spoke out against DADT in his first State of the Union Address, and the Secretary of Defense and the Chairman of the Joint Chiefs have both testified in support of repeal.   And the Department of Defense continues to work on a plan on how to implement repeal.  The President, along with his Administration, will continue to work with the Senate Leadership to achieve a legislative repeal of DADT as outlined in the NDAA this fall.

###

Scalia Claims Sex and Sexual Orientation Bias Not Banned By Constitution

Adm Golub / The Chronicle

Antonin Scalia, the 74-year-old Associate Justice of the Supreme Court gave a speech at University of California Hastings on the 24th anniversary of his unanimous approval by the United States Senate on Friday.
Scalia, the notoriously homophobic head of the conservative wing of the Court told the audience that he is convinced that the United States Constitution's 14th Amendment's declaration of "equal protection of the laws" does not apply to women or gays and lesbians.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

[...]

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The court has not applied the same exacting standard to discrimination based on sexual orientation, an issue it could reach in several cases now in lower courts, including the dispute over California's ban on same-sex marriage.

But when the justices overturned laws against gay sex in 2003 as a violation of personal autonomy and due process, Scalia dissented vehemently. He compared the anti-sodomy laws to statutes against incest and bestiality and said many Americans view bans on homosexual conduct as protections for themselves and their families against "a lifestyle that they believe to be immoral and destructive."

It's interesting that Scalia will say in public that "gender bias 'shouldn't exist'" but he is on record in a published opinion of the Court declaring the homosexual "lifestyle" to be "immoral and destructive."

Perhaps he should recuse himself from future cases involving sex discrimination or sexual orientation discrimination before the Court?

CA Sup Ct Refuses To Force State To Appeal Prop 8

The California Supreme Court on Wednesday refused to force the state of California, as represented by the Governor and Attorney General of the state, to act as defendants in the federal Proposition 8 lawsuit, Perry v. Schwarzenegger.


As I blogged about earlier in the week, the Pacific Justice Institute sued the Governor and Attorney General on Monday to attempt to force them to defend Proposition 8, but the 3rd District Court of Appeals rejected their argument. Now the state's highest court has also rejected their legal argument.

The court did not explain why it rejected the emergency petition filed by the Pacific Justice Institute. The institute had argued that the attorney general and governor were required to uphold all laws, including initiatives passed by voters.

Earlier Wednesday, lawyers for Attorney General Jerry Brown and Schwarzenegger filed letters with the court maintaining state officers have authority to choose which laws they challenge or defend in court.

"The governor, like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order," counsel Andrew Stroud wrote for Schwarzenegger. "Here, the governor exercised his discretion and decided not to file an appeal."

[...]

Schwarzenegger, who has been under pressure from fellow Republicans to appeal Walker's decision, has said he supports the judge's verdict. Brown, who is the Democratic nominee to succeed Schwarzenegger as governor, has said he cannot defend Proposition 8 because he agrees it is unconstitutional.

"Although it is not every day that the attorney general declines to defend a state law, the state Constitution or an initiative, he may do so because his oath requires him (to) support the United States Constitution as the supreme law of the law," Deputy Attorney General Tamar Pachter wrote on Brown's behalf Wednesday.

The coalition of conservative and religious groups that sponsored Proposition 8 has appealed Walker's ruling to the 9th U.S. Circuit Court of Appeals. But doubts have been raised about whether its members have authority to do so because as ordinary citizens, they are not responsible for enforcing marriage laws.

The 9th Circuit has said that is one of the issues it will take up when it hears oral arguments in early December.

If the federal appeals court dismisses the appeal because the ban's proponents lack legal standing,  Walker's ruling would become final unless the U.S. Supreme Court agrees to take up the case.

All people interested in marriage equality will be watching the 9th U.S. Circuit Court of Appeals arguments very closely in this case. It would sort of be unfortunate f the case was decided on a relatively abstruse legal point like standing, instead of the very importantfederal constitutional issues raised in Walker's District Court opinion of August 4.

Appellate Court Rejects Attempt To Force Prop 8 Appeal

Recall that earlier this week heterosexual supremacists from the Pacific Justice Institute sued the Governor and Attorney General claiming that they were trying to avoid a "constitutional crisis" by forcing these elected officials to appeal Proposition 8 in federal court, even though both men have declared their belief that the measure violates the U.S. constitution.

On Thursday came word that their lawsuit was summarily rejected. by the 3rd District Court of Appeals:

The institute said it would file an immediate appeal to the state Supreme Court in hopes of getting a reversal by Sept. 11, the deadline for state action in the Prop. 8 case.

"When the people peacefully enact a constitutional provision and the attorney general refuses to give them meaningful review in the federal judiciary, then you have a veto by the executive branch," said the institute's lawyer, Kevin Snider. "That is a constitutional crisis, usurping the power of the people."

The reason why this legal skirmish is important is that there is a very live question of who has "standing" (or legal authority) to appeal Judge Vaughn Walker's ruling declaring Proposition 8 violates the federal constitution. The 9th Circuit Court of Appeals will hear the appeal the week of December 6th.

Governator Nominates API Woman To Head CA Sup Ct

Governor Arnold Schwarzenegger has nominated 50-year-old Tani Cantil-Sakauye to replace California Chief Justice Ron George who announced he was retiring recently. Cantil-Sakauye's nomination would mean that the state's highest court would now have a female majority: Carol Corrigan, Kathryn Werdegar, Joyce Kennard and Tani Cantil-Sakauye.

The Los Angeles Times reported her reaction to the nomination:

"I have had the distinct pleasure of being a municipal court judge, a superior court judge and an appellate court justice," she said. "As a jurist, woman and a Filipina, I am extremely grateful for the trust Gov. Schwarzenegger has placed in me. I hope to show young people what they can achieve if they follow their dreams and reach for their full potential."

Cantil-Sakauye is a Republican of Filipino descent and has served as a Court of Appeals judge since 2005. She's married to a Police Lieutenant and has two daughters.